Court of Appeal dismisses murder appeal, upholding admissibility of children's video interviews as primary victim evidence.

APPROVED JUDGMENT

THE COURT OF APPEAL

Record Number: 0151/2022

Neutral Citation Number [2026] IECA 23

Kennedy J. Burns J. Owens J.

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT/

- AND -

N.A.

APPELLANT

JUDGMENT of the Court delivered on the 13th day of February 2026 by Ms. Justice Isobel Kennedy.

1. This is an appeal against conviction for murder.

Background

2. The appellant had been married to S.A. with whom he had 3 children. The relationship broke down and the appellant moved out of the family home. S.A. later began a relationship with the deceased, who subsequently moved into her home with her children.

3. On the 14th of April 2020, it was agreed that the appellant visit their children at the house. An issue arose regarding whether the appellant could come into the house or not as Covid restrictions were in place. Much shouting and arguing ensued and the deceased left the house to speak with the appellant. A fight developed and the appellant stabbed the deceased three times with a knife. He died at the scene. These events were captured by CCTV footage.

4. There were several eyewitnesses to the attack, two of whom were the appellant’s children, aged 10 and 6. Their presence was captured on the CCTV footage, in particular as the appellant lunged towards the deceased with the knife.

5. Specialist interviews were conducted with the two children the following day. Pursuant to s.16(1)(b) of the Criminal Evidence Act 1992 (“the 1992 Act”), the respondent was granted leave by the trial judge to adduce DVDs of these specialist interviews as the evidence in chief of the children.

Ground of Appeal

6. The sole ground of appeal is that the trial judge erred in law in acceding to the respondent’s application to allow the DVDs of the specialist interviews to be adduced as evidence.

The Legislation

7. The legislative provision for the admissibility of a video recording of evidence is contained in s.16 of the 1992 Act, as amended by the Criminal Justice (Victims of Crime) Act 2017 (“the 2017 Act”). The relevant part of s.16 provides:- “(1) Subject to subsection (2)—

(a) [ ]

(b) a video recording of any statement made during an interview with a member of the Garda Síochána or any other person who is competent for the purpose—

(i) by a person who is under 18 years of age in relation to an offence of which he or she is a victim, or

(ii) [ ]

(iii) [ ]

shall be admissible at the trial of the offence as evidence of any fact stated therein of which direct oral evidence by him would be admissible:”

8. Section 12 of the 1992 Act, as amended by s.30 of the 2017 Act, provides a definition as to who these evidential provisions apply to, the relevant portions are hereunder:- “12. (1) In this Part— "family member", in relation to a victim, means— [ ]

(g) any other person—

(i) who is or, where the victim is deceased, was dependent

on the victim, or

(ii) who a court considers has or, where the victim is

deceased, had a sufficiently close connection with the

victim as to warrant his or her being treated as a

family member;

[ ]

"victim" means—

(a) a natural person, other than an accused, who has

suffered harm, including physical, mental or emotional harm,

or economic loss, which was directly caused by an offence,

and

(b) where the death of a person referred to in paragraph (a)

is caused directly by the offence, a family member, provided

that the family member concerned has not been charged

with, or is not under investigation for, an offence in

connection with the death of the person.

(2) The application of this Part is not dependent on the commission of an offence having to be established (nor is it dependent on establishing whether the person concerned suffered any harm caused by an offence).”

[Emphasis added]

Submissions of the Appellant

9. The appellant does not dispute that the evidence was admissible, but submits that the evidence should have been given by a live video link, as the criteria for the admission of the DVDs under the 1992 Act, as amended were not met.

10. The respondent applied to the court to adduce the DVDs of interview on the basis that the appellant’s children fell into the definition of “victim” under the 1992 act, primarily relying upon part (a) of the definition. The appellant submits that the respondent’s argument in this regard is largely based on a statement of proposed evidence of their mother, whom it is argued was a person who was insufficiently independent as the statement was taken; it is said solely to bolster the respondent’s application to adduce the DVD’s as primary evidence. It is argued that the statement was self-serving, as she herself was the lead prosecution witness, and that she would naturally want to make the experience as easy as possible for her children. The appellant notes that S.A. was not called to give evidence in respect of this issue, and that no supporting documentation was produced, such as a medical or psychological report.

11. It was submitted by counsel for the appellant at trial that the respondent’s application to adduce such evidence should have had a cogent evidential basis, as the respondent was relying on a statutory definition requiring a demonstration of mental or emotional harm. The appellant submits that what was produced by the respondent was far from providing solid evidential basis.

12. During the application to adduce the evidence, the respondent asked the Court to have regard to s.12(2) of the 1992 Act, which states: “(2) The application of this Part is not dependent on the commission of an offence having to be established (nor is it dependent on establishing whether the person concerned suffered any harm caused by an offence).”

13. Counsel for the respondent contended that this provision meant that he was not “on proof” of harm having been caused in order to show that any particular person is a victim, with which the judge agreed.

14. The appellant submits that this is a misreading of s.12(2) of the 1992 Act. It is argued that s.12 provides the interpretation for Part III of the 1992 Act, encompassing s.12 to 19A, and that it must be read in that context. Section 12(2) does not, as the prosecution suggests and the trial judge appears to have accepted, alter the definition of “victim” to remove the requirement that harm be shown. It is noted that part (a) of the definition, on which the respondent relied, expressly requires that a victim is a person who has suffered harm. It is also argued that it must be required that the prosecutor, in the event of a dispute, is “on proof” that harm was caused, and that this should be established by cogent evidence. The appellant submits that this did not occur, and that the Court therefore erred in allowing the DVDs of interview to be adduced as evidence.

Submissions of the Respondent

15. The respondent rejects the appellant’s contention that in order to establish “harm”, the prosecution is required to provide a formal evidential basis, and submits that this is not in fact mandated by the wording of the statute. The respondent relied upon S.A.’s statement of proposed evidence as part of the oral submission that the children were victims within the meaning of the 1992 Act, and submits that as she is the children’s mother, she was therefore well placed to give such evidence.

16. It is further submitted that harm can be readily inferred in certain circumstances, such as those in the instant case, where two young children witnessed a knife attack on their mother’s partner in their own home, which resulted in his death.

17. The respondent refers to Directive 2012/29/EU, which was transposed into Irish law by the 2017 Act. Recital 14 of the Directive states as follows in relation to child victims;- “In applying this Directive, children's best interests must be a primary consideration, in accordance with the Charter of Fundamental Rights of the European Union and the United Nations Convention on the Rights of the Child adopted on 20 November 1989. Child victims should be considered and treated as the full bearers of rights set out in this Directive and should be entitled to exercise those rights in a manner that takes into account their capacity to form their own views.”

18. It is submitted that the ruling of the trial judge was in accordance with the spirit and wording of the Act and the Directive.

19. In response to the appellant’s contention that the application should have had a cogent evidential basis, counsel for the respondent stated that this was not mandated by the legislative framework, and that s.12(2) provides that the application of this part is not dependent on proving that the person suffered harm. In any event, it is submitted that the respondent had in fact established harm.

20. Finally, it is submitted that the children were primary victims in the sense that they were both “natural persons, other than an accused, who have suffered emotional harm which was directly caused by an offence and accordingly are victims within the meaning of the legislation.”.

Discussion

21. The children were under 18 years of age at the relevant time and were available for cross-examination. The issues concern whether the children were, pursuant to statute, victims; either primary or secondary. If the former, the argument is advanced that the evidence in support of such a finding was deficient in that it was not independent or objective.

22. The trial judge found the children to be primary victims having had regard to the definition of victim and the proviso under s.12(2) of the 1992 Act.

23. Section 2(1) of the 2017 Act defines a victim as: “a natural person who has suffered harm, including physical, mental or emotional harm or economic loss, which was directly caused by an offence.”

24. This definition is inserted into the Part III of the 1992 Act (s.12) by s.30(a) of the 2017 Act. Part III addresses Evidence in Certain Proceedings. The relevant portion of the section now reads:

““victim” means-

“(a) a natural person, other than an accused, who has suffered

harm, including physical, mental or emotional harm, or economic

loss, which was directly caused by an offence, and

(b) where the death of a person referred to in paragraph (a) is

caused directly by the offence, a family member, provided that the family member concerned has not been charged with, or is not under investigation for, an offence in connection with the death of the person.

(2) The application of this Part is not dependent on the commission of an offence having to be established (nor is it dependent on establish whether the person concerned suffered any harm caused by an offence).”

25. The Long Title to the 2017 Act sets out the legislative intent of the statute, which is to give effect to the EU Directive on Victims Rights (Directive 2012/29/EU.) As Prof. Heffernan points out at para. 6.32 of the text Evidence in Criminal Trials (3rd edn, 2025), the definition of a victim under s.2(1) of the 2017 Act mirrors that stated in Art 2(1)(a)(i) of the Directive where the preamble to the Directive states that a: “person should be considered to be a victim regardless of whether an offender is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between them.”

26. The reason we address the above is that it sheds light on the correct interpretation of s.12(2) of the 1992 Act. The appellant contends that the trial judge improperly applied that provision and contends that the judge accepted the respondent’s contention that the subsection meant that the Director was not on proof of harm having been caused in order to demonstrate that a person is a victim. However, it is the position, in the present case, that the respondent relied on the statement taken from the children’s mother on the issue of emotional harm, and so, this aspect of the within appeal is of limited moment.

27. In any event, in our view, the proviso means that there is an operational assumption that a person is a victim, but that assumption does not replace the requirement that the prosecution prove the offence beyond reasonable doubt. If an individual is a “direct victim”, then that will follow as a matter of logic.

28. However, to give effect to the provisions of the 1992 Act concerning victims and the safeguards under statute, it is unnecessary, at the stage of assessing whether a person is a victim for the purposes of Part III, for the prosecution to prove to the required standard that the person is a victim. The measures under that part of the Act must be capable of effect prior to proof that the offence was committed.

29. If it were otherwise, then the protections for victims would have no effect, thus defeating the purpose of the provisions.

30. With reference to Prof. Heffernan’s text at para. 6.33 in the context of the designation of a person as a victim and s.4 of the 2017 Act which contains a proviso in the same terms, she says: “A person charged with a criminal offence is entitled to be presumed innocent and the prosecution bears the burden of proving at trial each element of the offence beyond a reasonable doubt. It might be said that the statutory designation of any person as a victim of the offence sits awkwardly with the presumption of innocence in so far as it might be construed as assuming that an offence has been committed. For this reason, s.4 expressly states that the application of the 2017 Act is dependent neither ‘on the commission of an offence having to be established’ nor ‘on establishing whether the person concerned suffered any harm caused by an offence.’ Thus, the operational assumption that the person is a victim does not obviate the need for the prosecution to prove beyond reasonable doubt that the offence was committed and that the person is in fact a victim.”

31. The respondent relied upon a statement taken from the children’s mother the day before the trial. This statement was accepted for the purposes of determining whether the video recorded interviews with the children were admissible, and their mother was not challenged on her evidence that they were affected. Moreover, the respondent relied upon the circumstances of the killing, and that the children could be seen on CCTV footage observing the events leading up to the killing, in particular that the appellant lunged towards the deceased with the knife.

32. We have no hesitation in agreeing with the ruling of the trial judge that the children were primary victims in terms of s.12(1)(a) of the 1992 Act. They were under the age of 18 years, were natural persons, and had suffered harm which included emotional harm directly caused by the offence.

33. The judge was entitled to rely on the material proffered by the respondent in coming to this conclusion. This court is not persuaded by the appellant’s argument that the learned High court Judge should have disregarded the statement tendered by the children’s mother that they suffered adverse impacts from witnessing the stabbing on grounds that she could not give objective evidence, and that it would be necessary to tender some independent evidence, such as a medical opinion, to support this. This was not a matter which could only be proven by medical evidence. The children’s mother was best placed to give evidence of how her children were affected by witnessing the stabbing.

34. Moreover, while readily understandable, (and in our view quite proper) it should be noted that no issue arose regarding the procedure adopted at trial and no application was made to have S.A. called as a witness in a voir dire to test the assertion of the absence of independence and self-interest. It was also argued that the statement had only been taken the day before the trial, and so it is said, was directed in anticipation of a challenge to the admission of the evidence pursuant to s. 16. That, in our view, is neither here nor there. The statement was taken and no issue arose as to its voluntariness. Even absent such a statement, in the present circumstances where the children witnessed the killing of a man, who was in a relationship with their mother, by their father, could not be said on any rational analysis to be anything other than capable of inflicting emotional harm.

35. The purpose of this aspect of the legislation is to enable victims to give their best evidence in the least traumatic way possible.

36. We find no error with the trial judge’s ruling that the children were primary victims, moreover, we do not find favour with the appellant’s contention that the statutory definition of harm required proof of such harm.

37. Accordingly, the appeal is dismissed.