About this case:

• Citation:
  [2023] IECA 85
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Isobel Kennedy

However, the court held that the boy’s evidence under cross-examination established that the offending had not in fact occurred. Accordingly, this was not a case where there were mere inconsistencies in the evidence. Although the withdrawal of a case from the jury was an exceptional outcome, it was appropriate in this case based on the evidence.

Background

The accused was a man employed as a childminder. He was employed to look after two brothers between December 2019 and April 2020. The accused had initially minded the boys at their home but, following the onset of the pandemic, he minded the children at his house while his parents worked from home.

In April 2020, the parents terminated the accused’s employment after one of the children (the complainant) told them that the accused had shown him a video clip of a child being hit on the bottom by a leather belt. The complainant was seven years old at the time.

In May 2020, the complainant demonstrated sexualised conduct which he alleged was shown to him by the accused. The conduct involved moving his hand up and down his penis and, further, lying on his mother and rocking his hips back and forwards.

In a Child Specialist Interview with gardaí, the complainant described how the accused would lie down and the complainant would move backwards and forwards on top of him. There were also allegations that the accused had rubbed the complainant’s penis over and under his clothing. It was said that this happened often.

During the trial, the complainant was cross-examined by counsel for the accused. Although the complainant recalled certain matters with clarity (such as his previous childminder, the accused’s malodorous feet and going to the toy shop with the accused), he could not provide clear evidence of the alleged offending.

It transpired that the child had autism and ADHD which gardaí were not aware of during the CSI. It also came to light that the complainant had some difficulties with toileting and had accidents occasionally. It was put to him in cross-examination that the accused had been describing being cleaned after his toileting accidents.

The complainant accepted that he may have been describing a “wee-wee accident”. He also accepted that he would play with the accused and his brother, which included jumping on the accused.

Further, when asked if the complainant remembered the accused touching his penis, the complainant replied “no”. He also said he could not remember moving back and forth on the accused’s lap.

When asked by the judge if he had any memory of other matter which arose in the CSI, the complainant replied “no” or “I’m not sure”.

Court of Appeal

At the close of the prosecution’s evidence, the accused’s counsel made an application for a direction of not guilty based on the second limb of the Galbraith principles (R v Galbraith [1981] 1 WLR 1039). This application was refused and the accused was convicted. He appealed the decision.

Delivering judgment in the case, Mr Justice Isobel Kennedy began by outlining the Galbraith test. It was noted that a court should only removed a case from a jury if there was no proper evidential basis on which a conviction may be made. In general, vagueness or significant weakness in evidence was a matter for the jury (see The People (DPP) v. M [2015] IECA 65).

The court considered the cross-examination of the child complainant and stated that questions should be short, simple and without repetition. Further, a judge must carefully guard the interests of the child while ensuring a fair trial occurs.

In the present case, counsel and the court were “at pains” to ensure the rights of the child were met. The real issue was whether the child’s evidence negatived the allegations.

The court commented that it was an unusual case in which the complainant could recall many details of his care, but was completely vague in relation to the allegations. The court observed that this was not a case of defective memory, but an absence of clarity as to whether the offending occurred at all.

The court was critical of the manner in which some questions were asked of the child. For example, the child was asked if the accused had ever touched his penis “that you can remember?”. This could potentially have confused the young child as it was not clear if the child was answering if the accused touched his penis, or that he could remember the accused touching his penis.

However, the method for correcting this issue was re-examination which was especially important for child witnesses giving direct evidence by video recorded interview. Difficulty in recall was not unusual and each case was dependent on its own facts and circumstances.

Having carefully considered the transcript, the court was satisfied that the complainant’s answers related to whether the allegations had occurred at all. This was therefore an exceptional case where the answers of the complainant established that the offending did not occur and, accordingly, it was appropriate to withdraw the case from the jury.

The court emphasises that if the child had only outlined that he was unsure of the allegations, this would not necessarily have resulted in a direction. Instead, it was the uncertainty coupled with his responses of “no” which required a direction.

Conclusion

The court held that there was an error in principle in refusing to direct an acquittal in the matter. As such, the appeal was allowed and the conviction was quashed.

The People (DPP) v. MB [2023] IECA 85