Supreme Court dismisses appeal regarding victim's counselling record non-disclosure in child sexual assault case.

Approved

No further redaction required

AN CHÚIRT UACHTARACH

THE SUPREME COURT

S:AP:IE:2023:000124

Neutral citation: [2025] IESC 16

Charleton J. Woulfe J. Hogan J. Collins J. Donnelly J.

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

Prosecutor/Respondent

AND

A.M.

Defendant/Appellant

JUDGMENT of Mr. Justice Maurice Collins delivered on 2 May 2025

BACKGROUND

Preliminary

1. This appeal raises important issues about the rights of victims in proceedings for a sexual offence – here, the sexual assault of a child (“C”) – the disclosure of counselling records in such proceedings and the impact of the non-disclosure of a particular counselling record on the safety of the conviction of the Appellant (“AM”) for that offence.

2. The facts can be stated relatively briefly. On 13 December 2021, AM was convicted before Kerry Circuit Criminal Court (sitting in Limerick) on a single count of sexual assault of C contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990 (as amended by section 37 of the Sex Offenders Act 2001) (“the 1990 Act”).

3. AM is a Polish national but he resides in another EU Member State. C is a grandniece of AM’s wife. In March 2014, AM and his wife travelled to Ireland to attend C’s confirmation, staying in C’s family home. AM was 60 at the time; C was 12. A few days after her confirmation, C developed an illness, as a result of which she could not go to school for some days and was confined to bed. According to C, on one of those days, AM entered her bedroom, got into her bed next to her, and sexually assaulted her.

4. C first disclosed the incident to a school friend in October 2018 and made a formal statement to An Garda Síochána in February 2019. On each occasion, C described a single incident of sexual assault that had taken place in her own bed. C was interviewed by the Child and Family Agency (CFA) in March 2019 and the note of that interview also refers to a single incident of sexual assault. At the time of these disclosures, C was still a child.

Disclosure

5. AM’s trial was fixed for 26 July 2021. However, on that date his legal team came off record, the trial did not proceed and a new trial date was fixed for 6 December 2021. It appears from the papers that the prosecution had made disclosure prior to that hearing date but, in any event, on 29 October 2021 AM’s new solicitors made a wide-ranging request for “supplementary disclosure”. Having stated that they required “to be informed of any information that could possibly enhance [AM’s] defence and/or undermine any aspect of the case presented by the prosecution and/or open up a new line of enquiry on the part of the defence” and requested the provision of “all information of possible relevance, irrespective of how peripheral or innocuous the information might seem to the prosecution”, the letter asked whether C had attended “a psychiatrist, psychologist, psychotherapist, counsellor, guidance counsellor or any other medical professional or advisor (including in any educational or training institution)”, sought details of any treatment, therapy or education C may have received (without any apparent restriction as to time) and requested the production of multiple categories of documents, including (inter alia) all reports, notes and memoranda arising from any attendances by C with any such psychiatrist, psychologist, psychotherapist, counsellor, guidance counsellor or other medical professional or advisor (again, without any evident restriction as to time) as well as copies of all documents held by the CFA in respect of either C or AM. No rationale was stated for any aspect of this disclosure request and, in particular, the letter did not identify any basis for seeking the disclosure of all medical records, including but not limited to counselling records, relating to C.

6. Very shortly afterwards, on 2 November 2021, C (who had by then reached her majority) signed two standard-form printed consents, one headed Consent to Disclosure for Prosecution Purposes – Records held by Third-Party Agencies (Other than Counselling Records), the other headed Consent to Disclosure for Prosecution Purposes – Counselling Records. In each case, C’s signature was witnessed by the investigating Garda. Part A of each form had a space for identifying the records to which the consent related. Part A of the first form (that relating to records held by Third Party agencies other than counselling records) identified “notes at Kerry Rape and Sexual Abuse Centre.” Part A of the second form identified “all records held at the [CFA]”. It will be necessary to refer further to these consent forms later in this judgment.

7. On the same day (2 November 2021) – but presumably before the execution of the consent forms by C – the investigating Garda contacted the Kerry Rape and Sexual Abuse Centre (KRSAC) seeking documents within the scope of the disclosure request. After checking that C had given consent, KRSAC informed the investigating Garda that C had attended the centre on two occasions in March 2020 and had disclosed that she had been the victim of a sexual offence but had not wanted to engage in counselling at that stage. As a result, KRSAC did not have any counselling records relating to her.

That position was confirmed in a letter of 2 November 2021 sent by email on the same date.

8. On 4 November 2021 (2 days after C had signed the two consent forms) the State solicitor sent the further disclosure to the defence. In addition to some material apparently recovered from C’s iPad and some Garda notes and correspondence, it comprised records obtained from the CFA, the letter from KRSAC of 2 November 2021 and the two consent forms signed by C on that date. As appears to be standard practice, this material was provided on the basis of the defence solicitors’ undertaking that the material would be used only for the purposes of the criminal proceedings. In the event, it does not appear that any of the disclosed material was used at the trial.

Trial and Conviction

9. At trial, the prosecution case was that AM was guilty of a single incident of sexual assault, carried out on a date unknown between 10 and 13 March 2014 (inclusive) in C’s bedroom. C gave evidence to that effect. Through counsel, AM denied that he had ever sexually touched or assaulted C. C said that the assault had occurred on one of the days when she was at home from school. Her sister was back at school and her mother, her grandparents (who had also come to visit for her confirmation) and AM’s wife were all out of the house, leaving C alone with AM, who was effectively minding her. C also gave evidence of exchanging Skype messages with AM on her iPad in the period after he had returned to his place of residence. In the course of those exchanges, AM had referred to C as “my treasure”, asked whether she was in bed before adding “pity I am not there beside you”, expressed a desire to “cuddle” her and asked her to send him “a kiss”. C, it will be recalled, was only 12 years old at that time. The defence objected to the admission of the Skype messages on the basis that they were inadmissible misconduct evidence. However, the Trial Judge ruled that they were relevant and necessary in order to explain the relationship between C and AM and also to explain C’s delay in making a complaint to the Gardaí. The Judge’s ruling was challenged on appeal but was upheld by the Court of Appeal and it is not at issue before in the appeal before this Court. C also gave evidence of having had video and audio calls with AM in this period.

10. In cross-examination of C, it was put to her that AM was never alone with her while she was home from school and that, on the only day when he was at home with her, his wife had been with him the whole day. C disagreed with that. There was also disagreement as to whether a selfie photo of C and AM on C’s bed (that C said had been taken on the day of, but prior to, the assault and which had been recovered from C’s iPad) was taken while she was alone with AM (as C said) or whether (as the defence contended and AM’s wife testified) AM’s wife was also in the bedroom when it was taken. C’s mother gave evidence that AM had stayed at home with C when she was sick, while she (C’s mother), her parents (C’s grandparents) and her aunt (AM’s wife) were out together. That evidence was challenged on cross-examination. AM did not give evidence but his wife gave evidence that she and her husband had minded C at home on 10 March 2014 (a Monday) while C’s mother was at work and her sister was at school. Her brother and his wife (C’s grandparents) had returned to their home by then and she and AM had left Ireland on either 11 or 12 March. Her evidence was that she and AM had been together at all times that day and there was no time when AM had been in C’s bedroom without her. That evidence was challenged on crossexamination, with counsel for the Director suggesting to the witness that she was covering up for AM. A number of witnesses gave evidence, not all easy to reconcile, as to the dates on which C’s grandparents and AM and his wife had arrived in Ireland and when they had departed.

11. The trial commenced on 8 December 2021 and ran for 3 days. On 13 December 2021 the jury returned a majority (10:2) guilty verdict. The proceedings were then adjourned to 17 December 2021 for sentencing.

12. On 16 December 2021, the Director furnished the defence with a copy of C’s Victim Impact Statement. In it, C stated that she had had to go to counselling once a week for a period in order to work through the trauma resulting from the assault. AM’s solicitors immediately raised concern about the fact that no records of any such counselling had been disclosed. It then emerged that, in the period between September 2019 and November 2019, C (by then an adult) had attended 6 counselling sessions with counsellor Mr R in KRSAC. C had originally met with a different counsellor but had subsequently been transferred to Mr R. However, that had been overlooked by KRSAC when it was contacted by the Gardaí. As a result, the records of those counselling sessions had not been provided to the Gardaí and had not been disclosed to the defence.

13. Copies of these records (to which I shall refer as “the KRSAC Records”) –consisting of a standard printed form headed “Session Record Sheet – KRSAC” with notes relating to each counselling session entered by hand – were provided to the defence in January 2022. For the purposes of this appeal, only the record of the first of those counselling sessions, which took place on 17 September 2019, appears to be material. In this judgment, I will refer to this record as the “17 September Record.” It records C as saying that “the sexual abuse happened on more than one occasion.” At the request of the defence, Mr R was interviewed by the Gardaí and he provided a statement in which he confirmed that he had provided counselling to C and that the handwriting and signature on the KRSAC Records were his. As will become apparent, no contact was made with C regarding the KRSAC Records at that stage.

14. The Circuit Criminal Court proceeded to sentencing and on 23 February 2022 AM was sentenced to imprisonment for 2 years and 9 months, backdated to 19 January 2021. He has since served that sentence.

Appeal to the Court of Appeal

15. AM appealed his conviction to the Court of Appeal on a number of grounds. For the purposes of the appeal to this Court, only the first of those grounds is relevant, namely that AM’s conviction was unsafe and his trial unfair by reason of newly discovered evidence (the 17 September Record) which, it was said, might have had a material and important influence on the outcome had it been available at trial.

16. On 7 October 2022, AM issued a motion seeking leave to adduce new evidence in his appeal, comprising the KRSAC Records, a Garda statement setting out the circumstances in which those records had come to light, Mr R’s statement to the Gardaí, and some related correspondence. The motion also sought an order directing Mr R to attend before the Court of Appeal for the purpose of giving evidence.

Hearing and Order of 12 January 2023

17. Both the motion and the substantive appeal came on for hearing on 12 January 2023, before a panel comprising Birmingham P and McCarthy and Kennedy JJ. Up to that point, no contact had been made with C in relation to the KRSAC Records and so she was wholly unaware of the statement attributed to her in the 17 September Record. AM’s solicitors had specifically requested the Director not to make any approach to C, asserting that to do so would potentially prejudice AM in the event that a retrial was directed – the apprehended prejudice being that, if C was alerted to what was said in the 17 September Record in advance of any retrial, she would be better able to deal with it in cross-examination. The Director had agreed to the defence’s request and had not made any contact with C. It is evident from the transcript of the hearing that the Court of Appeal was – understandably – critical of that position. It did not see any impediment to the prosecution contacting C for the purpose of taking a further statement from her addressing the 17 September Record and it proceeded to make an order pursuant to section 3(3)(a) of the Criminal Procedure Act 1993 (“the 1993 Act”), directing the Commissioner of An Garda Síochána to take a statement from C “in the context of the particular portion of the counselling notes of the 17th September 2019 and to enquire as to whether the complainant had a recollection thereof and also offer her an opportunity to expand or contextualise the impugned portion of those notes.” AM says that the Court of Appeal erred in making that order.

18. C made a further statement to the Gardaí on 23 January 2023 in which she stated as follows with reference to the statement attributed to her in the 17 September Record:

“I know that I didn’t say that to [Mr R] on this day because it was always the one occasion. I did tell [Mr R] about [AM] Skype Messaging me after the sexual assault so maybe he had interpreted this as sexual abuse also. [Mr R] did take notes during our sessions. I think he wrote them down on a notebook or book.”

Further hearing on 16 May 2023

19. A further hearing took place before the Court of Appeal on 16 May 2023. Mr R was in attendance but neither AM nor the Director sought to call him to give evidence. The Court of Appeal was told (without objection) that Mr R thought that he had originally made handwritten notes of his sessions with C (as C had suggested in her further statement) but that no such notes were available. The court was also told that, although an entry on the Session Record Sheet stated that C had previously attended the KRSAC for 3 appointments, no records or notes relating to those appointments had been located. At the conclusion of that hearing, the Court of Appeal reserved its judgment.

Judgment of 11 July 2023

20. The judgment of the Court of Appeal was delivered by Kennedy J ([2023] IECA 205). It addressed a number of grounds in addition to the issue of the new evidence, resolving all those grounds against AM. As regards the new evidence, Kennedy J stated that the principles governing the admission of new evidence on appeal were well-established, citing People (DPP) v Willoughby [2005] IECCA 4 (“Willoughby”) and People (DPP) v O’ Regan [2007] IESC 38, [2007] 3 IR 805 (“O’ Regan”) and setting out those principles as follows:

“(a) given that the public interest requires that a defendant bring forward his entire case at trial, exceptional circumstances must be established before the court should allow further evidence to be called. That onus is particularly heavy in the case of expert testimony, having regard to the availability generally of expertise from multiple sources.

(b) The evidence must not have been known at the time of the trial and must be such that it could not reasonably have been known or acquired at the time of the trial.

(c) It must be evidence which is credible and which might have a material and important influence on the result of the case.

(d) The assessment of credibility or materiality must be conducted by reference to the other evidence at the trial and not in isolation” (Judgment, §31, quoting from Willoughby at pages 21-22).

21. Kennedy J noted that it was common case that Mr R’s notes only came to light after AM’s conviction and so the critical issue was “whether the contents of the notes might have had a material and important influence on the outcome of the trial” (§32). In that context, Kennedy J regarded “the consistency of the complainant” in maintaining that she was abused on one occasion only as “significant” (§33). The fact that AM had been in the jurisdiction for a very short period of time was also a relevant factor in assessing the influence that the notes might have had on the trial (§34). While it had been argued that the notes could have been used to impeach C’s credibility in cross-examination by seeking to demonstrate a material inconsistency between her evidence and what had been noted by Mr R, the court could “safely say” that, if that issue had been put to C in cross-examination, the “likely response” would have been “that contained within her recent statement”. While Mr R could have been called to confirm his notes, the court did “not see how this would have had a material influence on the trial” (§35). Furthermore, the Director would have been in a position to emphasise the various disclosures made by C which all indicated one incident of abuse and so the court concluded that “the value of the material if available at trial would not have had a material and important influence on the outcome of the trial” (§36).

22. Thus, the Court of Appeal concluded that, while the evidence was unknown at trial and could not reasonably have been obtained by the defence, it was “not persuaded that the new evidence would have had the necessary impact on the trial in that we do not see that it would have caused the jury to have a reasonable doubt in light of the balance of the evidence on the issue” (§37). Accordingly, AM’s conviction was not unsafe on this ground (§38).

23. AM’s other grounds of appeal were also unsuccessful and so his appeal was dismissed. He has now served his sentence and has been released from prison.

APPLICATION FOR LEAVE AND DETERMINATION

24. AM then sought leave to appeal to this Court, contending that the Court of Appeal had erred in the manner in which it had assessed and determined the new evidence issue. The Director opposed the application but by Determination of 16 February 2024 ([2024] IESCDET 20), the Court granted leave to appeal, considering that the application of section 3(3)(a) of the 1993 Act in the context of an application to adduce fresh evidence on an appeal against conviction was an issue of general public importance and, further, that it was in the interests of justice that an appeal be brought in this case.

ARGUMENTS ON APPEAL

25. Detailed written submissions were furnished by the parties. The essential case made by AM in his written submissions is that the Court of Appeal erred in its assessment of the materiality of 17 September Record. It erred – so AM says – in directing that the views of C be canvassed and erred in having regard to her further statement. In doing so, it is said, the Court of Appeal impermissibly adopted an investigative and/or fact-finding role and went beyond the proper scope of a Willoughby materiality assessment. It should have focussed its assessment on the potential value of the new evidence – a prima facie inconsistent statement – in testing the reliability of C by way of cross-examination before a jury and the potential impact of such cross-examination on the overall trial process and its outcome. That C had otherwise been consistent in stating that she had been assaulted on one occasion only made the new evidence all the more important in that it was “a potential flaw in an otherwise consistent account” particularly where (so it was suggested) the case rested almost entirely on the jury’s view of the reliability and credibility of C’s evidence. An important consideration in this context, AM says, is that the case was “finely-balanced”, where the guilty verdict was on the basis of a 10:2 majority, returned after lengthy deliberation, suggesting that at least two jurors had a reasonable doubt as to AM’s guilt.

26. AM says that the Court of Appeal applied too high a threshold by asking whether the new evidence “would” have had a material and important influence on the trial, rather than asking whether it “could” have done so: according to AM, the new evidence here clearly could have had such an influence.

27. AM also complains that the Court of Appeal’s assessment was not balanced because it failed to consider the potential impact of effective cross-examination on the basis of the 17 September Record when added to the other “building blocks” of the defence case (identified as a lack of clarity in the prosecution case as to when AM could have been alone with C). Citing this Court’s decision in People (DPP) v SQ [2023] IESC 8, AM says that as a result of the non-disclosure of the

17 September Record he did not have every opportunity to defend himself at his trial and he had been deprived of a cogent evidential basis on which to crossexamine and, by extension, a reasonable opportunity of establishing his innocence. His conviction is accordingly said to be neither safe nor satisfactory.

28. In response, the Director emphasises the importance of finality in the criminal justice system, as well as the potential for re-victimisation that arises when a retrial is directed, considerations which she suggests have been overlooked by AM. Exercising its powers under the 1993 Act allowed the Court of Appeal to be “more comprehensively” informed before appraising the appeal with reference to the principles in Willoughby. The Director does not accept that, for the purpose of applying the Willoughby principles, the Court of Appeal was confined to considering only the new evidence relied on by AM and the evidence given at trial. The Director rejects any suggestion that the Court of Appeal was not entitled to assess the materiality of the 17 September Record or that, once that evidence came to light, only a jury could properly assess its materiality, thereby requiring that the conviction be quashed and a retrial ordered. Willoughby clearly establishes that the Court of Appeal was entitled and required to carry out an assessment of the new evidence and no entitlement to cross-examine C before a jury arose unless and until that evidence was sufficiently material. In any event, even if the Court of Appeal had immediately directed a retrial without any prior engagement with C, C would have had to be informed of the retrial, and the reasons for it and thus would have arrived for any retrial aware of the counselling note and that it would be put to her in cross-examination. AM’s approach is thus “entirely artificial”.

29. The Director says that the Court of Appeal was correct in ruling that the new evidence would not have caused the jury to have a reasonable doubt in light of the evidence at trial as to when the abuse took place (which the Director summarises). In that context, the Director submits, the Court of Appeal was entitled to take C’s further statement as an indicator of her likely response if questioned and it did so in light of the overall evidence, consistent with Willoughby. The Director suggests that it is difficult to see how the 17 September Record would have had any significant role to play at trial or how it might have had any material impact on the credibility of C. She disputes the suggestion that the Court of Appeal applied too high a threshold in assessing materiality: the court was, she says, “intimately familiar” with the Willoughby principles and it is “inconceivable” that it misdirected itself by applying the wrong test.

30. In oral argument, there was significant focus on the actual evidential and/or forensic value of the 17 September Record and on whether and how it might properly have been deployed by AM at trial or might now be deployed at any retrial should one be directed, having regard in particular to the provisions of the Criminal Procedure Act 1865 but also in light of the provisions of section 3 of the Criminal Law (Rape) Act 1981 (as amended). That issue is clearly central to any assessment of materiality. There was also significant debate as to the validity of a foundational premise of AM’s appeal – that he had a right to cross-examine C on the 17 September Record without C having previously been made aware of its contents – both as a general proposition and with specific regard to the fact – which is common case – that the 17 September Record is a “counselling record” within the meaning of section 19A of the Criminal Evidence Act 1992 (inserted by section 39 of the Criminal Law (Sexual Offences) Act 2017) (“Section 19A”), as indeed are all the KRSAC Records. It does not appear that these issues were debated, or debated to any significant extent, before the Court of Appeal. As I shall explain, they significantly affect the complexion of the appeal.

DISCUSSION

Disclosure in Criminal Proceedings

31. That the prosecution is under a general duty of disclosure to the defence is by now wellestablished: see the discussion in Heffernan, Evidence in Criminal Trials (2nd ed; 2020) (“Heffernan”), chapter 14 and Abrahamson et al, Discovery and Disclosure (3rd ed; 2019) (“Abrahamson”) chapter 21 and following. The issue has also been the subject of a Law Reform Commission (LRC) Report, Disclosure and Discovery in Criminal Cases (LRC 112-2014) published in December 2014.

32. Section 4B of the Criminal Procedure Act 1967 (as amended) (“the 1967 Act”) provides for the service of certain specified documents – colloquially referred to as the “Book of Evidence” – on an accused sent forward for trial on indictment, including a list of the witnesses that the prosecution proposes to call at trial and a statement of the evidence expected by each such witness. Additional documents may require to be served as the case proceeds towards trial, as for instance where further witnesses are proposed to be called: see section 4C of the 1967 Act. Thus, the prosecution must give advance notice of the evidence that it intends to rely on at trial. As this Court (per O’ Malley J) explained in People (DPP) v O’ Sullivan [2018] IESC 15, such an obligation has been “a fundamental part of the structural rules for criminal cases for over 150 years” (§30). While the 1967 Act applies only to prosecutions on indictment, obligations of disclosure may also arise in summary prosecutions: Director of Public Prosecutions v Gary Doyle [1994] 2 IR 286.

33. Compliance with the requirements of the 1967 Act does not, however, exhaust the prosecution’s duty of disclosure. That duty also extends to material that the prosecution does not intend to use at trial (often referred to as “unused material”). Where such material “may be relevant to the case which could either help the defence or damage the prosecution”, the prosecution is under a “constitutional duty” to make it available to the defence: per Keane CJ in McKevitt v Director of Public Prosecutions (Unreported, ex tempore, 18 March 2003). That constitutional duty is rooted in the guarantee of a trial in due course of law contained in Article 38.1 of the Constitution.

34. In contrast to the current position in England and Wales (and elsewhere), in this jurisdiction disclosure in criminal proceedings is largely unregulated by statute. No statute or rule of court defines or delimits the scope of the duty of disclosure or prescribes procedures for its operation and enforcement. In its Report on Disclosure and Discovery in Criminal Cases, the LRC recommended the enactment of a statutory framework setting out the scope of the prosecution duty of disclosure and its application both in trials on indictment and summary prosecutions. A draft Criminal Procedure (Disclosure) Bill was appended to the LRC’s Report but no such legislation has been enacted to date. As Heffernan observes, it is “ironic that disclosure of relevant but unused evidence is thus both fundamental and complex and yet is not regulated by statute or rules of court” (§14.39).

35. Disclosure differs from discovery in civil proceedings in a number of material respects. In the first place, the power to make a discovery order is provided for in express terms in court rules and those rules set out – albeit in broad terms – the scope of that power and provide for procedures for its exercise and for the resolution of disputes as to compliance. That has been the position for well over a century. An essential feature of civil discovery is the listing (by way of schedule) of the documents being discovered, including documents whose production is objected to (and the grounds for such objection). In contrast, no express power to order disclosure is provided by law, though such a power is conferred by Section 19A in relation to counselling records and in WC v Director of Public Prosecutions [2024] IESC 48 (“WC”) this Court took the view that section 6 of the Criminal Procedure Act 2021, and in particular the provisions of section 6(8)(f), gives a court power to make orders in relation to disclosure as part of a preliminary trial hearing under that section: per Charleton J at §38. There is no requirement for documents being disclosed to be scheduled or categorised, though such a requirement was specifically recommended by the LRC. Secondly, the duty of disclosure rests on the prosecution and extends only to documents in its possession or procurement and does not generally extend to material held by third parties (Section 19A is, once again, an exception to that rule): see the discussion in Heffernan, §§14.60-

14.72. In that regard, it is well-established that courts may not make orders for nonparty discovery for the purpose of criminal proceedings: People (DPP) v Sweeney [2001] IESC 80, [2001] 4 IR 102 and DH v Judge Groarke [2002] IESC 63, [2002] 3 IR 522. Finally, discovery is a reciprocal and mutual procedure. In contrast, subject only to certain limited statutory exceptions, defendants in criminal proceedings are not subject to any obligation of disclosure (as to the exceptions, see WC, §45).

36. An effective disclosure regime is an essential element of a fair system of criminal justice. That has been recognised throughout the common law world and emphasised in many decisions of the courts here, including in McKevitt. Both in this jurisdiction and elsewhere, failures in making proper disclosure have resulted in wrongful convictions. A recent – and chilling – example is the wrongful conviction of a large number of postmasters in the United Kingdom, premised on the assumed infallibility of the Horizon accounting system, in circumstances where material demonstrating that Horizon was neither secure nor reliable was available to the prosecuting authorities but was not disclosed to the defence.1

37. The need for disclosure has also been recognised by the European Court of Human Rights: see the discussion in Abrahamson et al, op cit, Chapter 21, section 2, referring (inter alia) to that Court’s decision in Rowe v United Kingdom (2000) 30 EHRR 1 (Application no 28901/95), where the Court stated that it was a fundamental aspect of the right to a fair trial under Article 6.1 ECHR that criminal proceedings should be adversarial and that there should be “equality of arms between the prosecution and defence”. That required not just that the prosecution and the defence be given the opportunity to have knowledge of and comment on the observations and evidence adduced by the other but also “that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused” (§60). Notably, however, the Court immediately qualified that statement. The entitlement to disclosure of relevant evidence was not “an absolute right” and in any criminal Failures so significant as to lead the Court of Appeal to observe that “the failures of investigation and disclosure were in our judgment so egregious as to make the prosecution of any of the ‘Horizon cases’ an affront to the conscience of the court”: Hamilton v Post Office Limited [2021] EWCA Crim 577, §137.

proceedings there may be “competing interests” including the need to “withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest” (§61).

38. While not concerned with disclosure in criminal prosecutions, there are a number of ECtHR decisions that make it clear that medical records, including psychiatric records, are within the scope of Article 8 ECHR: see for instance Z v Finland (1998) 25 EHRR

371 (Application no 22009/93) and Mockutė v Lithuania (Application no 66490/09). Preserving the privacy of such records is therefore a “competing interest” in this context.

39. The European Union has also legislated to require Member States to ensure that access is given “at least to all material evidence in the possession of the competent authorities, whether for or against suspects or accused persons, to those persons or their lawyers in order to safeguard the fairness of the proceedings and to prepare the defence” (Article 7(2) of Directive 2012/13/EU on the right to information in criminal proceedings (“the Disclosure Directive”)).2 Again, however, that obligation is not absolute. In language which appears to pick up on that of the ECtHR in Rowe, the Directive provides that, if it does not prejudice the right to a fair trial, “access to certain materials may be refused if such access may lead to a serious threat to the life or the Subject only to an immaterial exception (relating to the provision of information to suspects served with a summons), the State has not adopted any legislative measures to implement the Disclosure Directive, apparently taking the view that the rights conferred are adequately protected by existing law and in particular (as regards disclosure) Part 1A of the 1967 Act and the Guidelines for Prosecutors: Heffernan, para 14.13 and footnote 57.

fundamental rights of another person or if such refusal is strictly necessary to safeguard an important public interest, such as in cases where access could prejudice an ongoing investigation or seriously harm the national security of the Member State in which the criminal proceedings are instituted”. Any decision to refuse access must be taken by a judicial authority or at least be subject to judicial review (Article 7(4)).

40. It is important to clearly acknowledge that, both in the specific context of disclosure, and that of the criminal justice system more broadly, the rights and interest of defendants are not the only rights and interests engaged. Victims have significant rights and interests, rooted in the Constitution, in EU law, the ECHR, statute and the common law and there is an increasing understanding of the negative impacts that the criminal justice system can have on victims, particularly victims (and, most especially, child victims) of sexual violence.3

41. In this jurisdiction, that developing understanding is reflected in the many legislative developments in this area, including provision for victims of crime, including victims of sexual offences, to be heard as to the effect of the offence on them;4 the restriction on the cross-examination of complainants about previous sexual experience in sexual assault cases;5 provision for the complainant to be heard and to be legally represented where an accused seeks leave to raise previous sexual history in cross-examination and, See generally Heffernan, Chapters 6 (“Victims of Crime”) and 7 (“Complainants in Sexual Offence Trials”), as well as P Charleton and O Cross, “Towards a Presumption of Victimhood: Possibilities for Re-Balancing the Criminal Process” [2021] Irish Judicial Studies Journal Vol 5(2). Section 5 of the Criminal Justice Act 1993 (as amended). Section 3 of the Criminal Law (Rape) Act 1981 (as substituted by section 13 of the Criminal Law (Rape) (Amendment) Act 1990).

now, as a result of recent amendment, to be heard and to be legally represented during that part of the cross-examination;6 protection against cross-examination by the accused personally in (inter alia) proceedings for a sexual offence;7 provision for anonymity of complainants in sexual assault cases;8 provision for the exclusion of the public from the hearing of most sexual offence prosecutions (sexual assault is excluded)9 and provision for witnesses to give evidence by video link in (inter alia) proceedings for a sexual offence.10

42. Special provision has also been made for the giving of evidence by children and other categories of vulnerable witness: see, for example, sections 14 (evidence through an intermediary) and 14A (screening of witnesses when giving evidence) of the Criminal Evidence Act 1992 (as respectively substituted and inserted by the Criminal Justice (Victims of Crime) Act 2017 (“the Victims of Crime Act”)) and section 16 of the same Act (as amended) (videorecording as evidence).

43. This narrative should not obscure the fact that reform has been slow and patchy and, as Ní Raifeartaigh J observed for the Court of Appeal in People (DPP) v VE [2023] 1 IR Section 4A of the Criminal Law (Rape) Act 1981 (inserted by section 34 of the Sex Offenders Act 2001 and amended by section 7 of the Criminal Law (Sexual Offences and Human Trafficking) Act 2024). Section 14C of the Criminal Evidence Act 1992 (inserted by the Criminal Law (Sexual Offences) Act 2017 and amended by the Criminal Law (Victims of Crime) Act 2017). Section 7 of the Criminal Law (Rape) Act 1981. Section 6 of the Criminal Law (Rape) Act 1981. Sections 12 and 13 of the Criminal Evidence Act 1992. A constitutional challenge to these provisions (which have been amended subsequently so as to broaden their scope), on the basis that they infringed an accused’s right to a fair trial by restricting their right to confront their accuser, was rejected by the High Court and, on appeal, by this Court in Donnelly v Ireland [1998] 1 IR 321.

376, which concerned (inter alia) evidence given through an intermediary, even where legislation has been enacted, there have been delays in providing the practical measures necessary for its effective implementation (§72). Even so, the arc of legislative intervention is clear.

44. The Victims of Crime Act, which gives effect to Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime (the “Victims’ Directive”), is a very significant enactment in this context, the full impact of which has yet to be worked out. It applies to all victims of crime but many of its provisions are likely to be of particular relevance to victims of sexual crime, including section 19 (special measures during criminal proceedings) and section 21 (questioning in respect of the private life of victims). Section 21 clearly envisages a court placing limitations on cross-examination of a victim relating to their private life where that is necessary to prevent re-victimisation, subject to that not being contrary to the interests of justice. The potential significance of these provisions was highlighted by this Court in WC.

45. Part 2 of the Victims of Crime Act enshrines a broad right to information for victims of crime including, relevantly, the right to be informed of the date and place of any appeal arising from a trial (section 8(2)(h)(ii)) and the right to be informed of any judgment on appeal, including a summary of the reasons given for the judgment and any orders made relating or ancillary to it (section 8(2)(j)(i) & (iii)). Such information is to be provided on request but the Act requires the Gardaí to inform victims of their right to make such a request: section 8(1).

46. Crimes of violence, including crimes of sexual violence, involve a serious violation of the personal rights of the victim under Article 40.3: Hogan et al, Kelly: The Irish Constitution (5th ed; 2018) at 7.3.101. It may be that, in this context, the relevant rights are better located in the express right to the protection of “the person” under Article

40.3.2 rather than in any unenumerated/derived (and arguably superfluous) right to “bodily integrity.” However, nothing turns on that point here. However characterised, these rights are rights that the State is committed to protecting and vindicating and the effective prosecution of offenders is an important way in which the State vindicates those rights. The rights of victims are therefore centrally engaged by such prosecutions.

47. Finding an appropriate balance between the rights of the accused (including the right to defend themselves effectively, including (but not limited to) the right to challenge the prosecution case by way of cross-examination) and the rights of victims (which in addition to the rights just discussed include important privacy and dignity rights) presents a difficult challenge. However, it is a challenge that our criminal justice system, and the courts that administer it, cannot but confront. The rights of victims, including the rights protected by Article 8 ECHR, are not to be swept away in the name of ensuring a fair trial: Y v Slovenia (2016) 62 EHRR 3 (Application no 41107/10). Those rights – the right to privacy, dignity and personal integrity – are also protected by the Constitution: Simpson v Governor of Mountjoy Prison [2019] IESC 81, [2020]

3 IR 113 and the authorities referred to in it, including this Court’s decision in McGee v Attorney General [1974] IR 284, the dissenting judgment of Henchy J in Norris v Attorney General [1984] IR 36 and the decision of the High Court in Kennedy v Ireland [1987] IR 587. All those authorities recognise the crucial importance to humans of having a zone of private life, encompassing intimate and private conduct and expression. While Simpson concerned a very different aspect of the criminal justice process – conditions of imprisonment – there is no doubt but that, in principle, victims of crime enjoy such rights also and they are not lost simply because they have made a complaint to An Garda Síochána or because they have agreed to give evidence in a subsequent prosecution. As the Court of Appeal correctly observed in People (DPP) v Keogh [2017] IECA 232 – an observation expressly endorsed by this Court in WC – “[s]imply because a person makes a complaint that they have been a victim of crime does not mean that they abandon their right to privacy or that they lose that right” (§15). That is equally true of the other personal rights of victims of crime.

48. Of course, there may be circumstances where the privacy and dignity rights of the victim must give way to the defence rights of an accused but, as the Supreme Court of Canada observed in this context in R v Mills [1999] 3 SCR 668 (to which further reference is made below) “[n]either right may be defined in such a way as to negate the other” (McLachlin and Iacobucci JJ, §17). It would be a serious mistake to approach these issues on the simplistic basis that, because the accused’s right to a trial in due course of law under Article 38 of the Constitution (and/or the right to a fair trial under Article 6(1) ECHR) is the superior right, it must therefore necessarily trump all other rights and interests in all circumstances. As O’ Donnell J (as the Chief Justice then was) explained in Sunday Newspapers v Gilchrist [2017] IESC 18, [2017] 2 IR 284, the “Constitution was intended to function harmoniously, and where there were points of potential conflict between the rights and obligations provided for, that should be sought to be resolved without the subordination or nullification of one provision” (§37). In other words, courts must endeavour to give the utmost effect to all the constitutional rights that are engaged in any given situation and, in delineating the contours of any particular right, regard must be had to the existence of other relevant rights so as to avoid, or at least reduce as far as possible, any conflict between them.

49. Disclosure in criminal proceedings potentially involves the disclosure of highly sensitive personal and private information relating to the victim. Again, that is particularly so in proceedings for sexual offences. Expansive requests for disclosure of digital material extracted from the complainant’s mobile phone (and other devices) may be made, potentially encompassing the entire digital life of the complainant (call records, records of internet usage, social media activity, photographs, emails, messages, texts and so on). An illustration is provided by People (DPP) v Osei [2022] IECA 61, where the appellant complained of the prosecution’s failure to make available the full material extracted (running over a year and comprising some 13,000 pages). The Court of Appeal regarded the suggestion that such a volume of “very private material” should be handed over to those she said had raped her as “lacking in reality” (§§18 & 20). But the facts of Osei were particular (the prosecution concerned the events of a single night only) – indeed, as the Court of Appeal observed, the limited disclosure that had been made was arguably excessive and, as it also made clear, different considerations might apply where (as is often the case) an offence is alleged to have occurred in the course of a relationship. The disclosure of digital material clearly has the potential to involve a significant invasion of victims’ privacy. It may be said that such material is provided voluntarily by victims and that it is always open to them to decline to make disclosure of it. However, any such refusal has a real potential to affect the prospects of a prosecution being brought or, where brought, of it being successfully maintained. As a result, victims face a very difficult dilemma and one that must be navigated in the absence of any clear statutory standards or procedures. Any “choice” may appear to the victim to be illusory in circumstances where a failure to provide material may result in a decision not to prosecute or an order staying a pending prosecution.

Disclosure of Counselling Records

50. However, this appeal is not concerned with disclosure of digital material but rather with the disclosure of counselling records relating to the complainant in a prosecution for a sexual offence. Manifestly, counselling records are very likely to contain deeply personal and private information. It is for that reason that they enjoy a high level of constitutional protection. As this Court acknowledged in WC, the compelled disclosure of such intensely private material directly and significantly intrudes upon the dignity of victims (as to which see the Preamble to the Constitution) as well as their privacy and associated rights (Article 40.3). The discussion with a counsellor of intensely private events is clearly linked with deep-seated aspects of human psychology and personality. The protection of “the person” in Article 40.3.2 requires the State to protect “not simply the integrity of the human body, but also the integrity of the human mind and personality”: Kinsella v. Governor of Mountjoy Prison [2011] IEHC 235, [2012] 1 IR

467 (per Hogan J, §9).

51. Authorities such as McGee, Norris (the dissent of Henchy J), Kennedy and Simpson recognise the crucial importance to humans of having a protected zone of private life, encompassing intimate and private conduct and expression. That is not to suggest that counselling records may never be required to be disclosed or may never be deployed in criminal proceedings. That clearly is not the case but such records enjoy a high level of constitutional protection, such that their mandatory disclosure and/or deployment must satisfy an elevated threshold of relevance and proportionality.

52. Even in the absence of legislative intervention, courts have a power – indeed a constitutional duty – to ensure that such records are disclosed only where such disclosure is necessary in the interests of justice. That necessarily requires a significantly higher threshold for disclosure than mere relevance in the Peruvian Guano sense. The deployment of such records at trial also raises significant issues, not least by reference to section 21 of the Victims of Crime Act. Section 21 aside, courts have the power to limit cross-examination in order to protect the privacy rights of the victim: WC, §66. There is an additional complexity in that such records are frequently held by a third party (the counsellor or their employer) rather than by the party in receipt of the counselling. That may also be the case in relation to other records such as medical records which, while perhaps not generally as sensitive as counselling records, are also likely to contain highly personal and private information. Such records are also, in principle, within the scope of constitutional protection.

53. Before considering the effect of Section 19A in this context, it may be helpful to survey developments in other common-law jurisdictions.

Canada

54. Developments in Canada are of particular interest given that, as will become apparent, they have significantly influenced important aspects of Section 19A.

55. In R v O’ Connor [1995] 4 SCR 411 (which was also referred to in WC) the Supreme Court of Canada established a two-stage test for determining whether private records held by a third party – records in which the complainant had a reasonable expectation of privacy, including (but was not limited to) therapeutic/counselling records relating to the complainant – should be disclosed to an accused. That test was intended to balance the competing constitutional rights at issue, namely the accused’s right to make full answer and defence, the complainant’s right to privacy and the right to equality without discrimination (implicated by reason of the fact that the overwhelming majority of all victims of sexual assault were women: §120). The first stage of that test required the accused to establish the “likely relevance” of the material (that it was logically probative to an issue at trial or the competence of a witness to testify). Addressing the “likely relevance” of counselling records, L’Heureux-Dubé J stressed that the focus of therapy is “vastly different” from that of a criminal investigation or other trial process. Therapy was generally focused on the complainant’s emotional and psychological responses to events rather than ascertaining the facts surrounding the events. It was not a fact-finding exercise (§144). The second stage of the test involved a review of the records by the court and an assessment of the competing Charter rights involved, including the accused’s right to make full answer and defence and the right to privacy of the victim. A number of judgments were given and there are many differences of both substance and emphasis between them. However, in her judgment – which in this respect commanded broad support – L’Heureux-Dubé J identified the factors to be considered in that assessment as follows:

“156. Although this list is not exhaustive, the following factors should be considered in this determination: (1) the extent to which the record is necessary for the accused to make full answer and defence; (2) the probative value of the record in question; (3) the nature and extent of the reasonable expectation of privacy vested in that record; (4) whether production of the record would be premised upon any discriminatory belief or bias; (5) the potential prejudice to the complainant's dignity, privacy or security of the person that would be occasioned by production of the record in question;

(6) the extent to which production of records of this nature would frustrate society's interest in encouraging the reporting of sexual offences and the acquisition of treatment by victims; and (7) the effect on the integrity of the trial process of producing, or failing to produce, the record, having in mind the need to maintain consideration in the outcome.”

56. As well as the interests of complainants, L’Heureux-Dubé J recognised the legitimate interest that society has in encouraging the reporting of sexual assault and that that societal interest is furthered by protecting the privacy of complainants. In her view, the “compelled production of therapeutic records is a serious invasion of complainants’ privacy which has the potential to deter sexual assault victims from reporting offences or, if they do report them, from seeking treatment” (§158).

57. The issue in O’ Connor related to the production of counselling records in the hands of third parties, rather than any issue of the disclosure of counselling records in the possession of the prosecution. A majority of the court expressed the view that the twostage test had no application to prosecution disclosure.

58. In 1997, the Canadian legislature enacted Bill C-46 which amended the Criminal Code so as to provide for a new procedure governing the production to an accused in a prosecution for a sexual offence of records containing personal information in respect of which there is a reasonable expectation of privacy, including “medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries”.11 The procedure governs both records relating to a complainant or a witness. Such records may only be produced to an accused on foot of a court order and such an order may be made only where the accused establishes that the record is likely relevant to an issue at trial or to the competence of a witness to testify and that the production of the record is “necessary in the interests of justice”. Drawing closely on the judgment of L’Heureux-Dubé J in O’ Connor, the statute identifies a number of “assertions” by an accused that are not to be regarded as sufficient “on their own” to establish the relevance of a record (including that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving; that the record “may disclose” a prior inconsistent statement by the complainant or witness or “may relate” to the credibility Criminal Code, section 278.1.

of the complainant or witness).12 It also identifies the factors to be taken into account by the court in deciding whether to order the production of a record for its review and in determining whether to order production to the accused.13 Significantly, this statutory regime applies equally to relevant records in the possession or control of the Crown as it does to records in the possession or control of third parties (thus effectively reversing the majority view in O’ Connor that records in the possession of the prosecution did not warrant any form of privacy protection). However, the law provides for the complainant or witness to waive the application of the statutory provisions in the case of records in the possession or control of the prosecutor.14

59. In R v Mills, the Supreme Court rejected a Charter challenge to these provisions. Giving the majority judgment, McLachlin and Iacobucci JJ acknowledged that an accused’s right to make full answer and defence was crucial to ensuring that the innocent were not convicted but that right had to be defined in a context that included other fundamental principles and Charter rights and did not include the right to evidence that would distort the search for truth inherent in the trial process (§76). As to the rights of the complainant, they recognised that significant privacy rights were engaged. The very possibility that the confidentiality of a therapeutic relationship might be breached affected the relationship and could reduce the complainant’s willingness to report crime or deter them from seeking counselling altogether, thus implicating the complainant’s Section 278.3(4). Section 278.5(2) and section 278.3(4). The specified factors effectively mirror those identified by L’Heureux- Dubé J at §156 of her judgment in O’ Connor. Section 278.2(3).

right to security of the person as well as the right to privacy (§85). Even so, those rights could, in principle, be limited. Ultimately, the majority concluded that the legislative scheme accommodated the conflicting rights in a Charter compliant fashion. While Lamer CJ dissented in part, he had no doubt that Bill C-46 had been adopted to address a “pressing and substantial objective” namely “the protection of the privacy and equality rights of complainants and witnesses in the context of sexual assault trials” and agreed also that the legislative scheme rationally advanced that important aim (§11). His limited point of departure from the majority related to records in the hands of the Crown: though he was “sensitive that the production of therapeutic records to the defence is injurious to a complainant’s privacy” and recognised that “disclosure may be all the more invasive to a complainant’s dignity and psychological integrity” if obtained by the Crown without her consent, he considered that where such records were already in the possession of the prosecution, they should be produced to the judge for review without requiring the accused to establish their likely relevance (§12). However, production to the accused would still be dependent on the judge’s assessment that production was necessary in the interests of justice.

60. In 2018 the Canadian legislature adopted Bill C-51, amending the Criminal Code further for the purpose of regulating the admission into evidence in proceedings for sexual offences of records (as defined in section 278.1 of the Code) in the possession of the accused, as well as providing for further participation rights for the complainant in admissibility hearings. The provisions also encompassed the use of evidence of previous sexual history. In R v JJ [2022] SCC 28, the Supreme Court of Canada rejected a Charter challenge to those provisions. I refer to one aspect of JJ – the contention that the provisions undermined an accused’s right to cross-examine a complainant to such an extent as to amount to a denial of the accused’s right to make full answer and defence

– later in this judgment.

61. Thus, the position in Canada is that, initially through judicial decision (O’ Connor) and then by virtue of subsequent legislative measures, there are strict controls on the production and deployment of confidential records relating to a complainant or witness in proceedings for a sexual offence. Those controls now apply to records in the possession of the prosecution as they apply to records in the possession of third parties (subject to the possibility of waiver in relation to the former) and a specific statutory control regime also applies to records in the possession of the accused. Those legislative measures survived Charter challenge because the Supreme Court was satisfied that they accommodated the conflicting rights engaged in the criminal process – the accused’s right to an effective defence on the one hand and the complainant’s right to privacy on the other – in a manner compliant with the Charter.

Australia

62. Several Australian states have enacted legislation restricting the production of counselling records in criminal proceedings, including New South Wales15 and Western Initially in the form of the Evidence Amendment (Confidential Communications) Act 1997, which amended the Evidence Act 1995. The 1997 Act followed after the brief jailing of a counsellor for contempt of court for refusing to produce a complainant’s counselling file in answer to a subpoena: see Cossins and Pilkinton, “Balancing the Scales: The Case for the Inadmissability [sic] of Counselling Records in Sexual Assault Trials”

(1996) 19(2) UNSW Law Journal 222-267. The current regime is now found in Chapter 6, Part 5, Division 2 of the Criminal Procedure Act 1986 (inserted by the Criminal Procedure Amendment (Sexual Assault Communications Privilege) Act 1999 and amended from time to time since).

Australia.16 These operate to confer what amounts to a form of qualified privilege on counselling communications relating to a victim of a sexual assault offence (which communications are designated as “protected confidences”). Similar to the Canadian scheme referred to above (and to Section 19A here) in the absence of consent, production of records recording a “protected confidence” is prohibited without a court order but, having given the victim an opportunity to be heard, a court may order production where an enhanced statutory threshold – in essence a public interest test, involving consideration of factors similar to those set out in the Canadian legislation and in Section 19A – is satisfied. In contrast to Section 19A, there are also express controls on introducing such material into evidence. In contrast to New South Wales and Western Australia, Tasmania absolutely prohibits the disclosure of counselling communications or the admission of evidence of such communications in any criminal proceedings unless the victim has consented.17 England and Wales

63. There is currently no special statutory regime applicable to the disclosure of counselling records in sexual offences prosecutions in England and Wales. However, the question of whether such a regime should be introduced was the subject of a comprehensive and valuable discussion by the Law Commission in its recent Consultation Paper on Evidence in Sexual Offences Prosecutions (CP 259, May 2023). The Consultation Paper provisionally recommends that in prosecutions for sexual offences there should be a Evidence Act 1906, sections 19A – 19M (inserted by the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004). Evidence Act 2001, section 127B.

“bespoke regime” involving an “enhanced relevance test”, to be applied by the court, for the production of personal records held by third parties (records in which the complainant has a reasonable expectation of privacy, following the approach in Canada) to the court and to the prosecution and defence teams (§§3.251-3.258) and a somewhat differently formulated test for the admissibility of such records as evidence (§§3.259- 3.261). It also raised a specific question as to how those proposals should respond to apparent inconsistencies disclosed by personal records (§§3.262-3.266).

64. Certain aspects of the Law Commission’s analysis appear to me to be particularly valuable. One is the recognition that, whereas it is widely accepted that victims of sexual violence may benefit from receiving immediate counselling (and victims are generally given advice to that effect), the possibility that their counselling records may be disclosed to the accused (and the fact that such records are requested and disclosed as a matter of routine) may lead victims to defer counselling or deter them from seeking counselling at all and may also lead to counsellors deciding not to take notes of counselling (§§3.114 – 3.128). That dilemma – or, as it was characterised by the Law Commission, “inherent contradiction” – is profoundly problematic and, as the Supreme Court of Canada stated in Mills, it implicates victims’ right to the security of the person (in this jurisdiction, their right to the protection of their person/right to bodily integrity under Article 40.3, which as already noted extends beyond the protection of the integrity of the body and also encompasses the integrity of the human mind and personality). As this Court said in WC, victims of such crimes feel a deep sense of personal violation and counselling “may be crucial to some sense of restoration” (§71). That the law may operate to deter victims of sexual violence from seeking timely counselling – or, conversely, may deter victims from making or pursuing a criminal complaint – should be a matter of the utmost concern to all actors in the justice system.

65. The other aspect of the Law Commission’s analysis deserving of particular attention relates to the issue of victim consent to disclosure/production of personal records. The Consultation Paper notes that in jurisdictions where access to counselling records is restricted, including Ireland, consent may be given for access, without any judicial scrutiny. Speaking specifically of Section 19A, it notes the view of Dr Susan Leahy, based on empirical research carried out by her, that the disclosure scheme had been used in few cases because complainants generally consented to the disclosure of their personal records and waived their statutory entitlements and observes that it “appears that waiver provisions undermine the operation and effectiveness of the judicial scrutiny processes established under the scheme” (§3.173). The Consultation Paper goes on to express the Law Commission’s view that, given the risk of consent being given to “intrusive and broad” requests for the disclosure of third-party material (TPM), “clear steps are warranted to ensure that complainants who are asked to consent to access are appropriately protected so that TPM requests are justifiable and consent is appropriately informed and voluntary”. It then identifies a number of possible measures, including judicial scrutiny (though explaining that it was reluctant to propose it given the demands that it could place on the courts), legislative reform and enhanced legal support for complainants (§3.183).

66. The issue of waiver is important. The picture disclosed in this appeal suggests that as a matter of routine, complainants are asked for, and give, consent to the disclosure of their counselling records. Doubtless, there are practical reasons why that may be so but it is essential to ensure that the protections granted by Section 19A are not bypassed (or in Charleton J’s vivid language in WC at §73, “expunged”) by inappropriate recourse to the waiver exception. That would subvert the clear purpose of the Oireachtas in enacting Section 19A. It will be necessary to say more about this issue later.

Ireland – Section 19A

67. The origins of Section 19A can be traced back to the LRC Report on Disclosure and Discovery in Criminal Cases. The Report noted that there was significant debate around the probative value of therapeutic notes and noted the views of commentators that the disclosure of therapeutic records may have a “chilling effect” on the reporting of sexual offences (§2.16). Noting that the rights of the victim and the rights of the public had to be weighed in the balance in addition to the rights of the accused, the LRC nonetheless considered that it was unlikely that any form of absolute privilege for therapeutic records (which it noted was the position in Tasmania) would be constitutionally permissible in this jurisdiction. It then considered the position in Australia and Canada, noting that many commentators and consultees had expressed the view that the Canadian regime was a generally suitable basis for reform “particularly because it provides for a judicially-based process in which the rights of the accused can be considered along with the rights of the complainant” (§2.29).

68. The LRC went on to recommend (at §2.34 and following) that provision should be made in legislation for pre-trial preliminary hearings in which issues relating to the disclosure of prosecution material, including issues relating to privilege or confidentiality, could be judicially determined and made recommendations as to when and to what extent disclosure should be ordered (following closely the language of the Disclosure Directive including its reference to refusal of access where it might lead to a serious threat to the life or fundamental rights of another person). Significantly, the LRC recommended that, in deciding on whether to order disclosure, a court should be required to take a number of factors into consideration, including: “(c) the rights of any person to whom the material held by the third party relates, including any reasonable expectation of privacy of that person, and any potential harm (whether physical or emotional), including the risk of secondary and repeat victimisation, which disclosure of the material held by the third party may cause to that person” (§2.37). That aspect of the Commission’s recommendations was directed to criminal proceedings generally and clearly was intended to encompass private material including but not limited to counselling records. The draft Bill appended to the Report makes it clear that this recommendation was limited to material in the possession of a third party.

69. The LRC went on to identify three further factors which should be taken into consideration where disclosure in a sexual offence case was at issue, as follows: “(a) society’s interest in encouraging the reporting of sexual offences; (b) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and (c) the public interest in ensuring that adequate records are kept of counselling communications” (§2.38). The LRC also recommended that, in any pre-trial disclosure hearing, the complainant, third party or any person affected should be on notice and entitled to free legal representation.

70. No such general disclosure statute has been enacted. Part 2 of the Criminal Procedure Act 2021 provides for preliminary trial hearings but does not specifically address disclosure, save to the extent that section 6(8)(b)(v) provides that a court may, at a preliminary trial hearing, make an order under Section 19A. Although this Court in WC held that section 6(8)(f) of the Act gives a court the power to make orders in relation to disclosure at a preliminary trial hearing under that section, the 2021 Act provides no guidance as to the exercise of that power.

71. Instead, the Oireachtas enacted Section 19A. It is headed “Disclosure of third party records in certain trials”. Such headings are not generally to be taken into account in construing a statute: section 18(g) of the Interpretation Act 2005. There does not appear to be any express statement in Section 19A that it applies only to records in the hands of third parties (indeed that expression is not found in the section itself) or any express exclusion of records already in the possession of the prosecuting authorities. Nevertheless, the structure and language of the section indicate that it operates where the person who has possession or control of the counselling records is someone other than the prosecutor. It may be that the Oireachtas proceeded on the assumption that prosecuting authorities would not have access to counselling records unless either the complainant had previously consented to disclosure or an order had been made under Section 19A. The scope of Section 19A is not an issue in this appeal but, if it be the case that Section 19A is indeed confined to counselling records in the hands of third parties, that might be thought to be a potential lacuna in the protection of such records. Certainly, there does not appear to be any good reason why any lower threshold should apply for the production of counselling records in the possession of the prosecution (whether provided to them by the complainant or otherwise) than applies (or was intended by the Oireachtas to apply) to such records when in the hands of a third party. A further uncertainty, and potential lacuna, relates to Section 19A’s application to counselling records in the hands of the complainant or the accused, as well as the absence of any provision in it specifically addressing the deployment of counselling records in evidence, as distinct from their production to the accused.

72. Section 19A provides for a specific disclosure regime in respect of “counselling records”. It has no application to other categories of records, however private or confidential. A “counselling record” is defined in Section 19A(1) as a record made by a “competent person” (“a person who has undertaken training or study or has experience relevant to the process of counselling”) in connection with the provision of counselling (defined as “listening to and giving verbal or other support or encouragement to a person, or advising or providing therapy or other treatment to a person (whether or not for remuneration)”) to a person in respect of whom a sexual offence is alleged to have been committed “which the prosecutor has had sight of, or about which the prosecutor has knowledge, and in relation to which there is a reasonable expectation of privacy.” That definition raises several questions. It is not immediately clear whether it encompasses records relating to psychiatric treatment. More fundamentally, there is scope for uncertainty as to whether it relates only to counselling given to a person alleging to have been the victim of a sexual offence (in other words counselling relating to the alleged offence committed against the complainant), in which case counselling records pre-dating the alleged offence would fall outside the scope of the section, or whether it operates more broadly and encompasses any counselling record relating to the complainant, including records predating, and unconnected with, the alleged offence.

73. An application for disclosure may be made by the accused (section 19A(3)) or, where the prosecutor considers that it is in the interests of justice for the record to be disclosed, by the prosecutor (section 19A(5)). In each case the application is on notice to the complainant, who is entitled to appear and to be heard (section 19A(9)) and entitled to legal aid for that purpose (section 19A(16)). Section 19A(10) prescribes a number of factors which the court shall take into account “in particular” in deciding whether to direct disclosure, as follows:

“(a) the extent to which the record is necessary for the accused to defend the charges against him;

(b) the probative value of the record;

(c) the reasonable expectation of privacy with respect to the record;

(d) the potential prejudice to the right to privacy of any person to whom the record relates;

(e) the public interest in encouraging the reporting of sexual offences;

(f) the public interest in encouraging complainants of sexual offences to seek counselling;

(g) the effect of the determination on the integrity of the trial process;

(h) the likelihood that disclosing, or requiring the disclosure of, the record will cause harm to the complainant including the nature and extent of that harm.”

74. These factors of course mirror very closely the factors identified by L’Heureux-Dubé J in O’ Connor. Section 19A goes on to provide that disclosure may be ordered where it is in the interests of justice to do so but it shall be ordered where there would be a real risk of an unfair trial in its absence: section 19A(11). Where an order for disclosure is made, the court has broad power to impose conditions, including a power to direct the redaction of any part of the record and conditions restricting its circulation: section 19A(12). The court must give reasons for ordering, or refusing to order, disclosure: section 19A(13).

75. However, the protections prescribed by Section 19A do not apply “where a complainant …has expressly waived his or her right to non-disclosure of a counselling record without leave of the court”: section 19A(17). Subsection (17) does not expressly require that any such waiver should be in writing (though, sensibly, it appears to be the practice of the prosecuting authorities to require written waivers). Neither does it provide – at least in express terms – that any such waiver should be informed and/or that it should be given only after the complainant has received independent legal advice or at least after being given adequate opportunity to obtain such advice.

76. It is striking that, despite the fact that it is nearly 7 years since the commencement of Section 19A (the section came into operation on 30 May 2018), there does not appear to be a single recorded judgment addressing its application in an actual disclosure dispute (the section was considered in general terms in WC but there had not been any application under it in that case). There is, therefore, no practical guidance as to the operation of the section or the circumstances in which disclosure should be directed. It is, however, manifest that the Oireachtas intended to establish a higher threshold for the disclosure of counselling records (at least where in the hands of third parties) than was applicable prior to its enactment. While it may be to put the matter too far to suggest that the Oireachtas intended that such disclosure would be ordered only where there would be a real risk of an unfair trial in the absence of such disclosure, what is clear is that some compelling basis must be established for disclosure to be directed, involving a showing that the records are likely to be of real forensic value to the accused’s defence. That may require the defence to engage with the prosecution case. Generalised assertions of the possibility that such records may contain something of interest to the defence will not suffice. The fact that the complainant sought counselling will not suffice. A desire to review the records in the hope of finding some inconsistency in the accounts given by the complainant will not suffice either. It would not be “in the interests of justice” to direct disclosure on such basis: something more is required.

77. In its report, Review of Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences (July 2020) the Working Group chaired by Tom O’ Malley expressed concern at the under-utilisation of Section 19A, noting that the Group had been informed that there had been only one application in the Central Criminal Court and a “very small number” of applications in the Circuit Criminal Court. The Central Criminal Court is, of course, the court where rape cases are tried. The Group noted that it appeared to “remain the norm” for victims and other witnesses to waive their right to a court hearing and to consent to the disclosure of counselling records. Section 19A “was clearly intended to protect the privacy of victims in respect of their counselling records” and the Group recommended that steps be taken to ensure that all victims should be made aware of their rights: while counselling records should be disclosed where necessary to counteract the real risk of an unfair trial, it was “equally important that information contained in such records … should not be used in an inappropriate way or to embarrass or degrade a victim or witness in any way” (§§6.39- 6.40).

78. The Working Group also noted that Section 19A applies only to counselling records and that medical records are not within its scope, even though they may include information in respect of which there is a reasonable expectation of privacy. It recommended that, in any future review of the law relating to sexual offences, consideration should be given to the question of whether the disclosure of medical records should be subject to similar rules as those governing counselling records (§6.42). The disclosure of confidential records, including medical records, not covered by Section 19A was considered by this Court in WC and is addressed further below.

79. In a Report published in June 2021, The Realities of Rape Trials in Ireland: Perspectives from Practice, Dr Susan Leahy (whose work was referred to by the Law Commission in its Consultation Paper) noted that legal professionals had little if any experience of the operation of Section 19A, indicating that complainant waiver was common. While recognising that complainants were entitled to waive the operation of the statutory disclosure regime, she questioned whether they were making such decisions on a fully informed basis: complainants at an early stage of an investigation might not appreciate that their records might be used in cross-examination at trial and might not fully understand that they had a choice whether to disclose and had the option of letting a judge decide. She emphasised the need for a robust informed consent process, ideally one supported by independent legal advice. Dr Leahy also suggested the extension of the Section 19A regime, not just to medical records but to “all personal records” as that term is defined in the Canadian Criminal Code (pages 34-35).

Disclosure of Private Records (other than Counselling Records)

80. It is, of course, a matter for the Oireachtas alone to determine whether to extend the statutory disclosure regime beyond counselling records. However, the absence of specific statutory measures does not mean that courts are powerless to protect the privacy interests of victims within the criminal justice process. That is emphatically not the case. Victims do not require legislation in order to assert their constitutional rights in the criminal justice process and courts do not require a statutory mandate in order to protect such rights. The considerations that led the Supreme Court of Canada to its

decision in O’ Connor (and its subsequent decisions in Mills and JJ) would seem to apply with equal force in this jurisdiction. The rights of victims in this jurisdiction have no lesser status. As Charleton J made clear in WC – in which he referred with evident approval to O’ Connor – there is a high threshold for disclosure of private records. Intrusion into “private medical records” of a complainant or witness is “a serious imposition” which will be warranted only where what is to be disclosed is relevant to a central issue in a case (WC, §75) Apart entirely from what is mandated by Section 19A, “privacy, whether under Article 21 of the Victims Directive or as the upholding of human dignity under Article 40.3 of the Constitution, remains a central consideration”

and thus “fundamental intrusions into the privacy of a complainant or other witness should only be ordered where that encroachment will realistically assist the administration of justice and is otherwise unavoidable” (§77). That approach is not limited to medical reports. It also includes, for instance, material relating to prior sexual history of the complainant: WC, §87(3).

81. In WC, the Court emphasised that the prosecution’s obligation to make disclosure is generally bounded by the concept of reasonableness: §42 & §44. But beyond that general boundary, it is also apparent from WC that there are certain records – records in which a complainant or witness has a real expectation of privacy – the threshold for disclosure for which is more exacting. Something more than relevance in the extravagant Peruvian Guano sense is required. In this context, I would not accept that there is any categorical rule that “concerns relating to privacy or privilege disappear where the documents in question have fallen into the possession of the [prosecution]” or that a victim’s privacy interests “disappear” in that scenario (as was suggested by a majority of the Canadian Supreme Court in O’ Connor). In making disclosure, prosecuting authorities must be sensitive to the privacy interests of victims, regardless of whether the material is third party material obtained from a counsellor or material obtained from the victim or from some other source. Where there is uncertainty as to whether disclosure is appropriate, that issue may be resolved at a preliminary trial hearing pursuant to the 2021 Act. The trial judge will be in the best position to determine whether the records in question are sufficiently material to warrant directing their disclosure. Obviously, disclosure will be ordered if there would be a real risk of an unfair trial in its absence. Otherwise, the court must assess whether disclosure is necessary in the interests of justice. The court must be astute to avoid directing disclosure of private material on the basis of speculation, stereotypes or myths. In assessing whether or not to direct disclosure, the factors set out in Section 19A(10) – deriving as they do from the Supreme Court of Canada’s Charter analysis in O’ Connor

– are likely to be of significant assistance to the court.

82. No doubt the resolution of such dispute will impose an additional burden on courts and on the prosecuting authorities but that is unavoidable if the constitutional and statutory rights of victims are to be given concrete recognition and protection. Furthermore, that burden should reduce as more detailed guidance becomes available as to the practical application of the principles set out both in WC and in this judgment.

The Disclosure Here

83. I have already explained that C signed two standard form consent forms on 2 November 2021. One of these related to records (other than counselling records) in the possession of KRSAC and the other to counselling records held by the CFA. The consent form in relation to the CFA records recited that the person signing (i.e. C) had been advised of her right to seek independent legal advice before giving consent. It recites that C did not have to consent to the disclosure of counselling records and had a right to have a court hearing to decide whether the records should be disclosed or not, at which she would be entitled to be represented. If C gave consent, she would be allowed to see her counselling records before they were disclosed and would be entitled to bring a person with her when she went to see the records. The form also stated that consent to disclosure could be withdrawn at any time prior to disclosure to the defence. The form indicated that the prosecution solicitor would carefully examine the records to decide what was relevant and only relevant information would be disclosed. The form states that it was “very important” that the court should know about everything that could affect a criminal trial and that if C’s counselling records contained information “relevant to the case” they must be disclosed to the defence, including to the accused, to ensure a fair trial. At several points the form confirms that C is giving her consent freely and voluntarily. It was signed by C, witnessed by the investigating Garda.

84. It is not clear whether in fact C had any opportunity to review the CFA records in advance of their disclosure to the defence only two days later, on 4 November 2021. If she had, she might have been expected to express concern that the records included her home address and mobile phone number. However, the real difficulty here is much more fundamental. C was asked to give consent to disclosure without having had sight of the CFA records and without any knowledge of what they contained. It may be that C’s consent was necessary to enable An Garda Síochána to obtain the records from the CFA (and it certainly would have been necessary to obtain counselling records from KRSAC) but C ought not to have been asked to consent to the disclosure of those records to the defence without first being afforded an opportunity of reviewing the records and obtaining advice. Furthermore, C ought not to have been asked to give consent effectively in the abstract. The records which it was proposed to disclose to the defence – the records which, in the opinion of the prosecuting authorities satisfied the threshold for disclosure (a threshold which as I have made clear, is not one of simple “relevance”, at least in the Peruvian Guano sense) – should have been identified to C before she was asked to consent to disclosure. The statutory right of a victim of a sexual offence not to have a counselling record disclosed without leave of the court is an important one and any waiver of that right pursuant to Section 19A(17) must be fully informed. Informed consent requires at a minimum that the victim is informed of the records it is proposed to disclose and is aware of their contents before being asked to give consent. Consent should be the last stage of the disclosure process, rather than, as here, the first stage.

85. The absence of any provision for independent legal advice for the victim as to whether to waive their rights is also problematic. Many complainants will lack the necessary resources to obtain such advice and so will have to make a decision on waiver without fully understanding the alternative court process or being in a position to make an informed judgment as to the likely outcome of that process if triggered. If (as the legislature clearly recognised) the court process is sufficiently complex and important to warrant the provision of publicly funded (and non-means tested) legal representation for complainants, it is difficult to understand how complainants should be expected to navigate the waiver issue without legal advice. As Charleton J stated in WC, care is required so that waivers are not “routine or under-advised” (§74). Independent legal advice for complainants would appear to be an essential defence against such risks, which threaten to fundamentally undermine the important objectives of the Oireachtas in enacting Section 19A.

86. Should it be the case that, notwithstanding the enactment of Section 19A, sweeping and unreasoned requests for disclosure of counselling records are routinely made in prosecutions for sexual offences and such disclosure is routinely made by the prosecution on the basis of consent procured from complainants who do not, in practice, have access to independent legal advice – and that is certainly the picture suggested by this appeal – that points to the failure of the important reform intended to be achieved by Section 19A and suggests an urgent need for the Oireachtas to revisit this area.

87. There is a further difficulty here. While C had signed a consent form in relation to records held by KRSAC, that form did not relate to, and C did not consent to, disclosure of counselling records in the possession of KRSAC (it being understood at the time that she had not received counselling in KRSAC and therefore that there were no such records). The KRSAC Records clearly are counselling records within the meaning of Section 19A. That is common case. Section 19A(2) thus prohibited disclosure of the content of the KRSAC Records without leave of the court given in accordance with the provisions of Section 19A, subject only to the possibility of waiver pursuant to Section 19A(17). No court order was ever made giving leave to disclose the KRSAC Records to AM and, so far as the material before the Court indicates, C did not at any stage execute a waiver in respect of those records. It follows that, when the KRSAC Records came to light in the aftermath of C’s Victim Impact Statement, the existence of those records could properly be disclosed to AM’s legal team but the contents of those records could not. Given the particular circumstances, it is understandable that the prosecution may have felt under pressure to provide the records to AM as quickly as possible. However, the fact is that the disclosure of those records does not appear to have complied with Section 19A. Such non-compliance was no doubt unintended but it is nonetheless unfortunate.

What should have happened?

88. Had the KRSAC Records been identified pre-trial, the prosecuting authorities would presumably have sought C’s consent to their disclosure to AM. In that event, C would have had a clear entitlement to review the records before making any waiver decision. In addition, proper practice required that C should have been informed of the records it was proposed to disclose to AM – following an appropriate review of the records by the prosecutor – and made aware of the contents of those records before being asked to give consent.

89. Thus, in the event that the KRSAC Records had been identified pre-trial and if an appropriate waiver process had been followed, C would have become aware of the contents of the KRSAC Records and in particular the 17 September Record prior to the trial. In any event, the prosecution authorities would presumably have examined the Records carefully (as promised in the relevant consent form) before deciding whether they should be disclosed or not. If so, it seems reasonable to assume that the 17 September Record would have been flagged.

90. It would have been perfectly permissible in that scenario for the prosecution to interview C, to bring the 17 September Record to her attention and to ask her for her observations on it. A further statement could then have been taken and served on AM in accordance with the provisions of Part 1A of the 1967 Act. While it was contended on AM’s behalf that such a course would have been improper or inappropriate, no principled basis for that contention was identified in argument. It would, of course, be wholly improper for the prosecuting authorities to coach a prosecution witness or seek to influence the substance of their evidence: see for instance GO’ R v Director of Public Prosecutions [2011] IEHC 368, §§20-21. However, non-directional engagement with C so as to provide her with an opportunity to comment on a statement attributed to her in a counselling record that she had never previously seen (as Ms Lacey SC for the Director noted in argument, unlike statements made to the Gardaí, counselling notes are not read back to victims or proffered to them for signing to confirm their accuracy) would not, in my view, have given rise to any such concerns. In such a scenario, the prosecuting authorities would have been entitled – and arguably obliged – to investigate whether C (at the relevant time a 12-year-old child) had been the victim of more than one sexual assault, as well as having a legitimate interest in satisfying themselves that it was proper to maintain the prosecution of AM. Indeed, it seems to me that, in such a scenario, the prosecution would have been open to legitimate criticism had they failed to seek clarification from C and simply proceeded with the prosecution of AM (or, conversely, decided to discontinue the prosecution). Quite apart from the legitimate interests of the prosecution, however, it would have been wholly unfair to C to allow her to be ambushed at trial by the production of the 17 September Record.

91. On the other hand, if C did not consent to the disclosure of the KRSAC Records, an application for disclosure under Section 19A would presumably have followed. In that scenario, it seems reasonable to assume (in favour of AM) that disclosure of at least the

17 September Record would have been ordered but in any event C and the prosecuting authorities would have become aware of the content of the 17 September Record in the course of the process.

92. As it was, of course, the KRSAC Records were not identified pre-trial. When they were identified, C should have been notified. If she consented to their disclosure (following an appropriate process, in which she would necessarily have become aware of the 17 September Record) the records could then have been disclosed to AM. Otherwise, a court order under Section 19A would have been required for such disclosure.

93. All of this is perhaps an overly lengthy way of saying that AM never had any legal right to have the 17 September Record disclosed to him without C’s knowledge and no legal right to confront her with it for the first time in cross-examination – whether at trial or at any retrial that might have been ordered by the Court of Appeal. Any such suggestion flies in the face of Section 19A. The Section 19A regime effectively excludes any defence entitlement to conduct a surprise cross-examination of complainants in sexual offence cases by reference to their counselling records in much the same way as section

4 of the Criminal Law (Rape) Act 1981 precludes surprise cross-examination of a complainant by reference to prior sexual history and, if properly operated, the Section 19A regime also makes remote any real possibility of that happening in practice.

94. In the Canadian case of JJ referred to above, one of the grounds of challenge to the legislation was its effect on cross-examination of complainants, the argument being that the requirement to obtain leave to adduce the private records of a complainant, in a procedure in which the complainant had the right to participate, would result in complainants being alerted to a potential line of challenge in cross-examination, thus enabling them to tailor their responses in cross-examination at trial to explain away discrepancies and diminish the impact of the defence’s line of questioning. The majority rejected that argument for several reasons, including that the right to cross-examine was not unlimited and could properly be circumscribed not just by considerations of relevance but also by countervailing factors such as the privacy interests of the witness and prejudice to the witness and/or the trial process. In the court’s view, “ambushing complainants with their own highly private records at trial can be unfair to complainants and may be contrary to the search for truth” (§183). The majority also considered that it was incorrect to assume that advance disclosure prevented effective cross-examination or impaired the search for truth.18 The right to make full answer and defence did not include the right to “defend by ambush”. The majority was unimpressed by the suggestion of “witness tainting”. On the contrary, providing advance notice to complainants that they may be confronted with highly private information was likely to enhance their ability to participate honestly in cross-examination: they would be better equipped to respond rather than being “blindsided” by the use of their private records (§§186-187). That analysis has obvious resonance here but it is unnecessary to consider those questions further given that there is no challenge to Section 19A here.

For an insightful academic consideration of this issue in the context of Bill C-51 but published prior to the Supreme Court’s decision in JJ: see Craig, “Private Records, Sexual Activity Evidence, and the Charter of Rights and Freedoms” (2021) 58(4) Alberta Law Review 773-810.

Did the Court of Appeal err?

The Section 3(3)(a) Order

95. Section 3 of the 1993 Act provides as follows:

“(3) The Court, on the hearing of an appeal or, as the case may be, of an application for leave to appeal, against a conviction or sentence may—

(a) where the appeal is based on new or additional evidence, direct the Commissioner of the Garda Síochána to have such inquiries carried out as the Court considers necessary or expedient for the purpose of determining whether further evidence ought to be adduced;

(b) order the production of any document, exhibit or other thing connected with the proceedings;

(c) order any person who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court, whether or not he was called in those proceedings;

(d) receive the evidence, if tendered, of any witness;

(e) generally make such order as may be necessary for the purpose of doing justice in the case before the Court.”

96. These are very broad powers and I did not understand AM to argue that the Order made by the Court of Appeal on 12 January 2023 was outside the scope of Section 3(3)(a). Indeed, that Order appears to be precisely the kind of order that Section 3(3) contemplates being made where – as here – the appeal before it is based on new or additional evidence.

97. The “new or additional evidence” relied on by AM was the 17 September Record. As already explained, when that record came to light in the immediate aftermath of AM’s conviction, it should not have been provided to AM without either (a) C’s consent or

(b) a court order under Section 19A. Either way, disclosure to AM should not have taken place without C first being made notified that the record had been identified and being made aware of its contents. There would have been no obstacle to the prosecution seeking a further statement from C at that point and certainly no barrier to doing so in advance of AM’s appeal. As I have explained, having regard to the provisions of Section 19A, the suggestion that AM had any right to deploy the 17 September Record without notice to C, whether in his appeal to the Court of Appeal or in any retrial that the Court of Appeal might ultimately direct, was fundamentally incorrect.

98. Surprisingly, Section 19A does not appear to have been brought to the Court of Appeal’s attention. However, the Court of Appeal was in any event entitled to take the view that, given the central importance of the 17 September Record to AM’s appeal, it should, for the purposes of doing justice in the appeal, be informed of what C had to say about it. That was a view reasonably open to the Court of Appeal: indeed it is difficult to see how it could properly have reached any other view in the particular circumstances here.

99. Quite apart from Section 19A, AM’s contention that the Court of Appeal should not have made the Order that it did on 12 January 2023 and should instead have proceeded to set aside his conviction and direct a retrial, at which C might have been crossexamined on the 17 September Record without her having any advance notice of the existence or content of that document, appears entirely fanciful. Such a scenario would appear to necessitate C being notified that AM’s conviction of sexual assault on her had been set aside on appeal and that a retrial had been ordered – thus requiring her to give evidence again – without being told the reasons for that order (because that would, according to AM, undermine his right to effectively cross-examine C by reference to the 17 September Record). As well as being profoundly unfair to C, such an approach could not possibly be consistent with the Victims of Crime Act.

100. In my view, the Court of Appeal made no error in making the section 3(3)(a) Order. It undoubtedly had the power to make such an order and it was entirely appropriate that it should have exercised that power in the circumstances here.

Did the Court of Appeal err in its substantive disposition of AM’s Appeal?

101. Having made the Order of the 12 January 2023 and having subsequently received C’s further statement, the Court of Appeal applied the framework set out in Willoughby and concluded that while the new evidence on which AM sought to rely was unknown at trial and could not reasonably have been obtained by the defence, it was “not persuaded that the new evidence would have had the necessary impact on the trial in that we do not see that it would have caused the jury to have a reasonable doubt in light of the balance of the evidence on the issue” (§37). Accordingly, AM’s conviction was not unsafe on this ground (§38).

102. The Court of Appeal approached this aspect of AM’s appeal as an application to adduce new evidence. The proper approach to such applications has been considered in a number of decisions of the Court of Criminal Appeal, the Court of Appeal and of this Court, including Willoughby, O’ Regan, People (DPP) v Dutton [2011] IECCA 77, [2012] 1 IR 442 and People (DPP) v DC [2021] IESC 17, [2021] 3 IR 409.

103. It is apparent from these decisions that the so-called “Willoughby principles” are not to be seen as rigid and inflexible preconditions to the admission of new evidence on appeal and that the appellate court retains a broad discretion to admit new evidence where the interests of justice require it: O’ Regan, §§71-72 (per Kearns J, as he then was), DC, §39 (per Charleton J). Subject to that important caveat, it is clear from the authorities that the test for the admission of new evidence involves a number of elements, one of which is that it must be evidence which is credible and which might have “a material and important influence on the result of the case”: Willoughby, §22. That is to be assessed by reference to the other evidence at trial and not in isolation: ibid. The new evidence need not necessarily be decisive: O’ Regan, §71. As regards credibility, it is not for an appellate court to decide whether contested evidence should be believed; rather it is a question of whether it is “capable of belief”: Dutton, §7. However, that does not mean that an appellate court must “blindly receive” such evidence: rather it must be “closely assessed in the context of the entire evidence at the trial” and it is the function of the appellate court to “test whether the proposed testimony might reasonably be believed”: DC, para §47. Where that “credibility test” is met, the appellate court should ask whether that evidence could “reasonably affect the original verdict”: ibid. The ultimate question that the appellate court must ask itself in that context is whether the conviction is safe or unsafe: DC, §43.

104. There are also a number of authorities which consider the approach that an appellate court should take where an appellant complains of a failure to make proper disclosure. In People (Director of Public Prosecutions) v McCarthy [2007] IECCA 64, [2008] 3 IR 1 (“McCarthy”), the appellants complained of a failure to make full disclosure about the character of the chief prosecution witness in a prosecution for a gangland murder. Giving the judgment of the Court of Criminal Appeal, Kearns J (as he then was) emphasised that a conviction was not to be regarded as unsafe per se simply because there had been a partial failure by the prosecution to meet its obligations of disclosure. It was “a question of degree in every case, having regard to the nature and importance of the material in question” (§46). In the court’s view:

“… a failure of disclosure must be shown to have been important, as distinct from technical or trivial, if a conviction is to be regarded as unsafe. To put it another way, this court must engage with the facts of this case to see if the omission disadvantaged the defence in such a way as to render the trial unfair or the jury verdict unsafe in the particular circumstances of the individual case. That is a two part consideration: was there a failure in the first instance, and, secondly, if so, did it materially affect the outcome of the case in the particular circumstances? That any obligation or failure to meet same must be assessed by reference to the facts of the particular case is apparent from a line of recent authorities on the judicial review side which deal with the obligations to seek out evidence, to preserve it and to make it available to the defence. These authorities may obviously be seen as having a shadow application to obligations of disclosure in criminal trials. The cases extend through Braddish v Director of Public Prosecutions [2001] 3 IR 127, Dunne v Director of Public Prosecutions [2002] 2 IR 305, Scully v Director of Public Prosecutions [2005]

1 IR 242 to McFarlane v Director of Public Prosecutions [2006] IESC 11, [2007] 1 IR 134” (§47).

105. Later in that judgment Kearns J stated that, where there was a failure on the part of the prosecution to make appropriate disclosure, an appellate court had to “assess whether the information later disclosed could, in the context of the known facts of the particular case, have made a material difference … If it clearly would have made a material difference then the conviction must be regarded as unsafe” (§56).

106. People (Director of Public Prosecutions) v McKevitt [2008] IESC 51, [2009] 1 IR 525 (“McKevitt”) also involved an asserted failure to make full disclosure of material which, it was said, would have helped to undermine the credibility of the chief prosecution witness. Geoghegan J (with whom Murray CJ and Denham, Hardiman and Fennelly JJ agreed) rejected the contention that, if there was a defect in the trial court’s approach to disclosure, the conviction had to be quashed. In addressing issues of disclosure, a trial court was concerned with the question of whether there was a real risk of an unfair trial. An appellate court had to view the matter differently: it must consider whether “having regard to the alleged non-disclosure, there was in fact a degree of unfairness which rendered the conviction unsafe using that expression in a general sense.” It was not a question of a risk for the future; rather it was “a question of looking at what in fact has happened and assessing whether there has been an unsafe conviction having regard only to an alleged unfairness of trial” (§12).

107. Appeals based on new evidence (Willoughby & DC) and appeals arising from alleged failures to make appropriate disclosure (McCarthy & McKevitt) necessarily require the appellate court to make some assessment of the new/newly disclosed material and of its impact on the trial and on the jury's verdict. That is true also of the application of the “proviso”: People (DPP) v Dwyer [2024] IESC 39, §74(4). Appeals involving alleged prosecution failure to seek out and preserve evidence which might be exculpatory of the accused raise similar issues: People (DPP) v SQ.

108. While the threshold test has been expressed in somewhat different terms in the cases, all are concerned with the same fundamental question, namely whether there are grounds for concluding that the conviction is unsafe. That the appellant can point to the existence of some new evidence, or establish some failure to seek out, preserve and/or disclose relevant evidence, or establish some error on the part of the trial court, does not, of itself, establish that the trial was unfair or that the conviction was unsafe. Such a low threshold would not properly respect the jury’s verdict or the importance of finality in this context. On the other hand, a threshold requiring the appellant to establish that, had that new evidence been available at trial, or had such failure of investigation or disclosure not occurred, or if the court of trial had not otherwise erred, he or she would have been acquitted, would clearly be too onerous. That is of course why the proviso cases speak of a “lost chance of acquittal” (my emphasis), language also adopted by Baker J for this Court in SQ when considering whether a failure on the part of the Gardaí to investigate should result in the appellant’s conviction being overturned.

109. Thus, in new evidence appeals, the appellate court should consider whether the new evidence is capable of belief and, if so, whether it might have “a material and important influence on the result of the case” or, as this Court put in DC, whether it could “reasonably affect the original verdict.” If that is the threshold in the new evidence cases, it is hard to see any basis on which a different threshold should apply where the evidence relied on is evidence which, it is said, should have been but was not disclosed by the prosecution. In particular, it is difficult to see any basis on which a higher threshold – one requiring the appellant to establish that the material “would” rather than “could” have affected the outcome – might properly be applied to disclosure appeals.19 Particularly as disclosure appeals may potentially involve culpable conduct on the part of the prosecution in terms of a deliberate or careless failure to disclosure. Obviously, nothing of that kind arises here, where the non- Looking at the Court of Criminal Appeal’s judgment in McCarthy as a whole, I do not think that it intended to suggest any such higher threshold nor was such a threshold identified by this Court in McKevitt. To the contrary, both McCarthy and McKevitt emphasise that the ultimate issue in disclosure appeals, as in all conviction appeals, is whether the conviction is safe.

110. The so-called “lost evidence” cases differ somewhat from this appeal. In many lost evidence cases, it may be impossible to identify with certainty what evidence might, with appropriate diligence, have been obtained and to what extent such evidence might have been exculpatory of the accused. Here, in contrast, we are concerned with one identified and specific record. Even so, Baker J’s statement in SQ that the task for the appellate court “is to assess the fairness of the trial as a whole, what role the absent evidence could have played, and whether there was a lost chance of acquittal” is a useful one in this context (§74; original emphasis).

111. The essential inquiry here is whether the 17 September Record might have had “a material and important influence on the result of the case” (Willoughby), “could reasonably affect the original verdict” (DC) or “could, in the context of the known facts of the particular case, have made a material difference” (McCarthy). As those formulations make clear, the test is not one of bare or merely theoretical possibility. A reasonable possibility of a material impact must be established. That inquiry necessitates close engagement with the entirety of the evidence as well as a careful disclosure of the 17 September Record was due to inadvertence on the part of KRSAC rather than any fault on the part of the prosecuting authorities.

assessment of the evidential and forensic value of the 17 September Record. Had that record been available to AM prior to his trial in the Circuit Criminal Court, how might it have been deployed and what impact might it have had (see, by analogy, the analysis undertaken by Baker J in SQ, §§75-85)?

112. For AM, Mr Rahn SC submitted that the 17 September Record might have been put to C in cross-examination for the purpose of undermining the credibility and reliability of her evidence in the eyes of the jury. But as the argument developed, the apparent simplicity of that position came into question. According to the Director, any crossexamination of C about the 17 September Record would have required the prior leave of the court under section 3 of the Criminal Law (Rape) Act 1981, on the basis that such questioning would be about a sexual experience of C other than that to which the charge related (i.e. the other occasion(s) of sexual abuse apparently referenced in the 17 September Record). However, while that issue was raised at the hearing of the appeal, it was not the subject of detailed submissions and, for that reason, I do not think it would be appropriate to express a concluded view on it here. I would, however, observe that, had it been necessary for the defence to make an application for leave, that would have served to highlight the contents of the 17 September Record.

113. In any event, assuming that such leave would not have been required, or, if required, that it would have been given, the defence would have faced a potential further and significant difficulty in cross-examining C by reference to the 17 September Record and/or in getting it before the jury arising from the provisions of sections 4 and 5 of the Criminal Procedure Act 1865 (Denman’s Act). These provide as follows:

“4. If a witness, upon cross-examination as to a former statement made by him relative to the subject matter of the indictment or proceeding, and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it; but before such proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.

5. A witness may be cross-examined as to previous statements made by him in writing, or reduced into writing, relative to the subject matter of the indictment or proceeding, without such writing being shown to him; but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always, that it shall be competent for the judge, at any time during the trial, to require the production of the writing for his inspection, and he may thereupon make such use of it for the purposes of the trial as he may think fit.

114. These provisions are an exception to the general rule by which evidence may not be called to contradict the answers of a witness on a collateral issue such as that of the witness’s credibility: Halsbury’s Laws of England, Criminal Procedure, §546. They have been considered in many decisions of the courts both here and in England and Wales (where the 1865 Act also continues in force) and are treated extensively in the textbooks. Heffernan provides a useful statement of the essential conditions of application. First, the author notes that the “defining function” of the provisions is to assist cross-examining counsel in impeaching the credibility of a witness: where the witness denies making a prior inconsistent statement, or while admitting making the statement disputes any alleged inconsistency, the legislation may apply (§9.06). Second, the author notes that cross-examining counsel must lay “a proper foundation for the introduction of the previous statement” (§9.07). Third, the statement may be admitted only for the purpose of impeaching the credibility of the witness: it is not probative of any fact stated in it (§9.08).20 As regards the need to lay a “proper foundation” for the introduction of a previous statement, Heffernan explains:

“The procedure is essentially the same as that for challenging the consistency of a hostile witness during examination-in-chief. Counsel must put to the witness the fact that he/she had on another occasion made a statement which differed materially from or contradicted the account he/she is offering on the stand. Whether the witness denies or admits making the statement is procedurally significant. If the witness denies making the statement, the witness should be asked to step down and counsel should present alternative proof that the statement was made. For example, where the statement was given to, and recorded by, a Garda officer, the prosecution might call that officer to provide testimony establishing [ ] the fact that the statement was made. The witness See also People (DPP) v McArdle [2003] 4 IR 186 in which the Court of Criminal Appeal rejected an invitation to depart from the “traditional approach” of treating such statements as going to credibility only: §§195-198.

should then resume his/her testimony; counsel should put the statement to the witness and draw the witness’ attention to the alleged inconsistency or contradiction. As s 5 makes plain, in the case of a written statement, the witness must be shown the specific parts that allegedly conflict with his/her testimony” (§9.07).

115. As this passage makes clear, and as is in any event apparent from the express terms of sections 4 and 5, the “proof” required by those provisions is proof that the witness made the previous inconsistent statement. That is so whether the statement is said to have been orally by the witness or “made by him in writing or, reduced into writing” (Section

4 applies to both oral and written statements whereas section 5 applies to written statements only: Blackstone Criminal Practice (2025), F7.51, citing R v Derby Magistrates Court ex parte B [1996] AC 487).

116. That is also made clear in the leading Irish authority on sections 4 and 5, this Court’s

decision in People (DPP) v Diver [2005] IESC 57, [2005] 3 IR 270. In Diver, the accused’s son and daughter (both minors) were called as defence witnesses and were then cross-examined by reference to previous statements made (or said to have been made) to the Gardaí. One of the children (the daughter, L) had signed a formal statement but maintained in evidence that it did not accurately record what she had said to Gardaí. The other had not signed a statement but it was put to him in cross-examination that he had made certain statements during a conversation with a Garda officer (which, it appears, the officer had made a record of) which he denied. The statements themselves were not put or proved. The prosecution sought leave to call the Garda who had taken the daughter’s statement but leave was refused by the judge, apparently on the basis that it was not necessary.

117. In this Court, Hardiman J (with whose judgment Murray CJ, Denham, Fennelly and McCracken JJ agreed) referred to the leading case of People (Attorney General) v Taylor [1974] IR 97, stating that there was no difference in the mode of proof of a prior statement whether the witness is hostile (which was the position in Taylor) or merely being cross-examined: in both cases “[p]roof of the contents of the statement is necessary (unless admitted) before it becomes ‘evidence of the fact that the witness had made a contrary statement’” (§48). Proof in this context means proof of both the “execution and accuracy” of the statement (§49; my emphasis) or, as Hardiman J puts its elsewhere in his judgment, proof both of the fact of the statement and of its contents (§§49, 51 & 54).

118. The prosecution had thus been justified in applying to be allowed to call the Garda who had taken L’s statement. The refusal of that application had put the prosecution in an unfortunate position given that it was “well-established that it is not proper for counsel to cross-examine out of a document by way of suggesting that the contents of that document and not the evidence of the witness being cross-examined represent the true position unless he is in a position to prove the document and its contents” (§51). Hardiman J noted that the relevant law had been reviewed by Fennelly J (who was also a member of the court in Diver) in Cooper-Flynn v Raidió Teilifís Éireann [2004] IESC 27, [2004] 2 IR 72 and that, in the course of his judgment, Fennelly J had reviewed a number of English criminal cases. Hardiman J continued:

“In R v Gillespie and Simpson (1967) 51 Cr App R 172 at p. 176, Winn LJ said:

‘It is elementary … that it is not competent to prove a fact against an accused person by producing a document in which that fact is recorded without calling the maker of the document to say that what he wrote in the document represented a true statement of fact.’

52. The correct procedure for cross-examining a witness out of a statement was outlined in that case at p 177 as follows:

‘As it seems to this court, if a document is produced to a witness and the witness is asked: 'Do you see what that document purports to record?' the witness may say: 'I see it, I accept it as true', in which case the contents of the document become evidence against him: or he may say 'I see what is there written, I do not accept that as true', whereupon that which is purported to be recorded in the document is not evidence against that person who has rejected the contents; it becomes what one might call nonevidence, the document itself being nothing but hearsay.’ It would, of course, not be hearsay for the person who made the document to prove that it recorded what the witness had said to him.

53. In the later case of R v John Morris Cross (1990) 91 Cr App R 115, the previous case was affirmed and the result of a denial by the witness of the truth of the facts recorded in a document even more clearly stated. In that case a document which was the statement of a person who had not given evidence was put to the accused and he was cross-examined out of it. This was held to be an improper proceeding, the Court of Criminal Appeal holding, per McCowan LJ at p. 122:- ‘The right course would have been for the judge to send the jury out and consider the objection calmly. It would then have been apparent to him that the right way to handle the matter was for prosecuting counsel to allow the appellant time to read the document and then ask him if the contents were true. That this is the right way to handle the matter is clearly shown by the case of R v Gillespie and Simpson (1967) 51 Cr App R 172 … If the matter had been handled in that way, and the appellant had said that the contents were true, he could then have been cross-examined about those contents. If, on the other hand, he had said they were not true, that would have been the end of the matter. As it was, prosecuting counsel was allowed to go on cross-examining about the document although the appellant had never agreed that its contents were true.’

54. The facts of the last mentioned cases seem particularly analogous to what occurred at this accused's trial. In the two cases cited, however, the difficulty arose because counsel cross-examined out of a document which he or she knew could not be proved as to its execution or contents. In the present case, counsel for the prosecutor had every reason to believe that he could prove the document out of which he cross-examined Laura Diver. He was precluded from doing so, however, by a ruling that is not easy to understand. This was clearly not the fault of the prosecution but the position in law is the same as if the document and its contents could not be proved for any other reason.”

119. Neither R v Gillespie and Simpson nor R v Cross involved a document purporting to record a prior statement by the witness (in both cases, the accused) and in neither case was the document put for the purpose of impeaching the accused’s credibility on the basis of having made a prior inconsistent statement. In Gillespie and Simpson, unproved sales dockets were put to the accused with a view to refuting a defence of mistake. In Cross, the document was a statement by someone not called as a witness as to the timing of a phone conversation with the accused, that issue being potentially material to the question of insider dealing. Thus, sections 4 and 5 of the 1865 Act were not engaged in those cases. That was true also of Cooper-Flynn v Raidió Teilifís Éireann. The dispute there concerned what is variously referred to as a letter or memorandum which, Fennelly J noted, “was not the plaintiff’s own document” and which therefore fell outside the scope of the 1865 Act (§187). Even so, it is clear from his judgment in Diver that Hardiman J (and the remaining members of the Court) considered that the approach adopted in those cases also applied to the production and proof of prior inconsistent statements under the 1865 Act.

120. Absent proof of the statements and their contents “they were not available for the jury to consider for any purpose, including a purpose limited to the assessment of credibility” and the prosecution was bound by the answers they got in relation to them (Diver, §49). Later in his judgment, Hardiman J re-iterated that the jury should not have been permitted to consider the accuracy and credibility of the children’s evidence by reference to the alleged content of statements “which had not been proved and which should not have been considered by them for any purpose” (§55). It could not have been proper to allow the jury to consider the statements for the purpose of attacking the witnesses’ credibility or reliability (§60) and that was one of the grounds on which this Court proceeded to quash the appellant’s conviction and direct a retrial.

121. Diver concerned statements put to defence witnesses in cross-examination but clearly the same principles apply to the cross-examination of a prosecution witness, such as C here.

122. Here, as in Diver, the relevant document (the 17 September Record) purported to record a prior statement by a witness (C) or, perhaps more accurately, the gist of such a statement. However, in important respects, the 17 September Record differed from the formal statement made to the Gardaí by the accused’s daughter L in Diver. The sole purpose of that statement was to accurately and fully record L’s account of events in the context of a criminal investigation. The purpose of the 17 September Record was to provide a record of the counselling session for use by the counsellor. It does not purport to be a verbatim account of what C stated. Furthermore, in contrast to the Garda statement made by L, the 17 September Record was not read to C at the end of the counselling session and she was not asked to sign it or to confirm its accuracy insofar as it purported to attribute any specific statement to her.

123. The 17 September Record is clearly not “a statement made by [C] in writing”. Adopting Fennelly J’s language in Cooper-Flynn, it is not “[C’s] own document.” Nevertheless, insofar as it purports to record a statement made by C to Mr R, it is arguably a “statement made by [C] … reduced into writing” for the purposes of section 5 of the 1865 Act. But, whether regarded as coming within section 5 or within section 4 (which extends to previous inconsistent oral statements), it is clear from Diver that, if C disputed the statement attributed to her by Mr R, that statement would have been admissible into evidence for any purpose if, and only if, AM was in position to prove it which, in the circumstances, would have meant calling Mr R to give evidence that C had indeed told him that the “the sexual abuse had occurred on more than one occasion”.

124. The material before the Court does not suggest that Mr R was (or is now) in a position to give any such evidence, at least on the basis of any independent recollection of what C may or may not have said to him. His careful statement to the Gardaí in August 2022, in which he confirmed that the handwriting on the KRSAC Records was his and that the signature was his signature, did not suggest that he had any independent recollection of the detail of his engagement with C. Furthermore, had Mr R been in a position to testify that C had in fact made the statement his records attributed to her and to contradict what C had said in her further statement on that issue, it is reasonable to assume that the defence would have sought to call him to give such evidence before the Court of Appeal or would at least have informed the court that such evidence was available when AM’s appeal was before it in January and May 2023.

125. At the hearing of this appeal, Mr Rahn accepted that he could not go so far as to suggest that such evidence was available and accepted he was not in a position to call Mr R to prove the 17 September Record. Of course the trial took place in December 2021 but that itself was more than 2 years after the relevant counselling sessions and there appears to be no plausible basis for suggesting that Mr R was in a position to give such evidence at that point and any such suggestion is wholly speculative.

126. In these circumstances, how might the 17 September 17 Record or its contents have been deployed on AM’s behalf? C could have been asked whether she had ever stated to Mr R that the sexual abuse had happened on more than one occasion but if she denied that she had made such a statement – as no doubt she would have – her denial would have been final, unless Mr R was in a position to contradict her. Even if he lacked any independent recollection of C making such a statement, it may be that Mr R could have given evidence to that effect, on the basis of having refreshed his memory by reference to the 17 September Record (as to which, see generally Heffernan, 2.105 and following). But that would not have made the 17 September Record admissible as evidence of its contents and it would not automatically have been given to the jury: McGrath, Evidence (3rd ed; 2020) §§3.185 - 3.187. In any event, even assuming that such evidence might have been given – evidence not based on any independent recollection but dependent entirely on what was recorded in the 17 September Record – there is no reason to believe that it might have had any significant impact on the jury’s assessment or undermined its view of the credibility and reliability of C as a witness.

127. As regards the 17 September Record itself, there is significant uncertainty as to whether it is a document coming within section 5 of the 1865 Act. As noted already, it differs materially from the formal statement at issue in Diver in that it was not signed (or seen) by the witness (here, C). People (AG) v Taylor similarly involved a statement previously made to the Gardaí. Other cases have involved a formal deposition previously made by the witness: People (AG) v Cradden [1955] IR 130. A deposition was also used as the exemplum of a prior inconsistent statement by Lord Taylor in R v Derby Magistrates Court ex p B. However, this issue was not fully argued and it would not be appropriate to express any final view on it. It may be that the 17 September Record could have been produced to C but if and when she disputed its accuracy as regards the statement attributed to her, then, even if it came within the scope of section 5, the 17 September Record could not be put into evidence unless proved in the manner indicated in Diver.21 Though it may that the jury would have been permitted to inspect the 17 September Record in the circumstances set out in McGrath, Evidence, §3-185: “Even if the document is not admitted in evidence, the jury may be allowed to inspect the document or be furnished with copies where it would be difficult for the jury to follow the crossexamination of the witness who has refreshed his or her memory without having copies of the document before them. The document may also be given to the jury for use as an aide memoire where a witness’s evidence is long and involved, although the English Court of Appeal in R. v Sekhon advised caution in using the document for this purpose because of the danger that the jury might wrongly regard the document as proof of its contents” (footnotes omitted).

Absent such proof, the 17 September Record could not have been used to impeach the credibility or reliability of C’s evidence. That clearly follows from Diver.

128. In argument, Mr Rahn submitted that, even in the absence of evidence from Mr R, he could have put the 17 September Record to C, though he acknowledged that, if her evidence was she had never stated that the abuse had occurred on more than one occasion that was as far as he could go. But, he said, the jury could still regard the 17 September Record as a potential inconsistency. However, that submission is not consistent with the authorities discussed above. Those authorities indicate that, if C denied that she made that statement, then in the absence of contrary evidence from Mr R, the 17 September Record could not properly have got into the case or been produced to the jury at all (again, subject to the limited possibility that it might have been provided to the jury in the circumstances set out in McGrath, Evidence, §3-185). It would not in any event have been evidence of its contents (ibid, §3-186).

129. Even if, notwithstanding the potential difficulties in getting the 17 September Record into evidence (in the limited sense of being evidence that C made the statement attributed to her in the 17 September Record, rather than as evidence of the truth of that statement), this Court was to proceed on the assumption that it would have been admitted and would have gone to the jury, might that reasonably have had a material impact on its verdict? In my view, that question can only be answered in the negative.

130. As well as hearing C’s direct evidence at trial, the jury also heard that her initial complaint to the Gardaí was in respect of a single instance of assault (Statement of Garda Twohig, admitted into evidence pursuant to section 21 of the Criminal Justice Act 1984 on Day 2). In fact, as the Court of Appeal observed and as Mr Rahn accepted, in all her statements (other than the statement recorded by Mr R), C referred to a single incident of abuse. Though much of that material was not in evidence, it is possible that, if the issue had been pursued at trial, some or all of that material might have become admissible by way of rebuttal. My assessment does not depend on that, however. The weight that could properly be given to Mr R’s evidence and/or the 17 September Record (and it is important to observe that these should not be treated as two different items of evidence – they are effectively one item of evidence) would have been very limited. It involved a single sentence which is not explained or explored and which, on AM’s case, was inaccurate as to its substance. As noted, the Record had not been seen by C when made or presented to her for signature (unlike L’s statement to the Gardaí in Diver). The jury would have had C’s denial that she had made the statement attributed to her by Mr R. Furthermore, it was plausible that Mr R may have misunderstood the position in circumstances where, understandably, his focus was on providing therapeutic assistance to C rather than recording a narrative account of historical events and where, as C had suggested in her further statement, he may have been characterising the Skype messages as an instance of abuse.

131. In these circumstances, it does not appear to me that there is any plausible basis for suggesting that the availability of evidence that C told Mr R that the abuse had occurred on more than one occasion – whether by way of evidence from Mr R himself and/or by way of the 17 September Record – might have had any material impact on the jury’s assessment of C’s credibility or of the strength of the prosecution case more generally.

C’s evidence had been challenged at trial, both by way of cross-examination and by the evidence of AM’s wife. Even so, a majority of the jury had clearly concluded that her evidence was sufficiently credible to warrant a conviction. As well as the evidence of C, the jury had the evidence of the Skype exchanges. That evidence was highly significant and thus AM’s suggestion that the prosecution case turned wholly on C’s evidence (though that was clearly an important factor) is incorrect., There is no reason to believe that the new evidence could have had a “material and important influence” on the outcome or that it had any realistic potential to lead to AM’s acquittal.

132. The Court of Appeal was “not persuaded that the new evidence would have had the necessary impact on the trial in that we do not see that it would have caused the jury to have a reasonable doubt in light of the balance of the evidence on the issue” (§37) and thus concluded that AM’s conviction was not unsafe on this ground (§38). That formulation is said to misstate the third limb of the Willoughby test and to put the bar too high for the AM. I would be very slow to conclude that the Court of Appeal had so seriously misunderstood and/or misapplied Willoughby. But, as I have explained, the issues that emerged in argument before this Court significantly alter the complexion of the appeal. In my view it is improbable that that the 17 September Record could have been used to cross-examine C or could otherwise have been put into evidence at trial. But even if the jury had heard evidence that Mr R had recorded C as stating that the abuse happened on more than one occasion, and even if the jury had a copy of the 17 September Record, there is no reason to believe that that could have materially altered the outcome or had any realistic potential to lead to AM’s acquittal. It follows that AM’s appeal cannot succeed.

CONCLUSIONS

133. For the reasons set out above, I would dismiss this appeal and affirm the judgment and Order of the Court of Appeal.

134. In summary:

1) This appeal raises important issues about the rights of victims in proceedings for a sexual offence and in particular, the disclosure and deployment of counselling records in such proceedings.

2) An effective disclosure regime is an essential element of any fair system of criminal justice. Nonetheless, it is important to recognise that, both in the specific context of disclosure, and that of the operation of the criminal justice system more broadly, the rights and interest of defendants are not the only rights and interests engaged: victims of crime have significant rights and interests, rooted in the Constitution, EU law, the ECHR, statute and the common law.

3) Disclosure in criminal proceedings, particularly proceedings for sexual offences, potentially involves the disclosure of highly sensitive personal and private information relating to the victim. Manifestly, counselling records fall into that category. As this Court acknowledged in WC, the compelled disclosure of such intensely private material directly and significantly intrudes upon the dignity of victims as well as their personal integrity, privacy and associated rights. Those rights are not lost simply because a person makes a complaint that they have been the victim of crime.

4) Even in the absence of legislative intervention, courts have a power – indeed a constitutional duty – to ensure that such records (and other records in which the victim has a strong expectation of privacy, such as medical records) are disclosed only where such disclosure is necessary in the interests of justice. That necessarily requires a significantly higher threshold for disclosure than mere relevance in the Peruvian Guano sense. The deployment of such records at trial also raises significant issues, not least by reason of section 21 of the Victims of Crime Act.

5) It is manifest that, in enacting section 19A, the Oireachtas intended to establish a higher threshold for the disclosure of counselling records (at least where in the hands of third parties) than was applicable prior to its enactment. While it may go too far to suggest that the Oireachtas intended that such disclosure would be ordered only where there would be a real risk of an unfair trial in the absence of such disclosure, it is in any event clear that some compelling basis must be established for disclosure to be directed, involving a showing that the records are likely to be of real forensic value to the accused’s defence. That may require the defence to engage with the prosecution case. Generalised assertions of the possibility that such records may contain something of interest to the defence or a desire to review the records in the hope of finding some inconsistency in the accounts given by the complainant will not suffice.

6) The statutory right of a victim of a sexual offence not to have a counselling record disclosed without leave of the court is an important one and any waiver of that right pursuant to Section 19A(1) must be fully informed. Complainants should not be asked to consent to the disclosure of counselling records to the defence without first being afforded an opportunity of reviewing the records and obtaining advice. The records which it is proposed to disclose to the defence – the records which, in the opinion of the prosecuting authorities satisfied the threshold for disclosure (a threshold which is not one of simple “relevance”, at least in the Peruvian Guano sense) should be identified to the complainant before he or she is asked to consent to disclosure. Informed consent requires at a minimum that the victim is informed of the records it is proposed to disclose and is aware of their contents before being asked to give consent. Consent should be the last stage of the disclosure process, rather than, as here, the first stage.

7) The absence of any provision for independent legal advice for the victim as to whether to waive their rights is also problematic. Many complainants will lack the necessary resources to obtain such advice and so will have to make a

decision on waiver without fully understanding the alternative court process or being in a position to make an informed judgment as to the likely outcome of that process if triggered.

8) AM never had any legal right to have the 17 September Record disclosed to him without C’s knowledge and no legal right to confront her with it for the first time in cross-examination – whether at trial or at any retrial that might have been ordered by the Court of Appeal. Any such suggestion is fundamentally inconsistent with Section 19A.

9) When the 17 September Record (and the other KRSAC Records) came into the hands of the prosecution following the conviction of AM, they should not have been provided to AM’s legal advisors without either (i) an order of the court under section 19A or (ii) the consent of C. Either scenario would have involved C becoming aware of the 17 September Record.

10) There was in any event no impediment to the prosecution bringing the 17 September Record to the attention of C at that stage (or at any earlier stage of the proceedings, if it had come to light earlier) and seeking her observations on it.

11) In the circumstances, the Court of Appeal was entitled to make the order it did under section 3(3)(a) of the Criminal Justice Act 1993. AM’s contention that the Court of Appeal should instead have proceeded to set aside his conviction and direct a retrial, at which C might have been cross-examined on the 17 September Record without her having any advance notice of the existence or content of that document, appears entirely fanciful. Such a scenario would appear to necessitate C being notified that AM’s conviction of sexual assault on her had been set aside on appeal and that a retrial had been ordered – thus requiring her to give evidence again – without being told the reasons for that order (because that would, according to AM, undermine his right to effectively cross-examine C by reference to the 17 September Record). As well as being profoundly unfair to C, such an approach could not possibly be consistent with the Victims of Crime Act.

12) The essential inquiry here is whether the evidence of Mr R and/or the 17 September Record might have had “a material and important influence on the result of the case” (Willoughby), “could reasonably affect the original verdict” (DC) or “could, in the context of the known facts of the particular case, have made a material difference” (McCarthy). As those formulations make clear, the test is not one of bare or merely theoretical possibility. A reasonable possibility of a material impact must be established. That inquiry necessitates close engagement with the entirety of the evidence as well as a careful assessment of the evidential and forensic value of the potential evidence of Mr R and/or the

17 September Record.

13) In the circumstances here, that evidence would have had very limited evidential and forensic value and there is no plausible basis for considering that that it might have had any material impact on the jury’s assessment or undermined its view of the credibility and reliability of C as a witness.

14) In the circumstances, the appeal should be dismissed.