Court of Appeal: Missing counselling records did not impact safety of conviction in historic sexual abuse case

Court of Appeal: Missing counselling records did not impact safety of conviction in historic sexual abuse case

The Court of Appeal has dismissed an appeal against conviction brought by a man who sexually abused his niece between 1981 and 1989. The main point of appeal related to the unavailability of certain documentary evidence of counselling records for the complainant.

Delivering judgment in the case, Mr Justice George Birmingham (president) held that while some records were not available, the records which were available supported the consistency of the complainant’s central allegations. As such, it was “a remote or fanciful possibility” that the missing records contained a useful line of defence.


The defendant was convicted in Dublin Circuit Court of five counts of sexual assault on his niece between 1981 and 1989. He was sentenced to seven years and two months’ imprisonment with the final 20 months suspended on terms. The allegations related inter alia to incidents of inappropriate touching of the complainant’s private areas between the ages of three and 11.

The complainant had kept the abuse a secret until her mid-teens, when her sister expressed a desire to stay with the defendant. The complainant then told her sister of the abuse, which was relayed to her parents. As a result, the complainant attended some counselling sessions in the local Rape Crisis Centre. There were not records of these sessions.

Further, the complainant had also been sexually assaulted by a male pupil when she was in secondary school and she had attended counselling for this incident as well. There were also no records available for these sessions.

However, there were a number of records which were available, which included certain records generated by Tusla, Sherrard House (a place she stayed when she ran away from home) and an A&E department of a named hospital. These records outlined that she had been abused by her uncle and by the school pupil.

The records also opened a line of cross-examination relating to potential sexual abuse by the father. The complainant admitted that her family life was very difficult but gave evidence that her father was not a child abuser.

Following the evidence, the defendant brought an application pursuant to DPP v. PO’C [2006] IESC 54 to dismiss the claim due to the unavailability of the complainant’s counselling records. The trial judge accepted that cross-examination on past records was an important tool for the defence, but the records which were available did not exculpate the defendant.

Accordingly, the court was not satisfied that the threshold for halting the trial had been reached. The defendant appealed against this decision, stating that the missing evidence was integral to the defence. Further, it was claimed that the sister’s evidence of recent complaint should not be admitted.

Finally, it was said that a particular telephone call between the father and the defendant was not capable of amounting to corroboration. The father gave evidence that the defendant said: “We could have sorted this out [named father]. If you’d have come to me I’d have taken the digs off you.” The trial judge held that appropriate warnings would be given to the jury, but the conversation was capable of an inference of a guilty mind.

Court of Appeal

Mr Justice Birmingham held that the proper approach to halting a trial was clear. In DPP v. CCe [2019] IESC 94, it was determined that the trial process was robust enough to handle the absence of witnesses or evidence, unless the cumulative impact was such to render a trial either impossible or unfair. The central issue was whether the defence had lost a real possibility of an obviously useful line of defence.

It was held that the issues raised in the defendant’s PO’C application “did not come anywhere close to meeting the threshold for seeing the trial halted”. The records which existed supported the consistency of the complainant and there was nothing to suggest that she was “in any way inconsistency about the central allegation”.

The court queried what reason there was to believe that the complainant’s counselling records with the Rape Crisis Centre would have provided an obviously useful line of defence. Further, the relevance of records relating to the incident with the schoolboy was “marginal in the extreme”, but even these records referred to the uncle’s abuse.

On the issue of recent complaint evidence, the court held that the trial judge’s ruling that the complaint was made at the first reasonable opportunity was unimpeachable. It was said that children frequently found it difficult to disclose abuse within the family and the disclosure in this case was precipitated by the sister wishing to stay with the defendant, rather than being a pre-planned disclosure. As such, the evidence was admissible.

Finally, the court accepted that there were different interpretations of the conversation between the father and the defendant. It was noted: “What was said was not what someone who was innocent of the allegations would be expected to say.” In these circumstances, the trial judge was entitled to take the view that the evidence was capable of amounting to corroboration.


Since the court did not upheld any ground of appeal, it was not required to consider the cumulative effect of the issues. The appeal was dismissed.

The People at the Suit of the Director of Public Prosecutions v. GMcD [2022] IECA 261

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