THE COURT OF APPEAL
Neutral Citation Number:  IECA 137
The People at the Suit of the Director of Public Prosecutions
Judgment of the Court delivered on the 18th day of June 2015, by Mr. Justice Sheehan
2. On the 11th November, 2012, the trial judge imposed a sentence of nine years imprisonment on each of the counts of ‘rape under section 4’ and three years imprisonment on each of the counts of sexual assault, all of which were to run concurrently.
3. The appellant now appeals his said conviction on the grounds that the trial judge erred in (i) allowing a particular presentation of the video of interview of the appellant, (ii) in refusing to discharge the jury at the close of the prosecution case, and (iii) in refusing to discharge the jury at the close of the case.
5. The appellant, while babysitting for the family, on three occasions entered the complainant’s bedroom and sexually assaulted the complainant by touching the complainant’s penis, by exposing his own penis to the complainant, by having the complainant touch his penis and by placing his own penis into the complainant’s mouth. On the third occasion, the appellant also inserted his penis into the complainant’s anus.
6. On the 24th May, 2011, the complainant brought these matters to the attention of the gardaí. The appellant was arrested on the 7th June, 2011, and detained. He was interviewed on two occasions and these interviews were taken down in writing and videotaped. The appellant made admissions during the course of the interviews in respect of all the matters of which the complainant had made a complaint.
7. The complainant gave evidence on the first day of trial. He testified to three occasions where he was subjected to sexual offences including sexual assault and rape contrary to s.4 of the Criminal Law (Rape) (Amendment) Act 1990.
8. Detective Garda Long, the arresting member, testified at the second day of the trial and the edited notes of both interviews were read into the record during the course of his examination-in-chief. These edited notes had been agreed with the appellant’s legal team. It was put to Detective Garda Long in cross-examination that the admissions made by the appellant at interview were untruthful and it was further suggested that other matters, such as the appellant’s own history of abuse, may have influenced the answers the appellant gave.
9. Following the evidence of the gardaí, the prosecution applied to have those videotapes of interview played to the jury in order to allow the jury to assess the demeanour of the appellant at interview in circumstances where it was being contended that the appellant had answered questions untruthfully due to being put under pressure by the gardaí. The trial judge noted at that juncture that the memorandum of interview had been edited and the respondent noted that the videos may also have to be edited. It was conceded by the appellant that the presentation of the evidence in this way was not prejudicial. The trial judge agreed, but noted that matters discussed in the interview that ought not to be admissible would have to be edited.
10. There was then a discussion as to the practicalities of presenting the videos of interview with certain portions edited. While efforts were made to inquire as to whether the videotapes could be edited to avoid any interruptions, ultimately it was decided that it would not be possible and the trial judge ruled that the tapes were to be played in the following fashion: the Garda would stop the tape where necessary, skip over the objectionable portions and then start the tape up again. The videotape was then played to the jury in this manner. This ruling ensued despite several objections by the appellant to the effect that the procedure proposed was manifestly prejudicial and carried with it risks for the prosecution in terms of what might be adduced.
11. The following was recorded in the original unedited memo of interview:
12. The defence made an application at the close of the prosecution case to discharge the jury given the manner in which the video of interview had been presented and the evidence which had been adduced.
13. The respondent opposed this application on the basis that the portions played were not prejudicial and that the reference made to the appellant’s avoidance of children was not prejudicial as a similar matter arose later in the interview. Regarding what had specifically been heard by the jury, the trial judge, in refusing the application for discharge, noted:
15. The defence reiterated its application to discharge the jury in light of that query which was again refused by the trial judge.
17. The appellant relied on the case of The People at the Suit of the Director of Public Prosecutions v McGartland (Unreported, Court of Criminal Appeal, 20th January, 2003) and submitted that while the admission of evidence which is more prejudicial than probative will not automatically result in the discharge of a jury, whether prejudicial evidence should properly lead to the discharge will depend on whether the evidence relates to a “live issue.”
18. The appellant submitted that the truth of the admissions he had made in interview was clearly in dispute in the course of the trial and, following the evidence of an agreed memorandum of interview, the respondent then adduced evidence that substantially departed from that agreed memorandum. The evidence adduced, which was not agreed to be adduced, made reference to the fact that the appellant had not been around children since these incidents. Thus, the appellant submitted that this could have left the jury in no doubt that there were further matters relating to the appellant’s interaction with children that had been deliberately excluded from them which could only have led to significant speculation. Furthermore the appellant submitted that the presentation of this evidence, with live editing, inevitably created considerable prejudice in the minds of the jurors and was not capable of curable direction by the trial judge.
19. Counsel for the respondent placed reliance upon the case of Dawson and Dawson v Irish Brokers Association  IESC 39, where O’Flaherty J. commented:-
22. In light of this, this Court is of the view that it cannot be said that the appellant was further prejudiced by the playing of the words complained of and that, therefore, the trial judge, in his refusals to discharge the jury, was correct in all the circumstances.
23. The Court is thus satisfied that in all the circumstances the trial judge was fully justified in exercising his judicial discretion as he did. Accordingly, the appeal is dismissed.