In Director of Public Prosecutions -v- M.T., [2023] IECA 65, March 21, 2023, the accused was charged with sexually assaulting a young child. A video-recorded statement was taken from the complainant and entered at the trial. The Irish Court of Appeal noted that in cross-examination, the complainant indicated that “she had little memory of the incident which was the subject of the charge and was relying upon what she had seen in the video-recording of her interview” (at paragraph 1).
The accused was convicted and appealed. The Court of Appeal indicated that “[t]he question raised in this case is specific: it is whether, in view of the child’s concession that she had little memory of the incident in question, the appellant’s ability to cross-examine was so impaired as to be meaningless and that a fair trial could therefore not be achieved” (at paragraph 4).
The appeal was allowed and the conviction was set aside.
The Court of Appeal stated that “if matters have reached a point where a child witness no longer remembers the events which gave rise to the prosecution by reason of the delay between the video-recording and the trial, matters may have reached a point where cross-examination would is in effect meaningless, and the accused person may be said to have been deprived of his right to cross-examine. Whether this leads to a real risk of an unfair trial, depends upon all of the evidence in the case, but it is significant factor in and of itself” (at paragraph 86).
The Court of Appeal concluded that “[i]n all of the circumstances, the Court has reached the conclusion that the conviction should be quashed on the basis that there was a real risk of an unfair trial in the particular circumstances of this case” (at paragraph 94).
The Court of Appeal also indicated that it wished “to emphasize” that its decision in this case should not “be relied upon for any suggestion that a case should be brought to a halt simply because a child complainant cannot remember some details relating to the event(s) in question. What happened in this case was most unusual insofar as the child herself accepted she had little memory of the event. Each case must be decided in light of its own facts. It is the particular combination of facts and evidence in the present case which leads the Court to its conclusion” (at paragraph 95).
