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[2026] IECA 77 - original

APPROVED REDACTED THE COURT OF APPEAL [2026] IECA 77 Court of Appeal Record No. 104/24 Edwards J McCarthy J Burns J BETWEEN/ THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) RESPONDENT -AND- M.D. APPELLANT JUDGMENT of the Court delivered on the 5th day of May 2026 by Mr Justice Patrick McCarthy

  1. This is an appeal against conviction. The appellant was convicted of the following offences after a trial in the Central Criminal Court between the 1st and 17th of November 2023 in respect of Bill No. CCDP0056/21: one count of rape contrary to common law and as provided for in section 48 of the Offences Against the Person Act 1861 (count no. 1) and eight counts of indecent assault contrary to common law and as provided for in section 6 of the Criminal Law (Amendment) Act 1935 (counts nos. 10, and 17 – 23).
  2. The three complainants in this case – ‘C’, ‘M’ and ‘A’ – are sisters of the appellant and the offences all took place at the same address (the family home). The appellant pleaded not guilty to all of the 31 counts on the indictment and the trial took place over twelve days. The three complainants and the appellant all gave evidence at trial. The trial judge directed not guilty verdicts on certain counts relating to the complainant ‘C’ due to insufficient evidence, namely counts nos. 4, 5, 6, 7, 8, 12, 13, 14, 15 and 16 on the indictment. The appellant was born on the 8th of March
  4. We set out hereunder the charges pertaining to each complainant, their ages and the sentences of imprisonment imposed in respect of the offences of which they were the victims. Count Complainant Age Date Offence Sentence Count 1 C 10-12 1st of May 1971 30th of April 1973 Rape 64 months Count 10 C 10-12 1st of May 1971 30th of April 1973 Indecent assault 17 months Count 17 M 5-6 27th of July 1977 26th of July 1979 Indecent assault 17 months Count 18 M 7 19th of January 1980 22nd of January 1980 Indecent assault 20 months Count 19 M 7-8 23rd of January 1980 - Indecent assault 2nd of January 1981 17 months Count 20 M 7-8 23rd of January 1980 - Indecent assault 22nd of January 1981 17 months Count 21 A 9-12 12th of April 1971 1st of September 1974 Indecent assault 12 months Count 22 A 9-12 12th of April 1971 1st of September 1974 Indecent assault 12 months Count 23 A 9-12 12th of April 1971 1st of September 1974 Indecent assault 12 months 2 Consecutive sentences were imposed in respect of counts nos. 18 and
  5. The sentences imposed on counts nos. 1, 10, 17, 19, 20, 22 and 23 were to run concurrently and to date from the 16th of February
  6. This amounted to an effective sentence of eight years’ imprisonment. Factual Background
  7. The offences in this case took place between 1971 and 1981 during some of which time the appellant himself was still a child, attaining his 18th birthday in
  9. ‘C’ stated at trial that the instances of sexual abuse which she alleged against the appellant took place when she was between the ages of 10 and 12 years old. ‘C’ is four years younger than the appellant. ‘C’ made a formal complaint to gardaí in respect of these allegations on the 12th of April
  10. When asked in examination-in-chief as to why she waited until 2018, she stated that “… it was always in the back of my mind that I would do it once my mom had passed”.
  11. ‘M’ is the youngest of the 15 siblings in the family – she is 12 years younger than ‘C’ and 16 years younger than the appellant. The allegations made against the appellant at trial took place when she was between the ages of 5 and 10 years old. She had left the family home at the age of 18 and lived in London. She subsequently spent seven years living in the United States with her sister. In 2003, she returned to Ireland from the United States and made her initial complaint to another sister, ‘D’. In 2013, ‘M’ made a complaint to gardaí against the appellant for assault relating to a separate physical altercation which took place that year but made no complaint about the allegations of sexual abuse which are the subject of this appeal. A formal complaint regarding the allegations here was made to gardaí in
  12. In crossexamination, she was asked as to why in 2013 she did not mention the sexual abuse by the 3 appellant and she stated that she did not want her mother to know what had happened to her. Their mother died in 2016 but had made a statement to gardaí in 2013 concerning the unrelated physical altercation. That statement did not support the assault allegation made by ‘M’.
  13. ‘A’ is 7 years younger than the appellant and the instances of sexual abuse alleged against him took place when she was between the ages of 9 and 12 years old. Similarly to the other complainants, ‘A’ did not make a formal complaint to the gardaí until 2018 also on the basis that she did not wish to upset her mother.
  14. A major issue at trial was the question of when the house was electrified. This was on the premise that if there had been electrification, it would go to the credibility of the complainants’ evidence. This was because ‘C’ gave evidence to the effect that the offending took place either in a part of the house which had little or no natural light (an area described in the course of evidence as a “dark hallway” – subsequently used as a bedroom) and otherwise in the family home when it had no electricity – her evidence being that electricity was installed when she was 12 years old in December 1972, whereas the appellant and his sister ‘P’ gave evidence to the effect that electricity had been installed in varying dates between 1966 and
  15. ‘A’ gave evidence similarly pertaining to offending during a darkness in circumstances where a candle or an oil lamp was used for light. In the course of evidence, the appellant produced three documents tending to support the proposition that electricity was or may have been installed earlier, to which we turn below. To put the matter shortly, the absence of electrification was characterised as due to the decrepit state of the family home and one infers the financial incapacity to instal electricity in the family home. It is not in debate but that ESB records must have existed but do not now exist.
  16. Under cross-examination, ‘C’ affirmed that there was no electricity in the house until 1972 and that a television was bought in December of the same year by her father for Christmas. 4 ‘A’ also asserted that electrification had taken place in December
  17. In cross-examination, it was put to ‘A’ that she made no mention of electrification in her witness statement. Her evidence reflected that of ‘C’ that it was a “momentous occasion” and that certain rooms in the house were electrified later than others.
  18. The appellant subsequently introduced three documents into evidence seeking to undermine those statements. The first was a Philips Electrical Ireland Limited guarantee card which was stamped by an electrical store in the town in which the family lived. The card was dated the 22nd of November 1966 and contained reference to a serial number and other conditions of a sale. The second document was a post card entitled “Printed matter” addressed to their mother dated the 8th of December 1966 which, on the back, was a Philips Electrical Ireland Limited register card for a stated apparatus model and serial number. Thirdly, a Philips world service passport dated the 22nd of November 1966 with a stamp from the electrical store in the town was introduced which contained various terms and conditions in several languages. These three documents were found approximately four to five weeks prior to the trial by the appellant and a number of his other sisters in the family home which was being sold following the death of their mother. Whilst it is of note that the first two documents refer merely to an apparatus, a third might be described as a booklet which internally contained a picture of a television. As we understand it, this may have pertained not only to television sets but other electrical equipment as well. During the course of trial, the fact that the documents only referred to an “apparatus” was stressed by the prosecution when it was sought to undermine the proposition in cross-examination of the appellant that the documents related to a television, and hence by inference that there was electricity in the house in the late 1960’s.
  19. In his evidence, the appellant asserted that there was a television in the family home prior to 1972, contrary to the evidence of ‘C’ and ‘A’, and stated that he believed there was a 5 television present in 1967 or
  20. The appellant specifically stated that he could recall watching the moon landing on a television in his sitting room.
  21. Counsel for the respondent stated that there did not appear to be anything on the aforesaid documents which specifically linked it to the family home in question. Whether one was dealing with a television or not, the apparatus was undoubtedly an electrical one and was, on the face of the matter, bought by the appellant’s mother which gives rise in our view to a proper inference that there was electricity in the family home earlier than two of the complainants stated – something which was no doubt properly factored into an adjudication on their credibility by the jury. One might add that there was evidence that the house was partially electrified at a given stage and the jury, being aware of that fact amongst others, no doubt had regard to it too. Grounds of Appeal
  22. The appellant seeks to have his conviction overturned on the following grounds: – i. “The learned trial judge erred in law and/or in fact by allowing the prosecution to adduce evidence from [‘D’] of a complaint made to her by [‘M’]. ii. The learned trial judge erred in law and/or in fact in refusing to direct not guilty verdicts on all counts. iii. The learned trial judge erred in law and/or in fact in failing to find, on the prosecution case as it had developed at trial, that the trial was not fair and just in light of the lapse of time complained of. iv. The learned trial judge erred in law and/or in fact by failing to find that the accused had been deprived of a realistic opportunity of a number of obviously useful lines of defence by reason of the delay. 6 v. The learned trial judge erred in law and/or in fact in charging the jury that the evidence of one complainant could be cross-admissible with regard to complaints made by the other complainants.” At the hearing of this matter, counsel indicated that Ground 5 would not be pursued. In substance that left two issues to be determined: the admission of the complaint evidence and the question of delay. This delay, it was said, deprived the appellant of a fair trial in due course of law and accordingly the trial judge ought to have directed an acquittal on all counts. Recent Complaint Evidence
  23. Evidence was introduced of a complaint of sexual offending by ‘M’ to her sister ‘D’ in
  24. The appellant contends that the trial judge ought to have excluded that evidence. The appellant does not question the now trite law that in deciding whether or not a complaint could be received, one focuses not on the temporal relationship between the offence and the time the complaint is made but rather on whether it was made at the first reasonable opportunity. When addressing the latter issue, the courts now accept that in the nature of sexual offending and its consequences for individuals, the first reasonable opportunity may be dependent on many factors such as understandable inhibitions from making complaints about such a topic, personal circumstances or health issues; one is concerned with the real-life circumstances of the individual complainant. The focus accordingly is on the reasons why the complaint was not made earlier than
  26. The adjudication by the court as to whether or not the complaint ought to be admitted was dealt with both on the basis of the oral evidence of ‘M’ and on what was said by her in the Book of Evidence. Her personal circumstances are detailed in the Book of Evidence and were 7 outlined to the trial judge as a basis for the admission of the recent complaint evidence despite the lapse of time: “Over the years I have confided in several people about the abuse I suffered at the hands of [the appellant]. The first person I told about the abuse was my sister [‘D’]. I returned from Ireland from America after seven years. I returned home in 2003 and it was around this time that I told [‘D’], but I can’t be sure of the date. … We were having a few drinks and I told her that [the appellant] had sexually abused me as a child. I didn’t go into much detail, but I did tell her that [the appellant] would pull my knickers down and slap me on the bum. [‘D’] was shocked. [‘D’] and I talked about it several times over the years since then, but I have never gone into details. The abuse I suffered as a child has had a huge effect on my life and it still does to this date. From a young age I couldn't wait to leave … I just wanted to get away. I left … when I turned 18 and moved to London. I have drank a lot of alcohol over the years trying to get it out of my head and trying to forget about it. I have suffered with depression over the years, and I was prescribed antidepressants to help cope. Began those in
  27. When my mother passed in 2016 everything got worse. I began to feel suicidal. Her passing was the final nail in the coffin, and I thought what's the point. And the reason I have not come forward about the abuse until now is largely due to my mother. I didn't want my mother to know what [the appellant] did to me. It would have broken her heart."
  28. In her evidence, ‘M’ had said that her earliest memories of the appellant was that he “used to bully me around and push me to the ground …” and put his foot on one of her legs so that she could not move, in consequence of which she was “terrified”. She stated that “… if he was in a really bad mood he'd grab me and he'd pull down my knickers and tights and slap me 8 on my bum hard”. Being “absolutely terrified” of him, she ran away from him and hid – he would strike her on “the bum” and whilst on top of her, place his hands on her neck. She said that even after she had married, she was still terrified of him but just “felt more bit of relief”.
  29. The trial judge ultimately ruled that the recent complaint evidence was admissible as follows: “In this particular case the Court has heard evidence in relation to the hierarchy within the … family. [The appellant] having been one of the older members of the family and [‘M’] being the youngest sibling, There’s also evidence in relation to their being groupings within the family and close relationships between certain members. In relation to [the appellant], [‘M’] has given very clear evidence that the relationship that she had with her brother was one of fear, and there was a certain power imbalance in the relationship, there was a dominion in being during the period when he was residing in the family home and there was still regular contact by him with his parents within the family home following his departure from the family. The evidence that [‘M’] has given is that she left the family home at the age of 18 or 19 and moved to London. Thereafter she moved to the United States where she lived for seven years. And the complaint was made to her sister, [‘D’], shortly after her return … in
  30. That is the context in which the complaint was made. In assessing whether the complaint was made at the first reasonable opportunity, it appears to me that the authorities which have been opened are indicative that the evaluation of that criterion is a fact-specific exercise and it was conducted by reference to the circumstances leading up to the making of the complaint and the relationship between the person who made the complaint, [‘M’] and the person to whom the complaint was made, being her sister, [‘D’]. And on the basis of the evidence so far it 9 would seem to me that the making of the complaint after an episode of poor mental health and her return to the location which the alleged abuse occurred is the context which the complaint emerged to her sister and that was the first person to whom the complaint was made. In my opinion, having analysed the background circumstances, I am quite satisfied that the complaint was made to [‘D’] at the first reasonable opportunity by reference to all of the factors and circumstances which I have identified and I am, therefore, admitting the complaint made to [‘D’] in 2003.”
  31. On the basis of the evidence of ‘M’ (and we cannot set it out in extenso) as we have sought to summarise it above insofar as it is relevant to this topic, including the witness statement which was effectively put in evidence for the purpose of the voir dire, we are satisfied that the trial judge was right, on the evidence. Of particular significance to us, in this context, is the fear which ‘M’ had for her brother, the imbalance in their relationship, his dominion over a lengthy period which existed over her, and her mental health as the most salient factors supportive of the trial judge’s factual conclusions. We therefore reject this ground of appeal. Unfairness Due to Delay
  32. At the conclusion of the trial, an application was made seeking a direction in respect of all counts that the delay between the time of the alleged offences, the complaint to the gardaí and the beginning of the trial itself was such that a fair trial was rendered impossible. No prosecutorial delay was alleged.
  33. Counsel for the appellant contends that he was unfairly prejudiced primarily by reference to the absence of evidence in relation to an island of fact. That island of fact, he contends, was the time when electricity was installed. In particular, he contends that due to the lapse of time, no ESB records exist which would show when installation took place (and it is 10 not in debate but that there would have been such records at an earlier stage). He asserts that the availability of such records would have afforded him a stronger basis on which to crossexamine the complainants (we cannot see how this would be the case) and that its existence alone would strengthen his case that they were, to put it no further, wanting in credibility (in fact, his defence at bottom was that the complainants were engaged in a conspiracy to tell lies due to the circumstances in which their mother’s will was executed). Counsel says that such evidence would have carried far more weight than the evidence of the appellant to the effect that electricity had been installed well before 1971 or that of ‘P’ – a sister of the appellant. Counsel emphasised the importance of the existence of any island of fact in a case otherwise dependent on the credibility of witnesses.
  34. The father of the complainants and the appellant died in 1993 and their mother died in
  35. Their grandfather and one of the 15 siblings had also died. It was accepted by counsel that whilst it may be that these individuals could have spoken to the issue of electrification, one could only speculate as to what they might have said. Hence, he could not, ultimately, rely on their non-availability as going to the issue of prejudice.
  36. We need not quote any authority when repeating the proposition that where one is dealing with evidence which is not available due to lapse of time, the issue is whether an accused has been deprived of a reasonable opportunity of an obviously useful line of defence.
  37. We accept that, prima facie, it is proper to conclude that records would have existed in the hands of the ESB showing electrical connection (if only accounts). It seems proper to infer that the 1966 documentary material is prima facie evidence of an electrical connection in or about that time, and in that sense, the appellant’s own evidence and that of his sister is corroborated, or at least a reasonable possibility is opened that what the complainants say about 11 offending having occurred in darkness, to put matters shortly, is open to debate – the matter would still remain a question for the jury.
  38. Again, the issue of fatally prejudicial delay has been dealt with in numerous authorities and we think it will suffice if we refer to the judgment of O’Donnell J (as he then was) in The People (DPP) v. CC [2024] 3 IR 291, where he stated the following principles: “(i) the jurisdiction to determine whether it is just to permit a trial of an accused person on historical allegations to proceed, is one normally best conducted at the trial; (ii) the decision the trial judge should make is whether he or she is satisfied that it is just to permit the trial to proceed; (iii) the obligation on the trial judge is to make a separate and distinct determination in this regard, and the trial judge must do so conscientiously, in the light of everything that has occurred at the trial; (iv) the test to be applied does not involve any assessment of the guilt or innocence of the accused, which is a matter for the jury, but rather the fairness and justice of the process by which it is sought to determine that matter; and (v) while an appellate court must recognise that a trial court has particular advantages in the making of this assessment, the decision of a trial court is subject to appeal, and trial judges should therefore set out clearly the considerations leading to the conclusion that it is or is not just to permit the trial to proceed.”
  39. We think it is appropriate to quote the trial judge’s ruling (in its relevant parts) on this issue: “The issue of when the house was wired and linked to the national grid is said to be an important element of the defence case and the lack of ESB billing records for the period 12 in question is stated to be the loss of a realistic line of defence in that the evidence concerning the sources of light available in the house at the time the offences are alleged to have been committed could be put beyond doubt. … The assessment which requires [sic] to be conducted [on an application to direct an acquittal on the ground in question] inevitably culminates with the Court addressing the basic question of whether the evidence which is no longer available due to the lapse of time amounts to the loss of a realistic opportunity of an obviously useful line of defence. I am of the view that the prosecution is correct in its submission that the missing evidence in this case does not fall within that category and, more correctly, falls within the category of an opportunity or opportunities lost. I have reached that conclusion based on the following: it has never been suggested that Mr & Mrs [‘D’] Snr were present in the house when the abuse is said to have taken place and there is equally no discussion that either had any knowledge of the allegations which would be later made in
  40. While I accept that Mr & Mrs [‘D’] may have had relevant evidence to offer, there is no indication that their evidence would be supportive of any aspect of the defence which has been advanced in the trial to date. As the prosecution has observed, the 2013 statement of [‘Mrs D] relates to a distinct event of which she was a witness, but her statement offers no indication of her likely evidence … The prosecution, in my view, correctly suggested that the same may be said of the likely evidence of Mr [‘D’]. … The evidence regarding the presence of a television in the house prior to 1972 is a matter to which the older children could attest and circumvents the need for ESB billing records. The Philips's documents which have been discovered in the house in recent months or weeks and which were produced in court, if anything, are supportive of the 13 accused's line of defence regarding when electrification of the house occurred and while the evidence regarding provenance is not perfect, the availability of those documents, if anything, undermines the suggestion that all relevant evidence in relation to that matter is unavailable due to the lapse of time. The house at which the misconduct is said to have taken place is still intact and available for inspection for traces of alterations or any alterations made to it over the years. I consider the fundamental fairness of the trial is not undermined by either the absence of Mr & Mrs [‘D’] Snr or the ESB records. It is a case, however, in which a delay warning must be fashioned to address the missing evidence and the disadvantage to the defence by reason of the delay in the case, and that is something that can be communicated to the jury in suitably strong terms.”
  41. It has been repeated many times that a trial may not reach perfection and in the present context the absence of the ESB records means that the trial fell short of perfection. It would have been additional to the documentary evidence from which, as we have said, an inference can be drawn that there was electricity in
  42. An obviously useful line of defence was available, not only because of the oral evidence but also because of the 1966 documents. This was so even if the material did not refer to a television. We do not need to emphasise yet again that the absence of evidence, even if it is of significance, is not necessarily fatal to a fair trial. Even if there is not any meaningful lapse of time between offending and a trial, evidence, even evidence of significance, might be lost or become unavailable. As has been repeatedly said, this gives rise to what one might call a lost opportunity but leaves untouched the fairness of the trial – especially in light of the warning which must be given to juries about old cases.
  43. It has been submitted by the respondent that nine other siblings were available to address the issue of electrification but were not called. Some one or more of them (subject to their ages) may well have been in a position to speak to the issue but we cannot speculate as to 14 what they might have said and hence we do not think that this is relevant to any adjudication as to the consequence of the evidence which is unavailable.
  44. The trial judge approached the issue in accordance with the principles elaborated in CC and correctly applied them to the evidence. She was right. We accordingly reject both continuing grounds of appeal and dismiss the appeal. 15

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