DPP v MB [2023] IECA 85

The Court of Appeal quashed the conviction of sexual assault where complainant stated at trial that offences didn't happen. The case of DPP v MB involved allegations of sexual abuse of a child of approximately 7 years of age by a baby sitter. During cross examination the child said that the offence alleged to have occurred hadn’t happened. The defence made an application for a direction which was unsuccessful and the appellant was subsequently convicted. In granting the appeal, Kennedy J said:

A judge must consider all of the evidence in determining whether to withdraw a case from the jury, and the trial judge did so in the present case. It is an exceptional measure to withdraw a case from the jury. However, in our view, in the circumstances of this case, the answers given by the complainant were to questions central to the allegations, in fact, directly concerning the events which gave rise to the allegations and contradicted his direct testimony. This was not a situation of inconsistencies arising on the evidence, this was quite different, where, in truth, the answer given as to whether the offending occurred was a simple “no.” We wish to make it clear that where the child’s response to questions was that he was unsure of certain things, this would not necessarily have been sufficient to direct a jury to return verdicts of not guilty, but those responses, together with the responses “no” brings the case into the exceptional category.

The case of DPP v MB also strengthens the principle where the court stated that short, simple, non-repetitive questions should be used. Kennedy J stated:

In practical terms, when cross-examining a child, questions asked should be short, simple and without repetition. The judge must carefully guard the interests of the child, ensuring the child understands what is being asked but at all times ensuring the right to a fair trial.

The judgment also notes the importance of re-examination where there is any confusion. However, while re-examination had taken place in this instance, it did not resolve the issue. Kennedy J observed:

In our view, re-examination is especially important in the context of a child witness whose direct testimony is adduced by way of video recorded interview. Re-examination may have the effect of clarifying an unsatisfactory situation one way or the other. Whilst re-examination took place in the present case, it did not sufficiently rehabilitate the witness to confirm that the events complained of took place.