Court of Appeal dismisses appeal against murder conviction, upholding trial judge's admission of witness statement.

APPROVED

THE COURT OF APPEAL

Neutral Citation: [2025] IECA 88

Court of Appeal Rec No.: CCAOT0250/2023

Bill No.: CCDP60/2022

Edwards J. Burns J. MacGrath J.

Between/

THE PEOPLE (AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECTIONS)

Respondent

-AND-

TYLER JACKSON

Appellant

JUDGMENT of the Court delivered by Mr. Justice MacGrath on the 21st day February 2025

Introduction

1. Mr Tyler Jackson, the appellant, was charged with the murder of Mr Conor Quinn on the 12th July 2018 at Bridge Street, Mallow, Co. Cork. On the 2nd October 2023, the appellant pleaded not guilty. Following his trial, the jury returned a majority guilty verdict on the 12th October 2023. A mandatory life sentence was imposed on the 17th October 2023 at the Central Criminal Court. This is an appeal against his conviction.

Factual Background

2. The evidence is that there had been difficulties, or bad blood, between the deceased and the appellant prior to the 12th July 2018. On that date, the deceased attended at Cahirmee Horse Fair in Buttevant, North County Cork, accompanied by his first cousins, Samantha, Luke, and Stephen Quinn and their uncle, Richard Canon. They had travelled there in Stephen Quinn’s car. On the return journey to their home in Killavullen, they stopped in Mallow for food. The deceased was in the front passenger seat. The car was parked on Main Street when the deceased saw the appellant walking along the footpath. He got out of the car to confront the appellant. In their initial interaction they “squared” up to each other, which ended with the appellant running away. Mr Quinn sought out the appellant. The evidence of witnesses in the Town Park was that the deceased actively sought a black man and a white man and threatened that he would ‘kill’ or ‘fix’ the white man. Their evidence was that the deceased had a “strap” or an “extendable black plastic object” with him.

3. At 8:38 pm, when the deceased’s party had returned to their vehicle and were travelling on Bridge Street, the deceased again saw the appellant. He left the passenger seat of the car and ran in the direction of the appellant. The evidence of Samantha Quinn was that the appellant “had his hands up”, like fists, at this point. A second brief physical altercation occurred during which the deceased was stabbed once in the chest. The evidence of Mr Quinn’s party was that the appellant struck Mr Quinn in the chest. None of these witnesses saw a knife in the appellant’s hand.

4. An ambulance was present on the street at the time. Dashcam footage from the ambulance showed the appellant running away. Ms Denise O’Connor, a paramedic who was in the ambulance, characterised the incident as a split-second interaction during which the deceased collided with the appellant. She also stated that the appellant pushed up his hands into the deceased’s chest, after which they separated. The evidence of Mr Liam Lynch, which was read into evidence pursuant to s. 21 of the Criminal Justice Act 1984, was that the appellant seemed to be defending himself, having no time to react due to the speed at which Mr Quinn was running at him.

5. The deceased went back in the direction of his companions, saying “he is after stabbing me”. He leaned against a nearby wall before slowly falling to the ground. He never regained consciousness and died later that night. The deceased had consumed a quantity of alcohol on the day, and the results of a postmortem toxicology examination revealed the presence of cocaine and other drugs in his system.

6. When the appellant left the area after the second confrontation, he got into a car driven by a Mr Mark McCarthy, who knew him to see. The appellant told him to “just drive up the road”. When Mr McCarthy asked where, the appellant replied “Ballydaheen’. Mr McCarthy gave evidence of the appellant hanging onto the door and looking in the mirror behind. He did not see a knife in the possession of the appellant.

7. The statement of Christine Kearney, the only witness who saw the appellant with a knife, was admitted pursuant to s. 16 of the Criminal Justice Act 2006 (“the 2006 Act”). The ruling of the trial judge admitting this statement is the main ground of challenge on this appeal.

Grounds of Appeal

8. The Notice of Appeal contained 16 grounds. Thirteen were abandoned at hearing; grounds seven, eight and nine being retained. They are as follows:- “Ground 7 - The Learned Trial Judge erred in law and/or in principle in failing to grant an application for a discharge of the jury in circumstances where one witness gave evidence which was an attack on the character of the Applicant.

Ground 8 - The Learned Trial Judge erred in law and in fact in permitting prejudicial evidence to be admitted pursuant to a section 16 application.

Ground 9 - The Learned Trial Judge erred in law and/or in principle in permitting an application pursuant to section 16 of the Criminal Evidence Act, 2006 in circumstances where the witness gave evidence that she did not agree with the contents of her statement.”

Ground 7 – Failure to Discharge the Jury

9. Ground seven relates to a failed application for a discharge of the jury, which was made during the evidence of Mr Stephen Quinn. He gave evidence on day three of the trial and it was agreed that his evidence could be led. He was questioned in direct examination as to whether he recognised the deceased, to which he replied that he knew his face. He was then asked whether he had met him before, to which he replied “yes, there was a previous incident before in Mallow a year previous”. Counsel for the prosecution then told the witness that “we don’t need to know about that, but I think there wasn’t a good relationship between yourself and Tiggy Jackson; is that correct?”. The witness replied “No, there wasn’t no”. Then counsel asked: “And I think Conor knew about this; is that correct?”. The witness replied “Yes, I had told Connor about them hitting me before, yes”.

10. An application was made to have the jury discharged because there was now before the jury evidence that the accused had assaulted the witness on a previous occasion. While counsel for the defence accepted that the case could not have been conducted without a general reference to some background information, he contended that the witness had gone a step further and had stated that the accused had assaulted someone. No suggestion was made of impropriety on the part of counsel for the prosecution who, in reply, observed that in his opening he had indicated to the jury that there would be evidence of bad blood, or a disagreement, but that they should focus on the night of the incident. He submitted that it could not come as a huge surprise to the jury that with two young men, who disagreed, this resulted in one of them hitting the other. No particulars had been advanced. He also submitted that there was a world of the difference between a young man hitting another man and a young man stabbing another in the chest; and that there was precedent relating to the jury’s ability to take directions from the trial judge. The prosecution had no difficulty with directions being given to the jury to disregard any evidence about a previous assault on the grounds that it was irrelevant. In response, counsel for Mr Jackson submitted that the case was being run on the basis that the deceased was the aggressor and was in an aggressive mode for a period of time. He submitted that the evidence now made the accused look the aggressor - albeit on a different occasion - towards a close relative of the deceased, and that had changed “the ballpark” and could not be corrected.

11. The trial judge ruled: “So, the court has listened to the arguments which are on the transcript. The court is aware of the evidence that was given by the last witness. The court is also aware of the manner in which the defence are conducting this defence, in that their case is that the deceased was the aggressor. In any event, as both parties have alluded to, the Court of Appeal has reiterated that the discharge of the jury is an exceptional measure. And that the jury are well capable of taking instructions and disregarding matters that they are instructed to disregard by the trial judge. In all of the circumstances, I do not think that this warrants the discharge of the jury and accordingly, I will not accede to the defence application”

12. The appellant relies on dicta of Kearns J. in DPP v. Murphy [2013] IECCA 1 that the admission of bad character evidence without grounds “can only be seen as a significant erosion of the presumption of innocence”; and that the trial judge should have exercised her discretion to discharge the jury.

13. The respondent submits that the ruling of the Court was entirely correct. The discharge of a jury, it is contended, is a wholly exceptional and extreme remedy to be utilised only as a matter of last resort. As such, the isolated reference made by the witness as outlined did not meet the requisite threshold. Further, it is submitted that the trial judge forewent advising the jury to disregard the evidence as it was a minor part of the case.

Discussion

Bad Character Evidence

14. This ground of appeal relates to the trial judge’s ruling and not to the contents of her charge to the jury before they commenced deliberations. Nevertheless, in her charge, while she summarised the evidence of Mr Quinn, the trial judge did not give directions to the jury as to how to treat such evidence. In written submissions on this appeal it is argued that having refused the defence application, the trial judge was obliged to direct the jury that such evidence did not mean that the appellant committed the offence; and that the trial judge failed to direct the jury in relation to bad character evidence.

15. In her charge to the jury, the trial judge recounted the evidence of Mr Quinn and said that “he said there was not a good relationship between the families”. No requisition was raised regarding the summation of Mr Quinn’s evidence or the absence of a direction from the trial judge regarding the alleged failure to give directions as to bad character evidence. The ground of appeal which is now before the court must be viewed in that light. This issue was not elaborated on in oral argument, the parties confining their arguments to their written submissions.

16. It is well settled that the discharge of the jury should be a matter of last resort. In DPP v. Slawomir Gierlowski [2021] IECA 13, at paragraphs 37 and 38, this Court stated: “It is not enough in law to merely find that the evidence admitted was prejudicial. If it is found to be prejudicial, it is necessary to consider whether they were prejudicial to the extent that the jury ought to have been discharged, as held in the Court of Criminal Appeal in The People (DPP) v. Fahy [2007] IECCA 102. The Court in The People (DPP) v. Murphy [2015] IECA 201 held at para. 14 that:- “First of all this Court notes the general jurisprudence in this area to the effect that a trial judge should always be slow to accede to a request to discharge a jury and in particular the court also notes what Mr. McGrath states in para. 918 namely, ‘a trial judge is afforded a broad discretion to deal with inadvertent disclosure of evidence of bad character as he or she sees fit and in general an appellate court will be reluctant to interfere with the course adopted by him or her.’”

The Court in the People (DPP) v. Murphy held that the

impermissible evidence, namely that bad character evidence was

disclosed inadvertently in evidence, was of “ limited significance in the overall context in the case”. It is therefore important, when reviewing an exercise of the trial judge's discretion at appellate level, to only interfere with that discretion if omitting to do so would have an operative effect on the crux of the issue before the trial court.”

17. On appeal from a refusal by a trial judge to discharge a jury, this Court may interfere only where it is satisfied that the trial judge’s discretion was wrongly exercised: see also DPP v. Gierlowski [2021] IECA 13 at para. 41:

“The People (DPP) v. Cleary reasserts a common principle. Juries are robust and conscientious and are capable of carrying out their functions in accordance with their oath or affirmation. A trial judge must be slow to discharge a jury as it is a remedy of last resort although there are clearly cases where it may be the only remedy available. Moreover, an appellate court must only interfere where the exercise of the discretion to refuse to discharge a jury was wrongly exercised.”

18. While the ruling of the trial judge is terse, she stated that she was aware of the manner in which the defence was conducting its defence. She acknowledged the legal position that juries should only be discharged as an exceptional measure and expressed the view that she did not think that the discharge of the jury was warranted. While terse, it may nevertheless be inferred that she did not consider that circumstances had arisen which required the exceptional exercise of her discretion to discharge the jury.

19. The evidence of the witness to which objection was taken was “I had told Connor about them hitting me before, yes”. This answer was given against an acknowledged and accepted requirement for some background evidence and in the context of evidence previously given that there was not a good relationship between the deceased and the witness. Also, while the appellant’s submission at trial was that the defence case was that the deceased was the aggressor, and although not expressly referenced by the trial judge, we note that Mr Quinn’s evidence was not that the deceased had been assaulted, rather that he was. The trial judge’s exercise of her discretion must be seen in this light. It is difficult to see how this single unprompted answer went to the crux of the case, and we are not satisfied that it has been established that the trial judge was wrong in the exercise of the broad discretion which she has in deciding whether to discharge a jury as an exceptional measure.

20. We also note that in her charge to the jury the trial judge did not give any express directions about this aspect of Mr Quinn’s evidence, neither did she emphasise or repeat the answer. No requisition was raised in respect of her charge on this point, or of a failure to charge the jury in any other way. Further, while we were not expressly referred to evidence of other witnesses, the Court has nevertheless noted that a witness who was called later in the trial, Mr Richard Cannon, an uncle of the deceased’s cousins, Stephen, Samantha and Liam Quinn, was questioned about aggression:

“Q. Well, I have to put it to you that Conor Quinn was aggressor, the attacker and the chaser on multiple occasions that day, at least, on at least two occasions that day. Do you accept that?

A. Yes.”

This also provides context.

21. Therefore, we must reject this ground of appeal.

The Decision to Admit the Statement of Ms Christina Kearney Pursuant to s. 16 of the 2006 Act

(a) Section 16 of the Criminal Justice Act 2006

22. The successful application of the prosecution to admit the statement of a witness, Ms Kearney, pursuant to s. 16 of the Criminal Evidence Act 2006 (“the 2006 Act”) is the principal focal point of the appeal. Ms Kearney’s statement was taken by Detective Garda Buckley at her home on the 21st July 2018, three days after the incident. She was 16 at that time. Detective Garda Buckley’s evidence is that Ms Kearney’s parents were present when the statement was taken and the final sentence of the statement states “[t]his statement has been read over to me by D/Garda Buckley in the presence of my parents and it is correct”.

23. The admission of a statement under s. 16 of the 2006 Act is a statutory exception to the rule against hearsay. Section 16 provides: “16.— (1) Where a person has been sent forward for trial for an arrestable offence, a statement relevant to the proceedings made by a witness (in this section referred to as “the statement”) may, with the leave of the court, be admitted in accordance with this section as evidence of any fact mentioned in it if the witness, although available for cross-examination—

(a) refuses to give evidence,

(b) denies making the statement, or

(c) gives evidence which is materially inconsistent with it.

(2) The statement may be so admitted if—

(a) the witness confirms, or it is proved, that he or she made it,

(b) the court is satisfied—

(i) that direct oral evidence of the fact concerned would be admissible in the proceedings,

(ii) that it was made voluntarily, and

(iii) that it is reliable,

and

(c) either—

(i) the statement was given on oath or affirmation or contains a

statutory declaration by the witness to the effect that the statement is true to the best of his or her knowledge or belief, or

(ii) the court is otherwise satisfied that when the statement was made the witness understood the requirement to tell the truth.

(3) In deciding whether the statement is reliable the court shall have regard to—

(a) whether it was given on oath or affirmation or was videorecorded, or

(b) if paragraph (a) does not apply in relation to the statement, whether by reason of the circumstances in which it was made, there is other sufficient evidence in support of its reliability, and shall also have regard to—

(i) any explanation by the witness for refusing to give evidence or for giving evidence, which is inconsistent with the statement, or

(ii) where the witness denies making the statement, any evidence given in relation to the denial.

(4) The statement shall not be admitted in evidence under this section if the court is of opinion—

(a) having had regard to all the circumstances, including any risk that its admission would be unfair to the accused or, if there are more than one accused, to any of them, that in the interests of justice it ought not to be so admitted, or

(b) that its admission is unnecessary, having regard to other evidence given in the proceedings.

(5) In estimating the weight, if any, to be attached to the statement regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.

(6) This section is without prejudice to sections 3 to 6 of the Criminal Procedure Act 1865 and section 21 (proof by written statement) of the Act of 1984.”

24. The focus on this appeal is on whether the conditions for admission of Ms Kearney’s statement under s. 16 were satisfied; in particular the criteria outlined in s.16(1), and whether, under s.16 (2) and (3), the statement was reliable. In this context the emphasis is on whether there was sufficient evidence of reliability to permit its admission. While before the trial judge counsel for the appellant was “neutral” as to whether the statement was voluntary, the finding of the trial judge that the statement was voluntary has not been expressly contested or articulated as an issue on this appeal.

(b) Ms Kearney’s evidence to the jury

25. Ms Kearney gave evidence on the 5th October 2024, the third day of the trial. When examined on her recall of the 12th July 2018, she stated that she could not recall it properly. She remembered being with one of her friends, Shannon Hogan. They were going into town to the cinema. She confirmed that when she was walking to town, she saw the appellant and they said hello to each other. He then passed by. She knew him as they lived in the same area. The appellant was going in the same direction as she was. She also gave evidence that she saw him as he was coming towards her, but she could not remember where she was when she saw him again, or how long that was after the first time she saw him. Ms Kearney could not remember anything about him when she saw him again, nor could she remember whether he was carrying anything. She could not remember whether he was walking or running, nor could she remember where he went and she did not know if she saw him again after that. At that stage of her evidence, application was made by counsel for the prosecution to admit in evidence, pursuant to s.16 of the 2006 Act, the statement which she had made to Detective Garda Buckley in her home three days after the incident.

26. That statement included the following sentences: “When I saw‘Tiggy’ [being a reference to the appellant] running I saw a knife in his hand, in his left hand. It was a kitchen knife I’d say. He jumped in front of a car going for Ballydaheen away from town”. Later, it is written that she stated: “When I saw Tiggy with the knife I didn’t see blood on it, it was about 7 or 8-inch long with a straight blade on it. He was holding it with the handle in his hand and the blade facing back towards his back or behind him. I didn’t see the stabbing happening…”.

(c) The Application

27. Application was made by counsel for the prosecution to have Ms. Kearney’s statement admitted under s. 16(1)(b) (“refusal”) and (1)(c) (“material inconsistency”) of the 2006 Act. Under s. 16(1)(b), it was submitted that the witness denied making her statement by way of claiming not to remember making it, despite the evidence in the voir dire of Detective Garda Daly (considered below) that she had been given her statement (both handwritten and typed versions) in advance of the trial. It was also submitted that she had given evidence which was materially inconsistent with her statement and that the statement was admissible under s. 16(1)(c).

(d) The Evidence in the Voir Dire

28. Ms Kearney confirmed in evidence that she was born on the 9th December 2001. She was, therefore, aged 16 in July 2018. She did not recall making a statement to An Garda Siochana.

29. Detective Garda Sean Buckley gave evidence of taking the statement from Ms Kearney, in her home, on the 15th July 2018 - three days after the incident. He said that he “would have” written down what she said. The statement was in his writing. He could not recall “off the top of his head” where her home was in Mallow. The statement contained a declaration of truth and he said that he always read the declaration over to each witness before a statement was taken. The statement recorded that Ms Kearney’s parents, Eleanor and Chris Kearney, were present. Detective Garda Buckley read the statement and he confirmed that certain amendments were made to it such as the words “running” being struck out and replaced with the word “walking”. He explained that “when I was reading it back over to her, I would have made her aware that it would have been right to correct anything that would have been incorrect”. He said that it was corrected “with her”. The statement was not videotaped. Another person had reduced the handwritten statement into a typed version. He could not recall Ms Kearney’s exact demeanour when she made her statement. He did not remember anything in particular which stood out, and said “she would have been normal enough”. Detective Sergeant Buckley confirmed in direct examination that the words in the statement were Ms Kearney’s.

30. Under cross examination, Detective Buckley did not recall, “but didn’t think”, that Ms Kearney was invited to attend at the Garda station. He did not make any note in his official Garda notebook regarding the taking of the statement. He did not have his notebook with him when giving evidence but he did not recall taking any notes at the time. He could not recall the room in the house where the statement was taken, nor any discussions with Ms Kearney’s parents when he arrived. He did not think that discussions took place between Ms Kearney and her parents but could not recall. He had no notes relating to the visit, “only what’s in the statement”. Detective Garda Buckley said that he “would have” asked general questions “to get a background of what she observed” but could not recall the exact questions. He said that “anything that would have been spoken, would have been put into the statement”. He did not record the questions he asked and could not recall how many he asked. He wrote the statement down and read it back to Ms Kearney. Detective Garda Buckley confirmed that amendments had been made to the statement but, in answer to a question of whether Ms Kearney had been invited to initial those changes he replied, “I didn’t - no”. He accepted that it was standard practice to initial a change and that this was not done on this occasion. He did not accept, however, that it was a deficiency. He was then questioned: “Q ….So in effect, we only have your word that changes, that changes are in the statement, i.e. either additional, written in a crossed out and written, we only have your word that this was done as a result of Ms Kearney herself having input? A Yes, I wrote down the statement and I would have read it back over to her, in front of her parents also.”

31. Detective Garda Anthony Daly, whose duties included securing the attendance of witnesses at trial, gave evidence that a witness order was served on Ms Kearney on the 9th September 2023. He met Ms Kearney with her parents. They were not satisfied about their daughter having to go to court:

“ … Christine herself was not willing to go to court. I explained that I would express their concerns to the DPP, who was running the case and they mentioned about her mental health, that she was suffering before from it and that she was back on track now at the moment. I am (sic) just informed them that she is an essential witness in the case and that I’d go back to the DPP, which I did. I contacted them. I was informed that she would be required for court as she was an essential witness in the case. I returned to the Kearney’s again, where I would have served a witness order on 9 September 2023. And subsequent to that, I would have handed her, her statement, typed statement, and subsequently after that, a copy of the written statement at her request.”

32. Detective Daly said that he gave Ms Kearney a copy of her typed statement on the 9th September 2023. She requested the handwritten copy by text on the 22nd September 2023 and it was handed to her at her house on the 25th September 2023. He was in contact with the witness every day leading up to the trial. He stated that he was “letting her know at the end of every court day that she was required or when she was required”. He thought that she was unwilling to give evidence out of fear, that she did not feel comfortable but that “she didn’t give any specific reason” for this. In cross examination, Detective Daly said that he did not know whether she was under medical care. She had said she would get a letter from her doctor if necessary. He was unaware of the extent of her difficulty and did not inquire into it.

(e) Submissions made on behalf of the prosecution to the trial judge

33. Counsel for the DPP made the application pursuant to sections 16(1)(b) and (c). Detective Daly had given Ms Kearney a printed copy of her statement. She then requested a handwritten copy which she had considered in advance. He submitted that Ms Kearney had given evidence which was materially inconsistent with her statement.

34. It was also submitted that the making of the statement had been proven through the evidence of Detective Buckley. It was further submitted that the statement was voluntary, was made in the presence of her parents and that it was reliable. Counsel referred to what he described as the extraordinarily detailed nature of the statement. It contained details that the Detective could not himself have known - facts such as sunglasses being picked from the ground and conversations which Ms Kearney said she had had with Mr Luke Quinn. He submitted that the fact that the statement contained a statutory declaration was not challenged, nor was the acknowledgement that the declaration had been made and understood by Ms Kearney. He further submitted that it was not unusual for a statement not to be videotaped. Gardai have no power to bring a witness (i.e. not a suspect) to a Garda station for a video recorded interview. There was no reason to anticipate that an ostensibly independent witness would refuse, or not be willing, to give evidence at the trial. He pointed out that Ms Kearney could recall certain matters up to the time that words were spoken between her and the accused and she then claimed to have no memory of any other occurrence. Counsel submitted that this was the type of situation which was captured by DPP v. Rattigan [2013] 2 IR 221. Ms Kearney’s amnesia amounted to a “material inconsistency”.

35. It was further submitted that there was other sufficient evidence to support the reliability of the statement, including the fact of the stabbing and that the deceased had collapsed outside the ambulance. He also referred to the statement of anticipated evidence of the State Pathologist, Dr Bolster, who conducted a post-mortem examination on the 13th July 2018. Her statement of proposed evidence, to a large extent, coincided with her later direct evidence to the jury. She wrote of a single stab wound to the left lateral side of the thorax which penetrated through the fourth rib, fracturing the rib, into the pericardial sac and into the heart, with a left-sided haemothorax, pneumothorax and a hemopericardium. The stab wound was eight to 12 centimetres in depth. She also noted that there was an incised wound to the right forearm consistent with a “defence” injury. It was submitted that the description of the blade or knife given by Ms Kearney matched the type of wound described by Dr Bolster.

36. Counsel for the prosecution also submitted that the circumstances were not indicative of a risk that the admission of the statement would be unfair to the accused. The admission was necessary, particularly given “strong indication by the defence… to witnesses, that the accused never had a knife in this case”, and the implied defence that the fatal wound was self-inflicted.

37. When the submissions were first made, Ms Kearney had not, at that stage, been requested to identify her statement. Following submissions by counsel for the appellant that the witness had not been handed her statement for identification of her signature and, with the leave of the court, Ms Kearney was recalled to give further evidence. To maintain a narrative of the order in which matters were approached, we now turn to address the submissions made on behalf of the appellant, before Ms Kearney was recalled.

(f) Submissions made on behalf of the accused/appellant

38. In response, counsel for the appellant submitted that what occurred could not amount to a refusal to give evidence. Ms Kearney had in fact given evidence. She did not deny making the statement; she simply could not recall making it. She had given evidence which did not include the full ambit of the statement. Counsel said that he was neutral on whether the statement was made voluntarily. He was not raising objection that direct oral evidence of the facts contained in the statement were admissible. He was, however, raising a major objection on the ground of reliability. He further submitted that the prosecution’s approach to seek to establish reliability by reference to other evidence, in particular the pathology evidence, was not the test. The focus must be on the circumstances of the taking of the statement, not its contents. Counsel relied on an extract from McGrath on Evidence (3rd edn., Round Hall 2020), where the authors reference DPP v. O’Brien [2010] IECCA 103. To provide context, we note that at para. 5-331 the authors, having considered certain overseas authorities, wrote: “It can be seen from these dicta that the concept of reliability can encompass two distinct but related questions. The first is whether the statement was made in circumstances which make it likely to be true and accurate. The second is whether the contents of the statement are actually true and accurate”.

39. Counsel referred to para 5-332, which states as follows:

“5-332 In People (DPP) v O'Brien, the Court of Criminal Appeal understood the concept of reliability in s.16 to be directed towards the first question:

“It seems relatively clear that the Act, in requiring that the statement be found to be “reliable”, appears to mandate the court to examine the circumstances and factors surrounding the making of the statement, to ensure this is a reliable statement in the sense that it is one which can be relied upon, rather than requiring the court to be satisfied that the actual content of the statement is reliable in the sense that it is true…A consideration of later subsections of the Act of 2006 also suggests that the emphasis is on the circumstances of the making and taking of the statement itself, rather than the reliability of the content of the statement…”

These authorities are considered in more detail below.

40. Counsel also referenced the fact that Ms Kearney’s parents were not called on this issue by the prosecution. Changes or amendments were not initialled. This was a deficiency which impinged on the reliability of the statement. It was further submitted that medical health issues might impinge on the ability of the witness to recall and give evidence.

(g) Counsel for the prosecution’s reply

41. In reply, counsel for the prosecution submitted that there was nothing in the evidence or the circumstances surrounding the making of the statement which called its reliability into question. The honesty of the detective who took the statement was not challenged, that the words in the statement came from the witness was not challenged nor that the detective took them down as they were said. Detective Buckley had given evidence of reading the statement back to her, changes were made and none of this was challenged. It was also submitted that that the changes to the statement were not initialled did not affect its reliability.

(h) The witness is recalled

42. Following the above recounted submissions, and before delivering her ruling, the trial judge raised issue about the statement not having been put to the witness. The prosecution then applied for liberty to recall her for that purpose, which the trial judge acceded to. On her recall, Ms Kearney’s original statement was put to her. She acknowledged her signature but maintained that she could not remember anything about the making of the statement. The statement was read over to her and she was questioned, inter alia, as follows by counsel for the prosecution:

“Q…. Now do you recall making that statement?

A. I can recall some stuff, but I can’t recall making that statement, can I just stop you on one thing, I wouldn’t be able to tell a centimetre, so I don’t understand where the centimetres of a knife is after coming into that

Q. I don’t think it says, with respect, I don’t think it says-

A. Sorry, seven or eight inches long.

Q. Yes?

A I wouldn’t be able to tell the inch of something.

Q And how would you measure length?

A. I don’t know, I wouldn’t measure something, like.

Q. OK , is it possible you describe the knife to the gardai and the knife-the guard wrote down-?

A. I don’t know, I can’t recall seeing Tiggy with a knife.

Q. OK, and do you deny making the statement?

A. Well I can’t recall making it now.

Q. You’ve no recollection of making it whatsoever?

A. No, I’ve no recollection of a guard taking this statement from me.”

43. Nor did Ms Kearney recall the statement being read back to her or that she had made changes to it. She accepted that she had asked for the statement in advance of the trial. She was questioned about Detective Daly’s evidence that she and her family were unwilling for her to come to court to give evidence, to which she replied that it must have been her parents who said that. She agreed that she did not want to come to court because she had never been to court before. She was asked whether it was fear of somebody or fear of the court, to which she replied, “no, I just didn’t want to come to court”. She reiterated that she did not recall “most of the stuff that’s on this”.

44. Counsel then questioned her as to whether some of the contents were known to be true to her, such as was walking towards town to go to the cinema, that she was with her friend Sharon Hogan, that “Tiggy” passed her, that he had said hello to her and that she said “hi” back to him. She accepted that that was in the statement. When asked whether it was possible that the “other stuff” in the statement was also correct but that she just did not recall it, she replied “I don’t know”. Counsel also questioned her about whether this was the only time she had spoken to gardai, to which she replied “yes”. When asked whether she would tell lies to the gardai, she said no. And when asked if the garda asked a question, and whether she would tell him the truth, she replied “I presume, yes”. When asked whether the only reason she did not want to come to court, from her point of view, was fear and unfamiliarity of court to her because she had never been in court before, she replied “yes”. She confirmed that that was the only reason that she did not want to give evidence.

45. Counsel for the appellant focused on an aspect of Ms Kearney’s direct evidence referring to the length of the knife as being six or seven inches. He questioned her as follows:

“Q. So they are not the type of words that you would use yourself?

A. I would not be able to tell the inches or the centimetres of something, so I don’t know how that’s on it.”

When questioned as to how she would measure length she replied, “I don’t know, I wouldn’t measure something…”. She stated that “I would not be able to tell the inches or the centimetres of something, so I don’t know how that’s on it”. Counsel also asked her whether her mental health difficulties might have impacted on her, to which she replied that “I just don’t understand how that has anything to do with this”. She also confirmed that she had not been treated by doctors.

46. When Ms Kearney was asked by the trial judge whether she was willing to give evidence, she said that she could not recall “some of the stuff here” but confirmed that she would be willing to come to court to give evidence. The trial raised issue as to whether “we are now in section 16 territory”. Counsel for the prosecution submitted that such was the case and that what the witness had said about the statement could be put before the jury. It would be a matter for them to attach what weight, if any, to give to it.

47. Counsel for the appellant requested the court to factor into the ruling Ms Kearney’s demeanour when she was giving evidence. He submitted that she looked puzzled by what appeared to be “a very straightforward phrase”. It was submitted that a person of the witness’s age would be puzzled about measurement in feet and inches. A person of that age would understand metric terms. This was part of their education. Measurements in inches etc were “a foreign language”. The witness’ fixation on that point was of significance to the reliability of her statement. This was not so much as to its content, rather to the manner of its taking. In reply, counsel for the prosecution pointed out that when he examined the witness, she had said that she did not have words for measurements, either metric or imperial, and submitted this it was a matter which could be raised in cross examination before the jury. It was submitted that in the consideration of reliability of the statement, the court must focus on circumstances of its taking, and the estimation of measurement which she said she would never use.

48. Counsel for the prosecution submitted that the situation was captured by DPP v. Rattigan [2013] 2 IR 221. Ms Kearney’s amnesia constituted what the Court in Rattigan considered to be a “material inconsistency”.

(i) The trial judge’s ruling

49. The trial judge noted that Ms Kearney gave certain evidence and “then indicated that she could not remember in response to the questions. She later gave evidence that she had no memory of making the statement. Then when the statement was put to her, she acknowledged her signature but maintained that she could not remember anything about the making of the statement. And then went on to disputed portion of the statement”.

50. In acceding to the application to admit the statement under s.16 of the Act of 2006, the trial judge ruled:

“The Court is satisfied that the witness made this statement voluntarily in the presence of both her parents in her home. That before she made it, the necessary declaration was read over to her, that she understood the declaration, that the statement was read back, that she was invited to make any alterations which were made and that she signed it. The Court is satisfied that she has given evidence which is materially inconsistent with her statement in accordance with 1(b) and in accordance with the case of Rattigan.

When considering reliability, the Court looks to the circumstances of the taking of the statement. As already stated, the Court is satisfied that it was made voluntarily, that the witness understood the declaration, in particular the requirement to tell the truth. That the alterations and amendments were included in the read back of the statement before it was signed by her, and that there is no evidence of cognitive impairment such that would impact on the reliability of the statement. The witness has maintained that she has no memory of making the statement, but at the same time, takes issue with part of its contents.

It has been urged by the defence that this renders the circumstances of the taking of the statement as unreliable, such that it should not be admitted. Arguing that it points to the statement not being in her own words. The Court does not consider that the manner in which the witness now takes issue with part of its contents, in light of all of the evidence on the issue, renders the circumstances of the taking of the statement unreliable, such that it should be excluded. The weight to be given to the evidence and the inference to be drawn will be a matter for the jury.

The Court is satisfied that there is no risk that its admission would be unfair to the accused or that in the interests of justice it should be excluded and is satisfied that the evidence is necessary. Having considered the statutory requirements, the evidence on the issue and having made the findings outlined above, the Court is satisfied to admit the statement pursuant to section 16 of the Criminal Justice Act, 2006.”

(j) Ms Kearney’s evidence to the jury

51. Following the trial judge’s ruling, Ms Kearney’s statement was redacted by agreement and was read to the jury. In cross examination, Ms Kearney said that she could not remember the gardai calling to her home or the making of a statement. The original of her handwritten statement was produced and she confirmed that the signature on it was hers. She had no memory of the alterations to the statement, such as “running” being crossed out, “walking” being inserted and the drawing of a line through “we crossed over to the other side of the road”. Ms Kearney could not remember whether the Garda asked her to initial the changes. Counsel then questioned her about her education and whether when studying measurements, they were in centimetres and metres. She replied that she did not know. Ms Kearney’s reply was ‘no’ when asked whether she would normally say something was a foot long, or six or eight inches long. She agreed that people of her age did not go around saying something was inches long and that she grew up with centimetres, kilos and grams. Questioning continued as follows:

“Q And I think did I take you to understand that that’s not a phrase that you would use?

A. No, I would never use that phrase.

….

Q. You would never use that phrase, the phrase being, "I think it was about seven or eight inch long", you'd never use a phrase like that?

A. I still now couldn’t tell you an inch long.

….

Q. Oh yes, but would you use a phrase, seven or eight inch long?

A. No.

Q. That's not -- they're not words you'd ever use?

A. No.

Q. And does it come as a surprise to you to see that those three or four words written in a statement that you made?

A. Yes.

Q. And can you account for how those words got in there?

A. No ”

52. Counsel for the appellant also put it to the witness that the accused did not have a knife, to which she replied “okay”.

53. On re-examination, when questioned whether she would use centimetres and metres, she said “I wouldn’t need to use them”; and she also confirmed that she would not be able to say how many centimetres were in a biro (which was shown to her). When asked whether it was possible that she showed the Garda a length and that he give an estimate, she replied in the negative. She was questioned “you don’t know, you can’t remember?”, to which she replied “no”.

Submissions of the Appellant on Appeal

54. Counsel for the appellant characterises the admission of Ms Kearney’s statement as the pivotal moment of the trial. She was the only witness who said that she had seen the appellant with a knife. It is submitted that, in terms of the circumstances in which it was taken, the decision of the trial judge was made in a complete or almost complete evidential lacuna. The trial judge had no evidence on which to rely in her consideration of the application or the reliability of the statement. This was contrary to the statutory requirement that the statement be reliable. Emphasis is placed on the absence of video-recording, failure of the memories of witnesses, the lack of note taking or recording of the statement by the gardai (with the exception of the handwritten statement itself). The evidential gap, it is submitted, is further widened by Detective Garda Buckley’s deficit in memory regarding the circumstances in which the statement was taken, i.e. where in the house it took place, where the house was located in the town of Mallow and whether there had been an introductory conversation with Ms Kearney’s parents. It is submitted that the garda had no note of any introductory conversation, no note regarding the questions posed and nothing to independently verify the manner in which amendments were made to the statement. Counsel submits that while the garda’s absence of memory at the time of trial is understandable, it does not permit the court to make a finding of reliability.

55. Counsel for the appellant further submits that the authorities on the interpretation of reliability in s. 16 focus on the process of the taking of the statement. It is submitted that the burden lies on the prosecution to prove that the process was sound, such that to enable a trial judge to make a firm finding of reliability; and that “section 16 [sets] an extraordinarily higher standard for statements than would ordinarily be the case”. It is further submitted that “Irish law has tilted strongly in favour of inherent reliability, as in procedural reliability, rather than circumstantial reliability”. It is submitted that, in a murder investigation where the witness was 16 years of age, additional contemporaneous notes or “scene setting” is required to prove the reliability of the circumstances in which the statement was taken. DPP v. O’Brien [2010] IECCA 103 is relied on.

56. It is contended that, while there is no legal requirement to do so, the witness’ pivotal role in the investigation and her young age were such that her statement should have been videotaped in a garda station. The lack of recollection by Detective Garda Buckley as to whether the witness was invited to the station was also referenced… “not to any requirement to bring her to the station but to the absolutely total and complete lack of memory of this process which is then urged upon the Court on an evidential basis to be relied upon”.

57. Issue is also taken with the uninitialed amendments. While Detective Garda Buckley did not accept that this amounted to a deficiency in the taking of the statement as he “would have read it back over to her, in front of her parents also”. It is submitted that his evidence was given entirely in “what used to be called the modh coinníollach”, the conditional tense. It is evidence of assumed bona fides, what he would have done as opposed to a recollection of events, where elsewhere he conceded “that he has no memory, for example, of where those pivotal amendments were made”. In the course of the exchanges on this appeal, reference was made to the, in part, standard form (or boilerplate) nature of the declaration. While it is accepted that the determination by the trial judge involves, to an extent, the assessment of the demeanour of witnesses, it is nevertheless submitted that there is nothing in the trial judge’s ruling to suggest that she had come to a conclusion, based on an assessment of the demeanour of the witnesses or the manner in which they gave their evidence, that one person’s evidence should be accepted above the others. Further, it is also submitted that there is a difference between the ability to assess reliability of a witness at the time he or she makes the statement (which might be readily done if the statement is videorecorded) and the assessment of the witness’s evidence at trial.

58. Counsel also submits that while DPP v. Rattigan is relied upon in asserting that “material inconsistency as being covered by a failure of memory which is deliberate rather than honest”, it is submitted that an honest failure of memory does not trigger s. 16. A failure of memory which is dishonest, self-serving or serving of an accused person is to be dealt with under subsection (a). A person who remembers the matters in question but indicates otherwise is a person who refuses to give evidence, not a person who is denying making his statement or giving evidence which is materially inconsistent with it. In this way, the appellant submits that the application was incorrectly made under subsections (b) and (c).

59. With regard to the trial judge’s ruling, the appellant submits that the legal and evidential burden of the application were inverted through the finding that the Court did “not consider that the manner in which the witness… [took] issue with part of its contents, in light of all of the evidence on the issue, render[ed] the circumstances of the taking of the statement unreliable such that it should [have been] excluded”. It is submitted that the trial judge fell into error by framing the evidential burden of the application as one commencing from an assumption of reliability which must be ousted by the defence. Further, it is said that the Court “never actually addressed the issue of reliability”.

Submissions of the Respondent on Appeal

60. The respondent disputes the appellant’s characterisation of the admission of Ms Kearney’s statement as the most important moment of the trial. Rather, it is submitted that “the most important moment of the trial was when Dr Bolster was being cross-examined… and the proposition that the deceased stabbed himself inadvertently in his altercation with the accused was put to her and she said… that it was not impossible but very unlikely”. Further, it is submitted that it is possible that the jury discounted the statement of Ms Kearney on foot of her comments during cross-examination that she would never describe the length of an item in inches.

61. The respondent disputes the appellant’s assertion that the trial judge made no finding as to the bona fides of the witness. While no explicit finding was made, it is submitted that it is clear from the context of the Court’s ruling that it did find that this was a case of selective amnesia in the sense of DPP v. Rattigan. It is submitted that Ms Kearney’s initial evidence before the jury was a textbook example of the ‘forgetful’ witness scenario as set out in Rattigan. The witness recalled initial details which matched her statement in several key aspects until the essential matter of the knife is reached, and it is submitted that at this point her evidence departs dramatically from her statement.

62. The respondent also submits that the trial judge had the advantage of assessing the demeanour of Ms Kearney and Detective Garda. In her ruling, the trial judge framed matters in terms of DPP v. Rattigan; the witness’s evidence was deemed to be materially inconsistent within the meaning of subsection 1(c). The remark of the trial court that “the witness maintained that she had no memory of making the statement but at the same time takes issue with part of its contents” is pointed to as an implicit finding of dishonesty. It is not a case of genuine forgetfulness, rather “it suggests the opposite, that she had selectively forgotten it”.

63. The respondent submits that the statement itself is helpful in setting out the circumstances in which it was taken; the parents of the witness were present, the declaration was read to the witness and it contains a statement that she understood it. It is submitted that the recollection of Detective Garda Buckley regarding the room in which the statement was taken is of little consequence and does not inform the Court about the reliability of the statement. If the witness had been taken to the Garda station to give her statement, an issue of voluntariness would necessarily be raised by the defence. Further, there is no power to bring witnesses to a Garda station in circumstances where they are not a suspect.

Discussion and Analysis

Admission of Ms Kearney’s Statement

(a) General observation

64. Where reliance is sought to be made on the provisions of s. 16 of the 2006 Act, the onus of proof rests on the prosecution to establish, inter alia, that a statement which it seeks to admit comes within the circumstances prescribed by s. 16 (1), and that it is reliable within the meaning of s. 16 (3). The standard of proof is that which applies in criminal proceedings

- beyond reasonable doubt. Two central issues arise for consideration. First, whether the circumstances permit the admission of Ms Kearney’s statement in accordance with the provisions of section 16 (1). Second, the trial judge’s finding that the statement was reliable, which, as the statement was not given under oath or affirmation, was required to be addressed in accordance with the provisions of s. 16 (3)(b).

65. The relevant grounds in the notice of appeal are that the trial judge erred in law in admitting the prejudicial evidence of Ms Kearney (ground 8) and that she erred in law and/or principle in permitting the application in circumstances where the witness gave evidence that she did not agree with the contents of the statement (ground 9). No issue arises as to whether the stated ground of appeal goes further than a challenge to the trial judge’s ruling based on the sole contention that Ms Kearney did not agree with the contents of the statement. On the hearing of this appeal, counsel for the appellant maintains that the trial judge came to her conclusions on admissibility, particularly in relation to reliability, in an evidential lacuna, and this court treats the appeal as such. It must be said, however, that while counsel for the appellant at trial emphasised that the focus of the court should be on the circumstances surrounding the taking of the statement, it is not apparent from the transcripts that the particular significance which is attached on this appeal to certain evidence, lack of evidence or absence of memory thereof, featured as they now do. Emphasis was placed on this appeal on particular matters including the absence of memory on the part of the Garda of the day’s events and the absence of contemporaneous notes, including notes of questions asked of the witness at the time she made her statement. The principal focus of submissions made to the trial judge, particularly in relation to the issue of reliability, concerned the absence of evidence from Ms Kearney’s parents, that uninitialed amendments had been made to the statement and there existed mental health difficulties which might have impinged upon the witness’ ability to recall and give evidence. Further, counsel for the accused requested the trial judge to take into consideration the witness’ evidence regarding measurements and her reaction and demeanour when answering questions relating to that issue.

66. Therefore, criticisms of the trial judge’s ruling made in submissions on this appeal should be seen in this light.

(b) Material inconsistency

67. Before concluding that Ms. Kearney had given evidence which was materially inconsistent with her statement, the trial judge referred to Rattigan, which had been opened to her by the prosecution. Rattigan involved an application for leave to appeal from a murder conviction. O’Donnell J. (as he then was) stated as follows at para. 10: “The issue of the effect of s. 16 arose in this case because in the immediate aftermath of the stabbing a number of witnesses had given statements detailing the events leading up to the killing of Mr. Gavin. By the time they came to give evidence at the trial however the position had changed. While they could give precise evidence about the events of the night, when asked to describe the stabbing or the knife man, they professed to have no memory whatsoever. The trial judge refused one prosecution application that a statement of a witness be admitted under s. 16 on the grounds that it was unnecessary but permitted statements of two other witnesses to be admitted under the section. The significance of their evidence was that it showed that the perpetrator, after stabbing Declan Gavin, had pursued him all the way to the door of the Abrakebabra premises. That evidence put the assailant at the door of the premises on which the blood of the victim and the handprint of the applicant were found. While there was some argument as to whether s. 16 could be said to apply to a situation in which a witness had given some evidence and then professed a lack of memory on other matters, this court is satisfied that it can be said of the two relevant witnesses here that they had given evidence that was materially inconsistent with their statements and therefore came within the terms of the statute.” (Emphasis added)

68. It is evident from Rattigan that professed amnesia of a witness may fall within the provisions of section 16 (1) and, therefore, a statement made by such a witness is capable of being admitted under s.16 (1)(c ).

69. The trial judge concluded that the witness had an of absence of memory about the statement yet was able to take issue with certain aspects of it. The witness could also confirm in evidence certain introductory parts of the statement. We are satisfied that there was evidence before the trial judge, who had the benefit of hearing and seeing the witnesses first hand, on which to make that assessment and finding. We are not satisfied that it has been established that the trial judge was incorrect in her ruling that the witness had given evidence which was materially inconsistent with her statement

70. We note, however, that the transcript reflects a reference by the trial judge as making her ruling under s. 16(1) (b), which refers to a denial of making the statement. The finding, as expressed by the trial judge, was that the witness had given evidence which was materially inconsistent with her statement. This is reflective of the wording at section 16(1)(c) and therefore admissible on that account. That the trial judge may have referred to subsection (b) does not, in our view, impact on her expressed conclusion that the witness’ evidence was materially inconsistent with her statement. We should also observe that in replying submissions to this court, counsel for the prosecution stated that the reference in the ruling should have been to subsection 1(c), and in truth no great emphasis was placed on this by the appellant in written submissions or on the hearing of this appeal. The main thrust of the appellant’s submissions otherwise related to the issue of reliability.

(c ) Understanding of the requirement to tell the truth

71. Section 16(2)(c) of the 2006 Act imposes a requirement that (i) the statement be given on oath or affirmation or contain a statutory declaration by the witness to the effect that the statement is true to the best of his or her knowledge or belief, or (ii) that the court is otherwise satisfied that when the statement was made the witness understood the requirement to tell the truth. In her ruling, the trial judge was satisfied that Ms Kearney understood the declaration contained in the statement, “in particular the requirement to tell the truth”. On the face of it, therefore, that was a finding of compliance with the provisions of section 16 (2)(c)(ii). It is submitted that there was no evidence advanced that the witness understood the meaning of the declaration. We fail to see how this could be. It is expressly so recorded in her statement, which according to the Garda was read back over to her. Express findings were made by the trial judge in respect of the reading over and the understanding of the declaration. In O’Brien, when referring to the requirement that the trial judge be satisfied that the witness understood the requirement to tell the truth, Macken J. observed:

“Apart from the requirement that the statement be both voluntary and reliable, the statement also must be (a) made under oath, (b) or affirmed, (c) or must contain a statutory declaration as to the truth of the matters stated in it. Or if none of these occurred, the court must be "otherwise satisfied" that when the statement was made, the witness understood the requirement to tell the truth. Quite clearly this latter requirement is readily, or most securely, met by evidence that the statement was prefaced by a warning, or even a reminder, to the witness to tell the truth, or by a statement of the consequences that might flow from a failure to do so. But the Act does not require this expressly. Rather, it leaves to a trial judge the obligation to satisfy himself, in the particular circumstances of each case, that the witness did understand the requirement to be truthful”. (Emphasis added).

72. The statement at issue in O’Brien was video recorded. The witness was of very tender years. There was no declaration concerning the requirement to tell the truth. Nevertheless, the observations of Macken J. regarding the truth requirement being “readily, or most securely, met by evidence that the statement was prefaced by a warning, or even a reminder, to the witness to tell the truth, or by a statement of the consequences that might flow from a failure to do so” are relevant to Ms Kearney’s understanding of the requirement to tell the truth. The wording of the declaration was preprinted. However, Detective Garda Buckley recorded in his handwriting the witness’s understanding of the declaration. Ms Kearney acknowledged her signature on the statement.

73. While it may be that, as in Murphy, the ruling was brief, nevertheless as McKechnie

J. observed; “[g]iven [her] distinct advantage of being observant of the witnesses when giving their evidence, and the corresponding disadvantage of this court in not having the facility, such findings therefore cannot be interfered with in the instant case” (para. 53).

74. In those circumstances, we are satisfied that there was a clear evidential basis for the trial judge to conclude, to the standard required, that the witness understood the requirement to tell the truth. We see no basis upon which this court could interfere with that finding.

(e ) Voluntariness

75. If a statement is not voluntary, as with any involuntary statement, it cannot be admitted. Voluntariness and reliability are separate statutory requirements involving independent determination. Here the trial judge found that the statement was voluntary. Counsel for the accused was neutral on this issue at trial and it is not contended on appeal that the trial judge was incorrect in that finding. We note in passing that it is not, and was not, suggested that there was conflicting evidence on that issue.

76. In addressing reliability, the trial judge referred to her finding that the statement was voluntary. In Murphy , McKechnie J. when considering s. 16(2)(b)(ii) (voluntary) and s.16(2) (b) (iii) (reliable), observed at para. 38 of his judgment:

“What the precise relationship between both is, has not been explained-neither has what the test involves or what matters should be searched for before any given statement should be accredited with reaching this threshold.”

This court was not further addressed on the relevance, significance or implications which the finding of voluntariness may have on any determination of reliability and therefore expresses no view on this.

(e) Reliability

77. The statement was not given on oath or affirmation, nor was it video recorded, therefore the provisions of s. 16(3)(b) apply. Thus, the court is obliged (“shall”) to “have regard to” whether by reason of the circumstances in which it was made, there is other sufficient evidence in support of its reliability and shall also have regard to (i) any explanation by the witness for refusing to give evidence or for giving evidence which is inconsistent with the statement.

78. The approach adopted in O’Brien that the section appears to mandate the court to examine the circumstances and factors surrounding the making of the statement, to ensure this is a reliable statement in the sense that it is one which can be relied upon, has been referred to by the parties and is here adopted. O’Brien was considered by the authors of McGrath on Evidence at paragraph 5-331. Referring to a number of overseas decisions, the authors state that the concept of reliability “can encompass two distinct but related questions. The first is whether the statement was made in circumstances which make it likely to be true and accurate. The second is whether the contents of the statement are actually true and accurate”.

79. At para. 5-332, the authors refer to O’Brien, which they suggest provides an indication that reliability in s. 16 is to be directed towards the first question – i.e. whether the statement was made in circumstances which made it likely to be true and accurate, rather than whether the contents of the statement was actually true or accurate. The facts of O’Brien, as outlined in that decision were as follows:

“The appellant had been charged with several counts of sexual assault occurring over a number of years in respect of his two daughters. The two children were M, who was aged nine at the time of the trial, and K, aged eight at the time of the trial, and the events took place on several dates up to the time when the first child was about six and the other child about five, when the claims came to light. Both complainants made statements in respect of the alleged assaults. During the course of the trial K, the younger of the two girls, gave evidence in broad terms in accordance with her previous statement of intended evidence in the Book of Evidence. However, M, the older girl, gave evidence which, after argument, was deemed by the learned trial judge to be "materially inconsistent" with pre-trial statements made by her. The prosecution thereupon sought permission to introduce a pre-trial statement which existed, pursuant to the provisions of s.16 of the Act of 2006, a recently introduced provision which provides for this to occur in certain circumstances. This statement consisted of, or certainly included, video recorded interviews which had been conducted between M, the complainant, and a psychologist, Dr. O'Sullivan, shortly after the complaints had been made by the children's mother to An Garda Síochána. These videos recorded interviews had already been made available to the defence prior to the trial. The material also included a short memo of an interview with the complainant taken or noted by Garda Larraine Fahey. The

introduction of the video material was objected to by counsel on behalf of the applicant.”

The trial judge admitted the videorecorded statement into evidence under s. 16 of the Act, a finding which was upheld by the Court of Criminal Appeal. The issues under consideration included whether the video recording was voluntary and whether it was reliable. Having considered and determined the voluntariness issue, Macken J. addressed the requirement that the statement be reliable, which we now refer to in extenso.

“As to the question of reliability, no Irish cases in relation to s.16 were opened to this court, and so far as the court is aware, this section has not been the subject of any decision by this Court or the Supreme Court. There are some cases in other jurisdictions applying somewhat similar, but not identical, provisions which may be of some limited assistance, and some commentary in academic writings, which also refer to those cases.

The starting point, however, must be the provisions of the Act of 2006 itself. It seems relatively clear that the Act, in requiring that the statement be found to be "reliable", appears to mandate the court to examine the circumstances and factors surrounding the making of the statement, to ensure this is a reliable statement in the sense that it is one which can be relied upon, rather than requiring the court to be satisfied that the actual content of the statement is reliable in the sense that it is true. The section permits the admission of a statement, under s.16, provided it is voluntary and reliable, "as evidence of any fact mentioned therein". The weight to be attached to that evidence is, of course, a different matter, but no point is taken on that. A consideration of later subsections of the Act of 2006 also suggests that the emphasis is on the circumstances of the making and taking of the statement itself, rather than the reliability of the content of the statement, and this appears to be in line with case law from other jurisdictions, such as the United Kingdom and Australia, but the matter is not, in this Court's opinion, capable of being determined by reference to those cases, which depend both on the particular facts arising, and also on the particular statutory provisions applicable, especially in the case of the Australian legislation, which is developed - in its particular context - by rules and guidance to judges as to how to apply the Australian provisions, which are somewhat similar, but not identical, to s.16 of the Act of 2006.

The reliability of the statement may, according to s.16(3) be assessed by reference to whether it was (1) made under oath or on affirmation, or (2) was video recorded. It is only if it was not - and here it was - that it is then permitted for the trial court to consider whether, by reason of the circumstances in which the statement was made, there is sufficient evidence of its reliability. The court is satisfied that, in particular, in relation to a statement consisting of a video recorded interview, as was the case here, whose making may be subject to close and more careful examination than notes taken of an interview, the learned trial judge was entitled to find that the statement, when made, was "reliable" within the provisions of s.16 of the Act of 2006. Having regard to what is next said, there is some clear and intended overlap between the requirements under the various subsections, which indicates the importance to be attached to the circumstances surrounding the making of the statement.” (Emphasis added)

Having addressed the truth requirement (see para. 71 et seq above), Macken J. continued:

“The learned trial judge in this trial was fully cognisant of the significance of this requirement. He took the view that, having watched the videos, he was in a position to make a judgment in respect of the truth of it. This was not a case where the witness was ever likely, due to her age, to be giving evidence on oath or affirmation. Rather, it was a case where the jury was most likely going to consider her unsworn evidence. The learned trial judge stated he was heavily influenced by his own assessment of the witness at the time of interview and based this on what he saw on the tapes. He acknowledged that while the interviews were not preceded or prefaced by asking questions such as what would happen if the truth were not told, or by any caution being administered, he was nonetheless satisfied, having seen the video, that the evidence was reliable. He drew support for his view from the conclusion of Dr. O'Sullivan; that the interviewee came across as a very credible child. The relevant comments during the course of his ruling are set out earlier in this judgment. The circumstances of the interviews in the present case, but not necessarily in all cases, were such that the trial judge was, moreover, entitled to take the view that the matters under discussion in the interview were very important, and that it was clear to the witness that it was important to tell the truth. He was entitled therefore to find, as he did, that M was "telling the truth" and "knew she should tell the truth.

If the concept of reliability is to be correctly or, in part, measured also by reference to the reliability of the content of the statement, or its substance, there were factors present in this trial which indicate clearly that the content of the statement was reliable. In substance, it was supported by the very significant medical findings and also, to a certain degree, by the account given by the witness's sister, which was admissible having regard to the "similar facts" doctrine. That the account was truthful is also supported by this evidence. The Court is satisfied that there was, therefore, evidence upon which the learned trial judge could also conclude, as he did, that the evidence itself was "reliable", in the sense of being of weight, within s.16(5) of the Act of 2006.

In assessing reliability, the trial court is also required to have regard to any explanation given by the witness for giving evidence in court which is inconsistent with the statement. No real explanation was given in court for the inconsistencies, the witness merely saying when asked whether she could explain why what was said was different "I can't really say I am not sure why". The trial judge does not advert expressly to this requirement in his ruling. On the other hand, given that he was following the text of the section so closely, he was undoubtedly aware of the necessity to have regard to this issue. The trial judge, however, expressly mentioned the fact that, at the trial, the witness was then 9 years old, and the statements had been made and recorded when she was 6 years old. A three-year period had elapsed in the meantime. Without saying so explicitly, it appears clear that he considered this to be the reason for the inconsistencies. That does not appear to this Court to be unreasonable in the particular circumstances of this case. (Emphasis added)

80. In O’Brien, the trial judge had the benefit of viewing the film when assessing voluntariness and reliability. The witness was a child of very tender years - she was six when her statement was video recorded. The approach of the court in O’Brien is of interest in a number of respects to issues which arise in this case. First is the task of the trial judge. This was also subsequently addressed by O’Malley J. in People (DPP) v Gruchacz [2019] IESC 45: “As the Court of Criminal Appeal said in The People (DPP) v O'Brien [2010] IECCA 103, the task of the judge in assessing the issue of reliability is to examine the circumstances and factors surrounding the making of the statement to ensure that it is reliable in the sense that it can be relied upon, rather than in the sense that it is true. Similarly, the Court of Appeal stressed in The People (DPP) v Campion [2015] IECA 274 that it was ‘quintessentially a matter for the jury’ to decide whether they could identify where the truth lay”. (para. 20)

81. Second is that while the trial judge in O’Brien did not expressly advert to certain matters in his ruling, the court felt that it was in a position to draw inferences because the trial judge had followed the text of the section closely.

82. In People (DPP) v Fitzgerald [2016] IECA 222, a witness was unable to remember anything about an incident and attributed memory loss to drugs. A video recorded interview was available for consideration. The trial judge was satisfied that there was sufficient “other evidence in support of the reliability of the statement” which was sought to be admitted to justify its admission in evidence. The trial judges’ approach and consideration of the issue was upheld on appeal. In People (DPP) v. Mindadze [2018] IECA 56, also referred to in McGrath on Evidence, a video recorded statement was made on the afternoon of the incident. It provided an extremely detailed account. These were considered to be strongly suggestive of reliability. Birmingham P. addressed the issue as follows:

“In this case, as was acknowledged both at trial and on the appeal, areas that are often in controversy such as whether the statement was made, or whether the statement was voluntary, or any other issues in relation to the circumstances in which the statement was made do not arise. In this case, there is no doubt that the statement was made, that the principal statement was video recorded, that all statements contained a statutory declaration, that the facts contained in the statement would be admissible, and there is no dispute about the fact that the statement was a voluntary one. There remains for consideration the issue of reliability and whether the admission of the statement would be contrary to the interests of justice. The circumstances in which the statement was made, the fact that the original statement was video recorded and made on the afternoon after the incident and that the principal statement and the three statements combined provide an extremely detailed account are all strongly suggestive of reliability. Ms Kapanashvili's claims that she is acquainted, not a word used by her, with Mr Mindadze are confirmed by the contents of his responses when interviewed”. (para. 20)

83. Although not forming a part of the argument before this court or the trial judge, it is noted that Ms Kearney’s statement was made on the 15th July 2018, three days after the incident.

84. The submissions on this appeal in support of the contention that the trial judge reached her conclusion in an evidential lacuna focused, in particular, on frailties surrounding the memory of Detective Garda Buckley and his recollection of the circumstances in which the statement was taken, and that the statement was not videorecorded. Emphasis was placed in the voir dire on Ms Kearney’s evidence that she did not describe, and would not have described, measurements in the manner contained in her statement. To that extent, the contents of the statement (as opposed to the jury orientated issue of whether those contents are true) were adverted to and arose for consideration in the assessment of the reliability of the circumstances in which the statement was taken.

85. As stated at para. 76 above, when ruling on reliability, the trial judge referred to her immediately preceding finding that the statement was voluntary and that the witness understood the declaration, particularly the requirement to tell the truth. She found that the declaration was read to the witness and that she understood the declaration. She found that the statement was read back to her, that Ms Kearney was invited to make any alterations which were made and that she signed it. She was also satisfied that there was no evidence of cognitive impairment such as would impact the reliability of the statement. The trial judge had earlier stated that the statement was taken by the witness in her home and in the presence of her parents. The trial judge did not consider that the manner in which the witness took issue with part of the contents of the statement, in light of all of the evidence on the issue, rendered the circumstances of the taking of the statement unreliable.

86. The trial judge had the advantage of hearing and seeing the witnesses. The appellant relies on the fact that the trial judge did not expressly refer to her assessment of the demeanour of the witness in her ruling. Nevertheless, the fact remains that having seen and heard witnesses on the issue, the trial judge was in a better position than an appellate court to assess any frailties, real or suggested, in the evidence of those witnesses. Before she delivered her ruling, the trial judge had been expressly requested by counsel for the appellant to take into account the demeanour of Ms Kearney in the voir dire. While it may be that the trial judge did not expressly articulate a more specific assessment of the witnesses, we are satisfied, that by inference from her conclusions, such assessment was conducted.

87. We are also satisfied that, while not expressly recounting all evidence and arguments in her ruling, the trial judge formulated her ruling by reference to the evidence which she had heard and the arguments which were made. While in many of the cases opened to this court, video recording had taken place, this is not a statutory requirement. Where video recording occurs, the video of the statement may assist in the assessment of the demeanour of a witness at the time that he or she made that statement. In Murphy, McKechnie J. rejected a submission that the decision in O’Brien provided authority for the proposition that, where available, videotapes must be viewed in determining the twin requirements of voluntariness and reliability. He was satisfied that in the absence of any statutory requirement to that effect, the trial judge had a discretion. Thus, if it be the case that where videotapes are available, there is no mandatory requirement on the part of the trial judge to view them, a fortiori it cannot be said that the absence of videotape recording could in any way, on its own and without more, render a statement which is found to be otherwise admissible, inadmissible. In the voir dire, counsel for the appellant, in our view properly, accepted that the absence of video recording was not determinative of the issue. While the presence or absence of the video recording of a statement is relevant to matters to which the court shall have regard under s.16 (3), we are not satisfied that the absence of video recording of Ms Kearney’s statement must lead to the conclusion that the trial judge erred, on that account, in arriving at her decision on reliability.

88. The appellant contends that the trial judge could not have been satisfied that the statement of Ms Kearney was reliable in circumstances where questions which she was asked were not recorded in the statement. In particular, it is submitted that there is nothing to suggest that her answers were not elicited as a result of questions being asked and therefore the statement cannot be said to have been a true and reliable account of what she saw and heard on that day. Detective Garda Buckley accepted that he could not recall the questions asked, how many questions were asked or the nature of any general background questions which he may have asked. Nevertheless his evidence, which the trial judge accepted, is that following the taking of the statement, it was read back to the witness; and it was acknowledged and signed by her. It was taken in the presence of her parents. We are satisfied that it was a matter for the trial judge to assess his evidence. To the extent that it is implicit in the criticism of the trial judge’s consideration or ruling that she did not articulate in her reasons why the absence of the garda’s memory of surrounding matters did not cause her to decide otherwise, this must be viewed in the context of the particular focus of the arguments made before her. The trial judge was aware of the garda’s evidence. It was a matter for her assessment. We do not see a basis which might justify this court in interfering with her findings for this reason.

89. Counsel for the appellant submits that the trial judge admitted the statement for, what is described as, its boilerplate characteristics (such as the declaration, the garda’s handwritten note of the witness’ understanding of the declaration and that the statement had been read back by the garda in the presence of her parents before signature) and no more, because there was nothing else upon which an involved evidential decision could have been made. He submits that the prosecution now argues for its admission on the basis of its boilerplate characteristics; and it is further submitted that if that was sufficient to satisfy the statutory requirements, the legislature would not have included the additional requirements provided for in s.16 (3) of the 2006 Act.

90. Implicit in this argument seems to us to involve a contention that s. 16 (2) and s. 16(3) are to be interpreted as being mutually exclusive. Section 16 (2)(c) provides, inter alia, that the trial judge must be satisfied that the witness understands the requirement to tell the truth. Section 16 (3), however, is directed towards matters to which the trial judge must have regard to in deciding whether the statement is reliable. In terms of reliability, s. 16 (3)(a) addresses separately a statement given on oath or affirmation (or whether it was video recorded) from statements taken in circumstances where “paragraph (a) does not apply”. Given that s.16(3)(a) refers to the taking of statements in precise circumstances which are expressly referred to in s. 16(2), it is difficult to see that the subsections 16(2) and 16(3) should be interpreted in a mutually exclusive manner. It is evident that the trial judge had regard to the matters referred to at paras. 76 and 85 above relating to the circumstances in which the statement was taken .

91. We have also considered the argument that the trial judge in her ruling somehow reversed the onus of proof. The basis for this submission is that in arriving at her conclusion, the trial judge, when addressing the manner in which the witness took issue with part of her statements, reversed the onus of proof. In the relevant part of the ruling, the trial judge stated as follows : “It has been urged by the defence that this renders the circumstances of the taking of the statement as unreliable, such that it should not be admitted. Arguing that it points to the statement not being in your own words. The court does not consider that the manner in which the witness now takes issue with part of its contents, in light of all of the evidence on the issue, renders the circumstances of the taking of the statement unreliable, such that it should be excluded.…”.

92. We fail to see how it can be said that this amounts to reversal of the onus of proof, expressly or by implication. The trial judge made it clear from the outset that it was the prosecution’s application and she referred to the statutory requirements. We are not satisfied that because in her ruling the trial judge expressly referenced an argument advanced on behalf of the appellant, that this constituted a reversal of the onus of proof. In our view, this was to record the argument, rather than to impose expressly or by implication, any onus of proof on the defence. Indeed, had she not addressed arguments advanced on behalf of the appellant, other criticisms are likely to have arisen. Therefore, we reject such a contention.

93. In summary, the statement was made in the presence of Ms Kearney’s parents. It contained a declaration of truth. The trial judge accepted that the declaration was read over. Amendments and alterations were not initialled. The trial judge was aware of this when assessing the evidence. The trial judge accepted that Ms Kearney understood the requirement to tell the truth.

94. For the reasons stated in this judgment we do not accept that the trial judge assessed or determined the issue of reliability in an evidential lacuna. We are not satisfied that she fell into error in this regard. In the circumstances, we reject grounds of appeal eight and nine and as all retained grounds have been rejected, the appeal must be dismissed.