The Court of Appeal has set aside the conviction of M. D. for sexual assault after finding that a trial judge’s ruling unfairly limited his opportunity to question the complainant using shop CCTV footage. The court did not decide whether there should be a retrial, saying it would hear the parties on that question.
A jury at Dundalk Circuit Criminal Court found M. D. guilty in May 2015 of one sexual assault offence involving a girl aged 13. He received a three-year prison sentence, all suspended subject to a three-year good behaviour bond. His appeal challenged the conviction, not the sentence.
The alleged offence took place in May 2012 in a shop owned by M. D. The complainant said he called her into a kitchen area at the back of the shop and assaulted her. M. D. denied calling her back, saying she returned because she had forgotten a bag of sweets. The CCTV showed part of the shop, including the complainant turning back as she moved towards the exit, but there was no camera in the back area where the alleged assault was said to have occurred.
Before the trial evidence began, M. D.’s counsel asked to be allowed to show the complainant relevant CCTV extracts during cross-examination. The trial judge ruled that the complainant’s recorded interview would be played and she would then be cross-examined; the CCTV would be shown separately afterward. It was played to the jury the following morning, after the complainant and her family had finished giving evidence.
On appeal, M. D. argued that the ruling stopped him from confronting the complainant with footage he believed could reveal inconsistencies in her account. The Director of Public Prosecutions responded that counsel had questioned her to some extent about the footage, could have put the alleged inconsistencies to her, and could have sought to recall her after the footage was shown.
The Court of Appeal said the right to cross-examine an accuser must be facilitated as far as practicable. Given that the complainant was the only witness to the alleged assault and M. D. denied it, the court concluded he had to be permitted to use the CCTV during cross-examination if he wished. It held that doing so was feasible, despite the issue having been raised on the morning of trial.
The court set aside the conviction. It did not order a retrial in this judgment; it said it would hear the parties about that next step.