[2026] IECA 99 | Europaius

THE COURT OF APPEAL [2026] IECA 99 Record Number: 142/2024 Butler J. Burns J. Owens J. THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) Applicant/Respondent -ANDG.F. Respondent/Appellant JUDGMENT of the Court delivered by Mr. Justice Alexander Owens on the 7th day of May

On 29 February 2024, following a trial, G.F. was convicted of having committed five sexual offences and acquitted of having committed one offence. Those verdicts were unanimous.
G.F. was convicted of raping his female cousin A.B. while babysitting her at her home on an unknown date between the beginning of September 1978 and the end of August 1981, and of two offences of having indecently assaulted her while babysitting her at her home on other occasions during the same timeframe. He was also convicted of having sexually assaulted her sister, B.B., at a scout camp outing which took place between the beginning of May 1991 and the end of September
He was also convicted of having sexually assaulted a third sister, C.B., during the same trip.
G.F. was acquitted on a count of having sexually assaulted B.B. at her home on an unknown date in the period between the beginning of June 1982 and the beginning of June
G.F. is appealing against these convictions. His main ground of appeal relates to an allegation in an anonymous letter. This letter was received in the post by his solicitor. It purported to come from a member of the jury. G.F. claims that allegations in this letter undermined the safety of the verdicts rendered by the jury and that the Gardaí should have investigated the issues raised by it.
He also complains that the jury was not discharged by the trial judge because B.B., when giving evidence to the jury on the charge that he sexually assaulted her at her home, stated that “he raped me.” He asserts that counsel for the Director of Public Prosecutions made inappropriate remarks in his closing address to the jury. He asserts that the guilty verdicts were not supported by adequate evidence.
Turning to the first ground of appeal, the sentence hearing, following conviction, took place on 15 April 2024 and sentence was pronounced on 29 April
On 22 April 2024 G.F.’s solicitor received an anonymous undated and unsigned manuscript letter in the post. This claimed to have been authored by an unidentified Jury Member.
The envelope was franked at a central sorting office on 19 April
We understand that this letter and the envelope were passed to Gardaí or the Director of Public Prosecutions. The letter could have been posted in any one of a number of counties, in the Midlands, the West of Ireland and/or the South-West of Ireland.
The author professed a fear of being identified. The document referred to one juror “being absent” due to a family circumstance “and the others being hellbent on guilty.”
This document made a number of general complaints. The letter was couched in vague terms. It voiced a “belief”, stated to be based on what was said in the jury room, that some of the jurors had knowledge of the circumstances which were the subject of the trial, or those involved. It asserted that jurors spoke of “its impact on those not mentioned in court.” It complained that jurors had made up their minds before G.F. gave evidence.
It asserted that some of the jurors, including the author, believed that a brother of G.F. was the culprit for more serious offences charged and that other jurors were unwilling to entertain this; and commented that it did not matter which of them was guilty. It suggested that jury members were biased. The author asserted that “I felt under immense pressure” from jury members who were believed to have known the family. The letter does not make any direct allegation against any particular jurors.
No such concerns were drawn by any of the jurors to the attention of the trial judge during the trial.
The jury was fully quorate during its deliberations. The guilty verdicts, as pronounced at the conclusion of the trial in the presence of all of the jurors, were recorded as unanimous. There was no suggestion during the period when the jury was deliberating that the jurors were experiencing any difficulty in working towards unanimous verdicts. The majority verdict direction had not been given and it follows that the not-guilty verdict was also unanimous. There was no suggestion that any of the jurors dissented on any of the guilty verdicts.
There is no suggestion that the trial judge failed to give the panel of potential jurors details of the charges and the principal witnesses and the warning provided for by s.15

(3)of the Juries Act

The trial judge provided the potential jurors with the names of the three complainants and the locations where the offences charged were alleged to have taken place. He warned the potential jurors that if they knew G.F., A.B., B.B. or C.B. or anything about the circumstances which gave rise to the trial, they should communicate the fact to him.
There was no evidence from which jurors could properly infer that if they concluded that the offences were committed, the culprit could be any person other than G.F. G.F. did not run any such defence. On cross-examination, G.F. disavowed that he was making any such suggestion. The learned trial judge reminded the jury members in his charge that they were not entitled to speculate or to engage in guess-work.
The Director of Public Prosecutions forwarded a copy of the anonymous letter to the trial judge. Prior to the passing of sentence on 29 April 2024, counsel for G.F. referred to it. He did not apply to adjourn the sentencing or for any other order arising from it. The trial judge indicated that he was directing that the letter be placed on the court file and proceeded to sentence G.F.
No criticism can be levelled at defence counsel for adopting this course. The jury had long since delivered its verdict and had been released. The trial judge did not have any jurisdiction to investigate the letter. Prosecution’s submission that the defence, having failed to apply for an arrest of judgment prior to sentencing, was precluded from raising the content of the letter in an appeal was misconceived. That submission was abandoned during the appeal hearing.
At the hearing of this appeal counsel for G.F. suggested that the Garda Síochána ought to have taken the initiative and investigated the provenance of this letter. It was suggested that the document should have been forensically examined with a view to identifying the author.
Counsel posited that, in light of the contents of the letter, this enquiry by Gardaí was both proper and necessary. He submitted that the Garda Síochána might have to find out about deliberations in the jury room if they were investigating crimes such as interference with jurors. He submitted that if the Garda Síochána could enquire with jurors about these matters, it followed that they could enquire about the issues raised in the letter.
These submissions are misconceived. The Gardaí might enquire to see if this letter was an improper effort by a person who was not on the jury to influence the outcome of the trial or sentencing. For the Gardaí to investigate this, it would be necessary that they had reason to suspect that a third party was involved in authoring and sending the letter. Their role would be limited.
The Gardaí had no role in initiating an investigation into whether members of the jury failed to act in accordance with their oaths and affirmations and the judge’s directions.
Any enquiry by Gardaí of the sort advocated by counsel for G.F. would lead to interviews with the jurors relating to their confidential discussions prior to verdict. The Gardaí could not ask jurors questions touching on that subject.
Any communications with jury members directed towards investigation of the propriety of their verdict are a contempt of court.
Even if this letter was genuine, in the sense of being a letter written by one of the jurors, its contents are insufficient to justify further investigation.
The law provides that neither testimony, nor unsworn material, purporting to come from a juror, is receivable after trial for the purpose of impeaching the verdict. Oral evidence or affidavits of jurors are inadmissible for such purposes because they breach the privilege of jury confidentiality. It would be no more proper for Gardaí to seek such information from jurors than it would be for the solicitor for a defendant to approach jurors with a view to enquiring how they reached their verdict.
This is an aspect of a wider policy of the law which prohibits challenges to verdicts of juries and to decisions of non-jury trial and appellate courts based on legally impermissible expressions of dissent by individual decision-makers.
This rule relates to the profession by the jurors of unanimity in cases where they are required by law to declare unanimity. It also applies to majority verdicts in criminal trials where such verdicts are taken in the manner prescribed by s.25 of the Criminal Justice Act 1984 (the 1984 Act). This includes a prohibition on ascertaining whether a verdict of acquittal is by a majority. It also applies to the obligation imposed on civil juries by s.95 of the Courts of Justice Act 1924 (the 1924 Act) to give a verdict “of nine members or upwards” which “shall be taken and recorded as the verdict of the jury, without disclosure of the dissentients, if any there should be.”
This Court, exercising its appellate criminal jurisdiction, and the Special Criminal Courts, are similarly precluded by statute from indicating assent or dissent of their individual members to their decisions: see s.27 of the 1924 Act, s.7A

(7)of the Court of Appeal Act 2014 and s.40 of the Offences Against the State Act

This prohibition also applies to communications by a jury member touching on the manner in which a jury has come to its verdict.
Jury members are instructed by presiding judges not to do their own research, and not to discuss the trial with outsiders. Jury members were formerly held together throughout a trial and until verdict to prevent communications to or from outside parties during the process. Nowadays, they may only separate after they have retired to consider their verdict for such periods as the judge directs: see s.25 of the Juries Act 1976, as amended.
While the jurors are participating in a trial they may take notes, form provisional views on the evidence and discuss that evidence amongst themselves. These discussions take place in the jury room at lunchtime or during other periods when the jury is not in court. The jurors engage in formal discussion when they retire to deliberate on their verdict. All of these discussions and notes are part of their proceedings and are absolutely confidential and privileged. No juror is entitled to make any disclosure relating to these activities and interactions, nor is any person entitled to solicit such or receive such information. This rule exists for the protection of individual jurors and of the jury as a body, so that the jurors can perform their constitutional duty with the necessary freedom and confidence.
This obligation of jurors to maintain confidentiality continues after the jury has pronounced its verdict. It applies to all aspects of their decision-making prior to that verdict. It is not confined to the issue of whether the jurors were sufficiently ad idem to render a verdict in accordance with the requirements specified in the relevant provisions of the 1924 or 1984 Acts.
The same rules apply to judges sitting in panels or in banc. Their discussions and notes are confidential and privileged. Even in cases where expression of dissent is allowed, the individual judges and others who are privy to their deliberations are not permitted to disclose any information about their deliberations to third parties. It is improper and impermissible for unauthorised persons to solicit any of that information. It is also improper and impermissible to publish any of that information.
Because privilege attaches to all of that information, it is not receivable in legal proceedings. It cannot be the subject of any subpoena, discovery application or other similar process.
Once a jury has rendered its verdict in a final way, no outsider is entitled to interrogate the jurors on the process by which they have arrived at that verdict, or to receive evidence from jurors on that. Individual jurors, or even the members of the jury acting unanimously, are not entitled to waive this privilege and obligation of confidence. This privilege is a privilege of the court. The confidence is owed to both the other jurors and to the court.
Jurors cannot communicate with third parties about their deliberations. They must not give interviews relating to such matters to journalists or others after verdict. Journalists and others must not seek information about their deliberations. This rule precludes enquiry by members of the Garda Síochána directed to ascertaining how jurors conducted their deliberations with a view to ascertaining whether they adhered to their oaths or affirmations.
It is perhaps surprising that until recently the obligation of jurors to preserve the confidentiality of their deliberations has not been the subject of many judicial decisions in Britain or Ireland. That obligation of confidentiality has never been in doubt, but how is it to be enforced?
It has always been accepted that it is contempt of court for a juror to discuss with members of the public a trial in which that juror is participating during the hearing and prior to verdict: see, for instance, Vol 8, para.32 at p 18 of the 3rd Ed. of Halsbury’s Laws of England.
The issue of whether publication by a journal of the content of a communication by a juror as to the reason for a conviction or acquittal in a criminal trial might be a contempt of court did not arise in England until The New Statesman published elements of an interview with two jurors following the Thorpe trial in 1979: see the judgment of Park J., for the Divisional Court, in Attorney General v. New Statesman [1981] Q.B.
The article in New Statesman stated that all of the jurors in the Thorpe trial agreed after their first day of deliberation that the accused were involved in a conspiracy of some kind, but that 11 of them considered that it was not proved that the conspiracy was to murder. It reported that the jurors were all agreed that, on a charge of incitement to murder, they should not accept the uncorroborated evidence of the witness who had agreed to accept payment from a newspaper, to be increased in the event of a conviction.
The only issue for decision by the Divisional Court was whether the publication of the report which contained this information was a contempt of court. It is conceivable that the jurors disclosed further information about the jury deliberations which did not make its way into the article, as published.
The Divisional Court referred to observations by the Court of Appeal following newspaper reports of comments made to journalists by the foreman of the jury after the verdict in the Hay-on-Wye murder trial in 1922: see the judgments of Bankes, Warrington and Atkin LJJ in Ellis v. Deheer [1922] 2 K.B. 113 at pp. 117-118, 119-120 and 121-
The Divisional Court also referred to remarks by Lord Hewart C.J., delivering the judgment of the Court of Criminal Appeal on the appeal arising from that trial, touching on the duty of jury members not to disclose their deliberations or individual opinions on the evidence after verdict: see Rex v. Armstrong [1922] 2 K.B.
The Divisional Court did not conclude that “there would of necessity be a contempt because someone had disclosed the secrets of the jury room”: see the judgment of Park J. at p.10 of the report. That Court considered that, on the state of the law, it was not possible to conclude that every post-trial publication of jury room secrets must, of necessity, amount to a contempt: ibid., at p.
That court came to the following conclusion on the general issue: “The virtue of our system of trial by jury lies in the fact that, once the case is over and the jury has returned its verdict, the matter is at an end. In our judgment, therefore, any activity of the kind under consideration in this case which - to use the language of the Attorney-General's statement - tends or will tend to imperil the finality of jury verdicts or to affect adversely the attitude of future jurors and the quality of their deliberations is capable of being a contempt.”
Jurors will inevitably be inhibited in their task if they cannot rely on the obligation of fellow jurors to preserve confidentiality. A juror’s duty to keep deliberations confidential is owed to both the court and to fellow jurors. It does not matter that the purpose of an enquiry or the nature of the disclosure may not tend to imperil the finality of the verdict. That cannot be the correct test.
The role of the jury in the Thorpe trial was to decide whether the evidence established that the accused were guilty of the offences charged; not whether they might or might not be innocent of some other conspiracy. The two jurors gave their view that Mr. Thorpe and others were up to no good. This was no part of their function. They disclosed their reasoning. This was no part of their function either, even though that reasoning was not illogical, and might therefore be claimed not to imperil the finality of their verdict.
It is therefore not surprising that the effect of this judgment was promptly reversed in the United Kingdom by s.8 of the Contempt of Court Act
This expressly prohibited obtaining, disclosing or soliciting “any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings.” This prohibition was subject to two exceptions. The first exception allowed communications by the jury with the court which were necessary to arrive at a verdict or to deliver that verdict. The second exception was disclosure of particulars in evidence in subsequent proceedings relating to an offence alleged to have been committed in relation to the jury in earlier proceedings.
In Ireland, the proprietor of the National Press and Evening Press was found by the Exchequer Division of the High Court of Justice to be in contempt of court for publishing an article on the result of a failed trial due to jury disagreement in a defamation case. The article stated that a single jury member had disagreed on a verdict in favour of the plaintiff in a libel case taken against the Freeman’s Journal and had said that he would not agree to anything against that paper, even though the other jurors were all in favour of finding for the plaintiff and awarding substantial damages: see Sheehy v. Freeman’s Journal Company Limited

(1892)26 I.L.T.R.

Palles C.B. considered that the main point arising from this element of the disclosure was that publication of the fact that one juror dissented was calculated to affect the view of a jury on a retrial, rather than on grounds of secrecy.
This element of the reasoning of Palles C.B. has been superseded, at least in the case of disclosure of jurors in support of a verdict, by the effect of the regulating sections of the 1924 and 1984 Acts. In the event of a jury disagreement, it is difficult to accept that a member of a jury could properly disclose the number of jurors for, or against, a conviction, or for and against a finding for a party to a civil trial. If this information was disclosed, it is difficult to accept that it could properly be published in a newspaper.
In a later part of his judgment, Palles C.B. indicated the approach which courts adopt when faced with attempts by jurors to disclose how they are divided in their deliberations during the course of a trial.
Palles C.B. then considered the effect of the imputation against the dissentient juror, who does not appear to have been identified in the newspaper article, and stated as follows: “But I proceed to the second paragraph, which is very much graver—that conveying the view of the newspaper as to the particular way in which the action ought to be decided, and which makes a grave imputation upon the one alleged dissentient juror, as being at least an unreasonable person, probably worse. I have not the slightest hesitation in holding that, as a matter of law, that was eminently calculated to interfere with and obstruct the course of justice with reference to the defendants in the action. The application was made by reason of that article, and I must say that the mode in which it has been met passes anything I have ever met with in the courts of law. We have always refused to allow affidavits as to what took place in the jury-room, or how the jury were divided. Sometimes a juror attempts to inform the court how they were divided, but he is always stopped. Such applications are often made in new trial motions, and we have laid down the principle that the affidavit of a juror is not admissible on that subject. Mr. Brayden in his affidavit says that he believes that the statement is true. It is not necessary to refer to authorities in reference to such a passage in an affidavit. I decline to go into the question as to the intention of the parties in reference to the publication of this paragraph. The only thing the court can judge of is, what was the article calculated to effect. In my opinion, it is eminently calculated to prejudice the fair trial of the action.”
While the focus of that decision was the potential effect of an article in a newspaper on the fairness of a second trial in the context of an application brought by a litigant against a newspaper, the point on which Palles C.B. expressed disapproval was that the evidence relied on by the newspaper to answer the application involved disclosure of jury secrets. This was clearly impermissible.
In the Freeman’s Journal case content of the disclosure of what was alleged to have taken place between the jurors in the jury room was used to support an attack on the conduct of one of the jurors. The information which the Freeman’s Journal relied on to defend its position that the article published was not in contempt of court related to the manner in which the jury conducted its deliberation. That material should have remained confidential. The allegation against an unnamed juror might not have been true.
The law would fail in its obligation to protect jurors in carrying out their duty if the courts were not to insist on strict compliance with the rules which protect their privilege and the confidentiality of their deliberations.
It follows that in this jurisdiction any investigation of an assertion of irregularity in the manner in which a jury reached its verdict after that verdict has been properly taken and the jury has been discharged is not a matter for the Gardaí. They cannot take it upon themselves to ask jurors about such matters, nor can jurors divulge such matters to them.
Issues of jury irregularity during a trial are matters for the trial judge. After the verdict has been rendered such issues can only be canvassed on appeal. If any enquiry of the jurors as to what took place during their discussions and deliberations is permissible at all, which is very doubtful, that course can only be taken where sanctioned by the appropriate court.
Recent judgments of this Court reaffirm the general rule that the courts will not entertain or receive any material, such as has been advanced in this appeal, to question a jury verdict.
This rule has been comprehensively considered by this Court in paras.11-54 of the judgment of Kennedy J. in People (Director of Public Prosecutions) v. J.N. [2022] IECA
This is the leading judgment of this Court on the issue raised. Her judgment in People (Director of Public Prosecutions) v. A.A. [2024] IECA 154 traverses the same ground.
In J.N., Kennedy J. reviewed a number of authorities, including the decision of the House of Lords in R v. Mirza ([2004] UKHL 2) [2004] 1 A.C.
Mirza decided that in the United Kingdom appellate courts will not examine the route of a jury to verdict. The House of Lords decided that this rule is subject to two very narrow exceptions which are not relevant to this appeal.
In J.N. this Court firmly rejected an application to upset a verdict in circumstances where a juror sent in a letter after a trial which included reservations in somewhat similar terms to those expressed in the document relied on in this appeal. At para.49 of its judgment, this Court indicated that it was satisfied in the circumstances of that case “the verdict of the jury should not be interrogated. As already stated, it is essential that jurors are in a position to speak their mind without any fear or concern or pressure of any kind. Candour in the jury room is essential and we are not at all persuaded that in the present case an enquiry ought to take place. The ‘no impeachment’ rule remains steadfast.”
This Court concluded at para.52 of its judgment in J.N. that while there “might be some very exceptional circumstances where further inquiry might be warranted, and further evidence-taking possibly necessitated,” the case under consideration came “nowhere near such a conclusion.”
The letter received by G.F.’s solicitor may not be genuine. Even assuming it to be genuine, it makes vague assertions of “belief” that some jurors, who are not identified, had knowledge of the matter being decided and of those involved. It complains that some of the jurors refused to entertain a speculative theory that G.F.’s brother perpetrated the main sexual assaults.
Even assuming this document to have been authored by a juror, it contains nothing which could justify an enquiry as to what took place in the jury room. This document cannot render the verdict of the jury unsafe.
Turning to the other grounds of appeal, this Court is satisfied that there is nothing in the submission that the learned trial judge should have discharged the jury when B.B. described the incident charged as a sexual assault, on which the jury acquitted G.F., as a rape. Firstly, the jury acquitted G.F. of having committed this offence. Secondly, there is no reason to believe that the jury did not understand its role in considering the evidence relating to this offence. The learned trial judge instructed the jury that the offence as charged was sexual assault and to examine the evidence by reference to the charge. That testimony, which was led by the prosecution by agreement, was inadequate to enable the jury to conclude that G.F. had raped B.B., given the absence of any evidence that penile penetration of the vagina had taken place.
It is easy to understand how B.B. came to express a view that G.F. raped her. It will often happen that the statement of proposed evidence of a witness is uncertain on the commission of a particular element of sexual activity, such as penetration. In this case the statement of B.B. described that she was naked from the waist down, that G.F. was also naked from the waist down, that she was a very young girl at the time, that he lay on top of her and that she felt sore in her private area after this event.
As counsel for the Director of Public Prosecutions correctly submitted to the trial judge, it was not appropriate to attempt to curate B.B.’s evidence. The jury was well capable of understanding what her evidence relating to this event was capable of proving. The defence was not in the least disadvantaged. B.B. described how G.F. took off her underwear and took off his pants.
She then, without precisely describing what happened next, stated that she was six years of age at that time and he hurt her. She didn’t have words for what he had done; at 47 she did. “He raped me.” What she was conveying to the jury was that, looking back on that incident with the understanding of an adult, she believed that G.F. had raped her.
That could hardly come as a surprise. Whether her testimony on the detail of what happened established penetration remained to be explored. Following legal argument, the exact detail was led out in accordance with her statement and left to the jury on that basis. There is no reason to conclude that the jury did not understand the evidence or its function in relation to this evidence or that this evidence was unduly prejudicial or could have rendered any of the verdicts of guilty unsafe.
This Court is also satisfied that there is no support for the ground of appeal that the jury verdicts were inconsistent and went against the weight of the evidence. No application was made on behalf of G.F. to withdraw any of the charges laid in the indictment from the jury on grounds of insufficient supporting evidence. There was evidence to support each of the charges on which the jury convicted. The acquittal of G.F. on one of the charges was not inconsistent with any of the guilty verdicts.
The final issue raised in this appeal relates to the closing address of counsel for the Director of Public Prosecutions to the jury. In summary, that closing address set out the evidence given by A.B., B.B. and C.B., and submitted that they were truthful witnesses. Counsel also addressed the evidence given by G.F. and his answers in his interviews to Gardaí and submitted that G.F. was lying.
The jury was faced with contradictory accounts and prosecution counsel was within his rights to invite the jury to decide who was telling the truth and who was lying. While A.B., B.B. and C.B. were not directly accused of being untruthful witnesses, there could be no ambiguity about their evidence that they were sexually abused by G.F. No third version of events or other explanation for their testimony implicating G.F. was available for the jury to consider. Either they were lying or G.F. was lying.
Counsel for G.F. made no objection to the closing address of prosecution counsel. He had the weekend to respond to this closing address. As might be expected, counsel for G.F. tried to persuade the jury members to reject a view of the evidence based on a stark choice of who was telling lies, and to focus more on areas where evidence might be perceived as unreliable or unconvincing.
These points regularly feature in closing addresses of counsel for the prosecution and defence in criminal trials and none of what prosecution counsel stated was objectionable. His closing speech did not involve any attempt to mislead the jury on the evidence, or other chicanery.
The learned trial judge reminded the jury that they must render their verdicts after considering all the evidence which they received. That evidence included the testimony of G.F. and of his wife and his answers to questions asked by the Gardaí during their interviews with him.
The learned trial judge explained to the jury that in order to convict G.F. it was not enough that they rejected his version of events. Even if the jury rejected his version, they must be satisfied that the prosecution had proved his guilt beyond reasonable doubt. He also explained that people lie for all sorts of reasons and that if there might be a reasonable explanation for what the prosecution maintained was a lie by G.F., they should not take any notice of that lie.
This explanation was favourable to G.F. This type of direction on the evidential significance of lies usually relates to evidence given of statements or comments made by a suspect prior to charge. There may be an innocent explanation for lies told by a suspect in that type of circumstance.
Lies told in the witness box are a different matter. If the jurors disbelieved the testimony of G.F. on any matter and concluded that he told them lies on that matter in the witness box, it stood to reason that the likely explanation for his lies was that the evidence of A.B., B.B. or C.B. relating to that matter represented the truth.
For these reasons this appeal against conviction is being dismissed.

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