DPP v O'Brien

• Jurisdiction: Ireland
• Judge: Macken, J.
• Judgment Date: 28 October 2010
• Neutral Citation: [2010] IECCA 103
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A. No. 200 of 2008]
• Date: 28 October 2010

[2010] IECCA 103

THE COURT OF CRIMINAL APPEAL

Macken, J.

Bermingham, J.

O'Keeffe, J.

[No. CCA 200/08]

DPP v O'Brien

[2010] IECCA 103

Between/

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

-and-

MICHAEL O'BRIEN

Applicant

CRIMINAL JUSTICE ACT 2006 S16

CRIMINAL JUSTICE ACT 2006 S16(1)

CRIMINAL JUSTICE ACT 2006 S16(2)

R v B (K G) 1993 1 SCR 740

CRAWFORD v WASHINGTON 541 US 36

CONSTITUTION ART 38

HAUGHEY, IN RE 1971 IR 217

CONSTITUTION ART 6

DPP v CRONIN 2006 4 IR 329

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4

GILL v CONNELLAN 1987 IR 541

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6(3)(D)

S (P) v GERMANY 2003 36 EHRR 61

N (S) v SWEDEN 2004 39 EHRR 13

EUROPEAN CONVENTION OF HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION OF HUMAN RIGHTS ACT 2003 S4A

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

CRIMINAL JUSTICE ACT 2006 S15

CRIMINAL JUSTICE ACT 2006 S16(3)

CONSTITUTIONAL LAW

Personal rights

Right to trial in due course of law - Right to cross-examine - When arising - Opportunity to cross-examine at trial but not when statement was made - Whether right to trial in due course of law infringed - Whether right to cross-examine arises when statement is made prior to trial - Whether right to raise issue on appeal if not raised at trial - European Convention on Human Rights Act 2003 (No 20), s 4 - Constitution of Ireland 1937, Article 38 - European Convention on Human Rights 1950, article 6 - Leave to appeal refused (200/2008 - CCA - 28/10/2010) [2010] IECCA 103

People (DPP) v O'Brien

CRIMINAL LAW

Evidence

Admissibility - Statement made prior to trial - Requirement that evidence be materially inconsistent - Requirement that evidence be voluntary and reliable - Sexual assault - Child witness - Whether statement admissible only in respect of organised crime offences - Whether statement that nothing was remembered was materially inconsistent for purposes of statute - Whether trial judge could rely on content of statement in deciding whether statement was voluntary and reliable and whether witness understood requirement to be truthful - Whether admission of statement would be unfair to the accused - In re Haughey [1971] IR 217; Gill v Connellan [1987] IR 541; PS v Germany (App No. 33900/96), (2001) 36 EHRR 1139 and SN v Sweden (App. No 34209/96), (2002) 39 EHRR 304 distinguished; People (DPP) v Cronin (No 2) [2006] IESC 9, [2006] 4 IR 329 considered - Criminal Justice Act 2006 (No 26), s 16 - Leave to appeal refused (200/2008 - CCA - 28/10/2010) [2010] IECCA 103

People (DPP) v O'Brien

Facts: The applicant was convicted in respect of charges of sexual assault and sought leave to appeal contending that the trial judge had erred in fact and law in his interpretation and application of the provisions of s. 16 Criminal Justice Act 2006 on the issue of the reliability of a statement. One of the complainants gave evidence which was materially inconsistent with pre-trials statements made by her. The prosecution had sought permission to introduce a pre-trial statement video-recorded, between the complainant and a psychologist pursuant to the Act of 2006. The issue arose as to whether the provisions of s. 16 of the Act of 2006 had been satisfied, including whether the evidence was materially inconsistent, whether the statement was voluntarily made, whether it was reliable, whether it was made on oath. The applicant sought to rely upon the provisions of Article 38 of the Constitution and Article 6ECHR, alleging that his right to fair procedures had been infringed by not permitting the applicant or his advisors to cross-examine the witness during the interviews. The applicant also complained that the trial judge failed to give a proper and strong warning to the jury as to corroboration of the complaint.

Held by the Court of Criminal Appeal per Macken J. (Birmingham, O' Keefe JJ. concurring), that the trial judge embarked in a conscientious fashion on the task seeing whether all the requirements were met. The Court was satisfied that he paid careful attention to all the terms of the section. No grounds had been put forward to demonstrate that he had misdirected himself. This ground for leave was refused. No further request to recharge the jury in respect of the warning was made by defence counsel and it had to be assumed that they were satisfied with the nature of the recharge. The applicant had not made out a ground upon which to grant leave to appeal as to the warning and recharge and the application would be refused.

Reporter: E.F.

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

2 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 6 ^th 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.

3 Notice of application for leave to appeal was filed on the 8 ^th 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:

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

5 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.

6 (2) [Ground 12]

7 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

8 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.

9 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.

10 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.

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