The Director of Public Prosecutions v O. B

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Tara Burns
• Judgment Date: 27 May 2025
• Neutral Citation: [2025] IECA 170
• Docket Number: Record Number: 216/23

Between/

The People at the Suit of the Director of Public Prosecutions

Respondent

and

O.B.

Appellant

[2025] IECA 170

McCarthy J.

Kennedy J.

Burns J.

Record Number: 216/23

THE COURT OF APPEAL

Conviction – Indecent assault – Competency hearing – Appellant appealing against conviction – Whether the trial judge erred in not permitting a competency hearing to be conducted in respect of the principal prosecution witness

Facts: The appellant, on 19 June 2023, was found guilty by unanimous verdict of the jury of twenty five counts of indecent assault of his daughter which occurred between 1980 and 1986. On 25 July 2023, the trial judge sentenced the appellant to seven years imprisonment which sentence was to run consecutively to a sentence the appellant was already serving for the sexual abuse of another daughter. By notice of appeal dated 25 July 2023, the appellant indicated his desire to appeal his conviction and sentence. The grounds of appeal relating to his conviction were that: (1) the trial judge erred in not permitting a competency hearing to be conducted in respect of the principal prosecution witness; (2) the trial judge erred in ruling that the principal prosecution witness was competent to give evidence, and in relying on materials that were not properly in evidence in doing so; (3) the trial judge erred in respect of her rulings in respect of the evidence of the principal prosecution witness including inter alia as to the extent to which the principal prosecution witness could be cross examined; (4) the appellant’s trial was rendered unfair by reason of delay; and (5) the appellant’s trial was rendered unfair by the cumulative prejudicial effect of the foregoing.

Held by the Court of Appeal that no foundation was laid with respect to the victim’s competency. The Court noted that the height of the challenge was that an assertion was made that she was not competent to give evidence based on a diagnosis of schizophrenia the victim indicated she had been informed of some time prior to August 2008. The Court noted that no evidence was led as to what the effect, if any, such a diagnosis could have on her ability to tell the truth. In those circumstances, the Court held that the trial judge did not err in declining to hold a competency hearing. The Court held that the limits placed by the trial judge on the cross examination to be conducted of the victim were that the victim was only permitted to be asked about her mental health issues from the perspective of her reliability as a witness and was not permitted to be asked about an asserted assault on a former partner which was said to have occurred around the time she made her original complaint against the appellant. The Court held that no issue could be taken by the appellant in relation to the first limitation, as the relevance of her mental health could only be from the perspective of her reliability as a witness; this was the premise of Counsel for the appellant’s application to the trial judge. With respect to the second limitation, the Court found that it could not be the case that the bad character behaviour asserted on the part of the victim could be of any relevance to the complaint which she made against the appellant even if the appellant’s interest in that regard was limited to exploring her mental health at the time. The court held that the trial judge did not err in refusing to permit questions to be put to the victim in relation to that asserted assault.

The Court, in circumstances where it had not upheld any of the appellant’s grounds of appeal, dismissed his appeal against conviction.

Appeal dismissed.

JUDGMENT of the Court delivered on the 27th day of May, 2025 by Ms. Justice Tara Burns.

1 This is an appeal against conviction. On 19 June 2023, the Appellant was found guilty by unanimous verdict of the jury of twenty five counts of indecent assault of his daughter which occurred between 1980 and 1986.

2 On 25 July 2023, the trial judge, sentenced the appellant to seven years imprisonment which sentence was to run consecutively to a sentence the appellant was already serving for the sexual abuse of another daughter.

3 The victim was between the age of seven and twelve when the sexual offending occurred. The indecent assaults perpetrated on the victim took place up to three times a week over that period in the family home and at another location. The victim was also subjected to physical violence by the appellant. She ran away from home at the age of 12.

4 On 24 May 2009, Gardaí were notified that the victim alleged that the appellant had sexually abused her. The victim made statements to the investigating guards on 22 July 2009 and 7 April 2011. The appellant was charged with the offences on 15 September 2011.

5 The trial which is the subject matter of this appeal proceeded before the President of the Circuit Court (Ryan P.) between 9 and 19 June 2023. The Grounds of Appeal filed relate to that trial.

6 However, the proceedings have a protracted history. A number of earlier trials commenced but concluded with a discharge of the jury and an adjournment. A very general description of why this occurred is that queries were raised with respect to the victim's capacity to give evidence and whether her initial complaints were reliable having regard to a mental health issue which had been disclosed by the victim in the course of evidence she gave in the first trial. She stated in evidence during that trial, when asked whether her mother was working at the time of the offences:-

“I just can't go back to that point. I have, as I said, I'm under psychiatric care at the moment. I was on a lot of medication, not at that time but through the years coming up to now. I am still on medication and it's blocked out memories that I can't, just cannot recall.”

7 Arising from this evidence, further investigations were conducted and disclosure of the victim's medical records was made. This was in circumstances where the respondent had previously indicated to the appellant's solicitor by way of disclosure correspondence that the investigating guard had spoken to the victim who advised him that she had not received counselling, nor had undergone any psychological or psychiatric treatment.

8 The victim's medical records recorded that:-

• • In August 2008, the victim reported to an English GP, who had attended her on a home visit, that she was hearing voices and wanted to kill someone. He noted that she had a long-standing depressive disorder and that she reported to him that she had a schizophrenic diagnosis in the past. A diagnosis of “ Schizophrenia, Affect. Psychoses, Non-Organic” was made by that GP;

• • A letter dated August 2009 from an Irish GP to the psychiatric clinic of a hospital stated that the victim “has a history of chronic depression and anxiety and schizophrenia”. The letter continued that the GP has no notes on the victim as she has just recently moved from the NHS;

• • Another report dated February 2011 from a consultant psychiatrist to the victim's GP referred to the victim as having a mixed antisocial and emotionally unstable personality disorder with co-morbid substance misuse.

9 A report in May 2017 from the victim's treating psychiatrist, obtained for the purpose of the prosecution of the appellant in respect of the allegations of his other daughter, indicated that an examination of the victim in April 2017 revealed the victim to be “capable of telling the truth and taking an oath to that effect. There is no indication in [the victim's] diagnosis that renders her incapable of telling the truth.”

10 A report from another treating psychiatrist dated 5 January 2018 stated that the victim had a diagnosis of “alcohol dependence syndrome, currently abstinent. Generalised Anxiety Disorder.” The report further noted that the victim was not, at that stage, suffering from schizophrenia or depression; that the victim's “cognitive functions were intact”; and that she “did not...