Director of Public Prosecutions v A.M

• Jurisdiction: Ireland
• Judge: Mr. Justice Maurice Collins
• Judgment Date: 02 May 2025
• Neutral Citation: [2025] IESC 16
• Court: Supreme Court
• Docket Number: S:AP:IE:2023:000124

Between

The People (At the Suit of the Director of Public Prosecutions)

Prosecutor/Respondent

and

A.M.

Defendant/Appellant

[2025] IESC 16

Charleton J.

Woulfe J.

Hogan J.

Collins J.

Donnelly J.

S:AP:IE:2023:000124

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Conviction – Sexual assault – Newly discovered evidence – Appellant seeking to appeal against conviction – Whether the appellant’s conviction was unsafe and his trial unfair by reason of newly discovered evidence

Facts: The appellant, on 13 December 2021, was convicted before Kerry Circuit Criminal Court on a count of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990. He appealed his conviction to the Court of Appeal on the ground that his conviction was unsafe and his trial unfair by reason of newly discovered evidence (the 17 September Record) which might have had a material and important influence on the outcome had it been available at trial. The Court of Appeal concluded that it was “not persuaded that the new evidence would have had the necessary impact on the trial in that we do not see that it would have caused the jury to have a reasonable doubt in light of the balance of the evidence on the issue”; accordingly, the appellant’s conviction was not unsafe on that ground. His appeal was dismissed. He sought leave to appeal to the Supreme Court, contending that the Court of Appeal had erred in the manner in which it had assessed and determined the new evidence issue. By determination of 16 February 2024, the Supreme Court granted leave to appeal, considering that the application of s. 3(3)(a) of the Criminal Procedure Act 1993 in the context of an application to adduce fresh evidence on an appeal against conviction was an issue of general public importance and, further, that it was in the interests of justice that an appeal be brought in this case.

Held by the Court that: (1) the appellant never had any legal right to have the 17 September Record disclosed to him without the complainant's knowledge and no legal right to confront her with it for the first time in cross-examination - any such suggestion is fundamentally inconsistent with s. 19A of the Criminal Evidence Act 1992; (2) when the 17 September Record came into the hands of the prosecution following the conviction of the appellant, they should not have been provided to his legal advisors without either an order of the court under s. 19A or the consent of the complainant; (3) there was no impediment to the prosecution bringing the 17 September Record to the attention of the complainant at that stage and seeking her observations on it; (4) in the circumstances, the Court of Appeal was entitled to make the order it did under s. 3(3)(a) of the Criminal Procedure Act 1993; (5) the essential inquiry was whether the 17 September Record might have had “a material and important influence on the result of the case” (People (DPP) v Willoughby [2005] IECCA 4), “could reasonably affect the original verdict” (People (DPP) v DC [2021] IESC 17) or “could, in the context of the known facts of the particular case, have made a material difference” (People (Director of Public Prosecutions) v McCarthy [2007] IECCA 64); (6) in the circumstances, that evidence would have had very limited evidential and forensic value and there was no plausible basis for considering that it might have had any material impact on the jury’s assessment or undermined its view of the credibility and reliability of the complainant as a witness.

The Court dismissed the appeal and affirmed the judgment and order of the Court of Appeal.

Appeal dismissed.

Final but unapproved

No further redaction required

JUDGMENT ofMr. Justice Maurice Collinsdelivered on 2 May 2025

BACKGROUND

Preliminary

1 This appeal raises important issues about the rights of victims in proceedings for a sexual offence – here, the sexual assault of a child (“ C”) – the disclosure of counselling records in such proceedings and the impact of the non-disclosure of a particular counselling record on the safety of the conviction of the Appellant (“ AM”) for that offence.

2 The facts can be stated relatively briefly. On 13 December 2021, AM was convicted before Kerry Circuit Criminal Court (sitting in Limerick) on a single count of sexual assault of C contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990 (as amended by section 37 of the Sex Offenders Act 2001) (“ the 1990 Act”).

3 AM is a Polish national but he resides in another EU Member State. C is a grandniece of AM's wife. In March 2014, AM and his wife travelled to Ireland to attend C's confirmation, staying in C's family home. AM was 60 at the time; C was 12. A few days after her confirmation, C developed an illness, as a result of which she could not go to school for some days and was confined to bed. According to C, on one of those days, AM entered her bedroom, got into her bed next to her, and sexually assaulted her.

4 C first disclosed the incident to a school friend in October 2018 and made a formal statement to An Garda Síochána in February 2019. On each occasion, C described a single incident of sexual assault that had taken place in her own bed. C was interviewed by the Child and Family Agency (CFA) in March 2019 and the note of that interview also refers to a single incident of sexual assault. At the time of these disclosures, C was still a child.

Disclosure

5 AM's trial was fixed for 26 July 2021. However, on that date his legal team came off record, the trial did not proceed and a new trial date was fixed for 6 December 2021. It appears from the papers that the prosecution had made disclosure prior to that hearing date but, in any event, on 29 October 2021 AM's new solicitors made a wide-ranging request for “ supplementary disclosure”. Having stated that they required “ to be informed of any information that could possibly enhance [AM's] defence and/or undermine any aspect of the case presented by the prosecution and/or open up a new line of enquiry on the part of the defence” and requested the provision of “ all information of possible relevance, irrespective of how peripheral or innocuous the information might seem to the prosecution”, the letter asked whether C had attended “ a psychiatrist, psychologist, psychotherapist, counsellor, guidance counsellor or any other medical professional or advisor (including in any educational or training institution)”, sought details of any treatment, therapy or education C may have received (without any apparent restriction as to time) and requested the production of multiple categories of documents, including ( inter alia) all reports, notes and memoranda arising from any attendances by C with any such psychiatrist, psychologist, psychotherapist, counsellor, guidance counsellor or other medical professional or advisor (again, without any evident restriction as to time) as well as copies of all documents held by the CFA in respect of either C or AM. No rationale was stated for any aspect of this disclosure request and, in particular, the letter did not identify any basis for seeking the disclosure of all medical records, including but not limited to counselling records, relating to C.

6 Very shortly afterwards, on 2 November 2021, C (who had by then reached her majority) signed two standard-form printed consents, one headed Consent to Disclosure for Prosecution Purposes – Records held by Third-Party Agencies (Other than Counselling Records), the other headed Consent to Disclosure for Prosecution Purposes – Counselling Records. In each case, C's signature was witnessed by the investigating Garda. Part A of each form had a space for identifying the records to which the consent related. Part A of the first form (that relating to records held by Third Party agencies other than counselling records) identified “ notes at Kerry Rape and Sexual Abuse Centre.” Part A of the second form identified “ all records held at the [CFA]”. It will be necessary to refer further to these consent forms later in this judgment.

7 On the same day (2 November 2021) — but presumably before the execution of the consent forms by C — the investigating Garda contacted the Kerry Rape and Sexual Abuse Centre (KRSAC) seeking documents within the scope of the disclosure request. After checking that C had given consent, KRSAC informed the investigating Garda that C had attended the centre on two occasions in March 2020 and had disclosed that she had been the victim of a sexual offence but had not wanted to engage in counselling at that stage. As a result, KRSAC did not have any counselling records relating to her. That position was confirmed in a letter of 2 November 2021 sent by email on the same date.

8 On 4 November 2021 (2 days after C had signed the two consent forms) the State solicitor sent the further disclosure to the defence. In addition to some material apparently recovered from C's iPad and some Garda notes and correspondence, it comprised records obtained from the CFA, the letter from KRSAC of 2 November 2021 and the two consent forms signed by C on that date. As appears to be standard practice, this material was provided on the basis of the defence solicitors' undertaking that the material would be used only for the purposes of the criminal proceedings. In the event, it does not appear that any of the disclosed material was used at the trial.

Trial and Conviction

9 At trial, the prosecution case was that AM was guilty of a single incident of sexual assault, carried out on a date unknown between 10 and 13 March 2014 (inclusive) in C's bedroom. C gave evidence to that effect. Through counsel, AM denied that he had ever sexually touched or assaulted C. C said that the assault had occurred on one of the days when she was at home from school. Her sister was back at school and her mother, her grandparents (who had also come to visit for her confirmation) and AM's...