Defendant's right to cross examination - DPP v MT [2023] IECA 65 21st March 2023

Significant judgment where conviction was quashed in relation to sexual offences against a child. The complainant had said that she did not remember the offence - the alleged incident having taken place when she was approximately 6 and cross examination when she was approximately 11.

Giving the judgment of the court, Ní Raifeartaigh J emphasised the right to cross examine:

Having regard to the totality of the evidence and circumstances, the Court is satisfied that there was a risk of an unfair trial. In our adversarial system of criminal justice as currently constituted, it is not sufficient that there be clear and coherent evidence-in-chief from the child complainant (which there undoubtedly was, via the videorecording): there must be some realistic opportunity to cross-examine in order to afford an accused person his constitutional right to cross-examine. The Court has concluded that where the witness’ memory was impaired to the degree described by the child complainant herself in this case, any attempt to cross-examine the child was effectively an exercise in futility and there was therefore a real risk that the trial was unfair which could not be cured, no matter what warnings the jury might be given.

https://www.courts.ie/acc/alfresco/1ceaa05b-871d-4d45-a7f6-2695fd1c0d77/2023_IECA_65%20(unapproved).pdf/pdf#view=fitH