2026 IECA 63

THE COURT OF APPEAL Court of Appeal Record No. 158/2023 Edwards J McCarthy J Kennedy J Neutral Citation Number [2026] IECA 63 BETWEEN/ THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) RESPONDENT -ANDT.R. APPELLANT JUDGMENT of the Court delivered on the 24th day of March 2026 by Mr Justice Patrick McCarthy 1. This is an appeal against conviction. Following a trial in the Central Criminal Court between the 22nd of February and 7th of March 2023, the appellant was found guilty of the following charges in respect of Bill No. CCDP0011/2020: 48 counts of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990 as amended by section 37 of the Sex Offenders Act 2001 (counts nos. 1, 2 and 11 – 56 inclusive); one count of rape contrary to section 4 of the Criminal Law (Rape) (Amendment) Act 1990 (count no. 3); and seven counts of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990 (counts nos. 4, 5, 6, 7, 8, 9 and 10). 2. The sentencing judge imposed an effective sentence of 12 years’ imprisonment with the final two years suspended. This sentence was imposed in respect of count no. 3 (the section 4 offence) and all other custodial sentences in respect of the sexual assault charges were to run concurrently to that sentence and to date from the 7th of March 2023. These concurrent sentences can be broken down into the following: three years’ imprisonment for each of counts nos. 1, 4, 5, 6, 7, 8, 9 and 10; five years’ imprisonment for count no. 2; ten years’ imprisonment for counts nos. 11 – 48 inclusive; and seven years’ imprisonment counts nos. 49 – 56 inclusive. Factual Background 3. There were three complainants, namely AM, AW and TM. AM and TM are sisters and their older sister, SM, also gave evidence at trial. JM is the mother of AM, TM and SM. JM entered a relationship with the appellant after their biological father had passed away. The appellant moved into the family home six months after meeting JM. AW’s uncle was in a relationship with SM during the relevant period and she was approximately the same age as AM and TM. All 56 counts took place in the family home between 2000 and 2014. Even though the focus of this appeal is count no. 1 on the indictment, the appeal is against the verdict on all counts. This is because it is contended that a bad verdict on count no. 1 taints the verdicts on the other counts since the jury were charged to the effect that the evidence of one complainant could corroborate that of another as similar fact evidence. In effect, it was submitted that the trial of the other counts was rendered unsatisfactory because of a bad verdict on count no. 1. The first complainant AM [sexual assault – count no. 1] 4. AM alleged that on the 24th of June 2007, the appellant sexually assaulted her in the sitting room of the family home. JM, TM and Witness A were also present in the room but did not witness the offence itself. AM testified that the assault took place under a duvet whilst they were watching television. The positioning of this duvet was the subject of significant dispute throughout the trial. The following day, AM had an outburst upon mistakenly believing that a male teacher was looking at her in a swimming pool changing room. AM informed her mother that afternoon that she had been sexually assaulted the previous evening by the appellant. 5. JM immediately called the gardaí and AM made a statement. The appellant was interviewed but denied the allegations. A medical examination of AM did not reveal evidence of the alleged assault. A file was sent to the DPP but a decision was made not to prosecute the appellant at the time. The appellant thereafter moved out of the family home but only for four weeks. TM told a therapist at the time that she did not believe her sister’s allegations. After AW and TM came forward later, AM made additional statements in April 2017 and in February 2021 to the gardaí. We will return in greater detail to this witness’ evidence below. The second complainant AW [sexual assault – count no. 2] 6. AW alleged that she was staying overnight in the family home when she was 12 or 13 years old when the appellant sexually assaulted her under a duvet in the sitting room. She had been asleep on the three-seater couch when she felt pressure on the side of her breast under her clothes. She then felt pressure around her hip and groin and opened her eyes to see the appellant moving his arm away from her. 7. The allegation came to light in January 2016 during a heated argument between AW, her uncle and her grandmother. AW had taken a video of the “bare bottom” of the then fiveyear-old son of SM, another sister in the family, and posted the video on social media. The gardaí were contacted by SM and said that they would investigate, only they were unable to progress the investigation as the video automatically deleted after 24 hours. In response to allegations by her grandmother and brother that she was a pervert, AW stated: “I’m not a pervert, I’m not a pervert like [the appellant] … [he]’s the one who goes around touching people in their sleep”. Her grandmother contacted gardaí and AW made statements on the 5th and 15th of October 2016. The appellant was interviewed on 6th of April 2017 and denied the allegation. During cross-examination at trial, AW denied having previously heard about AM’s allegation from 2007 and that her words in 2016 referred to her allegation alone. The third complainant TM [section 4 rape – count no. 3, sexual assault – counts nos. 4 – 56] 8. TM gave evidence that the appellant would put her on his lap and touch her breasts and vagina over and under her clothes almost every day from when she was six or seven years old. TM came forward in September 2016 and made several statements to gardaí at that time. 9. She was six years old at the time of the first assault. The appellant entered her bedroom and put his hands under her pyjamas. TM said that she did not open her eyes but recognised the sound of the appellant’s work boots on the floor and size of his hands. The assault ended when she heard her mother call the appellant’s name from outside the room. 10. In the next assault which TM could recall, she had been asleep when the appellant entered and digitally penetrated her vagina. She recalled seeing the appellant’s face. Subsequently, when she was seven or eight years old, she pretended to be ill to go home early from school and spent the afternoon on the sitting room couch watching television. The appellant digitally penetrated her under the duvet. 11. TM gave evidence that the section 4 rape took place shortly after she had made her first communion when she was approximately eight years old. She was alone in the sitting room with the appellant that evening. She stated that he had been drinking and asked her for a hug. When she leaned in, he held her and exposed his penis and asked her to touch it. She informed him that she did not want to, but the appellant forced her head onto it. His penis was in her mouth for several seconds. 12. When TM was approximately nine years old, the appellant came home and called her into his bedroom. The appellant took off her clothes and rubbed her vagina with his fingers. She also recalled a further incident where the appellant digitally penetrated her under a duvet when she was 12 or 13 years old and about to start secondary school. When she was 13 or 14 years old, she was getting ready to go to a bonfire on Halloween when she went upstairs to use the bathroom and the appellant grabbed the area around her vagina under her clothing. 13. When TM was 15 or 16 years old, she was brought home drunk by gardaí. She was awoken by the appellant kneeling in front of her. He penetrated her vagina with his fingers and rubbed his penis on the top of her vagina. She escaped through the bedroom window with the assistance of her neighbour, who gave evidence at trial of having helped TM down from the porch roof. TM recalled a similar incident at approximately the same age, where she woke up to find the appellant on top of her where he digitally penetrated her and rubbed his penis on her vagina. TM sought medical attention after the incident having found a lump on her vagina. Her regular consumption of alcohol had increased at this point and she tried to avoid sleeping at the family home where possible. The final specific incident occurred shortly after her eighteenth birthday, when the appellant asked her to have a drink with him and, despite her resistance, succeeded in inserting his fingers into her vagina with some force. 14. In January and February 2017, TM was engaged in conversations through Facebook messenger with a friend, Witness B, who gave evidence at trial. Screen shots of the messages were admitted as evidence at trial. TM acknowledged in these messages that her memory of the period was somewhat limited and enquired as to whether Witness B, who would have frequently been in the family house during the periods in question, had any memories of the incidents. Witness B made a statement to gardaí in March 2017. Grounds of Appeal The appellant seeks to quash his conviction on count no. 1 on the following grounds: – Ground 1: The verdict of the jury was contrary to the weight of evidence. Ground 2: The Learned Trial Judge erred in failing to draw the jury’s attention or failing to sufficiently draw the jury’s attention to the inconsistencies which existed in the evidence. Ground 3: The Learned Trial Judge erred in failing to properly put the defence case to the jury. Ground 1: The perversity of the verdict of the jury 15. Firstly, the appellant submits that the jury’s verdict on count no. 1 in relation to the complainant AM was unsafe as her respective statements in 2007 and 2017 are purportedly at odds and “irreconcilable with the evidence given by the three other putative eyewitnesses to the incident”. 16. There was no application for a direction to acquit in this case (and rightly so because there was ample evidence to justify allowing count no. 1 to go to the jury). In The People (DPP) v. PB [2020] IECA 158, this Court (per Birmingham P) held the following: “This Court feels bound to observe, not for the first time in recent days, that the inclusion of arguments in support of a contention that a verdict is perverse in a case where no application for a direction was ever even sought, can serve to seriously undermine the credibility of an appellant's submissions.” PB was later cited by this Court (per Ní Raifeartaigh J) in The People (DPP) v. VE [2023] 1 IR 376, where we held that: “The appellant's counsel did not seek a direction at the close of the prosecution case. It is highly unlikely that a conviction will be quashed on the basis that a verdict was perverse in circumstances where the counsel at trial did not even consider that an application for a direction was warranted as this amounts in effect to a concession at trial by the appellant that there is sufficient evidence upon which a jury might convict.” The absence of an application reflects the state of the evidence, the run of the trial, and the fact that a judgement was made by competent counsel rooted in the reality of the trial as opposed to some ex post facto analysis of the evidence, and in that sense has lessons, so to speak, for the complaint that the verdict was perverse and against the weight of the evidence. 17. We turn, however, to the evidence of AM in greater detail given the nature of the complaint. In examination-in-chief, AM stated that the incident in question lasted for “around 25 minutes”, but in cross-examination the following day, she corrected this to 15 minutes having read her statements overnight. Having stated in evidence-in-chief that she had tried to get the appellant’s hand away, counsel in cross-examination asked how this had been done and she replied “just moving my legs and twisting and turning” – which the appellant submits does not align with her 2007 statement to gardaí that she had frozen during the incident. 18. It is also submitted that her evidence that she had been covered by a blanket which was already on the sofa is at odds with her statement that she was covered by a duvet she had brought down from upstairs. In evidence, AM stated that she had “lifted up the blanket and saw it was his hand. His hand was in the middle of my legs kind of near my privates.” AM stated at trial that she was wearing a string top and underwear as she was going to bed. Counsel during cross-examination then put her 2017 statement to her in which she stated: “[h]e put his hand down my trousers and he was touching me for a few minutes. About 15 minutes. I was kicking my legs”. The appellant submits that her evidence is contradictory in respect of both what she was wearing and that she had frozen. 19. In relation to the contention that TM’s evidence that the appellant’s hands were “up over the duvet” is in contrast to AM’s evidence, the respondent relies on an extract from the transcript of AM’s cross-examination: 20. “Q. Okay. But where? Can you tell us about where his hands were? A. His hands were up over the duvet. Q. Over the duvet. All right. Did that change at any time? A. I don't know. Q. Try and think back now? A. I don't know.” To these we might add that in the course of cross-examination the complainant AM was pressed on the point that in a statement to gardaí on the 27th of June 2007 she had referred to a blanket rather than a duvet and whether she knew the difference between the two. She acknowledged in cross-examination that in saying blanket in 2007 she had meant duvet; in fact, in his first interview the appellant asserted that the item in question was a duvet, although he denied his user of it. 21. JM and Witness A were seated directly behind AM when the offence in respect of count no. 1 took place. JM testified that her memory was limited due to the consumption of alcohol that evening. The appellant submits the following in respect of purported contradictions in evidence: “(

1. a)She recalled the Appellant sitting ‘right beside’ AM. AM had testified that the Appellant was at the other end of the three seater sofa from her. (
2. b)[Witness A]’s recollection of AM ‘lying with her knees tucked back, heels tucked up towards her bum’ contradicts AM’s description of lying with her feet up on the Appellant’s lap. In his interview, the Appellant denied that AM’s legs were over his. (
3. c)[Witness A]’s description of AM repeatedly trying to get the duvet off her is irreconcilable with AM’s evidence-in-chief of having frozen for the entirety of the incident. It also contradicts AM’s assertion under cross-examination that no one else had noticed her movements to fend off the Appellant. (
4. d)Her recollection (at the prompting of defence counsel) of the Appellant ‘maybe having the duvet over him slightly’ contradicts AM’s account of the Appellant’s right arm being fully concealed under the duvet.” The appellant attempts to distinguish the facts from those of The People (DPP) v. Nadwodny [2015] IECA 307, where an allegation of a perverse verdict was rejected, by asserting that certain eyewitness testimony in that case only went to the question of whether the appellant had intended to kill or cause serious harm. 22. It is acknowledged by the appellant that the jurisdiction of the court to overturn a jury verdict on the grounds of perversity is an exceptional one, as per MacMenamin J in The People (DPP) v. Tomkins [2012] IECCA 82: “This court will only quash a decision as being perverse where there are very serious doubts about the credibility of evidence which was central to the charge, or where a guilty verdict, even by a properly instructed jury was against the weight of the evidence.” 23. With regards to the alleged discrepancies between Witness A and AM, it is submitted by the respondent that any supposed discrepancy is not of such a nature so as to render the evidence of AM unsafe. In respect of AM specifically, the respondent submits that this is a case which turned on the jury’s assessment of the victims as witnesses and the jury had the benefit of viewing her demeanour in court and assessing her responses under crossexamination. The respondent states that this was “quintessentially a case where the jury was best placed to evaluate the evidence of key witnesses” and the matters raised by the appellant “are ones which went to her credibility and reliability, within the normal range which fell to be assessed by the jury”. 24. The discrepancies in AM’s evidence, as far as they go, and whether arising in the course of her evidence or by reference to her statements, are of a type or extent which are not out of the ordinary in our experience. What has been done here has all the hallmarks of a case where the transcript has been “trawled” to identify a limited number of discrepancies, ignoring the context, which was that her evidence as a whole was coherent and capable of belief on a freestanding basis, to say nothing of the evidence of the other complainants. It might or might not be that in a given case a jury could not be satisfied beyond a reasonable doubt of the guilt of a given complainant because of supposed discrepancies – we speak in principle. Here, however, the whole point of evidence capable of corroborating AM’s account is that whilst a jury might not be satisfied beyond a reasonable doubt of the guilt of the appellant based on her evidence alone, corroborative evidence would resolve any reasonable doubt which might exist; no meaningful criticism has been made about supposed weaknesses in the evidence of the other complainants. 25. In order to decide whether or not a verdict is perverse or against the weight of the evidence, we must look at the entirety of the evidence and respect the role and verdict of the jury. The issues of credibility or reliability canvassed are quintessentially matters for a jury, and this is not one of those extremely rare and wholly exceptional cases which could justify intervention. We reiterate the observations of this Court in PB and VE. We therefore dismiss this ground of appeal. Grounds 2 and 3: The charge of the trial judge to the jury 26. The second and third grounds relate to the trial judge’s charge to the jury at the conclusion of the trial. The appellant submits that the ability of the jury to contrast the different accounts was hindered as the trial judge summarised the evidence of AM on the 3rd of March 2023 but did not summarise the evidence of the other witnesses or the crossexamination until the 7th of March 2023. Furthermore, the appellant submits that: “While the Learned Trial Judge’s coverage of the evidence given by each individual witness was comprehensive, he did not give the jury any further direction as to how the evidence given by each witness related to and/or contradicted that given by the other witnesses”. 27. The appellant submits that the nature and complexity of the trial required the trial judge to engage with the evidence to a greater extent than he did and to, in effect, summarise the defence case substantially in accordance with counsel’s speech. In this regard, the appellant refers to the fact that the jury had to consider 56 counts concerning three complainants spanning 15 years. 13 witnesses gave evidence during the trial, and the appellant emphasises the fact that the evidence in respect of count no. 1 was spread out across the trial with different witnesses giving evidence on different days. The appellant notes that there had been a four-day gap between closing speeches of counsel and the jury deliberations and the trial judge declined to summarise those closing speeches. On the contrary, the respondent submits that the trial judge’s charge was sufficient in all the circumstances, that the trial judge summarised both the examination-in-chief and crossexamination of each witness and that the case was not one which was unduly long or complex. 28. Furthermore, the appellant submits that the trial judge erred in failing to warn the jury to take additional care with the evidence of AW. Under cross-examination, counsel put it to AW that she was merely attempting to deflect attention away from herself by making a false allegation against the appellant. This was denied by AW. The appellant submits that the jury “ought to have been directed to take extra care with her evidence due to the presence of this potential motive for making a false or inaccurate allegation”. 29. In this regard, the appellant cites the third edition of McGrath on Evidence at para. 4-347: “Thus, by analogy with the principles identified in People (DPP) v Casey (No.2) in the context of identification evidence, it would appear that there is a general obligation on a trial judge to give a jury such cautionary instruction as is necessary and appropriate to avoid a miscarriage of justice whenever there is an evidential basis for suggesting that a witness may have a motive for giving false or inaccurate testimony. It is possible to identify a wide variety of such motives…”. 30. There is no authority of the Superior Courts to the effect that there is some category of witness whose evidence, because of a supposed motive to fabricate it, should give rise to some form of warning – this is not a case involving accomplice evidence. We do not propose to now lay down, or perhaps we should say, create, a hitherto unknown rule of law and to introduce yet a further complexity into criminal procedure. Issues of credibility are jury matters – their capacity is to be treated with respect and they are not to be taken to need reminding of rudimentary common-sense propositions. The People (AG) v. Casey (No. 2) [1963] IR 33 is of no relevance as it arises because of the long experience of the courts of errors in identification. There is no basis for the view articulated in McGrath. 31. In The People (DPP) v. Quinn [2015] IECA 308, certain witnesses conceded that they might have been liable to prosecution. The Court indicated that it would have been “preferable” for the judge to have directed the jury to take particular care when considering the reliability of such evidence; this Court, having first stressed that any question of a so-called accomplice warning in respect of the evidence of some one or more witnesses was within the trial judge’s discretion, pointed out that an accomplice warning would likely have discredited the appellant’s evidence and it would unnecessarily have added complexity to the jury’s task. In truth, Quinn pertains to accomplice warnings. It is accordingly no authority for the proposition that a rule of law exists, or should be created by us, to the effect that some special form of warning could arise in cases of this kind, even if there was evidence of an improper motive – there is no such evidence here in any event. 32. The respondent notes that the trial judge’s charge occurred over two days and the appellant declined the invitations by the trial judge at the end of both days to make a requisition as to what had been said. The respondent submits that the failure to raise these issues during the charge or immediately afterwards “operates as a bar to being able to raise said issues in the appeal”. In this context, the respondent relies on, inter alia, The People (DPP) v. Cronin (No. 2) [2006] 4 IR 329, The People (DPP) v. Boyce [2005] IECCA 143, and The People (DPP) v. MC [2021] IECA 81. In the latter case, this Court held: “We have already stated that in our view there was an adequate summing up by the trial judge and that it is not the trial judge's job to make a second speech for the defence. If it was felt that the charge was unbalanced and pro-prosecution (which we do not accept) the question is begged: why did nobody on the defence team complain about it at the time by requisitioning the trial judge? We have received no satisfactory answer to that question and can only infer that it was because those who listened to the charge as it was delivered saw nothing unfair in it, and nothing wrong with it.” 33. In The People (DPP) v. Curran [2011] IECCA 95, this Court (judgment delivered by O’Donnell J, as he then was) held as follows: “Here the Applicant seeks to present a wish list of propositions which the Applicant desired to see in the charge to the jury, and the absence of which it is now contended renders the trial unsafe. … But the trial judge's charge is not designed to be a receptacle for propositions desired by either party. The function of the charge is to put the jury in a position to address the issues of fact arising in the particular case, in the correct legal framework, and thus to be able to deliver their verdict.” The respondent contends that there is no rigid formula to be followed in a charge and a trial judge retains a margin of discretion in doing so. In The People (DPP) v. Awode [2017] IECA 44, this Court stated: “In any event, it is not part of a trial judge's job to repeat the speech for the defence or to identify every detail in the evidence pointed to or relied upon by the defence. We have considered the judge's charge in this short case in the light of the evidence adduced, and we are satisfied that it was balanced and fair. It is true to say that she makes no specific mention of the defence's reliance on so called ‘discrepancies’ in the accounts given by the complainant, but she nevertheless reviewed the actual evidence given in adequate detail.” 34. The fact that no requisitions were made on the charge, in our view, means that under Cronin they cannot now be pursued. We think it right, however, to refer to the merits to this extent: the trial judge comprehensively reviewed the evidence, including the evidence elicited under cross-examination of the complainants from which the credibility issues were manifest. The purpose of a charge is not only to remind the jury of the evidence (where that might be necessary due to the length of the trial) and give them the appropriate principles of law, but to ensure that the case made by each side and the issues to be addressed are understood. We have repeatedly said that this certainly does not require any repetition of a speech, that the charge must be taken as a whole and that it is not a wish list of the parties. We reiterate what was said in the authorities above. There is no basis for criticism of the charge here. The fact that requisitions were not made would itself indicate that competent counsel at the time saw nothing amiss, and he was right. The fact that the charge was broken up over several days is not of the slightest relevance – this is now a commonplace and could not give rise to any concern as to the fairness of the trial. We reject the second and third grounds and therefore dismiss this appeal.