Court of Appeal dismisses appeal against indecent assault conviction, upholding representative count indictment.

APPROVED JUDGMENT

THE COURT OF APPEAL Neutral Citation: [2025] IECA 241

Record Number: 0295/2023

Kennedy J. O’Moore J. MacGrath J.

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT/

- AND -

JOSEPH MOCKLER

APPELLANT

JUDGMENT of the Court delivered on the 10th day of November 2025 by Ms. Justice Isobel Kennedy.

1. This is an appeal against conviction. On the 10th of November 2023, the appellant was convicted of 4 counts of indecent assault contrary to common law.

Factual Background

2. The four counts of indecent assault concerned two complainants: counts 1, 3 and 4 were preferred as representative counts, while count 2 concerned a specific incident. Two counts were preferred concerning each complainant and the offences were alleged over the same time period of 2 years when the complainants were aged between 14 and 16 years old.

3. The complainants were childhood friends who knew each other from school and played football together at a local football club. The appellant was a coach for a boys under 14s team at that club.

4. The first named complainant, to whom we shall refer as AB (not the complainant’s initials)

gave evidence that he attended a gym with the appellant on a number of occasions and was indecently assaulted by the appellant there. In relation to another incident in the appellant’s apartment (when the second named complainant was also present), he stated that he was also indecently assaulted.

5. The second named complainant, to whom we shall refer as BC (again not his actual initials), gave evidence by way of pre-recorded interview pursuant to s.16(1)(b) of the Criminal Evidence Act, 1992 (“the 1992 Act”), on the basis of a mental disorder. He was cross examined via video link.

6. He recalled being brought to the same gym, and being unclothed. He described being brought to public houses and back to the appellant’s apartment where he was groomed and molested. He gave evidence in relation to a specific incident where both he and the first named complainant were molested by the appellant at his apartment. The second named complainant had some difficulty with specific dates and times, but described this as happening “loads of times” from when he met the appellant until he was about 20 years of age. He also gave evidence in relation to specific incidents which occurred on a trip to Liverpool and on a trip to Tipperary, which was admitted as background evidence, and was not the subject of any count on the indictment.

Grounds of Appeal

7. The appellant nominates the following grounds of appeal against his conviction:-

“1. The learned trial judge erred in law by admitting the recorded testimony of the second named complainant, [BC] (Counts 3 and 4), pursuant to Section 16(1)(b) of the Criminal Evidence Act, 1992.

2. The learned trial judge erred in law by allowing the second named complainant, [BC] (Counts 3 and 4), to give evidence via video-link from the VSAC suite in the CCJ pursuant to Section 13(b) of the Criminal Evidence Act, 1992.

3. The learned trial judge erred in law by admitting evidence of [BC’s mother] for the purposes of corroborating the complaint of [BC].

4. The learned trial judge erred in law by admitting evidence of other alleged offending behaviour not contained within the indictment to go before the jury as background evidence.

5. The learned trial judge erred in law by allowing three representative counts (Counts 1, 3, and 4) covering the period of 1st January 1987 and 31st December 1988, both dates inclusive, to go to the jury.”

Grounds 1 and 2

8. During oral argument it was conceded by counsel for the appellant that these grounds were not being pursued with any vigour.

9. We will address them in very short order. The prosecution argued that s.19 of the 1992 Act, deeming a person with a mental disorder to be a child within the meaning of s.16, was applicable. It was submitted that the definition of mental disorder was to be found in s.5(6) of the Criminal Justice Act, 1993 (“the 1993 Act”).

10. The defence argued that s.5 (1) of the 1993 Act was applicable, and requires there to be some harm inflicted on the victim as a direct result of the offence, which was not present here.

11. S.5 of the 1993 Act, as amended, provides:-

“(1) This section applies to an offence where a natural person in respect of whom the offence has been committed, has suffered harm, including physical, mental or emotional harm, or economic loss, which was directly caused by that offence.”

12. The appellant accepted at hearing that if the above s.5(1) were to apply, this would entail a prejudgment that the offence had been committed. We observe that this provision clearly applies to impact evidence following conviction.

13. Therefore, we reject these grounds of appeal.

Ground 3: Evidence of Second Named Complainant’s Mother

3. The learned trial judge erred in law by admitting evidence of [BC’s mother] for the purposes of corroborating the complaint of [BC]. Background

14. It is necessary to set out the sequence of events relating to the application to admit the impugned evidence.

15. On the 2nd of November 2023, a pre-trial application was made to admit the prerecorded interview of BC as direct testimony under s.16 of the 1992 Act. As part of the application, the DVD of interview was played to the trial judge. During that interview, the complainant indicated that he did not tell anyone of the abuse until he was admitted to hospital when he was around 20 years old. He said he did not provide any detail of the abuse.

16. On the 3rd of November 2023, the trial commenced and prior to the playing of the DVD, an application was made by counsel for the respondent to call BC’s mother to give evidence by video link due to her age and ill health. In opening the proposed statement of evidence of BC’s mother, counsel sought to introduce evidence of a complaint recounted to her regarding the allegations of sexual abuse. Counsel laid out the basis for her application as follows:-

“I don't particularly rely on the fact that [BC] told her as specific recent complaint evidence in the traditional sense, but I say that disclosure to her is relevant in the context of this case and particularly where if there's going to be a suggestion that [BC] later at a later stage or due to mental health difficulties, which has already been floated into the case, made it up. The fact that he in fact told his mother, although she didn't believe him at the time, is very, very relevant and that is something that the jury should receive. And it is in those circumstances that I am seeking to introduce her evidence.”

17. Counsel for the prosecution gave a summary of the mother’s statement, wherein she stated that the second named complainant told her that the appellant had abused him, and that she did not believe him at the time.

18. The defence did not substantively oppose the use of a video link, but objected to the admission of this evidence. It was submitted that several aspects of the evidence were irrelevant, inconsistent, or already before the jury, and specifically it was said that the evidence in relation to the second named complainant’s alleged disclosure to his mother was hearsay and inadmissible under the doctrine of recent complaint.

19. In reply, the prosecution argued that the evidence of the complaint to BC’s mother was sought to be admitted for the fact of complaint, the timing of the complaint, and as evidence that his mother did not believe the complainant at the time: it was not sought to be admitted as evidence of the truth of the complaint. It was submitted that, therefore, the rule against narrative was not engaged. Counsel for the prosecution emphasised:-

COUNSEL: “I'm saying it's the fact of the complaint that he made a complaint to his mother at the time is relevant. It's not whether I'm not relying it on the truth of it per se. I'm relying it on in terms of the timing of when he made the complaint to his mother and I say that's particularly significant. And I say it's particularly significant where it has been floated into this case

JUDGE: Yes, that's what I wanted to ask you about. You're saying to rebut

COUNSEL: Yes, if there's a suggestion.

JUDGE: the suggestion that this is

COUNSEL: And it appears to me that there is going a suggestion that [BC] when he became unwell and attended St. Loman’s, that it was sometime it was it was within the course of that attendance that he first made allegations against Joe Mockler. And [BC’s mother’s] evidence is very clear that it was long before that he first raised the issue in respect of Joe Mockler.”

20. Counsel for the appellant objected to the suggestion that anything had been “floated” and argued that BC’s statement of evidence was that the first person to whom he complained was a doctor in St. Loman’s hospital, moreover, that his evidence was that he had never complained to his mother.

21. The trial judge did not rule on admissibility at that point. The trial resumed the following week and the court permitted the evidence of BC’s mother to be adduced by video link.

BC’s DVD of interview was played and he was cross examined. When asked whether he informed his mother of the abuse, the following exchange ensued:- “Q. And did you ever tell your mother that he abused you?

A. No. I was too afraid. I didn't understand the first time he did it to me in a B&I ferry to Liverpool, I didn't understand what he was doing with me and -- the first time. Another time as well when he did it to me in his flat, I just -- it was very -- I just didn't understand quite what -- I knew there was something wrong, but I didn't really know what was like, you know. I was only 14. Between 12 and 15. I was so innocent at the time. I didn't understand.”

22. Dates were very much an issue during cross examination and in that context the following arose:-

“Q. [N]ow, if you have a situation in which Mr Mockler is not working in Trinity until 1995, you have to be, on the evidence we've heard, in your 20s, 22 or maybe 23 years of age. Isn't that right?

A. Yes, it might have been. Yes. Yes.

Q. And at that stage, it was after you had been diagnosed with schizophrenia, isn't that right?

A. I was diagnosed with schizophrenia about '19 or '20.

Q. 2019 or 2020?

A. Whenever I ended up in St Loman's Hospital, that's when I was diagnosed. I can't recall the year. I think it was 19 or 20, I got sick.

Q. You were 19 or 20 years of age?

A. I'm not sure. I was about 20 or 19. Nineteen or 20 or something like that. I'm not sure. Nineteen or 20 I'd say. The doctors have that in their medical records.

They'd be able to tell you that.

Q. But if you were visiting --

A. It's confusing, all these dates.

Q. Yes.

A. [Counsel for the defence], all these dates are just confusing me. I told you the first age he abused was between 12 and 15. That definitely happened in his flat. I don't care what you say.

Q. And you see, I must suggest to you, as I say that, you have dates and times mixed up, and that nothing improper happened to you whilst you were underage. You disagree with that, I take it?

A. No, I disagree with that. It was between 12 and 15. Fourteen, 15, I'd say. I told you 14, 15. When he first did it to me.” [Emphasis added]

23. Cross examination on this issue continued as follows:-

“Q. What I'm suggesting to you is that in 2011, you advised a clinical psychologist or psychiatrist that you had been sexually abused by a football coach at the age of 13?”

24. The respondent relies on the extract highlighted and contends that the appellant’s defence was that BC invented the complaint due to mental health issues.

25. When cross examination concluded, the respondent moved to call BC’s mother at which juncture counsel for the appellant renewed his objection to her evidence on the basis that the evidence did not constitute recent complaint evidence, that the complainant stated that he first complained to a Doctor and that he gave evidence that he never complained to his mother about the abuse.

26. Counsel for the respondent again sought to admit the evidence and stated that the basis for admission was to inform the jury of the time when the complaint was made to BC’s mother in order to understand how BC came to reveal the abuse over the years. She also stated that BC’s mother’s reaction to the complaint was relevant.

27. The judge raised the pertinent issue of consistency and observed that there was no detail and therefore it was difficult to see how consistency could be assessed.

28. In response, counsel for the respondent contended that the importance of the evidence was not what was said, but the fact that it was said, and that the evidence could be admissible as recent complaint evidence to rebut recent fabrication or to show the time of complaint.

29. Ultimately, the trial judge ruled as follows:-

“JUDGE: Okay. Thank you both for your engagement with me. I'm concerned about it, but I think I will allow it in on the basis of what [counsel for the prosecution] says, on the basis that she's not relying on it for the truth of it, but she's relying on the fact of it in relation to demeanour and that the fact that the complaint comes from the mother as well as comes from the child.

Notwithstanding the fact that he says he didn't tell his mother but that is something, as [counsel for the prosecution] acknowledges, is something that she's going to have to deal with. And if I have to deal with it in any greater detail, I will do that, again.”

30. BC’s mother proceeded to give her evidence, where she stated as follows-

“Q. And do you remember, when he played for [the football club], do you remember if he went training very often?

A. He did. He went training very often, yes. And he met -- he met his friends there, yes.

Q. He met a –

A. [AB], I think.

Q. He met a friend, [BC] there, is that right?

A. That's right, yes.

Q. And do you remember what age he started with [the football club] at?

A. Oh, he was only very young, eight or 9 or that.

Q. Right. And do you remember him telling you anything about one of the football coaches?

A. Yes. I remember him telling me about, what's his -- I can't think at the minute.

Q. [BC’s mother], don't worry about the name. What do you remember him telling you about the football coach?

A. That he abused him or something.

Q. And what was [BC’s] demeanour when he told you that?

A. I wasn't believing him. I thought -- because he was so young. He didn't understand that, you know. But he did abuse him, yes. And then he was crying, forget about him, and then crying back again and tell me it was all true.

Q. And you said you didn't believe him, is that right?

A. I believed him then at the finish because he used to be crying and he said the way he was abused and hurt and everything and then he got nervous and everything, yes.

Q. And do you remember what age he was when he told you this?

A. Oh, nine or 10, yes. He was only very young.

Q. And did he bring it up again?

A. Oh, he did he always kept it up, yes. And then he got quite -- used to be crying and got nervous and everything, the way he was abused, yes, Joe Mockler, that's his name.

Q. And do you remember Mr Mockler ever calling to the house?

A. I remember calling out, but I can't remember now if I knew him. He did call out, yes.

But I didn't know -- I forgot him like, you know, because I was only young.

Q. And, I think, you've said that at the time he told you, you didn't believe him, is that correct?

A. Yes, but I did believe him afterwards. Then I did believe him.

Q. No, but at the time when he told you -- at the time he told you?

A. Yes, I couldn't believe he did that to him.

Q. Okay?

A. How he abused him and all that.

Q. And did you tell him that at the time?

A. Pardon?

Q. Did you tell [BC] that at the time?

A. Yes. [BC] told me how he was abused, and I couldn't believe that he did that to him.

And then he'd be crying and depressed and all that and tell me about it. I couldn't believe what Joe Mockler did to him.

Q. Okay?

A. I couldn't believe it. “

31. In cross-examination she gave the following evidence:-

“Q. And I'm concerned to know at what age [BC] started playing football with [the football club]?

A. Oh, six or seven years, he was only young.

Q. Well now –

A. He was only young when he started playing football, yes. He loved football.

Q. Well the –

A. He played in [a different football club] and –

Q. Did he not play –

A. -- somewhere else, yes.

Q. Sorry, I don't want to cut across you, [BC’s mother]?

A. Yes.

Q. Did he play for a club before he joined [the football club], do you remember?

A. He did, yes. In [a different football club], I think it was, yes.

Q. Yes? And do you remember –

A. Yes. [a different football club].

Q. Do you remember what age he was when he joined [the football club]?

A. Oh, he was only very -- seven or eight, or nine, yes.

Q. Yes?

A. He was very young. He loved the football and all his friends and all, yes. He did.

Q. And tell me, how long after he had joined [the football club] do you say he made the allegation to you that he had been in some way abused by a coach?

A. Not long after. I couldn't believe like that Joe Mockler did that to him and he kept saying to me, he was crying and in an awful state altogether then.

Q. Well, just leave that aside for a moment?

A. Said what can he do about it.

Q. Leave that aside for the moment, [BC’s mother]. I'm concerned as to what age you say [BC] was when he made the allegation against a coach?

A. Against Joe Mockler? 11 or 12.

Q. Eleven or 12?

A. Yes. “

32. To complete this aspect of the appeal, BC’s brother gave evidence and indicated that his brother disclosed the abuse to him when BC was in his mid to late 20’s. His brother attended the Garda station and spoke to a Detective regarding the situation which appears to have been sometime in 2011. BC did not wish to proceed at that point, but in and around 2017 he decided to proceed and an investigation ensued.

33. Counsel for the prosecution stated as follows in closing the case to the jury on the 9th of November:-

“In terms of other evidence in the case, you have, of course, the evidence from [BC’s mother], the almost 93-year-old mother of [BC]. Now, let me be very clear to you, ladies and gentlemen, I could never say to you, I would never say to you, oh well, [BC] told his mother about this, therefore it must be true, because that's just him telling somebody else what he has told you, that doesn't lend weight. But it was important for you to hear that particular evidence from [BC’s mother] because it helps you understand the timing of when [BC] actually first said something to his mother. Now, that's with the caveat that [BC] doesn't -- says that he didn't tell his mother. But she said that he told her when she was very young – when he was very young, and indeed, she was placing him as significantly younger than he must have been. And what is important from the prosecution's point of view is she was saying, "oh I didn't believe him, I didn't believe him". And that is relevant in terms of his reaction to what was happening to him, and relevant to rebut any suggestion that [BC] concocted these allegations at a later stage. Why? Because when he was a young boy, crying, he told his mother.”

34. In charging the jury, the trial judge stated as follows:-

“And then you heard evidence as well, members of the jury, about [BC] saying who he told about the abuse and when he told about the abuse. And it's important what [counsel for the prosecution] said to you, members of the jury, and this is just a general point, it doesn't refer specifically to this case, but, in general, by repeating an allegation it does not make it true, okay? So that's not the point of -- when [counsel for the prosecution] asked or the prosecution led evidence in relation to the mother, [BC’s mother], about when she was told that her son saying that Mr Mockler was abusing him, she puts it at a much earlier time, she says she was told by him as a young child, but it was in relation to the demeanour of somebody telling this, it's not about the truth of it, it's not whether he was telling the truth or not, it's her evidence is about his demeanour when she said he told her that he was abused, these are all matters that you can take into account having given it the proper weight and having assessed it beforehand.”

Submissions of the Appellant

35. The appellant submits that the evidence was not sought to be admitted by the prosecution as evidence of the complainant’s demeanour, but to rebut any allegation of fabrication. However, the appellant contends that the trial judge’s instruction to the jury pointed to demeanour which was not the purpose of admission.

36. Insofar as the judge’s charge is concerned, we say now that no ground was filed regarding any aspect of the judge’s charge and nor was any requisition raised and so no criticism can be levied in this regard.

37. The appellant also submits that the evidence was inadmissible for the purpose actually relied upon by the prosecution, that being rebuttal of an allegation of fabrication.

38. It is submitted that, because BC’s evidence was that he did not actually make any complaint to his mother, the Director should have been prohibited from leading this evidence.

Submissions of the Respondent

39. The respondent submits that the evidence of BC’s mother was not sought to be introduced as recent complaint evidence, as its relevance to consistency of complaint was “very limited”. It is submitted that, instead, the respondent sought to introduce the evidence to show: the complainant’s demeanour when he told her, the timing of the complaint, and to explain why he may not have made further complaints at the time or since (as she told him at the time that she did not believe him).

40. It is submitted that the prosecution did not invite the jury to rely on this evidence as corroboration, and it is said that the prosecution closing made this clear to the jury. It is also said that the trial judge’s charge made clear that the evidence was to be relied on only for the complainant’s demeanour, and that repetition of an allegation does not make the allegation more true or credible.

41. Finally, it is submitted that, because the evidence of the complainant’s mother discloses that an allegation was made at the time of the abuse and prior to the complainant’s mental health issues, it must be relevant to the appellant’s contention that the complainant invented his allegation due to his health issues.

Discussion

42. On the latter issue, a perusal of the transcript does not point to any question asked of the complainant which suggested that he had invented the allegations due to a mental condition.

43. The direct testimony of BC discloses that the first person he told of the abuse was Dr. C when he was around 20 years old. In cross examination, he stated that he never told his mother and explained why. Much emphasis was laid by the defence on confusion as to dates of commission of the offending behaviour. The respondent pointed the Court to a particular question where it was suggested that nothing improper occurred when BC was underage and that it was suggested that the appellant met BC in 1990. However, the witness remained steadfast that the abuse occurred when he was aged approximately 14-

19 years old.

44. It was then suggested that there was never any abuse. Later in cross examination, reference was made to the clinical notes from BC’s time in St. Loman’s hospital where he disclosed that he had been abused and placed the age of abuse at 13 years old. The purpose of this cross examination appears to have been to seek to show that BC placed the abuse at age 13 years, a time when the appellant was not part of the football club.

45. These aspects of the cross examination appear to be the high water mark of the respondent’s contention that the evidence of BC’s mother regarding a complaint made to her was admissible, notwithstanding that the witness stated that he never told his mother as he was too afraid.

46. In seeking to admit the evidence, counsel for the respondent stated that the evidence was not being sought to be adduced as evidence of recent complaint “in the traditional sense”, but to rebut a potential suggestion that the allegation was fabricated due to a mental health condition and therefore the fact of the complaint was relevant evidence.

47. Following objection on the part of the appellant, counsel indicated that she was seeking to admit the fact and time of the complaint and BC’s mother’s reaction of disbelief in the event of a suggestion of recent fabrication.

48. Following cross examination of BC, counsel for the appellant renewed his objection to the evidence. Counsel for the respondent stated that the evidence could be admissible under several headings; as evidence of recent complaint, to rebut a suggestion of recent fabrication, as evidence of the time of complaint to explain how ‘things unfolded’ and that his mother’s reaction was relevant evidence.

49. Counsel for the respondent went on to say:

“…the fact that when he’s making an allegation about Joe Mockler to his mother is also potentially relevant probative evidence, in that a complainant’s demeanour can be relevant evidence in terms of corroborating an allegation, as the Court is aware.

So, his demeanour when he tells his mother, even though it doesn’t come from him……..evidence of the complaint can come from him or from his mother.”

50. The trial judge stated:

“But what do you say that it’s hearsay and it doesn’t come under one of the allowable exceptions where you’re saying it’s not recent complaint and it doesn’t go to recent complaint because of the lack of consistency even in the fact of whether it was told or not.”

Counsel responded:

“I’m not trying to prove that what he said to his mother is true or not, and if it was then I would be relying on it as hearsay. I’m trying to prove the fact of it and his demeanour and his mother’s reaction.

51. In her submission to this Court, counsel for the respondent indicated that the evidence was not sought to be admitted as recent complaint evidence due to limited evidence of consistency, but on the basis of timing, demeanour, the complainant’s mother’s disbelief and to rebut an allegation of recent invention.

Recent Complaint – Discussion and Conclusion

52. As a general rule, previous consistent statements made by a witness are inadmissible:

see R v Coll [1889] 24 LR lr 522. This applies to direct and cross examination and concerns both the fact that such a statement was made and the content of that statement. The general prohibition on such evidence is known as the rule against narrative and it serves a very sensible purpose: a witness cannot bolster his or her testimony by repeating it to others and then having those witnesses give evidence to demonstrate the consistency of his or her testimony. It is a separate rule from the rule against hearsay where the evidence is sought to be admitted as proof of its truth.

53. There are the well-known exceptions to the general rule including complaints made in sexual cases which fulfil certain criteria for admissibility. If evidence is admissible as recent complaint evidence, it is admissible for the limited purpose of showing consistency on the part of the complainant. The purpose of such evidence is to seek to demonstrate consistency between what was previously recounted by a complainant and what is stated in evidence by the complainant. It is not evidence of the truth of the complaint.

54. On the issue of consistency, it is clear that persons who have been sexually abused may sometimes provide limited detail by way of complaint and this may be particularly pertinent when it comes to children. Evidence subsequently adduced by a complainant at trial may provide greater detail, but this does not necessarily render the complaint inadmissible. See People (DPP) v. KM [2018] IECA 261 which decision of Birmingham P.

quotes from Prof. O’Malley’s text, Sexual Offences, 2nd ed. at para. 2109 as follows:

“[l]ike all evidence, that relating to recent complaint must pass the test of relevancy. Since the sole purpose is to show consistency, evidence of a complaint, the terms of which were entirely inconsistent with the complainant’s testimony in Court, would be therefore inadmissible. Problems may occur where there is some inconsistency between the two accounts, but the general consensus seems to be that the evidence of the complainant should not be rendered inadmissible unless it is completely inconsistent with the complainant’s evidence.”

55. If recent complaint evidence is admissible, then evidence of the fact of the complaint and the terms of the complaint are admissible. Prior to R v Lillyman [1986] 2 QB 167, evidence only of the fact that a complaint was made was admissible, but since then both fact and detail is permitted. In People (DPP) v Brophy [1992] WJSC-CCA 246, an issue arose as to whether a complaint was made within a reasonable time; as the complaint had not been made within a reasonable time, there was an agreement at trial to introduce evidence only of the fact of the complaint but not the terms. The Court of Criminal Appeal rejected this approach and stated that the full terms were admissible, O’Flaherty J.

stating:-

“In the old law it was only the fact of complaint that was admissible and it was not until R. v. Lillyman (1986) 2 Q.B. 167 that the Court for Crown Cases Reserved extended admissibility of a complaint to its terms. It seems to the Court, therefore, that either evidence of a complaint having been made is admissible or it is not. If it is admissible, then, subject to the discretion of the trial judge to prevent unnecessary prejudicial repetition, the terms of the complaint are also admissible.”

56. Recent complaint evidence is admissible if it satisfies certain conditions; the conditions being:

1. The prosecution is for a sexual offence;

2. The complaint was made at the first reasonable opportunity;

3. The complaint is voluntary;

4. Consistency. It is clear since Lillyman that if the fact of the complaint is admissible, then the content of the complaint is also admissible. As matters transpired in the present case, the detail was adduced in evidence, but was limited to evidence that the complainant told his mother that he was abused.

57. McGrath on Evidence, 3rd ed. at para. 3-210 says as follows:

“It is settled that, if evidence of the making of a complaint is admissible, then particulars of the complaint may also be proved. In R. v Lillyman, it was held that the particulars of the complaint ought to be admitted so that the jury could make a determination as to whether it was consistent with the testimony of the complainant:

“ “The evidence is admissible only upon the ground that it was a complaint of that which is charged against the prisoner, and can be legitimately used only for the purpose of enabling the jury to judge for themselves whether the conduct of the woman was consistent with her testimony on oath given in the witness-box negativing her consent, and affirming that the acts complained of were against her will, and in accordance with the conduct that they would expect in a truthful woman under the circumstances detailed by her. The jury, and they only, are the persons to be satisfied whether the woman’s conduct was so consistent or not. Without proof of her condition, demeanour and verbal expressions, all of which are of vital importance in the consideration of that question, how is it possible for them satisfactorily to determine it?”

58. With reference to Brophy, McGrath states at para. 3-211:

“[t]he prosecution conceded that the complaint had not been made as soon as could reasonably have been expected and that, therefore, the terms of the complaint were inadmissible, but argued that evidence could be adduced of the fact that it had been made. However, this contention was rejected by the Court of Criminal Appeal which took an “all or nothing” approach that “either evidence of a complaint having been made is admissible or it is not”.

59. If the evidence of recent complaint is admissible, then the demeanour of the witness when the complaint was made is also admissible. Logically, and quite obviously, unless the evidence is admissible, the demeanour of the witness when the complaint was made, applying the doctrine, is not admissible as standalone evidence of demeanour. As is wellknown, demeanour shortly after an alleged sexual offence may constitute corroboration and is admissible evidence.

60. On the issue of the expression of disbelief on the complainant’s mother’s part when the complaint was made, evidence of belief or disbelief of a complaint is inadmissible.

61. A further complicating factor arose in this case in that the complainant himself stated that the first person to whom he complained was a doctor in St. Loman’s hospital and that he did not complain to his mother. However, this in our view is not determinative of the admissibility issue. The relevant evidence of recent complaint is that of the person to whom the complaint is made.

62. It seems to this Court that the evidence was either admissible as evidence of recent complaint or it was not. If admitted as recent complaint, then evidence of demeanour and timing were also admissible. However, the belief or otherwise of an individual to whom a complaint is made is inadmissible.

63. As the evidence was not admitted as recent complaint evidence, it is difficult to see the legal basis for its admission unless it was admissible to rebut a contention of recent fabrication.

Recent Fabrication – Discussion and Conclusion

64. We say at the outset that while counsel for the respondent stated in her closing address that the impugned evidence was relevant to rebut a contention of late invention, the evidence was not admitted for this purpose and so the doctrine appears to us to be of limited relevance to this appeal and so we will consider it in short order.

65. If evidence is admitted to rebut a suggestion of recent fabrication, it is to show consistency on the part of the complainant and not as proof of the truth of any of the matters stated by the witness to whom the complaint was made. This may arise where a witness in cross examination is accused of fabrication. It may arise by direct questioning or by imputation. See R. v. Coll [1889] 24 L.R Ir 522 at 530.

66. We have pointed to the high water mark of the respondent’s submission that the questions asked gave rise to at least the imputation that BC had recently fabricated the allegation due to his mental health issues.

67. It seems to us that the import of the cross examination on disclosing the abuse to his doctor concerned the issue of dates, as he had informed the doctor the abuse occurred when he was 13 years old. At no stage was it put to the witness either expressly or by implication that he was fabricating the allegation due to his mental illness.

68. Whilst both the appellant’s and the respondent’s submissions refer to it being the appellant’s case that BC fabricated the allegations due to his mental illness, close scrutiny of the transcript does not reveal any question asked which was indicative of recent fabrication on this or any other basis.

69. The question referred to by the respondent, highlighted above at paragraph 22 was not suggestive of recent invention, but, in any event the evidence was not permitted on that basis but on the basis of the complainant’s demeanour when recounting his complaint, the timing of the complaint and the reaction of his mother at the relevant time.

Conclusion

70. Arguably, the evidence may have satisfied the test of consistency in terms of recent complaint evidence, but that was not pressed before the trial court. It appears to this Court that there was no legal basis for the admission of the evidence; it either fell under the rubric of recent complaint evidence or it did not. There was no cross examination suggestive of recent invention and this ultimately was not the basis of the admission of the evidence. Where the evidence is admissible as an exception to the rule against narrative, then the fact of the complaint, what was recounted, and demeanour are admissible. However, the evidence of the belief or disbelief of the complaint is inadmissible. Evidence of a complainant’s distress shortly after an alleged sexual offence is clearly admissible but where time has passed, such demeanour evidence is only admissible if it forms part of recent complaint evidence.

71. Whilst the ground of appeal asserts that the judge erred in admitting the evidence for the purposes of corroborating the complainant’s testimony, and while evidence of demeanour may constitute corroboration, at no stage was this mentioned by the trial judge, either as a basis for admitting the evidence or in her charge to the jury, so on a strict reading of the ground, it would be rejected.

72. However, it remains the position that the jury heard the evidence of BC’s demeanour in telling his mother he was abused albeit that she placed the complaint when he was much younger.

73. It is the position that evidence was before the jury which potentially was admissible as recent complaint evidence, but which was not sought to be adduced and was not adduced as such. If it were, then the trial judge would undoubtedly have instructed the jury on the limited purpose for which such evidence is adduced, being that of consistency.

74. The trial judge’s charge is not the subject of this appeal, the ground concerns only the admission of the evidence of BC’s mother.

75. We therefore find ourselves in the position of considering whether the proviso may be applied.

The Proviso

76. The respondent submits that the proviso may be applied in the event of an error being found by this Court. In People (DPP) v Dwyer [2024] IESC 39 at paras. 47-75, Collins J.

considered the application of the proviso with a review of Irish and Australian authorities.

It is clear that even if an error is found, this will not necessarily lead to the quashing of a conviction. As stated by Prof. Walsh on Criminal Procedure 3rd ed. at para. 64-112:

“It is a matter for the Court of Appeal to decide whether the nature of an error and its impact on the trial and on the jury’s verdict amounts to a miscarriage of justice sufficient to preclude the application of the proviso. Critically, while no class of error in priori is excluded from application of the proviso, there is no scope for the application of the proviso where the error involves “a departure from the essential requirements of the law….. that goes to the root of the proceedings.”

77. Where the error is that of the admission of inadmissible evidence, Collins J. states at para 75(13) of Dwyer: “…..an appellate court must be cautious of applying the proviso to that category of error. The essential question will be whether the admissible evidence could have left a properly directed and reasonable jury with a reasonable doubt as to the guilt of the accused or, to put the same question the other way, whether the admissible evidence demonstrates the guilt of the accused beyond reasonable doubt. Caution is required because the assessment of the evidence is quintessentially a jury function. That is a fundamental tenet of our criminal justice system (though….., appellate courts are required to assess evidence in a wide variety of circumstances). It is only in clear cases that the proviso should be applied where the error at trial involves the admission of inadmissible and prejudicial evidence.”

78. We have very carefully examined the evidence of BC’s mother in order to determine whether the appellant’s conviction amounts to an actual miscarriage of justice. She stated her son told her he was abused at a young age and stated his demeanour in recounting this to her. She did not elaborate on the nature of the abuse, she simply stated that he was abused. She further expressed that she did not believe him but that she now does. We do not find that the latter is necessarily fatal to the conviction. Nor do we believe that the fact the complainant said he did not tell his mother to be fatal; the evidence of recent complaint is given by the recipient of the complaint.

79. On a consideration of the evidence adduced, when viewed in the context of the evidence as a whole, we do not see that its admission led to a miscarriage of justice. The witness stated that her son told her he was abused and that he was crying when relaying the complaint. Her evidence that she did not believe him was not admissible, nor was her evidence that she later did believe him, but that evidence cannot be said to amount to a fatal error so as to set the conviction aside.

80. We must also consider the weight of the evidence in this case, this was not a case of a trial of one complainant, but of two complainants whose evidence was cross-admissible and where the jury were properly instructed on system evidence.

81. Moreover, the trial judge pointed out to the jury that repeating an allegation does not make it true. The jury were not invited to consider the terms of the complaint but were directed solely towards the evidence of demeanour in recounting that he was abused. The evidence of demeanour was admissible if the complaint was an admissible complaint.

82. Much of BC’s mother’s evidence was admissible evidencethe portion regarding demeanour was very limited indeed and given the strength of the overall evidence, we are satisfied to apply the proviso.

Ground 4: Background Evidence Background

83. The direct testimony of the complainant BC, admitted pursuant to s.16(1)(b), contained allegations not charged on the indictment, including incidents alleged to have occurred on a trip to Liverpool and on a trip to the appellant’s family home in Tipperary.

84. Counsel for the defence objected to the admission of all material outside the scope of the indictment. The trial judge permitted editing of certain matters on the DVD, however, evidence concerning the aforementioned trips was permitted.

Submissions of the Appellant

85. It is said that aside from count 2, the allegations contained on the indictment are vague as to the exact conduct which is impugned. It is said that, as a result, it is hard to identify which conduct in evidence is merely background evidence, and which conduct is actually the subject of counts 1, 3 and 4.

86. The appellant relies upon the dicta in People (DPP) v McNeill [2011] 2 IR 669 and argues that the purpose of admission of background evidence in historic sexual abuse cases is to explain “gaps” in events charged on the indictment.

87. The appellant contends that there were a number of allegations included in the second named complainant’s video evidence beyond the offences charged which were irrelevant and prejudicial, with specific reference to the trips to Liverpool and Tipperary and allegations of repeated abuse in the appellant’s apartment.

88. It is argued that the admission of this background evidence put the defence in an “incredibly invidious position”, as it meant that challenging the second named complainant’s recollections as to the background evidence could have potentially backfired and impacted negatively on the appellant’s defence in relation to the offences charged, however, not challenging this background evidence would leave the jury with a long and sordid picture of ongoing abuse.

Submissions of the Respondent

89. The respondent accepts that not all of the allegations made by the second named complainant formed the basis of counts on the indictment, and the Director also relies on the dicta in McNeill and says that it would have been artificial to suggest to the jury that the second named complainant and the appellant only interacted in his apartment. It is said that understanding the course of their interactions with one another was closely and inextricably linked to the offences charged on the indictment and was therefore relevant and necessary.

90. It is submitted that the trial judge’s charge on this point made sufficiently clear to the jury the purpose of admitting the background evidence.

Discussion and Conclusion

91. It is well established that the fact evidence may show the commission of offences not preferred on the indictment does not render the evidence of those matters inadmissible if those matters are relevant to the issue in dispute at trial. Such evidence may be admitted in where relevant and necessary. As stated in McNeill, the evidence may be proximate in time to the offences charged, it may be necessary to give the jury a full picture of the circumstances, or to seek render comprehensible the nature of the relationship between the parties. The circumstances where such evidence may be deemed admissible are not limited to the above but will be fact dependent in any given case.

92. The admission of such evidence is within the discretion of the trial judge. In the present case, the trial judge listened to the proposed evidence of the complainant and determined the evidence to be admissible. She properly excluded certain material which was not relevant or necessary in the circumstances of the case. However, the material which was permitted, including the trips to Liverpool and Tipperary, served in our view to explain the nature of the relationship between the parties and, where the counts were those of sample counts, to enable the jury to understand the full background to the offences alleged.

93. The complainant alleged that the appellant had abused him frequently and the evidence regarding the two trips was clearly relevant to seek to demonstrate that the nature of the relationship whereby the appellant was in the position to have the complainant in his apartment, or to take the complainant on trips whether abroad or within the country. The evidence concerning other incidents in the apartment aside from those charged was clearly admissible in that without that evidence, the jury would have had an entirely distorted picture of the overall circumstances. Clearly, the evidence was relevant and necessary to render the counts on the indictment complete and comprehensible to the jury.

94. Moreover, the judge in her charge fully and comprehensively directed the jury on the use of background evidence.

95. We find no error in the admission of the evidence, and we reject this ground of appeal.

Ground 5: Representative Counts Background

96. Four counts were preferred on the indictment, two counts in relation to each complainant, framed over a 2 year period. Three of these were representative counts.

Submissions of the Appellant

97. The appellant relies upon an extract from Prof. Walsh’s Criminal Procedure 2nd ed., to the effect that an invalid indictment will render the whole of the trial proceedings issued on foot of that indictment “null and void”.

98. The appellant contends the indictment suffered a defect such as to render it invalid, as its formulation offended against the rule against duplicity. Specifically, it is said that the period of two years included on the indictment was simply too wide and imprecise. It is argued that the suggestion in evidence that the abuse was ongoing and repeated required the indictment to be drafted with more precision as to the offences actually charged.

99. The appellant relies upon the case McNeill where Fennelly J. (dissenting) references the dicta of Egan J in People (DPP) v E.F. [1994] WJSC-SC 557 on the need to avoid “unreality” by the drafting of indictments that are not reflective of the true frequency of the offending alleged.

100. The appellant’s submissions, therefore, seem to be that the indictment was drafted in too vague a manner in terms of the date range, but also that there was an insufficient number of counts charged in light of the evidence given at trial.

Submissions of the Respondent

101. The respondent notes that no application was made to the trial judge in relation to the formulation of the indictment. The respondent, therefore, relies upon People (DPP) v Cronin (No.2) [2006] 4 IR 329 in submitting that the appellant should not be permitted to pursue the argument on appeal, as no explanation has been tendered as to why the point was not taken in the court below.

102. Notwithstanding the foregoing, it is submitted that the indictment was drafted reasonably, despite the imprecision in relation to exact timing and occasions of abuse that often accompanies historic sexual abuse cases. It is said that the time period included in the indictment was based upon the statements of proposed evidence provided by the complainants in circumstances where they both alleged the appellant began abusing them after he started coaching their team (the indictment period coincides with the first two years of him coaching their team as established by other evidence in the case). Further, count 2 was a specific count where a single instance of abuse was alleged in the appellant’s apartment, count 1 was a sample count relating to the first named complainant’s allegations about multiple instances of abuse in the gym, and counts 3 and

4 were sample counts in relation to the second named complainant’s allegations of repeated abuse in the appellant’s apartment.

Discussion and Conclusion

103. The ground as framed contends:

“…that the judge erred in law by allowing three representative counts (Counts 1,3 and 4) covering the period of 1st January 1987 and 31st December 1988, both dates inclusive to go to the jury”.

104. It must be said at the outset that no application was made to the trial judge to withdraw the case from the jury, at best the appellant argued that the indictment was vague in the manner it was framed when objecting to the admission of background evidence.

105. It is clear from the most succinct decision in People (AG) v Blogh [1958] IR 91, where the contention of duplicity was not raised until after the jury had retired, that this did not preclude the matter being raised on appeal as referenced by Prof. Walsh in his most recent text on Criminal Procedure 3rd ed. at para. 35-32: “..a failure to object to the inclusion of a duplicitous count before the jury retires will not operate as a bar to a subsequent appeal against conviction on the grounds of duplicity.”

106. However, the issue of this alleged defect in the indictment was not raised at all and so Cronin has application.

107. An indictment may be bad for duplicity where two or more offences are alleged in a single count, where a count is preferred in the disjunctive or where the count alleges more than one offence. None of these situations apply in the present case, each count contends for a single offence, albeit alleged to have been committed during the same time period in the instance of BC but, as is often the case, expressly alleged on a date other than the date specified in the first count concerning BC. A single count was preferred in the case of the first complainant and alleges a single offence over a two-year time frame. However, the rule may be engaged in instances such as the present case where offending is alleged over a period of time and where the offending is alleged to have occurred on a frequent basis, and this is the basis of the argument advanced on this ground.

108. It is the position that rather than preferring an indictment running to many counts, the practice is now to draft counts on a representative basis to reflect the offending over a period of time such as occurred in the present case. A count cannot be preferred on the basis of ‘divers dates’ during a timeframe, as this would then offend the rule against duplicity. If the counts were to be increased as suggested by Egan J. in E.F. and preferred on a monthly basis, the indictment may still be somewhat unwieldy.

109. As recognised by O’Donnell J. (as he then was) in McNeill, where counts are preferred on a representative basis to reflect frequent offending over a period of time, this may give rise to difficulties as evidence may be adduced of the entire offending. This has been addressed by permitted background evidence which is admitted at the discretion of the trial judge.

110. We are not at all persuaded that the indictment in the present case offended the rule against duplicity or was vague or in any other respect, defective. The indictment complied with section 4 of the Criminal Justice Act 1924, providing the specific offence alleged and the necessary particulars so that the appellant knew the nature of the charges he faced.

We reject this ground of appeal.

Decision

111. As we have not found in the appellant’s favour on any ground of appeal, the appeal against conviction is dismissed.