The Court of Criminal Appeal has refused an application by Michael O’Brien for leave to appeal his conviction on several counts of sexual assault involving his two daughters. The court also refused leave to add proposed constitutional and European Convention grounds. The separate application concerning sentence had been adjourned pending the outcome of the conviction application; the judgment does not decide that sentence appeal.
O’Brien was convicted at Dublin Circuit Criminal Court on 6 November 2007. The appeal application challenged the admission under section 16 of the Criminal Justice Act 2006 of pre-trial statements by his older daughter, identified in the judgment as M, after the trial judge found her evidence materially inconsistent with those statements. The statements included video-recorded interviews conducted by a psychologist when M was six. At trial, M was offered for cross-examination during the voir dire and again before the jury; the defence did not cross-examine her.
The applicant argued that M’s trial evidence was not materially inconsistent, that the interviews were not voluntary or reliable, and that she had not been shown to understand the need to tell the truth. The court rejected those grounds. It held that the accounts were fundamentally at variance and that the trial judge had carefully considered the section’s requirements, including voluntariness, reliability, fairness and whether the evidence was necessary. The appeal court said the video recording allowed close examination of how the statements were made. It also considered the trial judge entitled, in the circumstances, to conclude that M understood the importance of telling the truth. The court stressed that the weight of the statements was a separate matter.
The applicant’s proposed constitutional and Convention arguments included a claim that the defence should have been able to cross-examine M during the interviews. The court refused leave to add those grounds, noting that M had been made available for cross-examination at trial and that the opportunity was not taken. It found no basis in the cited European human-rights decisions for a general right to cross-examine a witness during the pre-charge investigation.
The court also rejected the challenge to the trial judge’s warning to the jury. The judge had told jurors there was no corroboration that the applicant committed the offences and warned them to exercise special care when considering uncorroborated sexual-assault allegations. He also explained that corroboration was not legally required and that jurors could convict only if satisfied beyond reasonable doubt. No further request for a recharge was made by the defence.
The Court of Criminal Appeal refused leave to appeal on all grounds. It did not determine the adjourned sentence application.