By FRANCIS JOSEPH
A Test Case is coming up before the Judicial Committee of the Privy Council in London on November 2 where an alleged rape victim is suing the Attorney General for breach of her constitutional rights, including the delay in having the case determined within a reasonable time.
For obvious reasons, her name cannot be disclosed. But for purposes of the appeal, she will be referred to as FR.
The matter will be heard before Lord Reed, Lord Lloyd-Jones, Lord Leggatt, Lord Stephens, and Lady Simler.
Representing FR will be Douglas Mendes SC and Lee Merry SC, while Robert Strang and Rory Turnbull, appear for the Attorney General.
THE CASE
FR claims that she was raped on the 31st of March 2017 at the age of 16 and she later bore her attacker’s child. She attempted to commit suicide on several occasions after the attack. She started seeing a therapist at the Rape Crisis Centre and was also seen at the North Central Regional Health Authority and at the Mount Hope Women’s Hospital.
She was diagnosed with Post-traumatic Stress Disorder and Chronic Depression. Her alleged attacker was charged with the offence of rape on the 15th of October 2017. At the time of the filing of the constitutional proceedings on the 29th of November 2021, the preliminary inquiry had been ongoing for some four years and there had been 23 hearings at the Magistrates’ Court.
On the 20th of May 2022, while these constitutional proceedings were still pending in the High Court, the accused was committed to stand trial at the High Court. To date, more than four years later, no indictment has yet been filed by the Director of Public Prosecutions (DPP) as far as FR is aware.
As at the 31st of December 2021, there were 162 pending indictments for the offence of rape and there is likely to be significant delay (in excess of 10 years) between the filing of an indictment and the conclusion of the trial at the High Court, attorneys contend.
Expert evidence was adduced by FR. The expert concluded that FR is suffering psychological harm as a result of the delay in concluding the criminal proceedings. The expert found that the ongoing court proceedings were adding to her Post-traumatic Stress Disorder symptoms by re-traumatizing her in court and eliciting unwanted images and further, that attacks on her character in court were causing feelings of hopelessness, helplessness and acute fear.
The evidence of the woman, is that, prior to the attack, she never suffered from any mental health issues. Whenever the criminal matter comes up for hearing, FR cries both before and after court. Weeks before the court date, FR gets depressed and is unable to sleep.
FR says that dealing with the court is unbearable and she does not want to see the accused anymore. She feels like she is trapped and there is no way out.
THE HEARINGS
On the 29th of November 2021, the constitutional claim was commenced. FR sought declarations that her rights under section 4(a) and (b) of the Constitution were breached, an order of mandamus compelling the State to expedite the criminal trial and damages.
Relying on the expert evidence, the trial judge found that, while the damage of her psychological integrity stemmed from her alleged attack at the age of 16, it had been accentuated by the trauma from the ongoing court proceedings. She found that FR been subjected to victimization and re-traumatization in the proceedings.
While Madame Justice Avason Quinlan-Williams accepted that the victimization and re-traumatization of the victim was caused by the State, she declined to grant relief for infringement of section 4(a) of the Constitution on the ground that the legal system as a whole was fair.
In this regard, the legal system referred to comprised the office of the Director of Public Prosecutions, the Chief Magistrate and the Chief Justice, and that system was fair because the victim had options of making “appeals” to these officers to take action regarding the pace of the preliminary inquiry.
Additionally, the court found that the constitutional proceedings themselves provided a mechanism for FR to seek orders compelling the State to take measures to expedite the criminal proceedings. However, considering the law relating to children matters specifically (including the Children Act 2012, the Family and Children Division Act 2016), the trial judge declared that the failure to ensure that children matters are expeditiously concluded, constituted a breach of the constitutional rights of child victims of crime to the protection of the law guaranteed by section 4 (b) of the Constitution.
She accordingly issued an Order of Mandamus compelling the State to put mechanisms in place and allocate sufficient resources to ensure that the trial of the accused be completed expeditiously and further that the State provide the necessary physiological counselling for FR while the criminal proceedings were pending. Finally, the trial judge awarded nominal damages only in the sum of $60,000.
THE APPEAL
The AG filed a notice of appeal on the 19th of October, 2023. FR cross-appealed against the order granting nominal damages only. On the 23rd of February 2024, the appeal was heard by the Court of Appeal before Justices Mark Mohammed, Peter Rajkumar, and Maria Wilson.
On the 22nd of July 2024, the Court of Appeal allowed the appeal and dismissed the cross-appeal. The Court of Appeal found that the trial judge erred in attributing the entire period of delay, cancellations and postponements to the State.
FR goes to the Privy Council with 17 grounds of appeal.
