therapy notes
The prosecution did not consider the counselling notes relevant to the case – but the defence wanted them to be used.
Jane Moore
GEORGE GIBNEY’S LEGAL team sought counselling notes of the four complainants who accused him of sexually abusing them in the 1970s and 1980s before his trial began.
It came against the backdrop of the government working to introduce reforms to restrict the disclosure of such notes in criminal trials.
Survivors of sexual abuse had long campaigned for the practice to be stopped, describing how traumatising having their personal therapy notes read by their abuser was, while advocacy groups reported that some survivors avoided counselling altogether out of fear that their records could be used against them in a trial.
But despite the new reforms on how the notes can be used in the future, their disclosure was still being sought in the courts before this change.
The 78-year-old former swimming coach was found guilty of 39 counts of indecently assaulting four complainants and one count of attempting to rape one of them at the Central Criminal Court on 6 July.
The offences occurred at a number of locations in south county Dublin between 1971 and 1981. The complainants were aged between eight and 15 at the time.
Today, he was sentenced to 15-and-a-half years in prison.
Two months before his trial began at the Central Criminal Court, a disclosure request from the defence related to the counselling notes was heard in court.
At the pre-trial hearing, prosecution counsel James Dwyer SC told Mr Justice Paul Burns that three of the four complainants had undergone counselling.
“That fact has been disclosed, but no more,” he said, telling the court that none of the three wanted to consent to having their notes given to the court.
He said the defence had sought the records on the basis of the reliability of the women when they made their complaints. Citing a previous case, Dwyer said there must be a “compelling reason for disclosure” and the fact that a complainant sought counselling or the possibility of finding inconsistency “will not suffice”.
He said the prosecution did not consider the records relevant to the case after reading them.
“We say the accused has not set out a basis which would require us to seek out and preserve this material,” he said, adding that there was “no basis for the application to be made at all”.
Patrick Gageby SC, for Gibney, told the court that what was unusual about the case was the “lengthy delay” in the complainants reporting the alleged offences to gardaí, and the fact that some of them spoke to gardaí around the time that a podcast about Gibney which achieved a “certain degree of notoriety” was released.
This was the award-winning BBC and Second Captains podcast ‘Where Is George Gibney?’, which looked at the historic allegations against him and tracked him to the US.
Gageby said he only mentioned the delay “because this case will involve an extremely old series of allegations” and that reasons for the delay “are quite possibly important aspects” because the judge has to ensure that the accused has a right to a fair trial.
He said the delay coupled with the podcast indicated “very clearly” that there were issues in consistency and inconsistency, and that Gibney had a right to establish inconsistency in the complaints.
Mr Justice Paul Burns said it was “not sufficient” to seek records in the hope of finding inconsistency. “There has to be something more than a mere possibility,” he said.
Eventually, the court ruled that the counselling notes could be admitted and a small portion that was considered relevant was handed over to the defence.
However, the notes were never explicitly referenced during the trial. Gageby made a passing mention to “medical records” while he was cross-examining one of the complainants, but it is unclear whether this was a reference to counselling notes.
The Dáil approved amended legislation to restrict disclosure of counselling notes in criminal trials to the maximum extent possible on 15 July – a little over a week after Gibney was convicted.
According to the Department of Justice, the new default position will be that counselling notes will not be disclosed in a case unless a judge, after examining them, believes they are likely to be relevant to an issue at trial and there would be a risk of an unfair trial in their absence.
Minister for Justice Jim O’Callaghan said the same protection is applied to other victims’ records containing sensitive personal data, such as medical records and child protection records.
The attorney general had advised the government that a complete ban would be in breach of a person’s right to a fair trial and the presumption of innocence under the Constitution.
After the legislation passed all stages of the Oireachtas, O’Callaghan said:
“I am aware that the disclosure of counselling notes can cause deep distress to victims and survivors of sexual violence. The government is committed to minimising intrusion into victims privacy to the greatest extent possible.”