THE LAW SOCIETY OF NEW SOUTH WALES AND THE CASE OF NORA WALL

[The following article by solicitor Greg Walsh is from the Journal of the Law Society of New South Wales for June 2006. Again it seems to indicate that the Nora Wall case is being taken more seriously in Australia than in Ireland. The piece on Nora Wall is part of a longer article "Criminal Law: Obligation is on prosecutors to disclose ? Compelling authority in sexual assault cases". The main article deals inter alia with the issue of "Recovered Memory". This kind of voodoo brain science seems to be taken seriously in Australia. In Ireland Nora Wall is the ONLY person to have been convicted on RM evidence.

Greg Walsh concludes that the decision of the Court of Criminal Appeal in December 2005 is recognised internationally as an important one that emphasises the fundamental duty of the prosecution to disclose evidence that relates to the reliability of witnesses. I know very well that historians of modern Ireland have ignored the Nora Wall case. Have Irish solicitors ignored it as well? Has the Law Society of Ireland published anything comparable to the Law Society of New South Wales article?

Regards

Rory Connor
14 October 2007]


Sister Dominica?s case ? Litany of non-disclosure in Irish rape trial

A RECENT DECISION of the Irish Court of Criminal Appeal (The People (Director of Public Prosecutions) v Nora Wall [2005] IE CCA 140) illustrates in very stark detail how easily a false allegation of sexual assault can be made, in this case against a former Roman Catholic nun who was initially convicted and sentenced to life in prison. The case has generated considerable interest overseas, and the appeal decision is now recognised as an important one that emphasises the fundamental duty of the prosecution to disclose evidence that relates to the reliability of witnesses.

Nora Wall, formerly a nun called Sister Dominica, faced a joint trial with Paul McCabe, a homeless and psychiatrically ill alcoholic, in which the pair were alleged to have raped the complainant.

A key prosecution witness, Patricia Phelan , gave evidence that she had observed McCabe raping the complainant, and that Sister Dominica was present holding down the complainant?s legs.

Due to the withholding of important information by the prosecution, including the investigating police, at the trial stage, it was not until appeal that the court heard a substantial body of significant evidence that had not been disclosed to the defence.

Concerning the complainant, Regina Walsh, the evidence that had not been disclosed to the defence included that she:

? had been diagnosed with a psychiatric illness and admitted to a psychiatric hospital and undergone treatment;

? had a recollection of events that arose as the result of ?flashbacks? and had no full memory or recall of those events;

? had previously made a false allegation that she was raped; and
had previously falsely alleged that she had been assaulted.

? Concerning the witness Phelan, the prosecution had failed to disclose that:

? prior to the trial, a direction had been made that she not be called as a witness as she was regarded as being unreliable;

? she had made allegations against her late uncle and another man over an alleged rape, and that the High Court had made findings adverse to her credibility and reliability;

? the police officer who had taken her statement in respect of the complainant was the same police officer who investigated the earlier false complaints made by her against her uncle;

? the DPP and the Chief State Solicitor had the carriage of the proceedings in the High Court in which the adverse findings against her had been made;

? subsequent to the conviction and sentence of Nora Wall, Phelan disclosed to another nun, Sister Mona Kileen, that she had lied in her statement and that she had given false evidence against the applicant;

? there was a strong risk of collusion between Phelan and the complainant Walsh.

In her further statement of 2 April 2001, Phelan in part stated: ?In the trial, held at the Central Criminal Court in Dublin, I gave evidence on oath in the complaint against Nora Wall and Paul McCabe. In evidence, I told the judge and jury that I saw Paul McCabe rape Regina and that Nora Wall was present holding Regina?s legs down. I gave other evidence but I cannot remember what. At the time I gave this evidence in court, I knew it was wrong and against the law but I just wanted to get back at Dominic (i.e. Nora Wall) I was also afraid to pull back on my evidence because I thought that once I had made a statement I had to give evidence in court. The reason why I wanted to get back at Dominic was because she used to physically beat me when I was living the Group Homes. She gave me a terrible life and I hated her. I remember ringing Sr. Mona Kilkeen. She was a good friend of mine for many years. It was during the trial, but I cannot remember much of the details.?

The Irish Court of Criminal Appeal found that a miscarriage of justice had occurred, and that there had been a serious breakdown in communications between the offices of the Director of Public Prosecutions, the Chief State Solicitor, the Gardia Siochana (police) and prosecuting counsel.

The court made particular reference to a file note contained within the file of the DPP which was in the following terms:

?Evidence of PP
Local gardai who have dealings with her during previous investigations have found her most unreliable. She never mentioned to the members anything about a rape at any time. Therefore her evidence should not be accepted as accurate.?

From the appeal bench, Justice Kearns found that ?there had been significant non-disclosure in this case, including (a) the information that Regina Walsh had made, but not pursued, an allegation of being raped in England, and (b) the non-disclosure of Regina Walsh?s very proximate and material psychiatric history? .

He also found that ?the applicant was further prejudiced during the course of her trial by evidence of which the defence had no prior notification, namely, that Regina Walsh recalled the alleged episodes of rape by reference to ?flashbacks and/or retrieved memory??, while there was ?no scientific evidence of any sort adduced to explain the phenomenon of ?flashbacks? and/or ?retrieved memory??.

GREG WALSH
Greg Walsh OAM is a Sydney solicitor, principal of Greg Walsh and Co.