Court of Appeal dismisses appeal where cross-examination of a child witness was deemed ineffective due to lack of memory.

THE COURT OF APPEAL Neutral Citation: [2025] IECA 171 Record Number: 167/2023

Edwards J. Kennedy J. Burns J.

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT

- AND -

CJCS APPELLANT

JUDGMENT of the Court delivered on the 29th day of May, 2025 by Ms. Justice Tara Burns.

1. This is an appeal against conviction which relates to the issue of cross examination of a child witness after the admission into evidence of a recorded interview with the child pursuant to s. 16 of the Criminal Evidence At 1992 (‘the 1992 Act’).

2. A number of recent authorities have considered this issue where it has arisen that a child witness has indicated a lack of memory in the course of cross examination as a result of which, it has been asserted on behalf of the defence, that an unfair trial arises because an effective cross examination cannot be conducted. These authorities include The People (DPP) v. MT [2023] IECA 65 (Edwards, McCarthy and Ní Raifeartaigh JJ, Judgment delivered by Ní Raifertaigh J), The People (DPP) v. NW [2024] IECA 173 (Birmingham P, Kennedy and Burns JJ, Judgment delivered by Burns J) and The People (DPP) v. TM and CC [2024] IECA 174 (McCarthy, Ní Raifertaigh and Burns JJ, Judgment delivered by Burns J).

Background

3. On 23 February 2023, after a jury trial, the appellant was convicted of the eight charges proffered against him. Counts 1 and 2 related to rape contrary to section 4 of the Criminal Law (Rape) (Amendment) Act 1990 (“the 1990 Act”). Counts 3 and 4 related to invitation to sexual touching, contrary to section 4 of the Criminal Law (Sexual Offences) Act 2017.

Counts 5, 6, 7, and 8 related to sexual assault contrary to section 2 of the 1990 Act.

4. On 22 May 2023, the trial judge sentenced the appellant to a period of 5 years and 9 months imprisonment with the final 9 months suspended for a period of 9 months on certain terms and conditions. The sentence was backdated to 13 February 2023, to reflect when the appellant entered custody.

5. The offending occurred between 4 September 2019 and 4 March 2020 at the family home of the appellant when the appellant was 17 and the victim was between the ages of 4 and

5. The appellant is the son of the childminder who looked after the victim, her brother and another child in her home. The offences occurred when the victim was left in the care of the appellant whilst his mother left the house to collect the other children from school. On these occasions, the victim would sit on the appellant’s lap to watch television in the course of which the sexual offending was carried out. The offences were prosecuted on a sample charge basis.

6. The victim made an initial disclosure of sexual abuse to her mother on 9 December 2020, two days after the childminding arrangement ended. The disclosure was brought to the attention of Tusla and An Garda Síochána in the following days by the victim’s parents. The victim was interviewed by the Family Centre on 8, 16 and 19 February 2021. She was interviewed by specialist Garda interviewers on 3 May 2021. All of these interviews were recorded and were adduced in evidence as the victim’s evidence in chief by agreement between the parties pursuant to s. 16 of the 1992 Act. They also were made exhibits in the trial and were provided to the jury during their deliberations.

7. In the first interview with the Family Centre on 8 February 2021, the victim did not make any disclosure of a sexual nature. In the second interview on 16 February 2021, the victim made an immediate disclosure to the interviewer of sexual acts being perpetrated on her by the appellant when she sat on his lap in a particular chair after he put her favourite cartoon (‘Tom and Jerry’) on for her. The victim described the manner in which the offending occurred, the fact that it caused pain inside her, and how regularly it occurred.

In the third interview with the Family Centre on 19 February 2021, the victim discussed the same sexual disclosures she had made at the previous interview. In the Garda specialist interview conducted on 3 May 2021, the victim disclosed an additional form of sexual offending perpetrated against her by the appellant which she had not mentioned in the earlier interviews.

8. The trial commenced at the Central Criminal Court on 1 February 2023. At this stage, the victim was 8. Discrepancies which existed in the victim’s accounts as depicted in the four recorded interviews, together with an assertion that she made the disclosure in the second interview with the Family Centre immediately after her mother whispered something to her, were of interest to the appellant.

9. The victim was cross-examined via video link. It is appropriate to set out that cross examination extensively to see how it developed:- “Q. [R]emember when you did the last recording for TV and you were sitting with Iris, do you remember that?

A. Yes.

Q. Yes. And she was asking you if you knew the difference between what's true and what's a lie. And I think you told her you did?

A. Yes.

…

Q. Now, can I ask you just about when you used to go to [the childminder]’s house

. Do you remember that?

A. Yes.

…

Q. … And so, did you like [the childminder]’s house?

A. Kind of.

Q. Yes. I mean, did you get on with [the childminder]? Did you like [the childminder]?

A. Yes.

Q. And I think you liked [the childminder’s husband], as well …?

A. Yes.

…

Q. Yes. And do you remember what you used to do when you were in [the childminder]'s house after school?

A. Yes.

…

Q. … Well, just to let you know that [the childminder] seems to remember that most of the time, that she'd bring you with her, when she's going to collect [your sibling].

But there were times when she left you back at the house?

A. Yes.

Q. And sometimes, [the childminder’s husband] would be there and sometimes [the appellant] would be there, and sometimes both of them would be there. Do you remember?

A. Yes.

Q. Yes. Now, so, when you came home from school and if [the childminder] didn't bring you back up with her to collect [your sibling], what would you do?

A. I'd stay home with [the appellant].

Q. Yes. And would [the childminder’s husband] be there?

A. Sometimes.

Q. Yes.

…

Q. When you were in [the childminder]'s house, did you feel safe there?

A. Not really. Kind of.

Q. Not really? And did you tell [the childminder] things?

A. No.

Q. No. When did you feel unsafe?

A. When I was alone with [the appellant].

Q. Sorry?

A. When I was alone with [the appellant].

Q. When you were alone with [the appellant]. And for how long would that be?

A. I don't know.

Q. When [the childminder] came back, if you were alone, did you feel safe then?

A. Yes.

Q. Okay. Did you ever tell [the childminder] that you felt unsafe?

A. No.

Q. Did you ever tell [the childminder’s husband] that you felt unsafe?

A. No.

Q. You like [the childminder’s husband], isn't that right?

A. Yes.

Q. You could tell him anything?

A. Yes.

Q. And [the childminder]? You could tell her anything?

A. Yes.

Q. And if you were unhappy, would you speak to [the childminder]?

A. Um. I don't remember.

…

Q. Okay. Do you remember the night that you spoke to your mum?

A. No.

…

Q. Yes. Do you remember going to see Zara?

A. Not really.

Q. Okay. Do you remember going to see Iris?

A. Not really.

…

Q. … Do you remember watching TV in [the childminder]'s house?

A. Yes.

Q. And do you remember what kind of TV you liked to watch?

A. Yes.

Q. What programmes did you watch?

A. Tom and Jerry.

Q. Tom and Jerry. Was that your favourite?

A. Yes.

Q. Okay. And did you watch other programmes?

A. I don't remember.

Q. Okay. And did you do your homework first or would watch TV for a while first?

A. I don't know.

Q. You don't remember. Is it a long time now since you were at [the childminder]'s house?

A. Yes.

Q. And do you forget a lot of --

A. Yes.

Q. Yes. Do you forget what you've told them those days?

A. Yes.

Q. It was a long time ago?

A. Yes.

Q. Okay. Now, going back to the TV in [the childminder]'s house. You watched TV sometimes with [the appellant]?

A. Yes.

Q. And, I think, did you watch TV sometimes with [the childminder’s husband]?

A. I don't remember.

Q. Okay. Did you watch TV sometimes with [the childminder]?

A. I don't remember.

Q. Okay. So, who do you remember watching TV with?

A. [The appellant].

Q. [The appellant]. Okay. And when you watched TV with [the appellant], do you remember you said about the chair had a button on it and you could bring the --

A. Yes.

Q. -- front of it so you could put your legs out? Do you remember that?

A. Yes.

Q. Yes. And did you sit on [the appellant]'s lap when you watched TV?

A. Yes.

Q. And would you have the seat up like that in front?

A. Yes.

Q. Yes. And you don't remember sitting in [the childminder’s husband]’s lap watching TV?

A. No.

Q. No. Now, tell me if I'm wrong now, because I want to be sure that I'm not saying anything wrong, okay? You don't remember what you said to Zara --

A. No, I don't.

Q. -- in the Family Centre?

A. No.

Q. And you don't remember what you said to Iris when you met the guards?

A. No.

Q. Okay. So, what do you remember about the sitting room and [the appellant]?

A. I don't know.

Q. Sorry?

A. I don't know.

Q. Okay. Do you remember anything about --

…

Q. Okay. Now, before the break there, I was just asking you about what you remembered; okay? And I think I asked you, do you remember what -- the first time you told your Mum, and -- you don't remember that; do you? Okay?

A. No.

Q. And we talked about Zara; you don't remember what you told Zara in the camera?

A. No.

Q. Okay. And -- and then there was Iris, and you don't remember what you told Iris;

is that right?

A. Yes.

Q. Okay. And… So, can I ask you, what is it you do remember about watching TV?

A. I don't know.

Q. Do you remember being in the living room watching TV?

A. Sometimes.

Q. Yes. And you do remember the -- the seat with the button on it that you could move it up and…? Yes? And did you used to sit on that seat?

A. Yes.

Q. Yes. And I think you said -- do you recall, did you used to sit in [the appellant]'s lap?

A. Yes.

Q. And you don't remember if you sat in [the childminder’s husband]'s lap?

A. Yes.

Q. Okay. And do you remember anything else that happened?

A. No.

Q. Okay. Do you remember who else was in the house?

A. No.

…

Q. Okay. Do you remember how many times you would have been alone with [the appellant]?

A. No.

Q. Do you remember anything about being in [the childminder]'s house?

A. Not really.”

10. The trial judge gave a detailed exposition to the jury, both prior to the victim being cross examined and in the course of his charge, in relation to evidence from a child witness and how the giving of that evidence differs from evidence given by an adult. He also explained about ground rules governing the questioning of a child and how the questioning which is conducted is different because the witness is a child. In addition, in the course of his charge, the trial judge gave the jury a corroboration warning because the victim “could not recall and did not have a memory of the incidents.”

11. As already noted, by agreement of both parties, and at their request, all of the recorded interviews conducted with the victim were handed into the jury in the course of their deliberations having been made exhibits in the trial. In light of the provision of this evidence to the jury, and to ensure balance, the trial judge decided to also provide the jury with a transcript of the relevant portions of the victim’s cross examination, as agreed with the parties.

Grounds of Appeal

12. By notice of appeal dated 4 June 2023, the appellant appealed against his conviction and set out his grounds of appeal as follows:-

a) “The learned Trial Judge erred in law in allowing the videos of the specialised interview with the complainant … to be given to the Jury for the purpose of their deliberations.

b) The learned Trial Judge erred in law with regard to allowing the case to progress to the Jury in circumstances whereby the child complainant … could not remember anything concerning the alleged offences when cross examined before the Jury and therefore the cross-examination of the Complainant was rendered ineffective and unfair to the Appellant where the veracity and/or accuracy and/or truth of the allegations could not be tested.”

Cronin Objection by the Respondent

13. Neither ground of appeal pleaded in the Grounds of Appeal was raised before the trial judge.

In those circumstances, having regard to The People (DPP) v. Cronin [2006] 4 IR 329, an explanation must be provided by the appellant as to why these matters were not raised in the course of the trial and an onus rests with the appellant to demonstrate that there is an apprehension of a real injustice occurring if the grounds are not permitted to be argued before this Court. As stated by Kearns P. at para. 46 in Cronin:-

“It seems to me that some error or oversight of substance, sufficient to ground an apprehension that a real injustice has occurred, must be demonstrated before the court should allow a point not taken at trial to be argued on appeal. There must in addition be some sort of explanation tendered to explain why the particular point was not taken. Furthermore, as noted above, the Court of Criminal Appeal is concerned only with a review of the trial and the rulings made therein, and not with other suggested errors or oversights which may pre-date the trial or have been amenable to remedy in some other matter.”

14. In relation to the second ground of appeal, the explanation for failing to raise this issue with the trial judge is that the Court of Appeal decision in The People (DPP) v MT [2023] IECA 65 (where a conviction was overturned because an effective cross examination could not be conducted as the child witness did not remember the single sexual event alleged)

was delivered after the trial in this matter. With respect to the first ground of appeal, it was submitted that the importance of the dicta in The People (DPP) v. SA [2020] IECA 60 (which provides that if the recording of the child’s interview is requested to be replayed by the jury, it should be replayed in the courtroom in the presence of the judge and the parties)

only became apparent after the delivery of the MT judgment.

15. With respect to the MT argument, the written submissions of the appellant failed to consider the subsequent relevant cases of the Court of Appeal in NW and TM and CC which distinguished MT by drawing attention to specific factors mentioned in MT regarding its general application.

Discussion and Determination Inability to Conduct an Effective Cross Examination

16. The difficulty which giving evidence poses for children was acknowledged and explored in The People (DPP) v. VE [2021] IECA 122. In that case, a ground rules hearing had been conducted, the outcome of which was to set limits on the manner in which the child witness was to be questioned. The child witness also had the benefit of the appointment of an intermediary pursuant to the provisions of the 1992 Act. Whilst the complaint in VE was the failure of the trial judge to give a corroboration warning to the jury, part of that argument was based on an assertion that defence counsel’s cross examination of the child witness was inhibited by the ground rules which had been set.

17. Ní Raifertaigh J, who delivered the judgment of the Court of Appeal, acknowledged that the right to cross-examine inheres in the concept of a fair trial whilst also acknowledging that the rights of complainants in criminal trials must also be protected. She stated at para 71 of her judgment:-

“The trial judge has a responsibility to ensure that communication is developmentally appropriate, which includes questioning which is tailored not only to the complainant's age but also her cognitive capacities (in the case of a learning disability). Even experienced barristers can be completely unaware of the extent to which their normal method of communication is incapable of being understood by a child, particularly a child with a learning disability. Complex and ‘tag’ questions which are used regularly in the courtroom by advocates often require the witness to use advanced forms of psychological reasoning to understand the question and answer the question. A fair trial must seek to avoid a situation where, for example, a complainant may give answers without having properly understood the questions, or acquiesces to leading questions because she feels pressurised by the question itself, or gives answers to questions simply because she is tired and wishes to have the process over and done with.”

18. Since VE, this approach to cross examination of a child witness has been adopted by trial courts with grounds rules frequently being set which impose measures governing the manner in which cross examination is to be conducted. However, simply because the adoption of ground rules in relation to cross examination has become a normal feature of child witness cases, it does not mean that implementation of these measures is easy or comes naturally to advocates. Cross examination of a child witness is an extremely difficult task and the Court recognises the challenging job an advocate faces to adopt a very different style of questioning to the one which is generally employed in an adversarial arena.

19. In the instant case, Counsel for the appellant asserted that he was unable to conduct an effective cross examination of the victim because of her lack of memory of the events.

However, when the cross examination which was conducted of the victim is analysed, it is apparent that Counsel for the appellant, adopting a considered and prudent approach, did not engage with the core of the victim’s allegations. Instead, Counsel for the appellant, brought the victim from recollecting speaking with the interviewers (Iris and Zara); feeling unsafe in the house when left alone with the appellant; being left alone with the appellant on occasion; sitting in a particular chair on the appellant’s lap; and watching her favourite TV show (Tom and Jerry) to not remembering the interviews which were conducted by the Family Centre and the specialist Garda interviewers and agreeing that she did not remember anything about being in the childminder’s house. How this evidence came to be given is not for this Court to analyse. Most certainly leading questions were asked along the way suggesting that she did not remember and that it had been a long time since the offending, which the victim agreed with in respect of both propositions. However, what is clearly apparent is that the victim did have a memory of the situation in which she indicated in her interviews sexual offending occurred, and that she was not directly asked about the sexual offending.

20. The appellant relied on MT, a case where four and a half years had elapsed from the time of the alleged commission of a single incident sexual offence of short duration when the complainant was aged 6, to the date of trial when the complainant was aged 11. The complainant in that case conceded that she had very little memory of the alleged incident and was relying instead on the recording of her complaint. This Court overturned the conviction on the basis that in the particular circumstances of that case, the accused could not exercise his constitutional right to cross examine and that therefore there was a real risk of an unfair trial. However, it is important to note the limitation which Ní Raifertaigh J placed on the general application of the judgment. She stated at para. 95:-

“The Court wishes to emphasise that its conclusion should not in any way be interpreted as any kind of bright-line rule about the lapse of any particular period of time between a videorecording and trial/cross-examination in such cases, whether the lapse of time is taken alone or in combination with the young age of a particular child. Nor should it be relied up for any suggestion that a case should be brought to a halt simply because a child complainant cannot remember some details relating to the event(s) in question. What happened in this case was most unusual insofar as the child herself accepted she had little memory of the event. Each case must be decided in light of its own facts. It is the particular combination of facts and evidence in the present case which leads the Court to its conclusion.”

21. The issue of a lack of recollection of a child witness was revisited by this Court in NW. In that case, a seven year delay had taken place between the time of the last offending and the trial. A complaint was made by the appellant that an effective cross examination could not take place arising from an asserted lack of recollection on the part of the victim. Having conducted a review of the relevant authorities, the Court emphasised the particular factual circumstances underlying MT and the fact that the Court in MT indicated that the judgment was not to be of general application. The Court proceeded to distinguish MT with Burns J stating at paragraph 50 to 55 of her judgment:-

50. “[S]ignificant differences exist between the facts in this case and the facts in The People (DPP) v. MT. In the first instance, the sexual assault alleged in MT was a single incident event asserted to have occurred over a very short period of time. That is not the position in the instant case. Two counts relating to sexual events were charged, in the context of allegations of serious sexual offending. Furthermore, significant detail surrounding each of the sexual offences at issue was provided in the s. 16 interviews of the injured party which was important in terms of assessing the veracity of the injured party account. In addition, the complainant's position in The People (DPP) v. MT was that her memory was based on what was contained in the recorded interview rather than having an independent memory of the alleged offending. In the instant case, the injured party denies that the interview is accurate with respect to one of the allegations he made in the interview — so rather than relying on the interview, he in fact indicates that a particular event did not occur. Furthermore, the injured party did not give evidence that he relied on the s. 16 interviews with respect to his recollection of the other two events. Finally, the appellant did not make an application to have the s. 16 interviews ruled inadmissible in their entirety as had been the case in MT.

51. These are important differences, some of which are referred to in The People (DPP)

v. MT as being of significance in terms of the reasoning of that Court. Furthermore, some of these differences are also existent in the English cases considered by the Court in The People (DPP) v. MT, namely R v. Malicki [2009] EWCA Crim 365 and R v. Powell [2006] 1 Cr App R 31. Indeed, the basis of the application, by Counsel for the accused in The People (DPP) v. MT, to exclude the s. 16 interview, was noted by Ní Raifeartaigh J. at paragraph 18 of her judgment to be “the young age of the child at the time of the alleged incident and video recording, the passage of time between the recording and the trial, and the fact that it was a single-incident allegation of short duration in time.” (emphasis added).

52. In The People (DPP) v. TV [2017] IECA 200, an approximate 3 year delay had occurred between the time of the first s. 16 interview and the trial. A similar submission of unfairness arising because of an inability to cross examine was considered. Mahon J., delivering the judgment of the Court stated at paragraph 46 and 48 of his judgment:-

46. A further ground of appeal in this case is based on the issue of the reliability of the complainant as a witness, coupled with the vagueness or lack of particularity with which many of the sixty four counts on the Indictment were based. It is further contended on behalf of the appellant that he was at a disadvantage because of the length of time between the interviews and the cross examination of the complainant.

In this regard the case of R. v. Malicki [2009] EWCA CRIM 365 is cited as an authority.

However, in that case the facts were very different to the present case, and the child in Malicki was only six years old, significantly younger than the complainant in this case. Further, Malicki concerned a single allegation of a sexual assault and there was a concern that the complainant, when giving evidence at trial, was merely repeating the details of her allegation made in the course of a significantly earlier video recorded interview and which she saw shortly before the trial. In the instant case the allegations in the first two interviews were many in number, thereby reducing the possibility or likelihood of merely repeating details from those interviews in a third interview.

…

48. In the instant case there was a detailed and robust cross examination of the complainant. While there were many occasions when she was unable to recall detail, or could not recall particular events, or said that she did not know the answer to a question, equally there were many other instances when she gave details in a very clear and unequivocal manner. Her evidence effectively went both ways, and ultimately it is properly a matter for a jury to decide on the reliability of that evidence.”

53. This issue was also considered in The People (DPP) v. SA [2020] IECA 60, where a delay of six and a half years occurred between the time of the s. 16 interview and the trial. The Court analysed the evidence and found that “ the cross-examination of each complainant was skilfull and fulsome”. The Court was not satisfied that the passage of time (part of which the appellant in that case was responsible for)

rendered the process unfair or impacted negatively on the ability to cross examine.

54. In the instant case, we are not satisfied that cross examination of the injured party was not possible. Whilst it is understandable why Counsel for the appellant made the tactical decision to conclude his cross examination when he did from the perspective of meeting the case against his client, this does not mean that cross examination was not possible. It appears to us that in light of the significant detail which was provided by the injured party in relation to the sexual events and their surrounding details, that further cross examination was possible. It also appears to us that further exploration was possible in relation to the answers which were given by the injured party. Whilst it is unknown what answers the injured party would have provided, an unfairness has not been established by the limited cross examination which did take place.

55. While The People (DPP) v. MT was decided after the trial in this case, it is important to warn against the development of a practise where the focus of cross examination of a child is to have the child agree that he cannot remember the events at issue. A fulsome cross examination, within the limits of the ground rules set, in relation to the alleged incidents must be attempted before a submission can be made of unfairness arising because of an absence of recollection.”

22. The Court returned to this issue again in TM and CC where the Court again warned about focusing on a child witness’s inability to recollect. Burns J stated at paragraph 71 and 72 of her judgment:- “71. Cross examination in these matters is difficult and requires an understanding of how best to engage with a child, particularly a damaged child. It also requires significant preparation and planning. In addition, conditions need to be optimal in terms of the video link working correctly. However, while cross examination of a child witness is difficult, it is not impossible. It is only when evidentially it has been established that a meaningful cross examination cannot take place that an unfairness can be established to have arisen…

72. [I]t is important to repeat a comment this Court recently made in a similar case of ( The People (at the suit of the Director of Public Prosecutions) v. NW Unreported, Court of Appeal, 14 May 2024) in which the Court warned against the development of a practise where the focus of cross examination of a child is to have the child agree that he or she cannot remember the events at issue. A fulsome cross examination, within the limits of the ground rules set, in relation to the alleged incidents must be attempted before a submission of unfairness arising because of an absence of recollection can be considered.”

23. The decisions of this Court in NW and TM and CC are particularly relevant to this ground of appeal. Counsel for the appellant cautiously manoeuvred around the victim’s evidence without directly challenging her or engaging with her about her allegations. A situation arose where the victim agreed she was unable to remember what happened at her childminder’s house despite having already given details in cross examination which were reflective of what she had said in her interviews about the manner in which sexual offending was facilitated rather than the mechanics of the sexual offending. At no stage did the victim specifically say that she could not remember the sexual offending which she had alleged occurred. She just simply was not asked about it. Criticism is not made by the Court of the cross examination conducted which was clearly careful and considered from the perspective of the appellant’s case. However, having not engaged with the victim about the offending itself, the proposition that a fulsome cross examination relating to that offending could not take place cannot be established.

24. Accordingly, we are of the opinion that an error sufficient to ground an apprehension that a real injustice has occurred has not been demonstrated as required by Cronin to permit this ground of appeal to be considered.

Jury having unlimited access to the recorded interviews during their deliberations

25. Counsel for the appellant submitted that providing the victim’s recorded interviews to the jury in the course of their deliberations was inappropriate, particularly in circumstances where the cross examination did not deal with the core allegations. The appellant’s argument in this regard was premised on his assertion that he was unable to cross examine having regard to the victim’s lack of recollection. However, we have already determined that it has not been established that a fulsome cross examination could not take place.

26. In support of this proposition, the appellant relied upon SA where this Court indicated that should a jury request to replay the interview of a child witness in the course of their deliberations, this should be done in open Court in the presence of the judge and the parties. Discussion and Determination

27. In the instant case, the jury were provided with the recorded interviews conducted with the victim as they had been made exhibits in the trial. This course of action was specifically sought by the parties in circumstances where it had already been agreed between counsel that the recorded interviews should be made exhibits and provided to the jury. In light of this request, the trial judge determined that transcripts of the relevant portions of the victim’s cross examination would also be provided to the jury during their deliberations.

28. The appellant’s case was principally predicated on the discrepancies which existed between what the victim had outlined in the course of the interviews conducted with her and significant reliance was placed on this in the course of the closing speech made on behalf of the appellant. Whilst best practice dictates that the recording should be replayed in the manner advised in SA, in circumstances where the trial judge was specifically asked to adopt this course of action by agreement of the parties, an error is not established which gives rise to an unsafe conviction. Indeed, in The People (DPP) v. PP [2015] IECA 152, a similar ground of appeal was dismissed with Sheehan J finding that there was no question of any injustice arising from the jury viewing the s. 16 recording in their room.

29. In these circumstances, it cannot be said that an error occurred sufficient to ground an apprehension that a real injustice occurred to permit this ground of appeal be considered further.

Conclusion

30. In circumstances where we have determined that neither ground of appeal meets the test set out in Cronin to permit us to consider the grounds of appeal filed, we dismiss the appellant’s appeal against conviction.

Approved

No Redaction Needed