The Court of Appeal has upheld D. O'D's convictions on eight counts of sexual intercourse with a mentally impaired person after rejecting a challenge to the use of live video-link evidence at his trial.
D. O'D was convicted at Dublin Circuit Criminal Court on 27 April 2012 and received concurrent five-year sentences on each count. The complainant, identified as Miss A, was his first cousin. The judgment records that sexual intercourse occurred while she stayed with him and his family, including at two Dublin addresses, the Imperial Hotel in Cork and a wooded area in Co Dublin.
The appeal concerned one issue only: whether the trial judge's pre-trial order allowing Miss A to give evidence by live television link unfairly predetermined the central question for the jury, namely whether she was mentally impaired within the meaning of the Criminal Law (Sexual Offences) Act 1993.
An earlier video-link order made in 2009 had been quashed on judicial review because the wrong legal test had been applied. A fresh application was heard in July 2010. A clinical psychologist told the court that requiring Miss A to testify in open court would seriously impair her ability to give full evidence. The trial judge again permitted video-link evidence, this time under section 13(1)(b) of the Criminal Evidence Act 1992.
D. O'D argued that the order should instead have been made under section 13(1)(a), which specifically interacts with provisions concerning witnesses with a mental handicap. He also argued that either route risked signalling to the jury that the central mental-impairment issue had already been decided.
The Court of Appeal held that, whichever statutory route was used, the practical result was the same. Any risk of perceived predetermination was reduced by the trial judge's clear direction that the jury should draw no inference from the fact that Miss A gave evidence by video link.
The court found that no miscarriage of justice had occurred and dismissed the conviction appeal.