- 4 -
THE SUPREME COURT
McGuinness J. 285/04
THE DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT of Mr. Justice Hardiman delivered the 26th day of April, 2005.
This is the applicant’s appeal from the judgment and order of the High Court (Murphy J.) dated the 22nd March, 2004, whereby the applicant’s application to strike out a paragraph of the Statement of Opposition filed by the respondent, and certain parts of one affidavit filed on his behalf and the whole of another, was refused.
On the 14th November, 2001, the applicant was charged by the respondent with two counts of indecent assault on D. M, a male person, (born 1970) alleged to have taken place in January, 1988. He denies these allegations.
On the 11th February, 2002, the applicant obtained leave from the High Court to apply, by way of judicial review, for an order restraining the respondent from proceeding with the prosecution, essentially on the ground of delay. On the 31st January, 2003, the prosecutor filed a Statement of Opposition: at paragraph 3 thereof he states:
In support of this ground there was filed on behalf of the prosecutor an affidavit of Simon Wale, a chartered clinical psychologist, who is, amongst other things, a member of the Board of Management of the Rape Crisis Centre in Limerick, and a supervisor for that Body. He exhibited a 22 page report based on six “clinical interviews” with the complainant. His report is supportive of the prosecutor’s case.
“Insofar as there has been any delay in the making of the complaints as a result of which the applicant has been charged, that delay arises as a consequence of the effect of his acts upon the complainant and the reason why he failed to make an earlier complaint in respect thereof.”
On the 27th February, 2003, the applicant’s solicitor wrote to the Chief Prosecution Solicitor asking “whether the complainant in this matter would be willing to attend a psychologist nominated by us for the purpose of assessing him”. The Chief Prosecution Solicitor replied by fax on the 28th April, 2003, the day before the case was listed for mention before the Court. She said:
The applicant next applied by motion to take strike out the Statement of Opposition. In the affidavit grounding that application the applicant’s solicitor said that he consulted a psychiatrist who gave him certain advices as to alternative causes for those symptoms of the complainant relied on by the State to establish that the lapse of time in making the complaint was reasonable. The psychiatrist advised, however, “That it would be impossible to assess the actual cause without carrying out an independent assessment of the complainant” The Solicitor said that after the complainant’s refusal to be examined was communicated he took the advice of counsel who advised that “such an assessment is central to the determination of the issues and for the fair disposal of these proceedings”, and that “the refusal of the complainant to attend for independent assessment hinders and impedes unfairly the applicant in replying to the issues raised by the Statement of Opposition and in particular rebutting the finding that the delay on the part of the complainant in bringing the alleged offences to the attention of the authorities was reasonable”. It may be significant to note that the applicant’s contention, based on the advice of the psychiatrist retained by his solicitor, that it is impossible to assess the actual cause of the delay in bringing the complaint without an independent professional assessment of the complainant, has not been contradicted by or on behalf of the respondent.
“… The complainant in this matter has indicated to us that he is not willing to attend a psychologist nominated by you. We should be obliged if you could indicate your position in light of this information”. (Emphasis in original)
The High Court.
In the course of argument before the High Court the applicant’s position altered somewhat in that he no longer sought that the statement of opposition be struck out but only that paragraph 3 of the statement of opposition, paragraphs 6 – 17 of the complainant’s affidavit and the whole of the affidavit of Mr. Wale be struck out. These, indeed, appear to be portions of the pleadings and affidavits which rely on psychological expertise, although the relevant portions of the applicant’s affidavit consist in the main of statements of fact, albeit expressed in a manner which may, in part, reflect exposure to a psychologist.
In relation to the psychologist’s report the learned trial judge held:
The applicant’s case.
“… It does not seem to me that the Court should strike out the affidavit and therefore the comprehensive report contained therein which in turn is based on the papers before the Court and particularly a complaint of the complainant himself. Justice can be done in this case by cross-examining the psychologist on his own report and on such matters as malingering alcoholism etc. Moreover his report is based on the papers indicated and can be fairly, and to my mind sufficiently, tested in cross-examination without any further
examination of the complainant. In view of the above it would not be appropriate to strike out the impugned portions of the statement of grounds [of opposition]”.
The applicant says that the Director relies on the opinion of an expert psychologist which was itself formed on the basis of six lengthy “clinical interviews” over a period of some months. He too has consulted an expert, a psychiatrist, who is dubious about the testimony of the Director’s expert testimony but says that it is not possible to express a professional opinion on the cause of the complainant’s delay without a professional assessment of the complainant. This view has not been contradicted. Since the applicant will be damnified if the Director’s expert’s view prevails, he must have the opportunity, if possible, of countering it with another expert opinion, which requires assessment of the complainant by that expert. This opinion will be of assistance in cross-examining the prosecutor’s expert and in putting another professional view before the Court. If he is not permitted to do these things the Director’s expert, and therefore the Director, will be at a wholly unjustified advantage, and he at a wholly unjustified disadvantage, in fighting these proceedings. Both Irish law, in a series of cases from Re Haughey  IR 217 to Maguire v. Ardagh  1 IR 385 and the law of the European Convention of Human Rights, particularly in regard to égalité des armes, require that his right to fair procedures be vindicated by according him this examination. If this cannot be done because the complainant will not agree to it, the relief he seeks is necessary in order to deprive the prosecution of the illegitimate advantage which would otherwise accrue to them. He points out that in McGrory v. ESB  3 IR 407, the defendant in a personal injuries action sought and obtained a stay of proceedings until the plaintiff consented to allow his medical advisers to consult with the defendants’. This was on the basis that a plaintiff who sued for damages for personal injuries must be taken to waive his right to the privacy and the confidentiality which he would otherwise enjoy in relation to his medical condition. The law must ensure that he did not unfairly or unreasonably impede the defendant in preparing his defence by refusing to consent to a medical examination. The Courts have inherent jurisdiction to stay proceedings in such circumstances. The applicant says that if the jurisdiction can be exercised for the protection of a defendant in civil proceedings it must, a fortiori, be available for the protection of a person, like the applicant, at grave risk of his liberty and reputation.
The Director’s case.
The Director of Public Prosecution says that it is now “standard practice” in cases of this sort to have a psychological assessment of the complainant. He says that the assessment in this case was extensive, involving six interviews over a period of six months. He says that the report is that of an independent expert, who is not required or permitted to adopt a partisan role. He has a duty to be objective. Neither his independence nor his objectivity has been called into question. It is
“otiose” to seek a further independent assessment. The case it not on all fours with McGrory, because McGrory was a party to the proceedings whereas the complainant here is merely a witness. “… The appellant has no legal entitlement to have the complainant, who is a witness, and not a party to, these proceedings further assessed by a different psychologist. The appellant has been unable to point to any authority in this jurisdiction to support the proposition that a witness who was not a party to proceedings can be subjected to psychological assessment without his consent.”
The cases relied on by the applicant, says the prosecutor, merely establish a right to cross-examine, and this is not in dispute. The applicant can cross-examine the prosecutor’s psychologist, and can even give the documents to an expert of his own choosing to assist the cross-examination. He can “if necessary offer rebutting evidence in the form of a report furnished by a psychologist or psychiatrist who has examined the papers in the case”. (Emphasis added).
In the written submissions filed on behalf of the prosecutor it was also submitted that the Director of Public Prosecutions “is in a position entirely different from that of a private litigant who understandably has a partisan approach to litigation. His overwhelming commitment is to the public interest. It is submitted therefore that professional reports furnished on behalf of the respondent should be entitled to a presumption of objectivity, even aside from the fact that they are provided by experts whose duty, as already submitted, is to the Court”.
I understood this remarkable submission to have been withdrawn in the course of the prosecutor’s submissions on the hearing of this appeal.
The prosecutor further submitted that, even if the plaintiff or complainant may be regarded, to some extent, as having waived his right to privacy by instituting a complaint or civil proceedings “It has been accepted in other jurisdictions … that regard must be had to the complainant’s dignity privacy and security. The Courts have not hesitated to withhold some records on this basis. For instance, in
R. v. O’Connor  4 SCR 411, the Supreme Court of Canada adopted a balancing test, one of the factors in which… was to put into the balance was the potential prejudice to the complainant’s dignity privacy and security of the person that would be occasioned by the production of the record in questions”. It is submitted that a further assessment would amount to a disproportionate and unnecessary level of intrusion, heightened by the fact that the further assessment would be at the appellant’s initiative.
In relation to the applicant’s reliance on the European cases, the prosecutor says that the concept of equality of arms means only that each party must “have a reasonable opportunity to present his case under conditions which do not place him at a substantial disadvantage vis a vis his opponent”. (Emphasis in original) The prosecutor says that the emphasised adjective acknowledges the reality that full equality is seldom possible. Usually, the guarantee of equality is the right to confront and cross-examine, to put one’s case fully and to have advance disclosure of the evidence against one. These features are all present here, in the prosecution’s submissions.
Decisions on submissions.
I would first observe that, as the facts of and the decision in McGrory v. ESB suggest, it is not only common but routine for civil or criminal parties against whom expert or professional evidence is to be deployed to explore that evidence with the aid of experts retained on their own behalf, and where possible to counter it with the oral evidence of such persons. This is the case in ordinary personal injuries actions: these cases are clearly important in themselves and to the parties directly involved but do not typically threaten the individual defendant with loss of liberty and reputation and destruction of his career, which would certainly be the consequence of a conviction on the charges against this applicant.
In the ordinary personal injuries case, where the plaintiff is deploying expert opinion, it will usually be the opinion of a reputable medical, engineering or actuarial practitioner whose integrity and independence is rarely if ever in doubt. The employment of an expert on the other side is not posited on any doubts as to the competence or integrity of the plaintiff’s expert. It is done to ensure that everything is taken into account, to counter any unconscious sympathy with one’s own patient or client, to ensure that the latest techniques and interpretations are brought to bear, to detect any unwarranted assumptions or conclusions and to test and challenge the other side’s expert opinion insofar as that can properly be done. Moreover, the mere presence, actual or anticipated, of an expert on the other side provides a wholesome discipline. I would entirely reject the view, implicit in certain of the prosecutor’s submissions, that it is only where there is some reason to doubt the independence or objectivity of one side’s expert exists that the other has a right to deploy expertise of its own. I would still more emphatically reject the view, which I do not understand the Director of Public Prosecutions to persist in, that an expert called by him is entitled to some presumptive superior status. On the contrary, if there is one place everyone is equal, it is in a court of law and that applies even to the Director of Public Prosecutions or an expert retained by him.
Secondly, I wish to state what may appear obvious: that where there are conflicting views of a psychological or psychiatric nature as to why a particular person behaved in a particular way, an expert who has seen and assessed the person in question is at an enormous advantage over an expert who has not done so. According to the Director’s written submissions, it is standard practice for him to employ an expert to provide an independent assessment of the reasons for delay in complaining in sexual cases. The particular expert employed to assess this complainant required six interviews over a period of six months, as well as other investigations, before he could furnish an opinion. To suggest, as the Director does, that this could be countered by “rebutting evidence in the form of a report furnished by a psychologist or psychiatrist who has examined the papers in this case” – is in my opinion absurd. The Director has not been able to contradict the applicant’s assertion “that it would be impossible to assess the actual cause [of delay] without carrying out an independent assessment of the complainant”.
The law. It was common case that the applicant is entitled to fair procedures and in particular to the “minimum protection” identified by Ó Dálaigh C.J. in Re Haughey  IR 217:
(c) That he should be allowed to give rebutting evidence,
“(a) That he should be furnished with a copy of the evidence which reflected on his good name,
(b) That he should be allowed to cross-examine, by counsel, his accuser or accusers,
(d) That he should be permitted to address, again by counsel, the committee in his own defence.”
Ó Dálaigh C.J. continued that without these rights:
In O’Callaghan v. Mahon and Ors. (Supreme Court unreported, 9th March, 2005), I said:
“… No accused … could hope to make any adequate defence of his good name. To deny such rights is, in an ancestral adage, a classic case of clocha ceangailte agus madrai scaoilte, Article 40.3 of the Constitution is a guarantee to the citizen of basic fairness of procedures. The Constitution guarantees such fairness and it is the duty of the Court to underline that the words of Article 40.3 are not political shibboleths but provide a positive protection for the citizen and his good name.”
“A major issue in civil and criminal procedural law is the extent to which either side must make disclosure to the other. This has led to the development of an impressive body of jurisprudence both in the United Kingdom and in Strasbourg. The latter has significantly influenced the former and will no doubt influence our jurisprudence too, in particular through the concept of “égalité des armes”, which might be regarded as the opposite of that state of imbalance and disadvantage described by Ó Dálaigh C.J. as clocha ceangailte agus madraí scaoilte.”
The point here is that égalité des armes is not a new concept but rather a new and striking expression of a value which has long been rooted in Irish procedural law. In Steel and Morris v. United Kingdom (ECHR, unreported 15th February, 2005), the European Court of Human Rights said:
At paragraph 61, addressing the question of legal aid, the Court went on:
“The adversarial system… is based on the idea that justice can be achieved if the parties to a legal dispute are able to adduce their evidence and test their opponent’s evidence in circumstances of reasonable equality… the Court recalls that the Convention is intended to guarantee practical and effective rights. This is particularly so of the right of access to court in view of the prominent place held in a democratic society by the right to a fair trial (see the Airey v. Ireland judgment of 9th October, 1979). It is central to the concept of fair trial in civil as in criminal proceedings that a litigant is not denied the opportunity to present his or her case effectively before the Court and that he or she is able to enjoy equality of arms with the opposing side…”.
(Paragraphs 50 and 59).
Applying the law to this case.
“The question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend inter alia on the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant’s capacity to represent himself or herself effectively.”
In the present case, the importance of what is at stake for the applicant could scarcely be greater. The need for professional input is demonstrated, conclusively it seems to me, by the Director’s statement that it was now “standard practice” for him to order an independent assessment for the effective discharge of his functions: it can scarcely be less necessary for the applicant.
Having regard to the central position in the Director’s case of the contention that any delay is the result of the applicant’s own acts, so that he cannot rely on it, it is imperative for the applicant to rebut that proposition if he can. Since the proposition is sought to be established by the Director on the basis of professional evidence it must, realistically, be countered with professional evidence. In my view, the disadvantage to a professional witness in not having personally assessed an individual whom the other side’s expert has assessed six times over six months is so great that it deprives him of the opportunity “effectively” to present his case through an expert, to use the language of paragraph 59 of Steel and Morris. It also deprives him of the third of the Re Haughey rights – to be allowed to give rebutting evidence – since it is undisputed that no such evidence can properly be formulated without an assessment of the complainant.
I also consider that a refusal of access to the complainant for the applicant’s expert subverts the right to cross-examination. Oral contradiction in a public forum is the culmination of the work of the cross-examiner but it is by no means the whole of it. All effective cross-examinations, not least of expert witnesses, are the result of intensive preparation. It is of the essence of the right to cross-examine that the cross-examiner, the advocate selected by the person impugned, should have access to the materials for cross-examination. Study and assessment of these materials is a vital part of the process of cross-examination. It is also a vital factor in the formulation of the advice an advocate gives to his client. In a case with a significant issue of expert evidence this process of preparation will take place in consultation with the party’s own expert. If this expert is at a disadvantage vis a vis with the other side’s expert, counsel will be at a disadvantage in conducting the cross-examination. It is devastating to an opponent for an expert to be able to reply to a proposition put to him in cross-examination “I saw this person six times over six months and had every opportunity to form an accurate assessment of him. That proposition is a purely theoretical one formulated by a person who never saw the complainant at all”. It is simply not possible to deny that an expert who can say this is at a huge advantage over his colleague. It would be gross negligence for a Solicitor, advised as this Solicitor has been, not to endeavour to put in place assessment facilities for his own expert.
“Complainant a non-party”.
The Director relied to a significant extent on the proposition that the complainant was not a party either in these proceedings or in the criminal trial. This, indeed, is the basis of his distinguishing McGrory and the line of authority cited there. But the plaintiff is plainly not in the position of an ordinary third party witness who merely gives the Court the benefit of his testimony from a position of indifference as to which side wins or looses. He is the person who, by his complaint, set the wheels of the law in motion against the applicant.
The essence of the tort of malicious prosecution is the institution of unsuccessful criminal proceedings by the defendant maliciously and without reasonable cause. But it has been held for centuries that the requirement of “institution” is satisfied by being actively instrumental in putting the law in motion: see McMahon and Binchy “Irish Law of Torts”, 2nd edition, page 677, and the cases cited there. It is sufficient if the defendant has signed a complaint and indicated that he was willing to go to court and testify against the accused. This, it seems to me, is precisely what the defendant did here when he went into the garda station and made and signed the statements exhibited in these proceedings. Because the Director of Public Prosecutions or, occasionally, another public official, has a monopoly of prosecutions on indictment in Ireland, the complainant in such a case never functions as the prosecutor. Nevertheless, the law of tort acts realistically in regarding the complainant as the institutor of criminal proceedings and I believe that he should be so regarded for the purpose of this litigation as well. As such institutor, his position is far more closely analogous to a plaintiff in civil proceedings than to a witness who just happened to be there. By setting the criminal law in motion he plainly forfeited a degree of privacy, although in many situations his identity will be protected from disclosure to the public at large. A person accusing another of an offence involving disgrace, loss of liberty, loss of reputation and professional oblivion, cannot expect to control the degree to which relevant information about him will be shared with the person whom he accuses. He is not merely the institutor of the proceedings: he is himself the object of the alleged offence. His veracity and accuracy is central both to the criminal proceedings and to the contention at the centre of the case against the applicant’s claim for judicial review.
The foregoing, indeed, follows from the ratio of McGrory v. ESB. In that case Keane C.J. having isolated the principles applied in other jurisdictions continued:
“Those principles, which have been adopted by courts in other common law jurisdictions, should also in my view be adopted in our jurisdiction. The plaintiff who sues for damages for personal injuries by implication necessarily waives the rights of privacy which he would otherwise enjoy in relation to his medical condition. The law must be in a position to ensure that he does not unfairly and unreasonably impede the defendant in the preparation of his defence by refusing to consent to a medical examination.
I have no doubt that the courts enjoy an inherent jurisdiction to stay proceedings where justice so requires and that it should be exercised in cases where the plaintiff refuses to submit to a medical examination or to disclose his medical records to the defendant or to permit the defendant to interview his treating doctors. I would accordingly allow the appeal and substitute for the order of the High Court an order staying the proceedings until such time as the plaintiff consents to the defendant’s medical adviser consulting with his medical advisers.”
In the present proceedings the Director has advanced no principled reason why a defendant in criminal proceedings should be less favourably treated than a defendant in civil proceedings. He says however that a further examination would be “otiose” since the complainant has already been examined by a reputable and independent expert. I take this word to mean something in the nature of pointless, superfluous or surplus to requirements. On that basis, I cannot agree that a second expert examination would be otiose. If that contention were correct, it would mean that every examination of the plaintiff in a personal injuries action is otiose, unless the plaintiff’s own expert is incompetent or biased. That is not so. Even where the result of a defendant’s expert examination agrees precisely with that of the plaintiff, it fulfils an important function. A party is much more likely to accept any particular proposition from his own expert than from the other side’s: if he finds that they are in agreement the usual effect is to encourage either a settlement of the proceedings or at least a limitation of the scope of what is in dispute. It was for this reason, indeed, that the High Court in McGrory held the defendant to be entitled to such examination even before pleadings had closed.
Dignity, privacy and security.
The Director also objected to the examination on the ground that it failed to respect the complainant’s rights to dignity, privacy and security, all the more so because it would be carried out at the applicant’s request.
I would be reluctant to say that there could never be a case where a requested examination could be refused because, in effect, it was oppressive. But this is not such a case. Indeed, the complainant himself has sworn an affidavit in the proceedings and could have made another if desired and has not made the case that the proposed examination would be excessive, unduly intrusive or objectionable in any of the ways mentioned in the Director’s submissions. The submissions on this point are thus purely speculative or theoretical and no factual showing at all has been made by him on this topic. In any event, the examination would be carried out by a qualified and reputable person, presumably either a psychiatrist or a psychologist, who will have precisely the same professional obligations of confidentiality independence and impartiality as the Director has claimed for his expert. Obviously, it would be a valid ground for objecting to an examination if the proposed examiner were not reputable or in good professional standing, but that is not the ground of objection here. I believe that all of the Director’s submissions can be reduced to the same proposition: the complainant has already been examined by one expert, admittedly retained by the prosecution, and there is no need for, and no right to, an examination by another person. This is inconsistent with the general law applied to expert examinations, as demonstrated above. It also involves in one way or another placing the prosecution’s expert (because he will always be the first employed) in a position superior to the defendant’s. This I believe to be inconsistent with the right to fair procedures and with the jurisprudence of the ECHR.
In Bonisch v. Austria  9 EHRR 191 it was held that:
Bonisch was a case where an undoubtedly reputable person, the Director of the Federal Food Control Institute, had been appointed an expert by the Court for the purposes of a food hygiene prosecution. The consequence of this appointment that he was “formally invested with a function of neutral and impartial auxiliary of the Court”. Once this status attached to him, there was by Austrian law only limited scope to hear another expert and even if he were heard, he was not accorded the status of the Court appointed expert. All this was found to be in breach of Article 6(1) of the Convention. The Court held:
“The principle of equality of arms inherent in the concept of a fair trial requires equal treatment between a court appointed expert and witnesses for the defence”.
In these proceedings there is no doubt that Mr. Wale is called by the party antagonistic to the applicant. There is, therefore, a positive requirement that he be treated in the same way as an expert who may be called for the applicant. Permitting to one, and refusing to the other, the power to make the essential assessment of the complainant cannot be described as equal treatment. If the complainant will not consent to the assessment, the prosecution must suffer the loss of the unfair advantage which should otherwise accrue to them.
“It is easily understandable that doubts should arise, especially in the mind of an accused, as to the neutrality of an expert when it was his report that in fact prompted the bringing of the prosecution. In the present case, appearances suggested that the Director was more like a witness against the accused. In principle, his being examined at the hearings was not precluded by the Convention, but the principle of the equality of arms inherent in the concept of a fair trial and exemplified in paragraph 3(d) of Article 6 required equal treatment as between the hearing of the Director and the hearing of persons who were or could be called, in whatever capacity, by the defence”.
The specific guarantee contained in Article 6(3)(d) – which applies to civil as well as criminal litigation – is as follows:
I would add, firstly, that the provisions of Article 6 are also, and obviously, fatal to the abandoned argument that an expert called on behalf of the Director of Public Prosecutions should be accorded some presumptive superior status. I believe the Director acted very wisely in withdrawing this contention. Secondly, I have addressed this case, in part, in terms of the jurisprudence on the European Convention on Human Rights out of deference to the arguments addressed to the Court on that basis and to the aptness of certain of the citations. I do not believe, however, that the Convention in this instance supplies rights lacking in the constitutional regime of trial in due course of law: I am quite satisfied that the same rights are afforded by domestic law. Indeed, the fact that a right to independent examination of a plaintiff, under pain of the staying his proceedings if refused, has been established in civil proceedings seems to me to demonstrate this.
“To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”.
For the reasons set out above I would strike out paragraph 3 of the respondent’s Statement of Opposition and the affidavit of Simon Wale and the exhibits thereto. I would hear further submissions from counsel in relation to paragraph 6 – 17 of the affidavit of the complainant because I believe that large portions of this material, at any rate, might be described as pure narrative. I would add that, although not relevant to the issues raised on this motion, paragraph 7 of the affidavit of Gerard McCarthy filed on behalf of the respondent appears to contain, exclusively, irrelevant and prejudicial material.
JF & DPP