[2026] IECA 98

THE COURT OF APPEAL [2026] IECA 98 Record Number: 32/2024 Kennedy J. Meenan J. Owens J. Between/ THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) Respondent -ANDS.S. Appellant JUDGMENT of the Court delivered by Mr. Justice Alexander Owens on the 7th day of May

2. This appeal raises a single issue. On 3 November 2023 S.S. was convicted of 71 offences of having raped, orally raped, and sexually assaulted his daughter L.S. in the family home in the period between May 1988 and November
3. The offending alleged in the indictment started when she was about seven years of age.
4. His ground of appeal is that the learned trial judge erred in refusing his application to discharge the jury “after [the giving of] evidence which had not previously been disclosed, and which seriously compromised the accused’s cross-examination of the complainant.”
5. This Court is dismissing this appeal. The learned trial judge exercised his discretion to refuse the defence application to discharge the jury for the reasons set out in his ruling. His reasoning was impeccable. A trial judge is in the best position to determine whether to accede to a defence application to discharge the jury.
6. In order for an appeal such as this one to succeed it is not sufficient for an appellant merely to persuade this Court that it would have taken a different course to that taken by the judge presiding at the trial. This Court will not interfere with a decision by a trial judge not to discharge the jury unless that appellant convincingly demonstrates that as a result of that decision the fairness of the trial has been compromised or the verdict of the jury has been rendered unsafe.
7. Any possibility of prejudice to S.S. in the mind of the jury as a result of the course taken by counsel for S.S. in cross examining L.S. on this aspect of her testimony was adequately addressed by the trial judge in the course of his summing up. There is no reason to suppose that the jury did not adhere to this instruction. The trial was not unsatisfactory and the verdicts of the jury were not rendered unsafe as a result of the decision not to discharge the jury.
8. On direct examination on the second day of the trial L.S. testified that S.S. subjected her to a progression of sexualised activity when she was very young. This started with tickling and moved to inappropriate touching from the time when she was six or seven years of age. She testified that she was asked by S.S. to rub his penis while he touched her “until he ejaculated and he would then get some tissue or towel and rub it. On one occasion he had ejaculated near-my pants were down, and some had gotten inside my leg and he went to my bedroom and he rubbed it with a teddy bear.” Counsel for the prosecution, who was aware that this was new information, did not seek further elaboration from L.S. on this, and direct examination moved to a different topic.
9. The defence had no advance notice of any incident with a teddy bear as this information did not feature either in any of the documents disclosed by the prosecution to the defence or in any written statement which had been taken from L.S. by the investigating Garda.
10. It often happens that a witness, such as L.S., makes a disclosure in testimony of information about an incident which did not feature in material provided by that witness in the course of an interview by Gardaí, and which is not otherwise available to the defence through the disclosure process. The introduction of such material into the testimony of a witness does not of itself justify the discharge of the jury, even where the defence had no prior notice of its content. The statements taken from witnesses by investigating Gardaí and included in the book of evidence are a” road-map.” They do not preclude a witness from elaborating on their content. While prosecution counsel will try to keep any witness within the four corners of the proof of intended evidence of that witness, as notified to the defence, it is not the function of prosecution counsel to curate the testimony of any witness.
11. Where a witness reports or makes statements to Gardaí investigating an allegation of an incident or series of incidents, such as reports or allegations of sexual abuse, those statements and reports will rarely be identical in every detail. Extra details may be provided in a subsequent statement and details previously provided may be omitted. The order of events as recounted by the statement-giver may change. The accuracy and degree of detail in a statement provided by a potential witness to a Garda investigator will always depend to some extent on both the powers of recollection and description of the statement-giver, and the skill and insight of the statement-taker.
12. Similarly, the testimony of a witness during a trial is a fluid process. A witness giving evidence at trial will often fail to recall some information provided in a statement to Gardaí or in an earlier report of an event, and will recall in the witness box incidents or details not included in statements taken by the Gardaí or into reports recording what that person has stated to other professionals. The jury must decide on the testimony of that witness at trial and counsel for the defence may cross-examine on discrepancies between that testimony and the content of information provided by that witness to others on previous occasions.
13. Gardaí investigating possible criminality have a duty to record and disclose any significant information provided by potential witnesses, whether or not that information is recorded in a witness statement. Prosecution compliance with this obligation to record and disclose investigation materials enables the legal advisers for the defence to assess the strengths and weaknesses of the prosecution case, as presented in the material which the prosecution notifies the defence that it intends to rely on at trial.
14. Those strengths and weaknesses may also relate to material which the prosecution may either choose to omit from or forget to include in the book of evidence. Prosecution disclosure enables the defence to avoid issues which will not assist the defence case. Proper compliance with the prosecution obligation of disclosure will enable the defence to avoid pursuing lines of cross-examination which may backfire.
15. The process of preparing for trial is also fluid and the defence will often be confronted with a statement outlining potential additional evidence to be given by an intended witness either shortly before or during the trial. This is a feature of many trials. Late notification by the prosecution of intention to introduce such material rarely justifies an adjournment.
16. The circumstances which led to this appeal illustrate these points. During the course of the investigation the Garda officer in charge was made aware by L.S. of the information relating to the teddy bear. As became clear when counsel for S.S. cross-examined L.S., she had told the investigating officer about it. He had asked her to locate this teddy bear. It had been thrown out. His evidence on voir dire disclosed that he failed to note down what L.S. had told him about the teddy bear incident and his effort to secure that toy.
17. As a result of this mistake by the Garda investigator, information which L.S. had imparted to him relating to the teddy bear was not disclosed to the defence. If he had complied with the obligation to note and disclose this matter, this would have led to disclosure of this material to the solicitor for the Director of Public Prosecutions. It is likely that this would have led to the taking of a further formal statement from L.S. setting out her recollection of the teddy bear incident for service on the defence under formal notice of intention to adduce its contents as evidence at the trial.
18. Disclosure of a Garda note of the discussion about the teddy bear would have enabled the defence to avoid any cross examination of L.S. during the trial which suggested that she had not told the investigating Garda about the teddy bear incident.
19. Naturally, when L.S. gave testimony on this subject during the trial, counsel for S.S. sought to cross-examine her on the fact that she had failed to mention the teddy bear incident in her statement to the Garda investigator. On counsel’s information, which was derived from the disclosure received from the prosecution, she had made no mention of a teddy bear to the investigating Garda. On the face of that information, counsel was on solid ground in his challenge to L.S. on this issue.
20. Even before counsel for S.S. got an opportunity to cross-examine L.S. on this apparent discrepancy, she reintroduced the topic of the teddy bear in response to a question asking when S.S. progressed beyond tickling and touching. She gave testimony that “I know at six or seven I was –I had semen belonging to him on me. I know this because I went into my bedroom and my sister picked [the teddy bear] up and she asked me what it was, and she brought it to my mum and my mum said it must be snails.”
21. Counsel for S.S. then challenged L.S. on the basis that her testimony about the teddy bear incident was entirely new information which she had not included in her statement to the investigating Garda. She responded that she had told the investigating Garda about this and that he had asked her if she still had the teddy bear. At that stage counsel, wisely, did not pursue the issue of whether she had asked the investigating Garda about this. Counsel did not know what the investigating Garda would say on that topic and confined himself to a question to L.S. which asked her how she would respond if it transpired that the investigating Garda gave evidence to the jury that she had not told him about the teddy bear.
22. L.S. gave further testimony in response to questions put on cross-examination that her younger sister, who was five years old at the time, asked her about what was on the teddy bear and that this sister did not witness the incident between her father and herself, but found something on the teddy that she had wiped and thrown in the bedroom. She testified that her mother looked at what was on the teddy bear and said it was probably a snail.
23. This testimony relating to the teddy bear incident was significant in descriptive terms and had the ring of truth about it. This was relevant and was therefore admissible evidence. However, it was a point of detail in testimony by L.S. relating to many incidents of abuse. It did not introduce some new allegation which would require further investigation in order for the defence to be in a position to meet it.
24. If a statement had been taken from L.S. containing the teddy bear information immediately prior to the start of the trial and served in a notice to adduce its content, there would have been no difficulty in introducing her testimony on that subject during direct examination. It would be unlikely that the defence could have been granted or even sought an adjournment to deal with it. No useful purpose could have been served by any such adjournment and it was not suggested to the learned trial judge that an adjournment was needed for that purpose
25. Defence counsel applied to discharge the jury on the ground that he was prejudiced in his defence by his course of challenging L.S. on the point that she had not mentioned the teddy incident in her signed statement to the Gardaí and had thereby attacked her credibility on that point; a step which he would not have taken were he aware of the true position.
26. Undoubtedly, defence counsel would not have put it to L.S. that her testimony to the jury was the first time that she had ever mentioned semen on a teddy bear, had he been aware that she had mentioned the point to the investigating officer, or that they had discussed locating the teddy bear.
27. The learned trial judge rejected the defence application to discharge the jury. This Court considers that he was correct in taking this course in the circumstances of this case. In giving his reasons he explained that an order discharging the jury is exceptional, and a remedy of last resort which is appropriate where something adverse and of real significance has occurred which has resulted in a real risk of an unfair trial which cannot be remedied by appropriate directions by the trial judge to the jury. We agree with this. He correctly stated the law governing the circumstances in which it is appropriate for a trial judge to accede to an application to discharge a jury during a trial.
28. The learned trial judge gave very careful consideration to the defence application, as is apparent from the terms of ruling on 25 October
29. This took up four pages of transcript. He reviewed all of the relevant evidence.
30. There was no suggestion that the omission by the investigating Garda officer to take an additional statement relating to the teddy bear incident or to note what L.S. told him about the teddy bear was as a result of anything other than non-deliberate oversight. The learned trial judge referred to the defence submission to him that the effect of her answers, when cross-examined on this point, was to enhance her credibility and that the effort to undermine her credibility had been damaged.
31. The learned trial judge did not accept the defence submission that the defence had been significantly prejudiced or embarrassed in the conduct of the case by the Garda’s failure to disclose the reference by L.S. to the teddy bear. He did not consider that any prejudice had reached the threshold which required discharge of the jury, or that there was a real risk of an unfair trial. He was satisfied that such prejudice as might have arisen could be dealt with by appropriate directions to the jury along the lines which he indicated in his ruling, and which he subsequently incorporated into his charge to the jury.
32. This Court agrees with the reasoning of the learned trial judge, as set out in his ruling. S.S. has not identified that the learned trial judge made any error of law in arriving at his conclusion.
33. The judge who presides at a trial is in a much better position than any appeal court to determine whether it was fair to allow the trial to proceed further, or whether some event, which arose during the course of a trial, exposed the defence to a significant disadvantage to which they ought not to have been exposed. Even if a trial judge has exercised this discretion in a manner different to which a court of appeal might have exercised it, it is not the law that this fact alone is sufficient ground for quashing a conviction and directing a retrial.
34. This Court considers that any adverse view which the jury might have formed on this aspect of the conduct of the defence’s case was capable of being adequately addressed by a direction from the learned trial judge in the course of his summing up. This summing up could also address any view which the jury might have that the credibility of L.S. was enhanced as a result of the interchange between counsel and L.S. relating to whether she had told the investigating Garda about the teddy bear incident, if this was a real concern.
35. The learned trial judge advised defence counsel on 27 October 2023 that he intended to address the issue in accordance with these remarks. Defence counsel did not take issue with the proposed content. The defence was given an opportunity to address the court if it considered that the learned trial judge should give the jury some further instruction on that issue.
36. The learned trial judge explained that he intended to explain to the jury that the background to defence counsel’s challenge to L.S. suggesting that her testimony in court was the first time that she made an allegation about the incident relating to the teddy bear. He intended to tell the jury that this had occurred because of an oversight on the part of the investigating Garda which left defence counsel under the mistaken impression that L.S. had not mentioned this matter to that Garda during the investigation.
37. Counsel for S.S. did not take issue with the content of this proposed direction. His position on appeal to us is that the unfairness caused to S.S. was not capable of being remedied by a judicial direction. We do not accept this submission.
38. In the course of his charge to the jury, the trial judge recounted the testimony of L.S. on cross-examination about her wiping semen on a teddy bear and about how her younger sister picked it up and asked what it was and brought it to her mother who said: “it must be snails.” He recounted, word for word, the questions by defence counsel put to L.S. which asserted that her testimony in court was the first time she mentioned semen on a teddy bear and that there was nothing about that in her statement. He also recounted her answers which explained that she had told this to investigating Garda and that he had asked her if she still had the teddy bear.
39. The learned trial judge then proceeded to instruct the jurors as follows: “Now in relation to that exchange, ladies and gentlemen, in relation to that exchange concerning when she first mentioned the teddy bear. Counsel for the defence had not been made aware that she had in fact mentioned it at the time of making her statement. It should have been noted by the garda but it wasn’t due to an oversight on the part of the garda. So in putting it to her that it wasn’t in her statement and that was the first time he’s heard about it, counsel for the defence was incorrect—was correct as far as he was concerned on the information that he had been given. So you shouldn’t draw any adverse finding or inferences against the accused on the basis of that exchange because counsel was simply approaching the matter on the basis of the information he had been given. He should have been given that information that she had told the police earlier, but he hadn’t been due to an oversight.”
40. This direction was more than adequate to explain to the jurors the circumstance in which defence counsel came to suggest to L.S. that her testimony was the first time that she mentioned the teddy bear incident. The learned trial judge clarified that this arose as a result of a failure by the investigating Garda in failing to note down the information which L.S. gave him about the teddy bear incident. The jurors can be taken to have understood the reasons given by the learned trial judge for his direction, and to have complied with his instruction that they should not hold this against the defence.
41. At the hearing of this appeal, counsel for S.S. submitted that the testimony of L.S. about the teddy-bear incident was striking. He stressed the fact that he had no prior notice of her intention to give that evidence. However, he did not advance his application to the learned trial judge to discharge the jury on that ground. He did not suggest that this element of her testimony was such a “departure from script” as to require that the jury be discharged.
42. We consider that no useful purpose could have been served if the learned trial judge were to have acceded to an application to discharge the jury on this ground. The circumstances disclosed in this appeal do not demonstrate that the interests of justice required that the learned trial judge take that step.
43. The testimony of L.S. relating to the teddy bear incident provided a point of detail which was within the four corners of her intended evidence, as disclosed in the book of evidence. This sort of additional detail often emerges during the course of testimony by a victim during a trial involving allegations of sexual offending. While this detail was striking, and the jury might well conclude her testimony about the teddy bear had the ring of truth, there was nothing unfair to S.S. in allowing the jury to receive and consider it, notwithstanding that it had not been signalled to the defence in advance.
44. The learned trial judge considered that this element of the testimony of L.S. was a small part of the overall trial. He was entitled to take that view. This testimony did not alter the prosecution case or prejudice the ability of the defence to meet that case. If the mistake by the investigating Garda officer had been discovered immediately prior to the start of the trial the prosecution would have taken a further statement, there and then, and served it as “additional evidence.”
45. It is not suggested that such a step, had it been taken, would have warranted an application for an adjournment of the trial. The defence were in a position to meet the evidence relating to the teddy bear incident. The younger sister of L.S., who gave evidence, testified that she had no recollection of it. She was very young at the time. The mother of L.S., who testified on behalf of the defence, had no recollection of any such incident. S.S. testified that he did not engage in any untoward sexual activity with L.S.
46. For these reasons we are dismissing this appeal.