The High Court has quashed an order allowing two complainants to give evidence by live video link in a pending sexual-offence prosecution, finding that the order put the accused at risk of an unfair trial. It remitted the application to the Circuit Court for a rehearing.
The judgment, delivered by O’Neill J. on 17 December 2009, concerns five alleged offences under section 5 of the Criminal Justice (Sexual Offences) Act 1993. Four allegations relate to A.O’D. and are said to have occurred at the applicant’s home in a Dublin suburb in 2002 or 2003. The fifth concerns her sister, V.O’D., and is alleged to have occurred in Cork in 2002. The applicant intends to contest at trial whether the complainants meet the statutory definition of mental impairment. These are allegations, not findings in the judgment.
The Circuit Court had granted the prosecution’s application under section 13(1)(b) of the Criminal Evidence Act 1992 for the complainants to testify by video link. The applicant argued that jurors could take the use of video link as implying that the women were mentally impaired, prejudicing the defence on an issue the jury would have to decide. The prosecution said the application had been made under that provision to avoid a determination of mental impairment and argued that a jury direction could address any risk.
The High Court rejected that proposed safeguard as unsatisfactory. It said the video-link order carried a real risk of unfairness because jurors might infer that the complainants were being allowed to testify remotely because of mental impairment. The court considered that a direction or prosecution explanation could not reliably remove that implication.
The judgment set out the test for a video-link application where that serious risk cannot be cured: the court must be satisfied by evidence that requiring ordinary in-person testimony would probably deter the witness from giving evidence at all, or leave the witness unable to do justice to their evidence. The court described this as a high threshold. Discomfort, unpleasantness or inconvenience alone would not meet it.
The High Court found that the Circuit Court judge had relied on matters including the relationship between the parties, assessment reports, and domestic or work-related inconvenience without expressly addressing whether either complainant could give evidence in person. The reports’ conclusion that video testimony would be “advantageous” did not establish the required incapacity or likely deterrence.
The High Court granted certiorari, quashing the 20 February 2009 video-link order, and remitted the application for rehearing. It did not determine the criminal charges or whether the complainants are mentally impaired.