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2025 IECA 306

THE COURT OF APPEAL Court of Appeal Record No. 205/23 Edwards J McCarthy J Kennedy J Neutral Citation Number [2025] IECA 306 BETWEEN/ THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) RESPONDENT -AND- R. O’B. APPELLANT JUDGMENT of the Court delivered on the 18th day of December 2025 by Mr Justice Patrick McCarthy

  1. This is an appeal against conviction. Following a trial in the Central Criminal Court between the 20th of February and 6th of March 2023, the appellant was found guilty of the following in respect of Bill No. CCDP0204/2020: seven counts indecent assault contrary to common law as provided for by section 6 of the Criminal Law (Amendment) Act 1935 (counts nos. 1 – 7); ten counts of indecent assault contrary to common law as provided for by section 10 of the Criminal Law (Rape) (Amendment) Act 1981 (counts nos. 8, 9, 10, 28, 29, 30, 31, 32, 33, 34); 17 counts of rape contrary to section 48 of the Offences Against the Person Act 1861 and section 2 of the Criminal Law (Rape) (Amendment) Act 1981 (counts nos. 11 – 27); one count of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990 (count no. 35); ten counts of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990 as amended by section 37 of the Sex Offenders Act 2001 (counts nos. 36, 38, 40, 42, 44, 46, 48, 50, 52, 54); and 18 counts of rape contrary to section 48 of the Offences Against the Person Act 1861 and section 2 of the Criminal Law (Rape) Act 1918 as amended by section 21 of the Criminal Law (Rape) (Amendment) Act 1990 (counts nos. 37, 39, 41, 43, 45, 47, 49, 51, 53, 55, 56, 57, 58, 59, 60, 61, 62, 63).
  2. The appellant was sentenced to life imprisonment on each of counts nos. 37, 39, 41, 43, 45, 47, 49, 51, 53, 55, 56, 57, 58, 59, 60, 61, 62, and 63 and to lesser respective sentences in each of the other counts to run concurrently and date from the 6th of March
  3. These are as follows: twelve months on each of counts nos. 1 – 7; a period of three years on each counts nos. 8, 9 and 10; a period of 11 years on each of counts nos. 11 – 27; a period of four years on each of counts nos. 28 – 35; and a period of four years on each of counts nos. 36, 38, 40, 42, 44, 46, 48, 50, 52 and 54 to run concurrently and to date from the lawful termination of the sentence of 11 years imposed on count number
  4. Factual Background
  5. The case made at trial was one of systemic sexual abuse between August 1975 and March 2011 involving five members of the appellant’s family – the appellant’s two sisters, niece and subsequently two daughters. The indictment, as originally drafted, reflected sample counts on a quarterly basis leading to a total of 204 counts. The trial judge raised a concern about the length of the indictment as being potentially oppressive, and the indictment was amended to reflect a yearly basis bringing the total number of counts to
  6. The respondent did not proceed with certain counts in circumstances where evidence of specific alleged offences was not adduced, and accordingly a total of 63 counts were left to the jury.
  7. Counts nos. 1 to 17 relate to Victim A between August 1975 and April 1983 including when she was pregnant with her first son. She gave evidence at trial that her early life was characterised by poverty, violence, neglect and sexual abuse. She stated that the appellant would both physically and sexually assault her on a daily basis from the age of six. She ran away from home for a period when she was approximately 15 or 16 years old and became homeless.
  8. In respect of Victim B, the sister of both Victim A and the appellant, counts nos. 18 to 26 were yearly sample counts of rape from July 1981 to December 1989, while count no. 27 was a specific count of rape when she was approximately 14 years old. She shared a similar upbringing of abuse as that of her sister. Victim B stated that the instances of rape occurred every two to three days from the age of 12 until she ran away from home at the age of
  10. Counts nos. 28 to 35 relate to Victim C. Victim C is the niece of the appellant and lived in the family home in question in circumstances where her mother died when she was young. The counts in respect of Victim C were sample counts of indecent and sexual assault from May 1985 to April
  12. Counts nos. 36 to 57 relate to instances of rape and sexual assault by the appellant on his daughter, Victim D. Counts nos. 36 to 54 were yearly sample counts of rape and sexual assault between January 2001 and December
  13. Counts nos. 55, 56 and 57 related to specific instances of sexual assault and rape. The appellant began to sexually assault her from the age of five. She stated that the appellant would give her small amounts of money and she believed it had to be a secret.
  14. Counts nos. 58 to 63 relate to Victim E, the appellant’s second daughter. In respect of count no. 58, she recalls that when she was approximately seven years old, the appellant took her from the bath into her bedroom and engaged in sexual intercourse lasting approximately 20 minutes. Count no. 59 related to rape when Victim E was 11 years old in the sitting room of their home. Counts nos. 60 to 63 represented yearly sample counts of rape which occurred twice weekly from October 1998, when she was approximately 12 years old, until March 2011 when she was taken into foster care. Grounds of Appeal
  15. The appellant lodged a notice of appeal on the 19th of July 2023 and seeks to overturn his conviction on the following grounds: – i. The trial Judge erred in allowing all of the complainants to give evidence by video link. ii. The trial judge erred in refusing to sever the counts so that the accused would be trial separately in respect of the individual complainants in the manner submitted by Counsel. Analysis & Decision
  16. A successful application was made by the prosecution to take the evidence of four of the five complainants by live television link in circumstances where consent was given by the appellant to have that of Victim D taken by that means. The judge granted the application. Accordingly, the complainants gave evidence using that facility or, as it has now come to be called in practice, gave evidence remotely. These orders were made on the basis of medical evidence and, additionally, in the case of Victim A, oral evidence by one Garda Sharon Hanley. Before us, any application pertaining to Victim E was withdrawn and, hence, we are concerned for the purposes of this appeal only with the evidence of Victim A, Victim B and Victim C.
  17. The statutory provisions governing the taking of evidence remotely are to be found in section 13 of the Criminal Evidence Act 1992, as amended. It states as follows: – 13.—

(1)In any proceedings (including proceedings under section 4E or 4F of the Criminal Procedure Act, 1967) for a relevant offence a person other than the accused may give evidence, whether from within or outside the State, through a live television link— (
  1. a)if the person is under 18 years of age, unless the court sees good reason to the contrary, (
  2. b)in any other case, with the leave of the court. (1A) In any proceedings (including proceedings under section 4E or 4F of the Criminal Procedure Act 1967) relating to an offence, other than a relevant offence, a court may, subject to section 14AA, grant leave for a victim of the offence to give evidence, whether from within or outside the State, through a live television link. 12. Having regard to the age of the complainants, whether or not they might be permitted to give evidence remotely was accordingly a matter for the judge. The rule is that presumptively all parts of every trial will be conducted in person, but for good reason the court may depart from that default position, and subject to the qualification that such an order would not be made where a party can establish that to do so will result in a demonstrable unfairness (see, for example The People (DPP) v. O'Driscoll [2022] IECA 4, The People (DPP) v. Osei [2022] IECA 61 and The People (DPP) v. Brady [2024] IECA 170). In the first of these three cases, the position was somewhat complicated by the fact that the witness was permitted to give evidence with the assistance of an intermediary. The Court doubted an earlier authority, namely, DO’D v. DPP [2010] 2 IR 605 (where the Court decided because of a sexual offence case in which the complainant had a mental impairment that an order ought not to have been made permitting the complainant to give evidence remotely and the trial court’s decision in that regard was quashed) and put the matter thus: – “For present purposes it suffices to say (
  3. a)that D.O'D. v. DPP makes it clear that an accused has no absolute right to insist on an in-person confrontation with a witness, and (
  4. b)that the reason for the decision not to permit the giving of evidence by video link in that case was very much rooted in the particular facts that presented themselves to the Court. There, the offences charged involving having sexual intercourse with persons who were mentally impaired. Thus, proving that the complainants were mentally impaired was an essential prosecution proof. Part of the defence in the case involved the contention that the complainants were not mentally impaired. In those circumstances, it was understandable that the view might be taken that if special accommodation was provided for the complainants, that this could only have been because they were in need of such assistance as persons who were mentally impaired.” 13. In Osei, the witness in question was resident abroad and attendance in person at the trial was not confined to that mere fact – the evidence was that a return to Ireland and the entry into a courtroom by the complainant would have an emotionally negative effect on her, coupled with the fact that leaving the jurisdiction in which she then resided would have had a detrimental effect on her ability to find and complete the remainder of her work there or obtain a visa for residents beyond that initially contemplated; the Court rejected the criticism of the trial judge’s decision to permit the evidence to be given remotely. The observations in O'Driscoll doubting the correctness of DO’D were repeated. In Brady, the witness was similarly resident abroad and it was not possible to take her evidence otherwise than remotely from her own home having regard to the then subsisting restrictions on movements in the sittings of courts and by virtue of the Covid epidemic; similarly, there, it was held that the order permitting this was appropriate. These authorities show that there are range of possible reasons justifying the dispensation with personal attendance providing for evidence to be taken remotely whether by live television link (as it was originally called), in the precincts of the trial court, or from abroad. 14. Victim A, at the time of the trial, had been diagnosed with breast cancer and was undergoing radiotherapy following surgery for that condition. Her doctor, one Dr June Coates, said in her report that the complainant was "still quite unwell recovering from her treatment and I feel she should receive some special consideration in terms of how she provides her testimony in her upcoming court proceedings". In fact, the report was supplemented by the evidence of Garda Hanley to the effect that she could not leave her own home because of the risk of infection and nor she could travel long distances. Risk of infection was apparently such that it was contemplated that if evidence was to be given remotely, the equipment needed for the purpose would be sterilised. Ultimately, she gave evidence from her bedroom during the trial and it was inferred that this was because of her state of health. It seems to us that it would be difficult to find a better reason, and for the trial judge's order permitting her to give evidence remotely, than this. This is yet another example of the varied circumstances in which the courts may permit evidence to be taken in this manner. 15. With respect to the appellant's first daughter, Victim D, her evidence was extensive in that it consisted not merely of a report from her general practitioner, one Dr O'Hara, but also from Tusla as to her engagement with that organisation from childhood. We were told by counsel that no objection was taken to the receipt of the evidence of Victim D. She was a person who had long suffered from severe anxiety depression, insomnia and had selfharmed. The medical view was that this was directly related to her past trauma [by which we understand is meant the fact that she was the victim of sexual abuse] and her doctor expressly states that she would “suffer severe anxiety of brought before the Court in the same courtroom as alleged abuser, and would have serious impact on her ability to effectively furnish the Court with her statements/evidence". She has been described as suffering a general learning disability in the documentary material provided by Tusla and placed in care for an extensive period. We refer to her circumstances, based upon which the trial judge made the relevant order, as yet another example of good reason (conceded to be so but on behalf of the appellant) for such an order; it is of relevance for a further reason. Counsel for the appellant, in effect, suggested that a good reason for the grant of an order for any personal difficulties grounding is that such an order should be connected to the capacity of an individual to give evidence – that it was only in cases where witnesses would not be capable of giving their best evidence (we did not understand this term to be used as a term of art) without the facility. Having regard to the contents of the medical report, he made this concession. In effect his position is that this is to be distinguished from two of the remaining three complainants. 16. We say this because on the hearing of this appeal he conceded that in the case of Victim E there was evidence which would have allowed the trial judge to decide as she did. The same general practitioner, Dr O'Hara, in a report of the 17th of January 2023 refers to the fact that she had suffered and was still suffering from anxiety and flashbacks [which again we infer inter alia trauma caused by sexual abuse] which had caused her to engage in selfharm and which has given rise to what he calls psychotherapeutic input. He expresses the opinion that she would suffer “severe anxiety if brought before the court in the same courtroom as alleged abuser, and would have a serious impact on her ability to effectively furnish the court with statements/evidence”, ultimately, it was accepted by counsel that she was in the same position as Victim D. 17. We turn then to the remaining complainants, Victim B and Victim C. Dr Sean Maguire, in the case of Victim B refers to her “long history of severe anxiety and depression” and the fact that as the trial grew closer she was “… increasingly anxious. She is unable to sleep and pacing the floor as day and night, her hands are shaking in her stomach is turning over, even at this stage”. She was prescribed medication for depression and for her anxiety condition as well as to assist her to sleep. He says that “she may [as a consequence] find it hard to give evidence in front of the defendant”. Victim C was described by her general practitioner, one Dr Darragh Byrne, as having “a complex medical and mental health history”. Her medical history apparently relates to cardiac issues and a bladder tumour. He states that “overall I think it would be preferable if video link was allowed for [Victim C] for the benefit of her overall physical and mental health also”. Counsel submits that neither in the case of Victim B or Victim C is it stated that the health issues would have an impact on their ability to furnish the court with their “statements/evidence” and that they are therefore to be distinguished from the remaining complainants. 18. There is no evidence of any form of prejudice which might impact on the fairness of the appellant's trial if the evidence of any of these complainants was taken remotely. Objections on the grounds of unfairness are largely or are entirely of generic kind. Nothing specific has been identified. It is said that the capacity to observe the demeanour of witnesses (and this is the primary point) is undermined. Whatever else, we cannot see there is any prejudice to the appellant by virtue of the fact that the evidence of four of the five witnesses was taken in this way. 19. Accordingly, counsel, with commendable focus, submitted that, given that the statute required leave of the Court before the evidence could be received remotely and that good reason was required before that discretion could be exercised in favour of the moving party, the prosecution had simply failed to come up to proof to establish a good reason in the present case – as matters have developed in the case of two of the five complainants. Whilst no such concession was made in respect of the evidence of Victim A, it seems obvious that having regard to her state of health the order was rightly made that the matter is beyond rational debate. 20. It might well be the case that good reason could be shown permitting the judge to properly exercise his or her discretion in favour of the moving party to have evidence taken remotely but that, nonetheless, an injustice might be worked to the extent that a trial would be unfair and not in accordance with law. The circumstances in which that might occur, given what we now know about the fact that the taking of evidence remotely has never occasioned any difficulty, must be rare indeed; we can say this on the basis of years of experience that there is no sense in which it has proved unsatisfactory on any basis. 21. Accordingly, we think that there are maybe a range of good reasons as to why evidence may be taken in this manner with leave of the Court. In the present case, there cannot be any real controversy about three of the five complainants, and if there is any, on the basis advanced by counsel, it arises in the case of Victim B or Victim C. It is plain that significant medical difficulties are ongoing in respect of both of these complainants. It is not suggested that their capacity to give evidence would be significantly undermined. We think that in a case such as the present, the judge properly exercised her discretion on the grounds of their ill-health to permit them to give evidence remotely. We think that it is a particular significance that they are both suffering from psychiatric illnesses or have done so from time to time. This is additional to physical illness in Victim C's case. Sexual offence cases are of particular sensitivity for all concerned and it is plain that this is a factor which must be taken into account. We think accordingly that the trial judge exercised her discretion properly and we dismiss this appeal.

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