2026 IECA 62

THE COURT OF APPEAL APPROVED Record No. 59/2025 Neutral Citation Number [2026] IECA 62 Burns J. O’Moore J. Hyland J. BETWEEN/ THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) RESPONDENT -AND- Sean Kinneavy APPELLANT JUDGMENT of the Court delivered by Mr. Justice Brian O’Moore on the 23rd day of March 2026 Introduction 1. This judgment is in respect of an appeal against conviction. Mr. Kinneavy was convicted on numerous counts of sexual assault, and two counts of rape. The 1 complainant was aged between 10 and 15 years of age at the time of the offences. She is 52 years younger than the appellant. The offences occurred between early in 2013 and the middle of 2018. 2. On the 6 November 2024, the appellant was convicted by a majority of 10-2 of 47 counts of sexual assault and 2 counts of rape. Importantly, for the purposes of this appeal, the jury disagreed in respect of two counts (Counts 22 and 51). Count 22 concerned a charge of rape. Count 51 was a charge of sexual assault. The other counts were: i. Count 1 to count 21 inclusive, count 23 to count 38 inclusive, and count 41 to count 50 inclusive relate to 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. ii. Count 39 relates to rape under section 4 contrary to section 4 of the Criminal Law (Rape)(Amendment) Act 1990. iii. Count 40 relates to rape under section 4 contrary to section 4 of the Criminal Law (Rape)(Amendment) Act 1990. 3. On the 24 February 2025, the appellant was sentenced to nine years in respect of the count of rape contrary to section 4 and eight years in respect of the counts of sexual assault, to run concurrently and backdated to the 6 November 2024 when the appellant was remanded in custody. Grounds of Appeal The grounds of appeal, as set out in the Notice of Appeal, are as follows: 1) That the jury cannot reasonably have reached their decision not to convict the appellant in respect of count 22 and count 51 but nevertheless to convict him by a majority decision (10-2) on all other counts in a manner consistent with law and the directions of the trial judge. 2) The decision could only have been reached by way of an impermissible line of reasoning. 3) That any reasonable jury, having failed to convict the appellant in respect of count 22 and count 51, ought to have had a reasonable doubt on the balance of the counts. 2 4) In the circumstances, no reasonable jury applying their minds properly to the evidence could have arrived at the decision reached. 5) That the jury can only have reached their decision not to convict the appellant in respect of count 22 and count 51 but to nevertheless convict him by a majority decision (10-2) on all other counts by wrongfully placing the burden of proof (at least to some extent) on the appellant. 6) That a decision to not convict the appellant where the allegations were specific but to convict him where the allegations were non-specific can only have been arrived at by way of a process which constituted a fundamental denial of justice to the appellant. 7) That in circumstances where the jury could not establish proof beyond a reasonable doubt in respect of count 22 and count 51 where the appellant was in a position to establish a factual and/or evidential basis for his defence to each of those charges, it constituted a fundamental unfairness to the appellant that he was convicted of the other counts where it was not possible for him to raise a specific defence by reason of the nature of the allegation, the vagueness of the allegation, and/or the amount of the time that has passed since the time of the allegation. Submissions on Appeal Written Submissions of the Appellant 4. Counsel for the appellant submits that the prosecution case relied on the credibility of the complainant’s evidence: ‘[The complainant] gave evidence on 29th October 2024. As summarised by the learned Trial Judge in his charge, the allegations that the Complainant was then making were in respect of a prior of between six and twelve years prior and were “only loosely anchored in time”. ‘Two of the 51 counts were specific to a discrete period of time in that they were tied to an event by the evidence given by the Complainant: count 22 and count 51. 3 ‘Count 22 related to an allegation of vaginal rape contrary to section 2. This was alleged to have taken place in the Complainant’s family home on a date between 1st June 2025 and 30th September 2016. The Complainant gave evidence that this took place on a day when the Appellant and his brother were working on widening the driveway of the home. ‘Evidence was called by the defence from [the appellant’s brother] which established that the date on which the driveway was widened to get another parking space was 12th August 2016. ‘Count 51 was an allegation that the Appellant had sexually assaulted her for the last time after her junior certificate geography exam but prior to her maths exam in 2018. It was accepted by the Complainant in cross-examination that the junior certificate state examination for geography in 2018 took place on 8th June 2018. Evidence was called by the defence from the Appellant’s wife, to establish that at approximately 12.30pm, the Appellant was at Heuston Station with his wife, having driven from Galway that morning.’ 5. The appellant’s submissions continue with reference to the trial judge’s charge, quoting this extract: ‘Now, it's very important that you should consider each of those 51 counts and the evidence on each count entirely separately from that on every other count. In order to convict [the appellant] on any count, you must be satisfied of his guilt beyond reasonable doubt on the evidence referable to that specific allegation. Should you be satisfied of [the appellant’s] guilt beyond any reasonable doubt on any such count, you cannot rely on that conclusion as part of your consideration of his guilt or innocence on any other count Once again you must consider each count separately by reference to the evidence relevant to that count. In short, you must approach the evidence on each count…you must approach the evidence on each count as you would if you were being asked to deliberate on each count in a separate trial. So that in 4 a very real sense this is 51 separate trials being heard together in the interests of a fair and efficient administration of justice.’ 6. It is submitted that the trial judge did not direct the jury that the overall evidence in the case may be such that views on the credibility of the complainant on one count may affect their view on the complainant’s credibility on other counts. This is despite the fact that the jury must give separate consideration to each individual count and return a separate verdict on each individual count. 7. Counsel for the appellant argues that the law on this point is set out in the case R v Harbinson [2012] NICA 20. In that case, the Northern Ireland Court of Appeal dismissed an appeal against conviction where, among other things, the appellant argued that the jury’s verdicts were inconsistent in circumstances where the appellant was convicted of some, but not all, of the counts against him. The submissions quote paragraph 23 of the judgment: ‘Where an accused is charged on a number of separate counts alleging differing acts of sexual misconduct involving the same or different complainants the jury must be directed on the need to give separate consideration to each count and to return separate verdicts in relation to each. We were informed by counsel that juries often bring in separate verdicts at different times during their deliberations. This occurred in this case. Although a jury must give separate consideration to and return a separate verdict on the counts the overall evidence in the case may be such that views, for example on credibility, on one count may affect the jury's view on credibility on other counts.’ 8. It is submitted that the direction to the jury to consider each count separately needed to be coupled with the explanation that the view reached on the ‘credibility of the complainant on the specific counts where the Appellant could mount a specific defence could affect their view of the credibility of the complainant on the non-specific counts.’ 9. With respect to the law in relation to unreasonable or perverse verdicts, the appellant’s submissions rely on Walsh on Criminal Procedure at paragraph 64-89: 5 ‘Even in the absence of an error of law or procedure in the course of the trial, a conviction may still be quashed. This can happen if the Court of Appeal considers that the verdict of the trial court cannot be supported, having regard to the evidence. This is generally referred to as a perverse verdict. To succeed under this heading, however, it will not be sufficient that the Court itself would have reached a different verdict from that of the jury or the court (where it is sitting without a jury). The Court has no power to intervene where there is credible evidence to support the verdict. It will not matter that the Court may have taken a different view of that evidence relative to the jury. The Court will have to be satisfied that no reasonable jury or court, as the case may be, could have reached the decision in question on the basis of the evidence before it. In other words, the verdict would have to be perverse’. 10. The submissions also rely on O’Malley on Criminal Procedure, which sets out the principles in relation to unreasonable or perverse verdicts: ‘… the Court of Criminal Appeal, in Ireland at least, has always been very reluctant to set aside a jury verdict on the ground that it was unreasonable or perverse. Verdicts are far more likely to be quashed on account of the way in which the trial was conducted or because of the manner in which the judge charged the jury at the conclusion of the trial. Nonetheless, the court has always recognised that in exceptional circumstances a jury verdict may be set aside. In Attorney-General v Sugden,41 for example, the Court of Criminal Appeal set aside a verdict in circumstances where the accused was convicted of a gross-indecency offence solely on the evidence of one person who appears to have been a youth and who was described by the Court of Criminal Appeal as having had an “unsavoury history” and who was “not very well-balanced mentally”. The jury appeared to have ignored the strong warning given by the trial judge about the unreliability of the witness. This, however, was an exceptional case and the law, as established by the Supreme Court in People (DPP) v Egan, is that the Court of Criminal Appeal may not substitute its own subjective view of the evidence for the verdict of the jury. Egan is particularly significant because it came before the Supreme Court following the grant of a s.29 certificate43 in which the question posed was whether the Court of Criminal Appeal was correct in holding that it had no jurisdiction to substitute its 6 own subjective view for the jury verdict. The answer was given in particularly trenchant terms by McCarthy J: “I share the views expressed by Griffin J in Mulliganand by Hederman J in the instant case. The jurisprudence of the Court of Criminal Appeal since 1924, as, from time to time, endorsed by this Court, is clear. Save where a verdict may be identified as perverse, if credible evidence supports the verdict, the Court of Criminal Appeal has no power to interfere with it. The concepts of lurking doubt, feel of the case, gut feeling, or back of my mind, are foreign to the judicial role as I understand it. Juries are regularly enjoined to disregard their personal feelings or their subjective assessments, and to concentrate on the evidence as it is sworn to in the witness box. In many instances what may be difficult and obscure to a trial judge is crystal clear to a jury: the converse is also very possible. To permit verdicts on criminal trials to be upset upon such subjective consideration would seem to me to be a denial of the validity of trial by jury’. 11. Counsel for the appellant accept that the overall credibility of any witness in a criminal trial is a matter solely for the jury: ‘In Mulligan, the Court of Criminal Appeal quoted with approval from the judgment of the Lord Chief Justice in R. v. Turnbull [1976] 3 WLR 445 (at page 450) to the effect that, on matters of credibility, an appellate court would only interfere if the jury had been misdirected (or not directed at all) as to how to assess the evidence, or if “on the whole of the evidence the jury must have taken a perverse view of a witness”, albeit that the final category would be rare’. 12. Counsel argues that the jury in the current case must have taken a perverse review of the evidence, which could have resulted from a misdirection by the trial judge. 13. The submissions then address the law on inconsistent verdicts, quoting O’Malley on Criminal Procedure: ‘O’Malley, Criminal Procedure sets out the law in relation to inconsistent verdicts at paragraph 14-152. Paragraph 14-152: 7 “Irish law, which follows English law in this respect, is somewhat more flexible in dealing with inconsistent verdicts, and it is guided by two fundamental principles. First, the onus of proving inconsistency rests squarely with the party challenging the verdict. Secondly, the test is one of substantive rather than formal inconsistency. It is not merely a question of asking if a conviction on one charge is formally incompatible with acquittal on another. Rather the question is whether a reasonable jury, applying their minds to the facts of the case, could properly have reached the decision which they did. It is only if this question must be answered in the negative that a conviction will be quashed for inconsistency. In R. v McKechnie [1992] 94 Cr.App.R. 51], Auld J. said: ‘Not every inconsistency between verdicts justifies interference by this Court. The principle well established in a number of cases is that where there is such an inconsistency the Court of Appeal will only intervene to quash a conviction where the appellant establishes that no reasonable jury could properly have reached the verdicts that they did.’ The Court of Criminal Appeal in this jurisdiction has adopted a similar approach, as reflected in People (DPP) v Maughan [1995] 1 I.R. 304 and People (DPP) v Sweeney [2007] IECCA 44. Inconsistency was found in Maughan where the jury, despite clear instructions from the trial judge, returned guilty verdicts on counts of aggravated burglary, false imprisonment and handling stolen goods in circumstances where the third count was an alternative to the first and second (reflecting the well-established principle that one cannot be a thief and a receiver of the same property arising from the same criminal episode). Quashing all three convictions, the Court of Criminal Appeal was not satisfied that a reasonable jury, applying its mind to the evidence, would have returned a guilty verdict on all three counts. The application of the same test led to a different outcome in Sweeney where the applicants had been tried on counts of violent disorder and criminal damage. The jury acquitted on the violent disorder charges but convicted on the criminal damage charges. The Court of Criminal Appeal distinguished Maughan on the basis that, in the instant case, the violent disorder and criminal damage counts were not intended as alternatives. The different ingredients of these offences might have justified the jury in reaching the decision which it did. The court stressed that, 8 to succeed, the applicant had to show that the verdicts were ‘necessarily inconsistent’ and that that if there was a possibility of consistency, ‘even if it is an unlikely view of the evidence on which the verdict can be justified’, the court should accept the verdict. More recently, the English courts have phrased the test as one of ‘logical inconsistency’, though that scarcely differs in any material way from the current Irish test. The English Court of Appeal has been willing in an exceptional case to quash a verdict where, despite the absence of a clear logical inconsistency, the overall facts or circumstances rendered it unsafe. Problems relating to inconsistent verdicts usually arise on appeal.’ 14. The submissions refer to DPP v Hearns [2020] IECA 181 where the Court of Appeal endorsed this passage. The submissions quote from the judgment: ‘In our view, that rather lengthy passage substantially reflects the law. We say substantially because the reference to “reasonable jury” must be read in the context of the phrase used when making a direction application, namely “a reasonable jury properly charged”. For reasons which we shall illustrate, the question of whether the jury were properly charged is at issue in this case’. 15. The Hearns judgment looked at the question of ‘whether a conviction was perverse in circumstances where the verdicts returned were prima facie inconsistent. A key issue before the Court was an omission of the trial judge to charge the jury in respect of section 11 of the Firearms and Offensive Weapons Act, 1990, the failure of either the defence or prosecution to requisition in respect of this and the potential for this to have confused the jury in such a way that gave rise to the inconsistent verdicts. It was accepted that the focus of the trial judge, and indeed of the parties, was on other legal matters’. 16. The submissions continue with a quotation from the Court of Appeal in that case: ‘36. In the context of this case, the failure to requisition cannot be the deciding factor. This is a logically inconsistent verdict which no reasonable jury, properly 9 charged, could properly have reached. To paraphrase the words of the Court of Criminal Appeal in Hussain, the Court is required to pay significant regard to its concern that the jury may have remained under a significant misapprehension as to the proper legal basis on which they were to consider the offence of s. 11 with respect to the requirement that the appellant had to be shown that he was about to commit or was committing an offence. In those circumstances, there is a real risk of injustice that this appellant has been convicted of an offence on an improper legal basis. Although the explanation for the failure to requisition is simply that of omission in the circumstances to spot the significance, we are satisfied in this case that the real significance of the charge to the jury is now much more stark in light of the inconsistent verdicts. It is that prima facie inconsistency that is the driver of the decision to overturn this conviction and not simply the incomplete directions given to the jury on the essential legal ingredients of this offence.’ 17. Counsel argue that in the present case, ‘the jury must have been under the misapprehension that the credibility of the Complainant could be assessed in isolation in respect of each count. It is submitted that the matters that called into question the complainant’s credibility in respect of the date-specific counts should have been considered by the jury when determining the credibility of her evidence.’ 18. It is further argued that there was vagueness surrounding the dates in respect of the counts on which the appellant was convicted, making it impossible for the appellant to put forward a meaningful defence: ‘Where the evidence could be tied to a specific date, in the case of the two counts where the jury did not convict, the Accused was able to demonstrate the unlikelihood of them having taken place. The jury appear to have accepted that there was a reasonable doubt by not entering convictions on those two counts. The practical reality of the jury’s line of reasoning is that, where the Appellant took on the burden of proof, he was not convicted; where that was impossible for him because of the vagueness of the non-specific allegations, he was convicted’. 19. In conclusion, counsel for the appellant repeat that the case against the appellant was wholly dependent on the complainant’s credibility: 10 ‘The two counts upon which the jury could not agree were those where the defence were in a position to call third parties to challenge the account of the complainant and the accuracy of the few specific details given in her evidence which were capable of being tested. The jury therefore had a reasonable doubt in respects of count 22 and 51’. 20. Counsel note that the complainant was unable to give specific details of times, dates or particulars. It is argued that: ‘Counts 22 and 51 were in effect the counts that the jury had the greatest amount of prosecution evidence to consider, given the complainant was in a position to give specific evidence in relation to the location and timing of these counts and could also give evidence about her memory of interacting with third parties on the dates in question. For this reason, the defence were in a position to call evidence to challenge the accuracy of the Complainant’s recollection of the days in question, and therefore her credibility’. Counsel argue that by disagreeing on Count 22 and Count 51, the jury were not satisfied beyond a reasonable doubt that the prosecution’s evidence could be relied on to convict the appellant. 21. It is then submitted that: ‘It is perverse that a jury could find a complainant has given credible evidence to satisfy them beyond a reasonable doubt on the non-specific counts, but not on the specific ones. In the present case, where the jury had a reasonable doubt about the credibility of the Complainant in respect of counts 22 and 51, it is submitted that the jury must necessarily have a doubt based on reason as to the credibility of the Complainant generally. … Logically, by not convicting the Accused where he brought proof of his innocence, but convicting him where this was impossible because of the non-specific nature of the allegations, the jury can only have convicted the Accused on the non-specific counts by: (

1. a)Reversing the burden of proof onto the Accused; (
2. b)Disregarding the presumption of innocence; 11 (
3. c)Approaching each count completely in isolation, rather than considering whether their conclusions on the date-specific counts affected their view of the credibility of the complainant on the specific counts; (
4. d)Non-compliance with the other aspects of the judge’s charge; or (
5. e)Some other impermissible line of reasoning.’ Written Submissions of the Respondent 22. In their submissions, counsel for the respondent, relying on The People (DPP) v Alchimionek [2019] IECA 49, argue that the jurisdiction to overturn a jury verdict on the basis of perversity is one that is to be used very sparingly and only in exceptional circumstances. Counsel quote Alchimionek at paragraph 11 where Birmingham P. highlighted the exceptional nature of a decision to quash a jury verdict: ‘As has been made clear in cases such as DPP v. Tomkins [2012] IECCA 82 and DPP v. Nadwodny [2015] IECA 307, a decision to quash a verdict because it is perverse is a very exceptional one. This reflects the primacy of the jury in our system of criminal justice. Ordinarily, it is not for appellate courts to substitute their own view of the evidence for that of the jury. A further practical reason why such situations are rare and exceptional is that in any given case where the state of the evidence is such that a conviction would be perverse or would give rise to a miscarriage of justice, one would expect to see an application to the trial Judge to withdraw the case from the jury. If, in such a case, the issue is in fact considered by the jury, then usually, it will be because a Judge, having heard the matter argued, has come to the view that it is a case where a properly charged jury could properly return a verdict of guilty’. (Respondent’s submissions at paragraph 21) 23. Counsel for the respondent dispute the appellant’s argument that the jury decided not to convict him with regards to count 22 and count 51 where the allegations were “specific” but decided to convict him where the allegations were “non12 specific”. It is argued in submissions that there were five “specific” counts on the indictment. These counts included: count 1, count 22, count 39, count 40, and count 51. The submissions continue by stating that the jury convicted on count 1, count 39, and count 40 but disagreed on count 22 and count 51. It is added by counsel for the respondent that the jury convicted on all 46 sample counts. 24. The argument that as a result of the jury’s disagreement on count 22 and count 51 they must have doubted the complainant’s credibility in general is disputed by counsel as it ignores the jury’s entitlement to reject or accept the complainant’s evidence completely or partly. By the same token, it is submitted, the prosecution evidence could be rejected by the jury in whole or in part also. 25. The respondent’s submissions then refer to The People (DPP) v JO’C [2023] IECA 14. In that case, the jury disagreed on two counts of sexual assault, and it was argued that the jury’s verdicts on these counts, on which they convicted, were perverse. Paragraph 45 of the judgment is quoted in the respondent’s submissions: ‘The appellant’s submission on one level appears to be an objection to the idea that the jury accepted in part and rejected in part the evidence of different witnesses. As a proposition of general application, it must be rejected; the jury is entitled to reject or accept a witness’ evidence in whole or in part and indeed they are also entitled to accept or reject the prosecution evidence in whole or in part. This is part and parcel of the function of a jury. It may be that there is a rare and exceptional occasion - and we do not have to even make such a finding - that it would be perverse to accept part only of a particular witness' evidence. That was not the situation here, however. This was not a case where credibility or reliability could only be addressed in an entirely binary feature. This, like many cases of historic child sexual abuse, involved aspects of the reliability of memory (here concerning ages/dates and questions of opportunity to abuse) being measured against apparently objectively verifiable matters (the ending of the visits to the grandparents for minding). The resolution of those issues was quintessentially for the jury to tease out and resolve in this case.’ 13 26. Paragraph 46 of the JO’C judgment is relied upon by counsel for the DPP, as follows: ‘It is important that a jury verdict is not interrogated. A jury has seen and heard evidence and may well be struck by matters that lawyers and judges do not consider particularly significant. It is often said (even in speeches or charges to the jury) that the value of a jury lies in the very fact that they are not case hardened; that they come with fresh eyes to the system of the administration of justice’. 27. Importantly, counsel suggest that (on the evidence) there could be many reasons why the jury may have not accepted all of the evidence in relation to count 22 and count 51: ‘For example, in respect of count 22, a count of vaginal rape, the complainant accepted in cross-examination that she had told Gardaí that she was unsure as to whether penetration had taken place. In her evidence in respect of count 51, the complainant said that a sexual assault had occurred during a break between two junior cert exams that took place on the same day. Evidence was put to her that one exam finished at 11.30am and the next started at 2pm and that the Appellant had dropped his wife at Heuston Station at 12.30pm. The jury was not prepared to convict on this count.’ 28. Separately, counsel submit that the trial judge had not misdirected the jury by not telling them that ‘their view of the complainant’s credibility on the “specific” counts could affect their view of her evidence on the “non-specific” counts.’ It was made clear in the trial judge’s charge that it was for the jury to assess the complainant’s credibility. The respondent’s submissions quote the trial judge: ‘He said “you're responsible for weighing up the evidence and ultimately deciding the facts of the case. It is entirely up to you to decide what evidence is reliable and what evidence is not.’ 14 29. Counsel also note that the trial judge gave a strong delay warning to the jury because of the non-specific nature of the counts. The jury were directed that: ‘The prosecution rests entirely on the credibility of the evidence of [the complainant] Because the incidents alleged happened between approximately six and 12 years ago when [the complainant] was still then a child and teenager in emotional turmoil, her allegations are only loosely anchored in time. That makes it much more difficult for [the appellant] to mount a defence than it would be if a specific date or a narrower date range was given for the commission of the offences charged against him. It's more difficult to establish an alibi or alibis to cover a lengthy period of time that ended several years ago than, say, to cover a single day in the more recent past. It is more difficult to challenge allegations with less contextual detail so that the prosecution task becomes easier and that of the defence much harder. But the law does not say that, for those reasons, old cases can't be tried, and this is not a case of specific prejudice caused by delay. [The appellant] hasn't attempted to identify any specific evidence capable of rebutting the allegations against him that would have been available to him had the allegations been made more promptly. Nonetheless the warning I must give you is this; you must not, in your minds or in your consideration of the case, allow [the appellant] to be disadvantaged because the case is old and the complaint relates to events from a long time ago. You must be all the more careful and it should be much harder to satisfy you in relation to an event that is phrased in a vague and general way than in relation to one that carries more specific detail and context. You cannot let the fact that [the appellant] is disadvantaged by the lack of precision in the charges against him cause you to more easily reach a decision adverse to him. The prosecution should obtain no advantage from bringing an old case. As a jury you must recognise the huge difficulty that an accused person faces in meeting an old case and take that into account when arriving at a decision.’ 30. The Director’s counsel conclude that this case is not one ‘which comes anywhere near the threshold for demonstrating that the verdicts were perverse. The jury 15 was entitled to accept or reject all or part of the complainant’s evidence having regard to the evidence in the trial as a whole.’ Analysis and Decision 31. At the outset of his oral submissions, counsel for the appellant stated that the appeal came down to one single argument. He submitted that: ‘the unique combination of verdicts can only have been reached in an inconsistent way…’. Counsel went on to posit that the jury must effectively have placed the burden of proof on the accused. 32. As the hearing went on, it became clear that there were two associated elements to the appeal. The first was that the charge to the jury was said to be flawed, in that the trial judge (in instructing the jury to decide each charge separately) did not make it sufficiently clear that concerns about the complainant’s credibility arising from one count could affect her credibility on some or all of the other counts. The second issue was the perversity of the jury’s verdict, as set out at paragraph 31 of this judgment. 33. We will deal in turn with each of these points. 34. As we have noted earlier, the appellant relied upon Northern Irish authorities on the first issue. We will start with R v Harbinson. At paragraph 23 of his judgment, which we have set out earlier, Girvan L.J. emphasised the need for “separate consideration” to be given to each count. He also stressed that credibility on one count may affect the jury’s view on the credibility on other counts. These observations, with which we fully agree, were made in the context of a separate concern. This was the possibility that juries might return verdicts on some counts, only to wish to revise those determinations should they revise their opinion on the fundamental credibility of a witness (quite possibly the complainant) once they had considered the facts relating to the outstanding counts. Of course, this did not happen here. The jury waited until they had gone as far as they could in considering the evidence before returning verdicts or reporting disagreement. The furthest that Harbinson goes, in our view, is to set out coherently and persuasively the plain proposition that the credibility of a witness may be damaged so profoundly in cross examination on one count that their credibility on other counts is called into question. 16 35. In R v A [2014] NICA 2, delivering the judgment of the court, Girvan L.J. elaborated upon what he had said in Harbinson. It is noteworthy that in A, there were two convictions and two acquittals of the accused. Having endorsed the view that the jury should be directed that the case against an accused must be considered “on each count separately” he went on to say: ‘Directions will often require adaptation suitable to the circumstances of a particular case and should not be regarded as a magic formula to be pronounced like an incantation. In a case such as the present one where there is a common issue affecting each of the counts (in this case the general credibility of the complainant) the jury must understand that the consideration of each separate count does not mean that conclusions reached on some of the counts may not have important significance in relation to others. If the jury reject as incredible evidence given by the complainant on some of the counts, their rejection of her credibility in those counts must play into their assessment of her credibility on others.’ 36. Having then gone on to refer to Harbinson, Girvan L.J. concluded that: ‘The somewhat bald specimen direction required an adjustment in the present case so as to make clear to the jury that: (
6. a)Their conclusions about credibility on some counts could be relevant to their assessment of the complainant’s general credibility and her credibility on other counts; and (
7. b)Before returning their verdicts they should stand back and satisfy themselves that, notwithstanding any adverse assessment of the complainant’s credibility on some of the counts, they could safely conclude that her evidence on the other counts was sufficiently credible to justify conviction on those counts.’ The two convictions in A were quashed, given the absence of such direction to the jury. 17 37. As noted in their submissions, counsel for the appellant are critical of the portion of the trial judge’s charge which emphasised the need to consider each count separately. As was pointed out to counsel during argument, one purpose of that approach is to avoid an accused being adversely affected by a jury deciding that guilt beyond reasonable doubt on one count should lead to guilty verdicts on other counts. The real issue is not the trial judge’s direction on this point; rather it is whether that aspect of his charge could give rise to a risk that the jury would not consider the complainant’s credibility in her evidence on one count as being relevant to her evidence on other counts. 38. Counsel for the appellant did not mention the conclusion of the trial judge’s charge. In his speech to the jury, counsel for Mr. Kinneavy had adroitly argued that the rejection of the complainant’s evidence in respect of one count could affect how the jury might decide the others. Towards the end of his charge, the trial judge commented on that submission. Before doing so, he had dealt with delay (at page 26 of the transcript) as follows: ‘That obviously makes the task for a jury and the task of the Court in trying these cases a lot more difficult. It increases the likelihood that the case will come down to the word of one person against the denial of another, coupled with the problem that old allegations frequently lack precision and detail. The less detail provided of an allegation, the less easy it is to test and challenge. Now, this case displays each of those two features. The prosecution rests entirely on the credibility of the evidence of [the complainant]. Because the incidents alleged happened between approximately six and 12 years ago when [the complainant] was still then a child and teenager in emotional turmoil, her allegations are only loosely anchored in time. That makes it much more difficult for Sean Kinneavy to mount a defence than it would be if a specific date or a narrower date range was given for the commission of the offences charged against him. It's more difficult to establish an alibi or alibis to cover a lengthy period of time that ended several years ago than, say, to cover a single day in the more recent past. It is more difficult to challenge allegations with less contextual detail so that the prosecution task becomes easier and that of the defence much harder. But the law does not say that, for those reasons, old 18 cases can't be tried and this is not a case of specific prejudice caused by delay. Sean Kinneavy hasn't attempted to identify any specific evidence capable of rebutting the allegations against him that would have been available to him had the allegations been made more promptly. Nonetheless the warning I must give you is this; you must not, in your minds or in your consideration of the case, allow Sean Kinneavy to be disadvantaged because the case is old and the complaint relates to events from a long time ago. You must be all the more careful and it should be much harder to satisfy you in relation to an event that is phrased in a vague and general way than in relation to one that carries more specific detail and context. You cannot let the fact that Sean Kinneavy is disadvantaged by the lack of precision in the charges against him cause you to more easily reach a decision adverse to him. The prosecution should obtain no advantage from bringing an old case. As a jury you must recognise the huge difficulty that an accused person faces in meeting an old case and take that into account when arriving at a decision.’ 39. The stress on the credibility of the complainant is important and could not have been clearer. A short while later (at page 27) the trial judge comments: ‘Mr. Devally [counsel for Mr. Kinneavy] also submits that [the complainant’s] account of the offences that she alleges has been shown to be vague and unreliable in the various ways that he has described in his closing speech so that you could not in any event rely on that evidence to establish the guilt of Sean Kinneavy beyond a reasonable doubt even if you were to entirely reject Sean Kinneavy’s own denials.’ 40. He concluded: ‘Now, as with all of the evidence, it will be for you, members of the jury, to weigh the significance of these asserted inconsistencies and contradictions in the evidence of [the complainant]. Are they, as the prosecution in effect suggest, the inevitable gaps and inconsistencies about largely peripheral details that will arise when a witness attempts to recall a traumatic series of events that occurred some years ago at a time when she was a child or 19 a teenager or are they, as Mr. Devally suggests to you, gaps and inconsistencies of such significance that they undermine the reliability and hence the credibility of the complainant's evidence to the extent that you must be left with a reasonable doubt concerning the guilt of Sean Kinneavy on some or all of the charges against.’ 41. In our view, this section of the charge is of importance. In it, the trial judge expressly endorses the possibility that the jury could find some of the complainant’s evidence so lacking in credibility that they might have to return a not guilty verdict on “some or all of the charges…”. Correctly, he holds back from expressing a view as to whether or not they should do so. 42. The trial judge had therefore done what was required by Girvan L.J. in A, namely identified that the jury’s views on the credibility of the complainant could lead to acquittals on some or all of the charges. He did not direct the jury to carry out the exercise which is described at point (
8. b)of the judgment of Girvan L.J., as set out at paragraph 36 of this judgment. We do not believe that there was any need for him to do so, as he had identified to the jury the prospect that they might acquit on some or all of the counts if concerns about credibility had arisen from the evidence given on other counts. 43. The judge’s charge correctly identified, in our view, the possibility that the jury might acquit the appellant on some or all of the charges should they find the credibility of the complainant sufficiently undermined in respect of any particular count. This aspect of the appeal therefore fails. 44. There remains the submission that the jury was perverse in convicting on 49 charges, while disagreeing on two counts. In our view, there is no such inconsistency established by the appellant. In respect of the two counts on which the jury disagreed, there were specific facts which explain the jury’s decision. In respect of count 22, the complainant had accepted that she was unsure as to whether or not penetration had occurred. In respect of count 51, the appellant’s counsel was able to put to the complainant that the alleged assault had occurred (on her account) within a time frame that made it very unlikely that the appellant could have been in the complainant’s house (where she said the assault had occurred). In light of that evidence, it is unsurprising that the jury disagreed. It was certainly open to the jury to conclude that, if the complainant was wrong 20 about her account of these two incidents, she was mistaken about the other counts. That is particularly so given the fact that the trial judge had charged them to that effect. Critically, the jury made no such finding. That does not indicate any perversity in their deliberations. On the contrary, it suggests that the jury differentiated between individual counts and came to their decision having regard to the evidence. 45. It would be possible to decide this aspect of the appeal by reference solely to the judgment of this court in J.O’C, specifically by declining to look behind the verdicts returned by the jury. However, even if one was to analyse the verdicts in this case it is quite clear that they are not marked by the sort of “logical inconsistency” referred to by Professor O’Malley in the work upon which the appellant relies. This element of the appeal also fails. 46. We will therefore dismiss the appeal in its entirety. 21