About this case:

• Citation:
  [2023] IECA 65
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Úna Ní Raifeartaigh

Delivering judgment in the matter, Ms Justice Úna Ní Raifeartaigh held that there was a real risk of an unfair trial as the accused was impaired in his ability to cross-examine the complainant’s evidence. The child’s evidence-in-chief had been video recorded but was four-and-a-half years old by the time of the trial. The court emphasised that it was in the specific circumstances of the case that the conviction should be quashed.

Background

In October 2016, the complainant, known as S, was six years old. She was playing with a friend, D, in D’s house along with her older sister. D’s mother and father were also in the house at the time.

The accused, D’s father, had been drinking very heavily while watching the All-Ireland Final in the bedroom. He eventually came downstairs. The children were having difficulty with a game on an iPad and, as D’s mother was busy cooking, the accused was asked to fix the iPad. He sat beside S and D while dealing with the iPad.

During this time of sitting next to S, it was alleged that the accused rubbed her leg. He then allegedly put his hand over her underwear and rubbed her privates for a few minutes. S reported this to her mother the next day.

The gardaí were immediately called and an investigation took place. The accused provided a voluntary interview where he denied the allegations. He provided detailed information of his movements on the day in question.

Further, in October or November 2016, two specialist interviewers attended S’s home. No notes were kept, with the event described as a “clarification meeting”. The failure to disclose this meeting would result in the collapse of the first trial of the allegations in October 2019.

The formal recorded interview with S was taken in December 2016 in which she alleged that the accused rubbed her leg and touched her privates. The accused was charged but a full hearing of the case did not take place until May 2021. This was because the first trial collapsed and the second trial was abandoned due to issues with Covid-19.

The accused was ultimately convicted of a single count of sexual assault. As part of the trial, the accused challenged the admissibility of S’s video-recorded evidence. It was said that there was a substantial risk that S was merely repeating what she saw on the recording, having regard to the passage of time, the child’s young age and the single-incident nature of the allegation.

The trial judge ruled that the evidence was admissible, essentially stating that it was a matter for the jury to deal with issues of delay.

Following the video recording being played for the jury, the child was cross-examined. She was 11 years old at this time and honestly stated that she could not remember the incident or the surrounding circumstances. She stated that she could only recall what was on the video, but she was adamant that the accused was “lying” that he did not touch her.

The accused appealed his conviction to the Court of Appeal. It was argued that the conviction was unsafe where he could not effectively cross-examine the child on the evidence-in-chief due to the child’s lack of memory of the incident.

Court of Appeal

Ms Justice Ní Raifeartaigh outlined the evidence of S, S’s mother and D’s mother, noting that there was very little dispute on the surrounding facts of the case. It was confirmed that the accused was in the room with S and D and that he sat beside both girls for a short period of time. However, the only evidence as to the sexual assault was from S.

The court then considered several authorities regarding the evidence of young children in sexual assault cases. English authorities emphasised the importance of bringing such cases to trial quickly without delay because young children were likely to forget or have their memories contaminated in a shorter period (R v. Powell [2006] 1 Cr. App. R. 31; R v. Malicki [2009] EWCA Crim 365).

It was noted that if a child was incapable of distinguishing between what was said on video and the underlying events, then the competency of the child to give evidence was doubtful (see R v. Barker [2010] EWCA Crim 4). It was also noted in People (DPP) v. T.V. [2017] IECA 200 that a child was more likely to accurately remember repeated or serious sexual assaults than more minor incidents.

The court also noted that, while the English system had introduced several reforms to allow very young child witnesses to give admissible evidence, it was not to say that the right to cross-examination had been “swept away”. Instead, it was about maintaining a “careful balance” between cross-examination and facilitating children in giving their best evidence (see R v. R.T. [2020] EWCA).

The court outlined the importance of cross-examination in the Irish legal system and said that the legislation which provided for children to give video-recorded evidence was not intended to impair cross-examination more than was necessary. Where delay occurred and a child had little or no recollection or events, cross-examination “loses its fundamental essence”.

Ms Justice Ní Rafeartaigh pointed out that these considerations did not apply to historic sexual abuse cases because all evidence was given at trial and the infirmities of memory did not benefit one side or the other.

In applying the law to the present case, the court held that it was not surprising that the S did not remember a single, brief incident from over four years previously. However, her evidence showed that her memory was “significantly impaired” and that she was relying on the video recording.

This lack of memory gave rise to a real risk of an unfair trial, having regard to the age of the child at the time of the allegations, the fact that the allegation was a single incident of touching and that there was no other supporting evidence of the alleged abuse.

The accused was entitled to explore whether the touching happened at all, which was the key point of dispute in the case. He was unable to explore this due to the lapse of time.

A warning to the jury did not guard against injustice where the jury could have been influenced by the video recording without adequate cross-examination.

Conclusion

In the particular circumstances of the case, the court quashed the conviction. The court commented that the decision was not to be taken as a bright-line rule on the lapse of time between video-recording and cross-examination or to the halting of a trial due to a child not remembering every detail of an incident. This case was unusual in its facts, the court said.

Finally, it was also said that there was nothing impermissible per se about allowing a child to view a video of their evidence before being cross-examined. Witnesses were allowed to refresh their memories and the issues in this case arose from the delay prior to trial.

The People at the Suit of the Director of Public Prosecutions v. M.T. [2023] IECA 65