Court of Criminal Appeal dismisses appeal against conviction for sexual assault, upholding jury charge on corroboration warnings.

THE COURT OF CRIMINAL APPEAL

Macken, J. [No. CCA 200/08]

Bermingham, J.

O’Keeffe, J.

Between/

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

-and-

MICHAEL O’BRIEN

Applicant

Judgment of the Court delivered on the 28th day of October, 2010 by Macken, J.

This is an application for leave to appeal against conviction, brought on behalf of the applicant, who was convicted at Dublin Circuit

Criminal Court on the 6th November, 2007, in respect of several charges of sexual assault against two young girls, who were sisters.

The applicant was sentenced to lengthy periods in respect of the offences. There is also an appeal against sentence, but that

application has been adjourned, in the usual way, pending the outcome of this application.

Notice of application for leave to appeal was filed on the 8th October, 2008, and included several grounds of appeal. Very helpful

written submissions were filed on behalf of both parties prior to the oral hearing. Some of the grounds in the written grounds of appeal

originally filed on behalf of the applicant were already notified to this Court as not being relied on, which was of considerable

assistance to the Court. Of the extant grounds, several arise out of the same provisions of law, namely, those in the Criminal Justice

Act 2006 (“the Act of 2006”), and can be described, in general, in the following terms:

(1) [Grounds 3, 4, 5, 6, 7 and 8]

The learned trial judge erred in fact and in law, or on a mixed question of fact and law, in his interpretation and

application of the provisions of s.16 of the Act of 2006, in particular, on the issue of the reliability of the statement in

question and on whether it was voluntarily made.

(2) [Ground 12]

The learned trial judge erred in fact and in law, or on a mixed question of fact and law, in failing to warn the jury, whether

adequately or at all, of the danger of convicting the applicant on the evidence of the complainants, in the absence of

corroboration of the events.

Background Facts

To understand the context in which the extant grounds of appeal arise, it is necessary to say something about the background to the

issues arising at the trial and as to the manner in which the complaints came to light and were noted and assessed. The appellant had

been charged with several counts of sexual assault occurring over a number of years in respect of his two daughters. The two

children were M, who was aged nine at the time of the trial, and K, aged eight at the time of the trial, and the events took place on

several dates up to the time when the first child was about six and the other child about five, when the claims came to light. Both

complainants made statements in respect of the alleged assaults.

During the course of the trial K, the younger of the two girls, gave evidence in broad terms in accordance with her previous

statement of intended evidence in the Book of Evidence. However, M, the older girl, gave evidence which, after argument, was

deemed by the learned trial judge to be “materially inconsistent” with pre-trial statements made by her. The prosecution thereupon

sought permission to introduce a pre-trial statement which existed, pursuant to the provisions of s.16 of the Act of 2006, a recently

introduced provision which provides for this to occur in certain circumstances. This statement consisted of, or certainly included,

video recorded interviews which had been conducted between M, the complainant, and a psychologist, Dr. O’Sullivan, shortly after

the complaints had been made by the children’s mother to An Garda Síochána. These video recorded interviews had already been

made available to the defence prior to the trial. The material also included a short memo of an interview with the complainant taken or

noted by Garda Larraine Fahey. The introduction of the video material was objected to by counsel on behalf of the applicant.

A lengthy voir dire ensued, extending over six days of evidence and legal argument. In the course of the voir dire the video tapes

were viewed by the learned trial judge, and several witnesses gave evidence and were cross-examined as to the circumstances of

the conduct of the interviews, including the child’s mother, her grandmother, the interviewing psychologist and the observer on behalf

of the Health Service Executive (“HSE”) who was present at the interviews. During the course of the voir dire the complainant, M,

was recalled and questioned by the prosecution about inconsistencies between her oral evidence and the videotaped material. She

was not cross-examined. At the end of the foregoing the learned judge received written submissions, and entertained oral argument

from counsel on behalf of the prosecution and the defence in respect of the issues arising under this relatively new provision. The

learned trial judge deferred making his ruling on the voir dire over a bank holiday weekend, and thereafter ruled that the pre-trial

material in respect of the complainant, M, should be admitted, pursuant to the provisions of s.16 of the Act of 2006. Thereafter, the

videotaped material, consisting of recordings of interviews with M, were introduced before the jury, and the witness, M, was made

available or proffered to the defence for cross-examination. She was not cross-examined.

Apart from the foregoing evidence - which was the subject of the lengthy voir dire - further evidence was made available, and insofar

as this appeal is concerned, it consisted of the evidence of a Dr. Daly. She gave evidence that upon physical examination there was

chronic penetrative vaginal abuse, not only of the witness, M, but also of her sister, K. This medical evidence, if accepted by the

jury, supported the fact that sexual abuse of each child had taken place, although of course it did not in any way point to, or

identify, the party committing that abuse.

The Statement and the Trial Judge’s Findings

Although both parties considered that it might be appropriate for this Court to view the video recorded material which was the

subject of the voir dire, for the reasons set out later in the judgment, the Court did not find it necessary to do so. It is no part of

this appeal that the trial judge’s decision to admit the evidence was based on a perverse, or irrational, view by him of the video

material.

The complaints were originally made when, according to the evidence of her mother, the younger complainant, K, disclosed

information concerning the activities of the child’s father, whereupon the mother immediately made a complaint to the gardaí on the

15th November, 2004. Both complainants were brought to hospital for examination on the same day. At that time the two

complainants, their mother and the applicant were living as a family in the family home.

The second complainant, K, gave evidence of what had occurred between her and her father, which as previously mentioned, was in

accordance with her pre-trial intended statement of evidence. In the course, however, of the evidence of M, the older complainant,

she made no reference to complaints of the type that had been made by her in the course of the video interviews prior to the trial, or

any material reference to matters clearly mentioned and explored in the interviews. Thereafter, the voir dire took place.

In his ruling on whether or not the statements could be considered to be both voluntary and reliable, as required by the Act of 2006

to be established, the learned trial judge found as follows:-

“In reaching this conclusion, I have had regard to what I have seen and what I have heard on the tapes, including the

witness’s demeanour at the time of interview. She presents as a bright, bubbly, intelligent girl, and cheerful. A girl who

knows her own mind and is not open to suggestion. The child was aware and understood the questions asked. If she did

not understand she asked for an explanation. And if the question was repeated she remembered having been asked that

question before.

I am satisfied that what is contained in the interview has been volunteered by way of childish narrative and has not been

induced or coaxed in any way or as a result of leading questions …

…

Are the statements reliable, the next question the court must ask itself? The court is lucky to be assisted as regards the

voluntariness and reliability of the statements in that, with the exception of the memo taken by Garda Fahey, the other

interviews were videoed so the court has had direct visual and audio evidence upon which it can rely. [While] the

interviews were not preceded or prefaced by asking the child such questions as to the meaning of telling the truth, or

what would happen if the truth was not told? Or in the case of an adult a caution being administered or obligations put

pursuant to the Statutory Declaration Act. Nonetheless, I am satisfied, having seen the video, that the evidence

contained therein is reliable and indeed, furthermore, I am guided in that by the evidence given by Dr. O’Sullivan as to

the results of her clinical examination that the child, and I quote from her, “comes across as a very credible child”. And

then the doctor went on to say “while guarded she did develop a narrative credible of her disclosure”.

In addition, I am satisfied that from the way she answered questions put to her, that she was not open to suggestion

and the fact that her story was constant over a number of interviews, which interviews were interspaced between

December and January, that she was telling the truth and that she knew that she should tell the truth …”

It is from that ruling that the application for leave to appeal against conviction must be assessed.

Before considering the arguments of the parties, s.16 of the Act of 2006, being pivotal to these, provides as follows:

“16.(1) Where a person has been sent forward for trial for an arrestable offence, a statement relevant to the

proceedings made by a witness (in this section referred to as “the statement”) may, with the leave of the court, be

admitted in accordance with this section as evidence of any fact mentioned in it if the witness, although available for

cross-examination—

(a) refuses to give evidence,

(b) denies making the statement, or

(c) gives evidence which is materially inconsistent with it.

(2) The statement may be so admitted if—

(a) the witness confirms, or it is proved, that he or she made it,

(b) the court is satisfied—

(i) that direct oral evidence of the fact concerned would be admissible in the proceedings,

(ii) that it was made voluntarily, and

(iii) that it is reliable,

and

(c) either—

(i) the statement was given on oath or affirmation or contains a statutory declaration by the witness

to the effect that the statement is true to the best of his or her knowledge or belief, or

(ii) the court is otherwise satisfied that when the statement was made the witness understood the

requirement to tell the truth.

(3) In deciding whether the statement is reliable the court shall have regard to—

(a) whether it was given on oath or affirmation or was video-recorded, or

(b) if paragraph (a) does not apply in relation to the statement, whether by reason of the circumstances in which

it was made, there is other sufficient evidence in support of its reliability,

and shall also have regard to—

(i) any explanation by the witness for refusing to give evidence or for giving evidence which is

inconsistent with the statement, or

(ii) where the witness denies making the statement, any evidence given in relation to the denial.

(4) The statement shall not be admitted in evidence under this section if the court is of opinion—

(a) having had regard to all the circumstances, including any risk that its admission would be unfair to the accused

or, if there are more than one accused, to any of them, that in the interests of justice it ought not to be so

admitted, or

(b) that its admission is unnecessary, having regard to other evidence given in the proceedings.

(5) In estimating the weight, if any, to be attached to the statement regard shall be had to all the circumstances

from which any inference can reasonably be drawn as to its accuracy or otherwise.

(6) This section is without prejudice to sections 3 to 6 of the Criminal Procedure Act 1865 and section 21 (proof by

written statement) of the Act of 1984.” (emphasis added)

The Arguments of the Parties on s.16 of the Act of 2006

The applicant’s major argument centres around the claim that the learned trial judge erred in law in his interpretation and application

of the provisions of s.16(1) of the Act of 2006, in that: (a) the witness did not come within the terms of the section at all, because

she did not give evidence “materially inconsistent” with her prior statement; (b) there was inadequate, or no evidence, upon which

the trial judge could conclude that her statement was made voluntarily; (c) the statement was not reliable within the meaning of the

section, because (i) it had not been made either on oath or affirmation, did not contain a statutory declaration to the effect that it

was true, and (ii) there was no other or sufficient evidence available to ensure that the witness understood the requirement to tell

the truth, as mandated by the provisions of the section. These arguments can be dealt with together.

As to the first series of grounds, these all centre, as is stated, on the provisions of s.16 of the Act of 2006. First, it is submitted by

Mr. Phelan, S.C., counsel on behalf of the applicant, that the witness does not come within the terms of s.16(1) of the Act of 2006

at all, on the basis that she “did not refuse to give evidence”, “did not deny making the statement” and “did not give evidence

materially inconsistent with the statement” within the terms of the section. In particular, insofar as the last matter is concerned, the

applicant contends that the witness gave evidence that was merely unfavourable to the prosecution case by simply saying “I don’t

remember” in answer to questions. Counsel for the applicant relied on a ruling of the High Court in another trial, not presented to this

Court, in which the learned High Court judge in that trial had considered the phrase “I don’t remember” not to be sufficient to

establish any principle of law upon which he could operate to make any ruling. In the course of oral submissions, counsel on behalf of

the applicant pointed out, in addition, that the prosecution had asked for the complainant to be treated as a hostile witness, but that

the learned trial judge had refused that application. It was also submitted by counsel on behalf of the applicant both to the trial judge

and to this Court, that the Act of 2006 was introduced, in part to deal with matters arising in relation to criminals not giving evidence,

and was never intended to deal with a complainant or victim of sexual abuse, such as in the present case.

Secondly, as to the applicability of the section and the findings of the learned High Court judge, the argument is made that the

statement was not made “voluntarily”, as required by s.16, and that the trial judge was wrong to hold that it was. In reliance on this,

in the course of the trial, counsel for the applicant had cited the definition of “voluntary” as being “a free exercise of will involving an

act of choice”, “not by compulsion” and “spontaneously carried out without persuasion” according to several dictionaries. In the

applicant’s written submissions to this Court, it is contended that the material in the videotape was brought about as a result of the

complainant being taken to an assessment centre further to an arrangement existing between the gardaí and the Health Board, that

she had no say in the matter; that it was clear from the content of the video interviews that the witness was “uncomfortable” in

some regards, and “guarded”; and that she had to be persuaded, if not compelled, to discuss certain matters. It is submitted that

there was repeated questioning concerning what the applicant allegedly did to the witness, and a revisiting of such questions during

the course of the interviews. It is claimed that the comments made by the complainant were, by and large, “prompted or hinted at”

and, in fact, in some cases “cajoled” out of her. It is further submitted that there was no proof that the witness had not been given

hints or other encouragement in respect of her answers outside the venue where she was interviewed, or prior to being interviewed,

but these events were not videotaped.

Thirdly, on the issue of “reliability”, counsel for the applicant argues that there was no adequate evidence and, indeed, no evidence

at all, upon which the learned trial judge could justifiably conclude that the statement was reliable within the meaning of s.16(2) of

the Act of 2006. In that regard, counsel points to the provisions of the Act and to the fact that the statement was not made on oath

or affirmation, was not made pursuant to any statutory declaration to the effect that the statement was true to the best of the

witness’s knowledge and belief, all of which, he contends, are required by s.16(2) of the Act of 2006. Nor, it is submitted, was there

any evidence that the witness understood the requirement to tell the truth, as mandated by the same provision. It is submitted by

counsel for the applicant that in the present case the prosecution did not establish, and there was no evidence, that the interviews

were preceded or prefaced by the witness being asked questions as to the meaning of telling the truth, or as to what would occur if

the witness did not tell the truth. The learned trial judge had, wrongly it is said, expressed himself satisfied, having seen the video,

that the evidence contained therein was reliable, and stated that he was guided in his ruling by the evidence given by Dr. O’Sullivan,

the interviewing witness who had stated that M “comes across as a very credible child”.

However, counsel for the applicant argues that credibility and reliability are two different concepts. It is clear these are mutually

exclusive requirements, because a statement may be made under oath but may not be reliable, just as a statement may be reliable,

even if not made under oath. It is pointed out that the legislator was careful to make it a requirement of s.16 that the statement in

question not only be voluntary, but also “reliable”.

Fourthly, whereas the legislation does not give any assistance on what is meant by “reliability”, it is submitted on behalf of the

applicant that the indicia of reliability ought to include the following:

(a) Whether the statement was made under oath, solemn declaration or affirmation;

(b) Whether it was made following a warning of the criminal liability which would ensue in respect of lying or recanting, so

as to avoid the “first hearsay danger” of requiring the trier of fact to accept unsworn evidence over sworn evidence;

(c) Whether there is an opportunity for cross-examination of the witness giving the statement at the hearing where the

statement is made – cross-examination having been identified as one of the most important means of avoiding hearsay

dangers;

(d) The statement should be made under circumstances of urgency or immediate stress, such that the declarant would

not have had an opportunity to concoct;

(e) The statement should be made or recorded at the time of, or shortly after, the event in question, while matters are

still fresh in the mind of the declarant;

(f) Litigation is not being contemplated at the time of the making of the statement;

(g) In the case of a declarant who is subject to influence, that there has been no inappropriate influence exerted;

(h) In the case of children who make statements in response to questions put to them by authority figures, whether

those authority figures have confirmatory bias or whether those authority figures have pre-exisitng ideas about what the

content of the statement ought to be.

In relation to the foregoing, the applicant relies on a Canadian decision of the Supreme Court of Ontario R v. B. (K.G.) [1993] 1 S.C.R.

740, and on the opinion of Scalia, J. in Crawford v. Washington (541 US 36), a decision of the United States Supreme Court, which

dealt with the question of reliability in the context of American law.

Having regard to these matters, the applicant submits that the learned trial judge had committed an error in principle in admitting the

statement, and the conviction cannot therefore be considered safe.

As to the above arguments, the respondent replies as follows.

Insofar as the question of the truth or accuracy of the statement, or the credibility of the witness, and as to whether the trial judge

had before him sufficient evidence upon which to come to the view which he did, it is submitted that the trial judge was entitled to

admit the statement on two grounds:

(a) The presentation of the witness in court;

The respondent submits that, as to the demeanour of the witness, the learned trial judge had ample opportunity to assess this, and

the witness came across as a bright and sincere witness;

(b) The factual circumstances surrounding the making and recording of the interviews.

As to the latter, the respondent argues that the witness was taken from her home and conveyed by Health Board car to a Health

Board building; she was taken to a specially constructed suite with a video camera in it; her mother was not present while the

interviews took place; she knew there was a garda present; she also knew there was a camera, because she pointed it out at the

beginning of the interview; the interviewer was previously unknown to her; the witness asked the interviewer whether she was writing

everything down, to which the interviewer replied “no”, but that she was going to “put it into her report” and it would go to the

judge.

Having regard to that background, the respondent contends that the learned trial judge had a more than ample framework within

which to assess whether the child was both credible and truthful, and as to whether the statements were voluntarily made.

As to the issue of reliability, according to the respondent, several factors are relied upon in arguing that the video recorded interviews

with the witnesses, which were viewed in full by the trial judge, were reliable. The Court’s attention is drawn to the transcript of the

interviews, in which reference to what the applicant had done came naturally from the witness herself, in response to a question as

to why the applicant had left the family home. The narrative moved spontaneously to descriptions of other actions of the applicant

towards the witness, none of which came in response to, or as a result of, any leading questions. Next, the witness used ordinary

dolls to demonstrate physically what she said had been done to her. There was, therefore, no suggestion, as made by the applicant,

that the witness was parroting a formula of words. The witness used an ordinary jigsaw to demonstrate physically what was done to

her. Further, she resisted any suggestion of being “led” in the course of the interview, indicating that she was not a suggestible type

of witness. In addition, there were details made evident during the course of the interviews, which made it clear that the witness was

describing actual events. This included, for example, a reference to the applicant using a tissue to wipe her, and a reference to smell.

One particular aspect of the interviews resulted in her requesting the interviewer to “lean close” to her so that the witness could

whisper this part of her account, which she then spelt out to the interviewer. The witness re-enacted particular matters, including,

for example, imitating her father when he raised his voice to her, and describing how the applicant came towards her, and while she

said “no”, he nevertheless persisted. The tone of voice, according to the prosecution, during the course of the interview, and the

witness’s demeanour in describing the events, had a clear air of reality attaching to them. Finally, the witness’s story was consistent

and remained constant throughout the interviews.

The respondent contends that all of these matters were clearly visible and could be readily assessed from the video interviews in

question. The learned trial judge was fully entitled to have regard to these matters in assessing the reliability of the interview. The

conclusions of the trial judge, according to the respondent, were properly, legitimately and lawfully based on a detailed assessment of

the interviews, both as to whether or not the child was credible and as to whether or not the interviews were reliable.

Moreover, it was more than clear that the responses given in the video recorded interviews were materially inconsistent with those

given at the trial three years later. The provisions of the Act in that regard were therefore met, it is said.

As to the submission made on behalf of the applicant that if it were not possible to cross-examine a child witness at trial, an accused

must be entitled to be present at any interview of the witness so as to be able to cross-examine at that stage, the respondent

argues that there is no basis in law for such a contention, in particular, when the interview is taking place prior to any arrest or

detention. Such a proposition could never be sustainable and is not required by any constitutional imperative.

The Argument Pursuant to the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the

Convention”) and to the Provisions of Article 38 of the Constitution (“the Constitution”)

Apart from the foregoing, the applicant, in his written submissions, also invokes both the Constitution, and the Convention. Insofar as

the Constitution is concerned, he claims that it requires that a person charged should have a proper opportunity to make his defence,

including a right to test by appropriate cross-examination, any complainant, on the basis, inter alia, of In re. Haughey [1971] I.R. 217

and Gill v. Connellan [1987] I.R. 541. In the latter case, the conviction of the applicant was quashed in circumstances where his legal

advisors had not been permitted to conduct an effective cross-examination of the prosecution witness by reason of rulings of the

District judge presiding in the case. It is contended that in the circumstances of the present case, the applicant did not have an

opportunity to cross-examine the above referred to witness effectively. The applicant has also invoked the European Convention for

the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and in particular, Article 6 thereof, and has sought in

that regard to rely on certain jurisprudence of the European Court of Human Rights. Objection is taken to these matters by the

respondent on the basis that they were not raised in the course of the trial, and cannot now be introduced. The respondent draws

the Court’s attention to certain case law in that regard, well established at this time. These matters will be dealt with first.

Conclusion on Constitutional and Convention Grounds

In the ordinary course of events a case which is not made before the trial judge, and was not therefore the subject of any ruling,

cannot constitute grounds of appeal before this Court. The case law in that regard is extremely clear and is most recently clarified in

the judgment of the Supreme Court in D.P.P. v. Cronin [2006] 4 I.R. 329, which has been applied consistently in appropriate cases

coming before this Court since its delivery. The application of the long standing rule – it extends back to the 1920s – that a party

may not raise issues on appeal or by way of application for leave to appeal, which have not been raised before the trial court, is, of

course, always subject to the proviso, that in order to ensure that justice is done, in exceptional cases, where there are good

grounds for permitting this to be done, such issues may be raised. For example, where there has been an exceptional set of

circumstances giving rise to an oversight on the part of a competent defence counsel leading to the matter not being raised in the

course of the trial, and where the failure to do so is adequately explained, the court may entertain a new ground where it is for the

purpose of doing justice. Whereas, therefore, when there are exceptional reasons, generally speaking, evident from the transcript

itself, that makes it imperative for the point to be raised in the course of an application to this Court, there does not appear to have

been any such reason in the present case why the issues now sought to be raised by the applicant in the course of this application

were not raised in the course of the trial. Indeed, they were not even included in the grounds of appeal and, therefore, should,

properly speaking, have been the subject of an application for liberty to add a new ground. However, in the present circumstances

the respondent, while objecting to the admission of this as a ground of appeal, has, in fact, dealt with it in the course of its written

submissions and, indeed, supplemental submissions, and moreover, s.4 of the European Convention on Human Rights Act 2003 obliges

the court to take judicial notice of appropriate jurisprudence of the European Court of Human Rights. It is, exceptionally, in the

present case, but not as a general rule, appropriate to deal briefly with the arguments of both parties, and in particular, that of the

applicant on this point.

The ground is framed in the following terms:-

“The accused was denied his rights pursuant to the Constitution of Ireland, 1937 and, in addition, denied his rights,

pursuant to the European Convention on Human Rights”.

As concerns the Constitution, the applicant relies, inter alia, on the two cases cited above, In re. Haughey [1971] I.R. 217 and Gill v.

Connellan [1987] I.R. 541, but those cases do not support the applicant’s claim, having regard to the fact that in the present trial,

the witness was twice tendered for cross-examination during the course of the present trial, and that offer was not taken up by the

defence. There are therefore no grounds upon which it could be said that, in the present case, there was any infringement of any

constitutional right arising from the alleged breach of the guarantee that a trial would be “in due course of law”, since the right to

cross-examine was fully vindicated.

But the applicant contends he ought to have been permitted to cross-examine the witness during the course of the interviews which

occurred, relying on the Convention in that regard.

Article 6(3)(d) of the European Convention on Human Rights is framed in the following:

“3 Everyone charged with a criminal offence has the following minimum rights:

…

(d) to examine or have examined witnesses against him and to obtain the attendance and examination

of witnesses on his behalf under the same conditions as witnesses against him”. (emphasis added)

Insofar as the applicant was entitled to cross-examine the witness, M, whose evidence this ground for leave to appeal is now sought

to be raised, the applicant correctly states that the role of the European Court of Human Rights, pursuant to the Convention, is not

to give any ruling on whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the

proceedings as a whole, including the way in which evidence was taken, were fair. This is evident from the judgment, inter alia, in

P.S. v. Germany (2003) 36 EHRR 61.

The applicant also invokes SN v. Sweden (2004) 39 EHRR 13, in support of what is really the nub of his argument on this ground,

which is that he was not given an opportunity to have his counsel cross-examine M, the witness, in the course of her interview with

An Garda Síochána, or in the course of the interview conducted by the psychiatrist. It is said that, at the time the witness M was

interviewed, s.16 of the Criminal Justice Act 2006 had not been enacted, and therefore the applicant’s legal advisors could not have

suspected that the interviews would be anything other than a basis for proffering charges, and not the evidence by which those

charges might be substantiated. According to the applicant, although the European Court of Human Rights held in the above case, by

majority, that there had been no violation of Article 6 of the Convention by Sweden, nevertheless, counsel suggests that, that court

placed a great deal of emphasis on the fact that the applicant was given the opportunity to question the witness “at a second

interview”.

Conclusion

It is wholly inappropriate to seek to apply, via decisions of the European Court of Human Rights, a judgment which concerns the

statutory or legislative scheme operating in the reference case which clearly provides a wholly different scheme for the investigation

of offences to that operating in this jurisdiction. It is noted that in the Swedish system, which was under consideration in that case,

the practice is or was that children who are complainants in sexual abuse cases are not produced as witnesses in court, a situation

markedly different to the position operating in the present trial. The applicant has also invoked several other judgments of the

European Court of Human Rights, but these do not bring the matter further.

The obligation on the Irish courts to consider the case law and rulings of the European Court of Human Rights is clearly set out in law.

Under s.2 of the European Convention on Human Rights Act 2003 the courts are obliged to interpret and apply any statutory provision

or rule of law, insofar as possible, subject to the rules of law relating to such interpretation and application, in a manner compatible

with the State’s obligations under the provisions of the Convention. Section 4(a) of the Act requires the courts to take judicial notice

of the judgments of the European Court of Human Rights. The courts will therefore interpret provisions of national law concerning the

right to a fair trial, for example, or the rights of an accused, in the present case, to cross-examine a witness, in light of Article 6 of

the Convention, having regard to relevant judgments, and will generally apply the interpretation of the Convention adopted by the

European Court of Human Rights. This principle is subject only to the proviso that any such interpretation must not be inconsistent

with the Constitution.

The entitlement of an accused to cross-examine a witness, such as the complainant, is not just well established generally in Irish law,

but is a fundamental right pursuant to the Constitution, as is clear from the judgments invoked by the applicant himself. In the

present case, the witness, M, was tendered for cross-examination in the course of the trial itself, both in the lengthy voir dire and

also in open court, and on each occasion upon which the child was so tendered, the applicant did not opt to have her cross-

examined. He was entitled, of course, to adopt such an approach.

The case for the applicant therefore must be based exclusively on his contention that the European Court of Human Rights has

established, as a matter of principle, that such a witness must be made available to the defence and must be available to be cross-

examined by counsel on behalf of the defence during the course of the pre-charge investigative stage. Such a contention is not

found in any of the jurisprudence of the European Court of Human Rights opened to this Court. The judgments are confined to findings

in respect of the particular investigative and prosecutorial systems and procedures for trial arising in the particular cases cited.

It would be extraordinary indeed if, pursuant to Article 6 of the Convention, cited above, the claimed right were to apply to the stage

at which police are investigating an offence leading to the possibility of a charge. This is apparent from the terms of Article 6 itself,

which is confined to guaranteeing rights of cross-examination to “everyone charged with a criminal offence” (emphasis added). To

seek to extrapolate from a series of cases in which persons already charged have certain rights to examine a witness, at a pre-trial,

but post-charge stage, where a witness is not otherwise tendered in court at trial, as in SN v. Sweden, supra., and to interpret that

as a general principle or rule of law applicable at the investigative stage of a crime, does not flow from the cases cited on behalf of

the applicant, and it is a simple task to distinguish those cases from the claims arising on the present application for leave to appeal

on this ground.

Further, it is clear from the cases cited, both on behalf of the applicant, and by the respondent, that the European Court of Human

Rights recognises the requirement for particular measures, or protections, to be granted in respect of certain witnesses, including

young witnesses who are the subject of alleged sexual abuse, while recognising clearly that the rights of a person charged, within the

meaning of Article 6 of the Convention, may not be unduly restricted. The key element and characteristic of all of the cases cited is

the importance attached by the European Court of Human Rights to the opportunity granted to a defendant to question, or have

questions put to a witness, and, if applicable to the present application, to have an opportunity to have the witness in question

cross-examined in the course of trial. This occurred both in the course of the voir dire and in open court before the jury in the trial of

the applicant.

On a review of the cases cited by both parties, there does not either appear to be any case in which a witness’s evidence, when

conveyed by means of appropriate videotaped material - provided that the witness is also made available for cross-examination as

was the case here - is in any way condemned or criticised by that court.

This Court is satisfied that on the basis of the arguments made, and the case law relied upon, there are no grounds upon which it can

be contended that the provisions of Article 6 of the Convention were infringed by not permitting the applicant, or his legal advisers, to

cross-examine the witness during the course of her interviews with the psychiatrist. It is not necessary in the circumstances to

embark on an analysis of the case law invoked from other jurisdictions.

For the foregoing reasons, leave to add the two grounds of appeal to this application for leave to appeal, based on the Constitution

and on the Convention, which ought to have been brought by motion in the usual way, is refused.

Conclusion on Section 16 of the Criminal Justice Act 2006

Turning to the main grounds for leave to appeal and commencing with s.16 of the Act of 2006, in her opening submission at trial,

counsel for the prosecution dealt with the question of voluntariness in the following manner:-

“This will be a matter for the court to I suppose in the first instance look at the video recording and see whether the

witness is being pressurised in any way, whether it is being given in a voluntary manner.”

As to the issue of reliability in the context of the Criminal Justice Act, 2006, she stated as follows:-

“That it is reliable” is the third condition in s. 16 and that, in a sense, will be a core matter for your Lordship to have

regard to in deciding whether or not to admit this statement. And again it will be a matter, in my respectful submission,

for the court to look at the contents of the video recording, what she says, how she says it, how it comes about, the

question that precedes any answer and all of those matters will be taken into account in deciding whether or not it is

reliable.”

In dealing with the requirement for the witness to tell the truth, she said:-

“The question of understanding the requirement to tell the truth and in the prosecution’s submission in due course, again

I am anticipating somewhat, but it will be a question of the contents generally of the video tape, perhaps not the

solemnity of the occasion, but the gravity of what was going on, was not lost on the child even if she was only six.”

These comments made clear what precisely the respondent, as prosecutor, contended was to be considered by the trial judge under

s.16 of the Act of 2006.

Garda Larraine Fahey was also cross-examined. No suggestion was made to her, or indeed to anyone else, of coaching or pressurising

M. Ms. D.O’B, the complainant’s mother, gave evidence and she was not cross-examined. Ms. C, the grandmother of M, gave

evidence and she too was not cross-examined. The cross-examination of Sergeant John Byrnes is not of relevance to this issue. The

cross-examination of Ms. D, the Health Board observer, centred on the question of how many copies of the tape were kept. The

witness stated that the interviews were not evidential interviews, by which the court understands they were not done for the

specific purpose of a court case.

Dr. O’Sullivan, the psychiatrist who conducted the interviews, was cross-examined. She accepted that she had not told M that it was

important to be absolutely truthful and accurate. She said that she did not think the lack of saying that interfered with the whole

balance of what was said. In re-examination, she said that they were conducting a clinical assessment, as distinct from a forensic

assessment of credibility. In answer to a question from the trial judge, she said that M came across as a very credible witness. She

referred to the fact that M’s account involved various senses being stimulated.

M gave evidence in the course of the voir dire. After extracts from her evidence in court and from the videos were read to her, she

was asked “can you explain to me why it is different” she responded “I can’t really I am not sure why”. She was also asked “and

what’s the reason that you told the court what you did last week and you told P in December 2004” and she answers “I am not

really sure”. When asked about the differences in the accounts and what the reason for that was, she repeated that she was “not

really sure”.

Having heard argument on the issue, the trial judge ruled that M’s evidence in court was materially inconsistent with what had been

said on the video.

The learned trial judge deferred ruling on the voir dire until the 30th October, 2007 which meant that the matter was adjourned over

a bank holiday weekend. The ruling extended over 18 written pages of the transcript, in which the learned trial judge dealt with the

issues in very considerable detail. In delivering his ruling, he summarised the basic contentions of both the prosecution and defence.

The voir dire took some six days and the trial judge had the assistance of detailed submissions, written as well as oral, from both the

prosecution and the defence. He deferred ruling on the matter, and when he did rule, he gave a lengthy and considered judgment.

The ruling contains extensive extracts from the transcripts of the videoed interviews and the learned trial judge made clear that, as

well as having viewed the video tapes, he had read the transcripts in detail. He pointed out that while it might be said that the

witness was unsatisfactory rather than hostile, he had to find that the evidence given was materially inconsistent with the previous

statements given by way of video interview as well as with the statement given to Garda Fahey. He stated further that, with some

exceptions for hearsay, he was satisfied that what was contained in the video recorded interviews would be admissible if direct oral

evidence of the facts concerned had been given, all being provided for under s.16 of the Act of 2006. This Court is satisfied that the

learned trial judge approached the question of the ruling he was required to make with very considerable care.

Section 16 of the Act of 2006 is set out earlier in this judgment. Section 15 of the Act of 2006 defines “statement” as follows:-

“statement ” means a statement the making of which is duly proved and includes—

(a) any representation of fact, whether in words or otherwise,

(b) a statement which has been video recorded or audio recorded,

and

(c) part of a statement.” (emphasis added)

The matters at (a), (b) and (c) are all included in the definition of a “statement”, which is not defined exhaustively. It seems

impossible to argue that what appears on videotape is not a video-recorded “representation of fact” or that what the witness said to

Garda Fahey was not also a representation of fact.

Before a statement can be admitted in evidence, however, the witness must confirm it or it must be proved that he/she made it. It

clearly was proved that the witness had made the statement, in that the interviews were video recorded. In the case of her

discussion with the gardaí, the court had the garda evidence as to what was said. This was not challenged on the basis that it did

not emanate from the witness. The trial court is also required to be satisfied that direct oral evidence of the facts concerned would

be admissible in the proceedings. Again that does not present a problem, as the learned trial judge so found. Had the witness given

the evidence orally, then that evidence would have been admissible subject to any issue on hearsay or other rule of law. No issue

was taken on this.

Several other conditions must also be met. It is necessary that the witness, although available for cross-examination, (a) refuses to

give evidence, or (b) denies making the statement, or (c) gives evidence which is materially inconsistent with the statement. The

relevant one of these conditions is (c). The witness’s evidence given in court on the one hand, and the accounts given on tape and

to the gardaí on the other hand, were fundamentally at variance, and constituted materially inconsistent evidence, as was clearly

established by the prosecution at trial. It was correct therefore for the learned trial judge to so hold, and this Court rejects the

applicant’s contention that the evidence given by M in court was simply “unfavourable” to the prosecution. That finding properly met

one of the conditions required by s.16 of the Act of 2006.

The trial court must also be satisfied that the statement was made “voluntarily” and that it is “reliable”.

So far as the question of the statement being “voluntary” is concerned, the trial judge was in a position to, and did, view the video

recordings. It is true that the learned trial judge could not see what was happening outside the video room, a matter which the

applicant raises as a concern, but there is no evidence whatsoever of anything untoward having occurred outside the video room,

and no evidence was tendered from which this could be inferred. The suggestion now made to this Court is that it is possible that

suggestions were made, or pressure was applied outside the room. This was not a point pursued at the trial. It is not one for which

there is any evidential basis. On the basis of the evidence adduced, including that appearing on video, which the learned trial judge

assessed in detail for evidence that the statement was “voluntary”, as is clear from the very commencement of his ruling, the learned

trial judge was entitled to find that the statement was so made, and correctly did so on the evidence.

The trial court is mandated further to ensure the statement is admitted only if it is “reliable”. In doing so, the trial court can have

regard to whether it was given on oath or affirmation, or was video recorded, or if that is not the case, whether by reason of the

circumstances in which it was made there is other sufficient evidence in support of its reliability. So far as the bulk of the statements

are concerned, they were video recorded. What was said to the gardaí, although not video recorded, was simply a repetition of what

had been said on video, and was, in any event, noted by the garda.

As to the question of reliability, no Irish cases in relation to s.16 were opened to this court, and so far as the court is aware, this

section has not been the subject of any decision by this Court or the Supreme Court. There are some cases in other jurisdictions

applying somewhat similar, but not identical, provisions which may be of some limited assistance, and some commentary in academic

writings, which also refer to those cases.

The starting point, however, must be the provisions of the Act of 2006 itself. It seems relatively clear that the Act, in requiring that

the statement be found to be “reliable”, appears to mandate the court to examine the circumstances and factors surrounding the

making of the statement, to ensure this is a reliable statement in the sense that it is one which can be relied upon, rather than

requiring the court to be satisfied that the actual content of the statement is reliable in the sense that it is true. The section permits

the admission of a statement, under s.16, provided it is voluntary and reliable, “as evidence of any fact mentioned therein”. The

weight to be attached to that evidence is, of course, a different matter, but no point is taken on that. A consideration of later

subsections of the Act of 2006 also suggests that the emphasis is on the circumstances of the making and taking of the statement

itself, rather than the reliability of the content of the statement, and this appears to be in line with case law from other jurisdictions,

such as the United Kingdom and Australia, but the matter is not, in this Court’s opinion, capable of being determined by reference to

those cases, which depend both on the particular facts arising, and also on the particular statutory provisions applicable, especially in

the case of the Australian legislation, which is developed – in its particular context – by rules and guidance to judges as to how to

apply the Australian provisions, which are somewhat similar, but not identical, to s.16 of the Act of 2006.

The reliability of the statement may, according to s.16(3) be assessed by reference to whether it was (1) made under oath or on

affirmation, or (2) was video recorded. It is only if it was not – and here it was – that it is then permitted for the trial court to

consider whether, by reason of the circumstances in which the statement was made, there is sufficient evidence of its reliability. The

court is satisfied that, in particular, in relation to a statement consisting of a video recorded interview, as was the case here, whose

making may be subject to close and more careful examination than notes taken of an interview, the learned trial judge was entitled to

find that the statement, when made, was “reliable” within the provisions of s.16 of the Act of 2006. Having regard to what is next

said, there is some clear and intended overlap between the requirements under the various subsections, which indicates the

importance to be attached to the circumstances surrounding the making of the statement.

Apart from the requirement that the statement be both voluntary and reliable, the statement also must be (a) made under oath, (b)

or affirmed, (c) or must contain a statutory declaration as to the truth of the matters stated in it. Or if none of these occurred, the

court must be “otherwise satisfied” that when the statement was made, the witness understood the requirement to tell the truth.

Quite clearly this latter requirement is readily, or most securely, met by evidence that the statement was prefaced by a warning, or

even a reminder, to the witness to tell the truth, or by a statement of the consequences that might flow from a failure to do so. But

the Act does not require this expressly. Rather, it leaves to a trial judge the obligation to satisfy himself, in the particular

circumstances of each case, that the witness did understand the requirement to be truthful.

The learned trial judge in this trial was fully cognisant of the significance of this requirement. He took the view that, having watched

the videos, he was in a position to make a judgment in respect of the truth of it. This was not a case where the witness was ever

likely, due to her age, to be giving evidence on oath or affirmation. Rather, it was a case where the jury was most likely going to

consider her unsworn evidence. The learned trial judge stated he was heavily influenced by his own assessment of the witness at the

time of interview and based this on what he saw on the tapes. He acknowledged that while the interviews were not preceded or

prefaced by asking questions such as what would happen if the truth were not told, or by any caution being administered, he was

nonetheless satisfied, having seen the video, that the evidence was reliable. He drew support for his view from the conclusion of Dr.

O’Sullivan; that the interviewee came across as a very credible child. The relevant comments during the course of his ruling are set

out earlier in this judgment. The circumstances of the interviews in the present case, but not necessarily in all cases, were such that

the trial judge was, moreover, entitled to take the view that the matters under discussion in the interview were very important, and

that it was clear to the witness that it was important to tell the truth. He was entitled therefore to find, as he did, that M was

“telling the truth” and “knew she should tell the truth”.

If the concept of reliability is to be correctly or, in part, measured also by reference to the reliability of the content of the statement,

or its substance, there were factors present in this trial which indicate clearly that the content of the statement was reliable. In

substance, it was supported by the very significant medical findings and also, to a certain degree, by the account given by the

witness’s sister, which was admissible having regard to the “similar facts” doctrine. That the account was truthful is also supported

by this evidence. The Court is satisfied that there was, therefore, evidence upon which the learned trial judge could also conclude, as

he did, that the evidence itself was “reliable”, in the sense of being of weight, within s.16(5) of the Act of 2006.

In assessing reliability, the trial court is also required to have regard to any explanation given by the witness for giving evidence in

court which is inconsistent with the statement. No real explanation was given in court for the inconsistencies, the witness merely

saying when asked whether she could explain why what was said was different “I can’t really say I am not sure why”. The trial judge

does not advert expressly to this requirement in his ruling. On the other hand, given that he was following the text of the section so

closely, he was undoubtedly aware of the necessity to have regard to this issue. The trial judge, however, expressly mentioned the

fact that, at the trial, the witness was then 9 years old, and the statements had been made and recorded when she was 6 years old.

A three year period had elapsed in the meantime. Without saying so explicitly, it appears clear that he considered this to be the

reason for the inconsistencies. That does not appear to this Court to be unreasonable in the particular circumstances of this case.

Section 16(4) also provides that the statement is not to be admitted if, having regard to all the circumstances, it would be unfair to

the accused to do so, and the evidence is unnecessary. Here there is no question of the evidence being unnecessary. It represented

the only direct evidence of the witness in relation to the assaults alleged. The question of unfairness may be more difficult to resolve

in cases of this nature. In concluding, however, that it was not unfair for the trial court to admit the statements in this particular

case, the court is entitled to be influenced by the fact that there was powerful evidence to support the view that the witness was

sexually abused in the manner she described, and that her account that it was her father who engaged in this was supported by her

sister’s similar complaints.

Finally, it was argued at trial, and repeated by counsel for the applicant on this application for leave to appeal, that the section is

designed to deal with gangland crime or organised crime. It may well be that developments in that area some time ago precipitated

the enactment of the section. However, the section must be read as enacted. It is not confined to gangland crime or to any

particular offence or category of offences, and is in no way restricted either expressly or by implication by the words of the section

itself or by any other provision of the Act of 2006, or by any other statute produced to the Court. Nor are there exceptions listed in

respect of which it does not apply. Instead, it is of general application, and is couched in terms which lend themselves to being

applied in a case such as this. A detailed checklist is provided which has to be fulfilled if the section is invoked, before the statement

can be admitted. There is no basis in law for suggesting that it is to be limited in its application in the manner contended for.

The trial judge embarked in a conscientious fashion on the task of seeing whether all the requirements were met. This Court is

satisfied that he paid careful attention to all the terms of the section, dealt with each of the required conditions and reached a

decision which cannot be impugned. No grounds have been put forward to support the claim that he misdirected himself in law in

relation to the interpretation and/or application of the section, or that, in deciding to admit the statement, he committed any error in

law. This ground for leave to appeal is refused.

The Warning Ground

The last ground of appeal concerns an allegation that the learned trial judge failed to give a proper warning to the jury that the

events of which complaint was made were not corroborated, and that in the particular circumstances of this case, a strong warning

should have been given.

This ground cannot succeed. It is clear from the transcript that the learned trial judge gave an appropriate warning.

According to the transcript, this is what was said in relation to the first of the four requisitions which were raised after the charge to

the jury:-

“Mr. Groarke: The first [requisition] judge I would be inviting the court, and I know it is a discretionary matter since the

1992 Act, but I would be inviting the court to give the jury the discretionary corroboration warning in relation to the

uncorroborated evidence of a child, as we have in this case. In particular, I would say, and I do appreciate that the

court has adverted to the fact that the jury will have to make up their own minds as to what weight they are going to

afford the evidence, but it hasn’t been specifically said to them that this evidence is entirely uncorroborated, and that

there is a danger, obviously, in convicting on the basis of uncorroborated evidence.

Now I do appreciate it is discretionary, it has been since 1992, where a child under the age of fourteen is giving

evidence, whereas prior to that it hadn’t been discretionary, but I would point out the factors to be taken into

consideration in relation to this. First of all in relation to M’s videos of assessment, she was six years old when that

evidence was given. And I think that is a material factor. It was unsworn evidence. There was no warning. There was no

oath. It is video evidence which again is highly unusual and there was no opportunity for cross-examination at the time.

And I think all of those factors make it a suitable circumstance in which to give the jury a corroboration warning, in

accordance with the court’s discretion. And I will put the matter no further than that.”

In response to this, counsel for the respondent, Miss Ni Raifeartaigh, addressed the learned trial judge, as follows:-

“In relation to the corroboration warning, that is very much a matter for your lordship, and there is a history with that.

I wouldn’t be strongly opposed to it. What I would say is perhaps two matters, if your lordship is going to give the

warning in the terms suggested by my friend, and he referred to a number of matters that the jury should be warned

about, for example, that the video, you know she was six years old at the time; it was unsworn evidence; there was no

caution; there was no opportunity for cross-examination at the time. Could I say this, because this has not been

brought out at any stage by anybody, and that is, there was an opportunity, however, to cross-examine M at the trial,

and that was chosen not to be availed of. So, while it is true to say there was no opportunity to cross-examine her

when the interview was taking place, it is also fair to say that it is not as if the defence never had an opportunity to test

the child’s evidence. They were offered the opportunity during this trial and I would say that for balance that would be

only fair to say that.”

The learned trial judge, in the course of his charge, referred to corroboration on a number of occasions, pointing out, in particular,

that the complaint made by K to her mother, shortly after the allegation of abuse took place, was not corroboration that the accused

had done anything. Nor was there, he said, any corroboration by the evidence of the paediatric specialist. Although she found clear

evidence of sexual abuse, nevertheless, as the learned trial judge stated, this could not be regarded by the jury as corroboration that

the accused in the trial had committed the offence. In the case of the complaint by M, the learned trial judge also pointed out that

the contents of the interview with the Health Board psychiatrist was not corroboration of her allegations either. He went on to charge

the jury in the following terms:-

“Now, corroboration, when I say it to you is corroboration within the legal definition that I have given you. There is no

evidence of corroboration of any of the complainants, of M’s allegations, in respect of independent evidence which

shows, or attempts to show, not only that her evidence was true, in the sense that a crime was committed, but that

the accused committed it. But let me say this much to you very clearly – corroboration is not required in this case in

respect of each of the allegations by the complainants. And having regard to the totality of the evidence that you have

heard, as you must, you are entitled to draw your own inferences based on the evidence that you have heard, and

make your own deductions.”

In his recharge the learned trial judge, having agreed that he would recharge on the issue of corroboration, and having had a lengthy

exchange with counsel for both parties in respect of the scope of any such recharge, stated:-

“You may remember that I said to you that there was no corroboration in this case, and that I did point out to you

that, while there is other evidence vis a vis the doctor’s, etc., that is not to be regarded as corroborative evidence.

Now that, at law, comes with a warning, the lack of corroborative evidence and it is this, is that while I did say to you

that corroboration of any of the alleged complaints made is not required, but nonetheless I think I may have mentioned

to you that I must regard you, warn you of the dangers of a conviction in respect of any of the counts and the reason

being of course is that the law considers it dangerous and has in its experience found that it may be dangerous to

convict on the uncorroborated evidence of a complainant or complainants in relation to a sexual assault. And the law has

always exercised caution in that area, in so much as it is one person’s word against the other, and therefore you have

to exercise a special care in whether you believe each complainant or whether you are not satisfied, beyond a

reasonable doubt, of the truth of each complainant’s allegations.

Now this is not some formalistic requirement of the law. It is a real and important requirement based on the experience

of the courts, that caution must be exercised by a jury in such situations. Now however having administered that

caution to you, if having regard to all the circumstances of the evidence that has been outlined to you, including having

regard to the ages of the children, if having regard to all that, you are satisfied beyond a reasonable doubt as to the

veracity of the evidence given, even in the absence of uncorroborative evidence, you are entitled to act on it. If on the

other hand you have a doubt then you must acquit, but bear this in mind, I have outlined to you the legal definition of

corroboration but you are entitled to have regard to the totality of the evidence that you have heard in assessing what

weight of evidence should be given or otherwise before you make up your minds to either convict or to acquit.”

No further request to recharge the jury in respect of the foregoing warning was made on behalf of defence counsel at the trial, and it

must be assumed therefore that counsel was satisfied with the nature of the recharge.

The Court is satisfied, in the circumstances, that the applicant has not made out a ground upon which this Court should grant leave

to appeal in relation to the learned trial judge’s charge and recharge on the question of a warning.

The application for leave to appeal, based on all grounds, is refused.