[2026] IECA 107-1

THE COURT OF APPEAL Neutral Citation: [2026] IECA 107 Record No: 260/2022 Edwards J. McCarthy J. MacGrath J. BETWEEN/ THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) RESPONDENT V AARON CONNOLLY APPELLANT JUDGMENT of the Court delivered by Mr. Justice Edwards on the 18th day of May, 2026. Introduction 1. On the 15th of December 2022, Mr. Aaron Connolly (i.e., “the appellant”) was convicted by a jury in the Central Criminal Court, sitting in Dublin, of the sole count of murder contrary to common law and s. 4 of the Criminal Justice Act 1964. The person unlawfully killed was a young man, namely a Mr. Cameron Reilly. The appellant was sentenced on the 20th of December 2022 to the mandatory sentence of life imprisonment to date from the 20th of November 2022. Background The discovery of the body 2. On the 26th of May 2018, Mr. Cameron Reilly was found dead in the early hours of the morning in a field at a location known as Shamrock Hill, Dunleer, Co. Louth. The circumstances were that on the evening of the 25th of May 2018, a group of approximately 15-17 young people, all of whom were in their mid-late teens, gathered at Shamrock Hill in Dunleer to socialise. The evidence was that alcohol and drugs were consumed, and speakers were used to play music. CCTV footage showed some members of the group, including the appellant and the deceased, leaving in or around midnight. This group made the short journey, via Ardee Road, to a fast-food restaurant named Enzio’s which was located in the centre of Dunleer town near a junction between the Ardee Road and the north end of the Main Street. The deceased entered the takeaway and purchased food and some beverages. The appellant did not enter the takeaway and made a short journey on foot across town and back again, which occupied him for about 15-20 minutes. 3. Some people left and at approximately 12:42 am, a smaller group, including the appellant and the deceased, walked back along Ardee Road in the same direction from which they had come some 35-40 minutes previously. More people then left the group and ultimately it had dwindled to just two, namely the appellant and the deceased who were seen on CCTV walking alone towards the field at Shamrock Hill. This was the last point at which anyone saw Mr. Reilly alive. 4. On the 26th of May 2018, shortly after 8 am, a neighbour in the adjoining Rivervale Grove was walking his dog when he came upon what he first understood to be a sleeping person and quickly ascertained to be the unresponsive body of a young male. CPR was commenced, and emergency services were contacted, members of whom continued CPR upon their arrival at the scene. These attempts at resuscitation were unsuccessful and the deceased was pronounced dead at the scene at 10.50 am on the morning in question. The deceased was established to be Mr. Cameron Reilly and a garda investigation commenced immediately thereafter. Findings at post-mortem 5. A post-mortem examination was carried out on the body of Mr. Reilly by a Dr. Linda Mulligan, the now Chief State Pathologist and assistant Chief State Pathologist at the time, who concluded that Mr. Reilly had died from asphyxia and external pressure to his neck consistent with either a chokehold or the application of a rough surfaced implement to the front of his neck. Dr. Mulligan stated in evidence that there were no other causes or contributions to Mr. Reilly’s death that she could identify. She also outlined that alcohol was present in Mr. Reilly’s blood system and stated that “There was a higher level in the urine, 140 milligram% than in the blood, 92 milligram%, which suggests that he was actively metabolising or processing the alcohol at the time of his death.”. Dr. Mulligan also stated that drugs were not detected in the deceased’s blood system. Other Aspects of the Garda investigation 6. During the course of the garda investigation, a voluntary cautioned statement was taken from the appellant on the 26th of May 2018 in which he indicated that he had been in the company of Mr. Reilly through the evening, that they had drunk together and socialised, that they had been at Enzio’s with a number of others, that the group left the chipper “some time between 12 and 12.30”, and that all but the appellant and Mr. Reilly went to their respective homes shortly thereafter. The statement went on to assert that the appellant and Mr. Reilly then “went the Ardee Road way”, and “walked up through Beechwood” [a housing estate in Dunleer]. It continued, “[w]e got to the laneway which leads you to – which leads you down to Cameron’s Granny’s. I went left by the path to the laneway that leads down towards Centra. Cameron went the other way” and that thereafter “I walked home to Drumcar, getting home at 10 to 2.”. 7. There was evidence that CCTV had indeed captured the appellant proceeding on foot from the Rivervale area of Dunleer (which is close to the Beechwood estate) towards the Centra at the bottom of Main Street and then onwards north to his home. However, his presence on that route was captured at approximately 01.40 am, roughly one hour later than he had indicated in his voluntary cautioned statement. 8. At the time of giving his said statement, the appellant had voluntarily permitted gardaí to take a DNA sample from him and he had handed over his clothing and footwear to gardaí. That clothing was later sent to the forensic science laboratory and significant trace evidence containing quantities of Mr. Reilly’s DNA were found both on the upper and lower body garments provided by the appellant, and in areas spread all over that clothing. 9. Further, at the appellant’s trial, evidence was given by a Dr. Clara Boland, a scientist employed by Forensic Science Ireland, to the effect that the appellant’s DNA profile matched a component in a mixed DNA profile extracted from a DNA trace evidence sample which had been taken from the deceased’s genital region. Dr. Boland stated, “So the results are that the observed mixed profile is in excess of one thousand million times more likely if it came from Cameron Reilly and Aaron Connolly, rather than if it came from Cameron Reilly and an unknown male unrelated to Mr Connolly.”. The appellant’s DNA was also found to be a match to DNA found on the deceased’s neck. 10. On the 15th of June 2018, the appellant was arrested and was subsequently detained at Drogheda Garda Station. While so detained he was interviewed on six occasions. Initially he claimed that the account given by him on the 26th of May 2018 was an honest and correct account, that he had walked down Church View laneway and left Mr. Reilly safe and well. The CCTV footage was then put to the appellant, and he then claimed not to have gone straight home after leaving Mr. Reilly but rather to have purchased cannabis from another young man he encountered and to have sat for a time with that young man smoking cannabis, before then making his way home at approximately 1.40 am. Gardaí subsequently took statements from the young man referenced in that account, and from some other persons in whom they had a tangential interest arising from that account, and came to believe that the appellant’s latest account was also not true. Those statements were put to the appellant in an interview, and he then accepted that his latest account was not true. He further indicated that he could not account for the lost hour, stating that he had experienced a blackout after he had left Mr. Reilly. 11. In response to certain questions asked of him while he was being interviewed, the appellant claimed that he had never experimented sexually with men. He explained that his DNA was found on Mr. Reilly’s neck because he had put his arm around Mr. Reilly’s neck for a group photograph taken in the field. He went on to suggest that another person, namely, one Dean Kenny, had committed the murder because “he's a violent person”. Evidence of Dean Kenny 12. Dean Kenny gave evidence for the prosecution in the course of which he described his movements, activities and with whom he had associated on the evening/night in question. In examination in chief, he conceded that in making a statement to gardaí on the following day, he had omitted a detail in respect of his movements. 13. His testimony was to the effect that having gone with the group that was in the field to Enzio’s chipper, he had while there made a remark to another girl named Erica, which his girlfriend Megan Smith had found objectionable. That led to an argument between him and Megan outside the chipper. He then went off on his own to the house of another friend, Caroline Conlon, in Shamrock Grove. Ms. Conlon lives across the road from Megan Smith’s family home. Megan Smith then arrived a little while later, and as Dean Kenny described it, “we kind of got into a scuffle”, in the course of which he said, “I kind of ripped off her zippy” (i.e., her North Face hoody). Thereafter the situation calmed down somewhat, a joint was smoked and Dean Kenny then left Caroline Conlon’s house on his own. He said that after leaving, “I sat in a kind of cul-de-sac for a few minutes just to clear my head”, and he then proceeded to the apartment of another friend, named Stephen, who lived in an apartment above “The White Door” which was back in the direction of, and not far from, Enzio’s. He stated that while he had originally planned to stay the night at Megan Smith’s, he no longer wished to do so because of the row that had taken place, and his hope was to be able to use Stephen’s phone to arrange for a lift home to Ardee. However, his friend Stephen was not home and so he walked back down to Shamrock Grove, returning initially to Caroline Conlon’s house, where he spent a few minutes before leaving again accompanied on this occasion by Megan Smith. They went across the road to her house, where he then spent the night. He heard about the death of Cameron Reilly from Megan’s mother the following morning. 14. Dean Kenny accepted that he had omitted to mention in his statement to gardaí going from Caroline Conlon’s house to his friend Stephen’s apartment and back again. He said he had not done so because he was “kind of scared in the moment” and “because it looked maybe a bit suspicious that I was walking by myself” “at that time of night”. He had accepted in examination in chief that on the date of Cameron Reilly’s death he had been drinking, had partaken of some cocaine before arriving in Dunleer, and had consumed some Marijuana in Dunleer. 15. During cross-examination it was in effect put to Mr. Kenny, but not accepted by him, that he was a person with a history of behaving jealously, and aggressively and violently when he had drugs taken. Various alleged instances of this were suggested to the witness who, responding to each, either did not accept that they were true, or alternatively contended that the incidents proffered to him as illustrative of his suggested disposition were otherwise explicable on various bases and were being unfairly characterised. The witness did not contest that there was an unaccounted for period of at least 20 minutes in the initial statement he gave to gardaí. However, he asserted that he had later apologised for this and had given a further statement. S. 19A Statutory Inference Provision 16. In a final interview conducted while the appellant was in custody, the statutory inference provision under s. 19A of the Criminal Justice Act 1984 (“the Act of 1984”) was invoked. When asked in this final interview, s. 19A having been invoked and explained to him, if there was anything additional that he wished to rely upon, or to mention, the appellant replied, “I don’t know”. Section 22 Admissions and their impact on the forensic evidence 17. On the seventh day of trial, and on the date upon which Dr. Boland from the forensic science laboratory was due to give her evidence in relation to her findings in regard to DNA upon forensic examination of trace evidence recovered, the appellant instructed his counsel to volunteer certain admissions pursuant to s. 22 of the Act of 1984, to the trial court. There were five admissions in total; the first four were uncontroversial and related, respectively, to (

1. i)that there had been appropriate preservation of the crime scene, (
2. ii)the lawfulness of the appellant’s arrest and detention, (iii) the lawfulness of the forensic samples taken from the appellant while he was in detention, and (
3. iv)the lawfulness of fingerprint impressions taken from, and photographs taken of, the appellant during his detention. The fifth “admission”, as volunteered was then in the following terms: “On the 26th of May 2018 Aaron Connolly was intimate sexually with Cameron Reilly. During the course of such sexual contact Aaron Connolly while on his knees pulled down the tracksuit bottoms of Cameron Reilly and Cameron Reilly placed his penis in the mouth of Aaron Connolly and Aaron Connolly gave Cameron Reilly oral sex during which Aaron Connolly placed his arms around the waist of Cameron Reilly. This sexual intimacy occurred the side of the pump house at Shamrock Hill, Dunleer, Co. Louth. When Aaron Connolly left Cameron Reilly on the 26th of May 2018 at Shamrock Hill, Dunleer, Co. Louth he was alive and was standing up.” 18. Immediately following these s. 22 admissions, Dr. Boland gave her evidence. In the course of this she explained: “A. … as a precursor, when we're examining cases in the laboratory, we get as much information as we can in order to carry out the correct examinations in the correct order and to preserve the evidence. So my understanding of the pertinent circumstances of this case was as follows: That Cameron Reilly was found dead in a grass area on the 26th of May 2018. I understand that post-mortem examination determined that he died from asphyxia and external pressure to the neck, and I got that information from a report from Dr Linda Mulligan. His clothing and postmortem intimate samples were submitted to the laboratory and the clothing was wet when it was submitted to the laboratory. The clothing from Aaron Connolly was submitted to me for examination and my information at the time was that I understand that Aaron Connolly had stated that he was in the company of Cameron Reilly along with numerous people and during the evening he put an arm around Cameron's shoulder in order for a photo to be taken. It is my understanding then that he says he had no further contact with Cameron Reilly. Q. Now, I'll stop you there. I think that remained your understanding of Mr Connolly's position until two or three minutes ago, when you heard his statutory admissions read out? 19. A. Yes, that's correct. Q. Is that the first time those statutory admissions were brought to your attention? A. Yes.” Dr. Boland then proceeded to outline the various examinations and tests that she had conducted, and set out her scientific findings and the statistical significance of those findings as per her report. Towards the end of her examination in chief there were then the following exchanges: “Q. So, I think having regard to all of those factors, you then arrive at an evaluation of the likelihood of one hypothesis over the other as originally presented to you by the gardaí? A. That's correct. Q. Can you set that out for the jury? A. Yes. So, those were all the scientific findings, and then the evaluation of those findings are that the results in this case provide very strong support for the proposition that Aaron Connolly asphyxiated Cameron Reilly rather than he put his arm around Cameron Reilly for a photograph. And I took the phrase, "Very strong support," from the scale below. So, weak support, moderate support, moderately strong support, strong support and very strong support, extremely strong support. So, alternative propositions to those set out above can be considered if required. Q. And I suppose that brings us on then to part five of Mr Connolly's admissions, which I think you have in front of you, so I don't ? A. Yes. Q. Now, I think just to note, and I know you were present in court but five lines down where it says, "Aaron Connolly gave Cameron Reilly oral sex during which Aaron Connolly placed his hands," that should read, "Arms"? A. Yes. Q. Okay. "Around the waist of Cameron Reilly." So, can you, are you in a position to offer the jury a view in terms of that as a competing hypothesis in the context of the scientific information that you've presented to them today? A. Well honestly, we never evaluate in the box because we have to get a full statement of activity that was involved, or look at scientific papers to see what are, as the Judge said, what are our expectations given a certain scenario? So, because expectations lead us to tell us the weight of the evidence, the strength of the evidence. So, for example, what's my expectation of finding my DNA on my clothing? It's extremely high. So, if find my DNA, well that doesn't offer any support for something, okay, depending on what the scenario is. So, I won't re-evaluate here in the box. Q. Okay? A. But suffice to say that this evaluation is not relevant given the new information. Q. And is it possible that that hypothesis could explain the findings on, for example, Aaron Connolly's clothes and if so in what context? A. So, as in this new information? Q. Yes? A. Yes, yes. So that is an explanation for how saliva may be on a penile swab, how a DNA minor profile may be on a penile swab. It may explain how a minor profile might be on a neck sample, if there was close intimate or sexual contact. As I stated there that to get DNA transfer on to clothing, it's generally when there's more prolonged contact and more physical contact rather than a very slight touch, and then DNA will transfer. Again, the amount of DNA and the proportions of DNA matching Mr Reilly on Aaron Connolly's clothing, is consistent with skin contact rather than clothing to clothing contact. Because the amount of DNA that's there, if that makes sense. Q. Yes. And on the basis of this information, this afternoon's information, would you for example note a difference in likelihood between the deposit of Mr Reilly's DNA on the, for example, the inner part of the sleeve of Mr Connolly's Hollister hoodie and the outer part of the sleeve? A. I wouldn't be prepared to make a comment on that.” 20. The defence opted not to adduce evidence at the trial, which lasted for 12 days. 21. On the 15th of December 2022, he was convicted of murder by unanimous verdict of the jury. Appeal against conviction 22. By a Notice of Appeal lodged the 23rd of December 2022, the appellant now appeals to this Court against his conviction. In support of this application the appellant has advanced ten grounds which are as follows: 1. The trial judge erred in law by excessively presenting his own view of the evidence to the jury during his charge to the jury. 2. The trial judge erred in his approach to explaining circumstantial evidence in his charge to the jury by reference to an anecdote from a notorious case involving sexual offending where he appeared as a prosecutor as the jury may have inferred from this that he agreed with the prosecution case here. 3. The trial judge erred in law by telling the jury that he and the Gardaí did not accept the account the appellant gave when questioned by the Gardaí as this involved him giving his own view of the evidence, his view of the Garda view of the evidence and his presenting himself as being aligned with the Gardaí and their view of the case. 4. The trial judge's charge to the jury amounted to impermissible advocacy for the prosecution. 5. The trial judge's charge to the jury invited the jury to infer that the appellant was guilty by virtue of the fact that he had told lies to the Gardaí and the Lucas warning was insufficient to counteract this. 6. The trial judge erred in his charge to the jury in that it included assertions of fact which had not been proven in evidence or proof of which were matters for the jury; and explicit and implicit expressions of opinion which appeared to be designed to affect the jury's consideration of matters in a manner favourable to the prosecution to wit: (
4. i)That the DNA of the deceased had not been found on Dean Kenny as a matter of fact where the evidence established that the shorts of Dean Kenny had not been sent to the Forensic Science Laboratory for testing. (
5. ii)That the evidence of Clara Boland of the Forensic Science Laboratory was not accurately summarised in the charge to the jury in that Clara Boland had accepted that the DNA of the appellant on the neck of Cameron Reilly could be explained by reference to the sexual intimacy admitted by the appellant. 7. The trial judge erred in repeatedly criticising the section 22 admissions made by the appellant and repeatedly telling the jury that they were unsworn and untested in the witness box which invited the jury to draw an inference from the accused not having given evidence. 8. The trial judge was excessively critical of the conduct of the defence saying that Counsel had not apologised to prosecution witnesses and to another person for what the appellant had said about them when questioned by Gardaí to such an extent that he invited the jury to infer that the defence case was to be dismissed. 9. The trial judge was excessively critical of the instructions of the appellant to his legal team to such an extent that he invited the jury to infer that the instructions of the appellant were lies and that the defence case was to be dismissed. 10. The appellant was prejudiced in his defence arising from the fact that anonymous letters received by An Garda Síochána which contained potential defence leads were not disclosed in a timely manner being ultimately disclosed in the last days of his trial. The Issues on Appeal 23. A number of the grounds of appeal advanced by counsel for the appellant are interlinked and the primary complaints relate to the charge of the trial judge. It was made clear at an early stage that Ground No 10, relating to late disclosure, was not being proceeded with. 24. It is proposed to categorise under a number of sub-headings the essence of complaints being made, and in doing so to contextualise the complaints by quoting extensively from the impugned charge as well as from relevant exchanges between counsel and the trial judge, as recorded in the transcript. 25. For context as to how matters unfolded, the trial judge’s charge to the jury following closure of the evidence, including responding to requisitions, extended over three days. He only had time to give a brief introduction to what he was going to say on the first date (the 9th of December 2022); he then resumed and continued for the greater part of a second full day (the 12th of December 2022), concluding his main charge with just enough time at the end of that day to receive requisitions raised by counsel and respond to some, but not all, of them; and finally on the third day (the 13th of December 2022) he responded to the outstanding requisitions left over from the previous evening, and recharged the jury in several respects. Alleged lack of balance 26. The beginning of the trial judge’s charge records: “The issue that you have to decide will be in the issue paper that you’ll have when you go to your jury room. And as in any criminal trial, that's the only issue, there are no other issues, you have to decide, as representatives of the community, whether the evidence actually presented, not the evidence that's not presented, that creates doubts in your mind, so be it, whether the evidence actually presented is sufficient to convince you beyond reasonable doubt of the prosecution hypothesis. And I underline the word reasonable, because this wasn't a word used in the legal presentation made earlier, if there are reasonable possibilities consistent with an innocent view of the case, from the point of view of Aaron Connolly, then you have a reasonable doubt and reasonable doubts are resolved in his favour. It's not any old possibilities, it's reasonable possibilities, members of the jury.” 27. Later, in concluding his remarks to the jury, and in the course of responding to requisitions on various topics, the trial judge provided the jury with a summary of the prosecution and defence cases. The transcript records him saying: “I want to give you perhaps a succinct final summary of the issues, members of the jury, based very much on the line from Mr Justice Hardiman, the late judge, the prosecution case is that this is not coincidence, members of the jury, the sex, the death, the DNA findings and the lies, are interlinked and related the material to each other and they are the only explanation of the death of Cameron Reilly. Proof beyond reasonable doubt is required before you accept that, because that's the prosecution hypothesis, members of the jury. The defence concedes that, I think, that, and if I'm wrong I'll be corrected, but the constant references to Dean [sic, Kenny] I think were in this light, that things can look suspicious, but in fact be innocent. And I think that's the characterisation they want you to carry over to Mr Connolly's case, and whether you do or not is a matter for you, it's not a matter for me, members of the jury. So, notwithstanding any suspicious looks that this may have, these can be explained as true coincidences, members of the jury. The sex totally explains the DNA findings, although the photograph is still left live and in there, it's in the interviews, members of the jury, and in terms of the DNA on the left side of the neck, that's there, that's not changed by anything that's happened, members of the jury. What you have to grapple with is what was the contact that got it there, members of the jury. They say the sex totally explains the DNA findings. I've already pointed out, and you have the limitations of what is being admitted to, and there are some things that you're being asked to infer that go beyond that. If you have a reason to infer and you think they're reasonably possible, well and good, transfer from saliva from penis to hoodie, that's not expressly covered by the admissions, so it has to come by way of reasonably possible inference, you decide that, members of the jury. Likewise, the question of how the oral sex is to be looked at, is also to be looked at in that particular way, members of the jury. The prosecution say that not everything is explicable by sex, so you have to look very carefully at what the findings are and how those findings may have come about. And they certainly dispute that the sex is capable of explaining everything. But anyway, the defence case is that the sex totally covers the DNA findings and that death was a matter separate and unrelated to Aaron Connolly. It's pure coincidence that this thing happened and he left and then somebody came along and killed Cameron Reilly. That is what is involved, and it is also said that his lies are also distinct and explicable on an innocent basis. If you think that the defence view of the case is reasonably possible, members of the jury, well then, you acquit. If you're satisfied beyond reasonable doubt that it has no totality [?? ‘reality’, possibly], well then you must convict. So, that’s the perhaps the long and the short of it, but there’s a long road for you to travel before you arrive at either destination. So, members of the jury, in response to that, and as I say, and the matters about DNA are fully set out in the margin for you, so, I’m not going to revisit any of that, I’m going to leave that to your analysis and consideration. But if you need any help, come back to me.” (Query in square brackets by the Court of Appeal) 28. Counsel for the appellant submits that this summary makes it clear that this was not a balanced charge to the jury. In response, counsel for the respondent argues that the trial judge delivered a balanced and thoughtful charge which addressed the fundamental legal principles, properly advised the jury in very clear terms as to the onus and standard of proof and properly summarised the salient evidence presented during the course of the trial. The Section 22 Admissions 29. At a very early stage of his charge, i.e., in his introductory remarks on the 9th of December 2022, the trial judge volunteered the following observation: “… there is there is one comment I'm going to make, because it's at the top of my head, we have four-and-a-half years later a statement of two lines, one of which is an admission as to own conduct and the second of which is an assertion of fact, members of the jury. Now, I haven’t come across section 22 being used in this way, but being used it has, so it's there for you to consider. And it is said that that is the answer to everything. Well, maybe it is, or maybe it isn't, that's a matter for you. But I do offer this comment, that had the oral sex been referred to in the interview room four-and-a-half years previously, I think it is reasonable to infer that perhaps some more searching questions about that and what happened afterwards might have been asked. So, to suggest that that simply closes down everything, and I'm offering this as a comment, is perhaps not the only view that is open to you, and you're going to have to consider the timing and the circumstances in which that admission was made, because you saw one of the effects of it was that the expert witness felt that the ground having been shifted, she was not in a position, presumably being a careful witness, to provide any kind of update while sitting in the box. So, you know, the matter of timing isn't entirely neutral, and I'm suggesting that as a comment to you, members of the jury. … . And I'm making that as an observation and I make no apologies for making it as an observation, and like any observation that I make, you may accept it or you may reject it, and bear in mind that I mightn't be regarded as an ideal source for making observations, but it's something that struck me as I listened to what was being said. I have no doubt that had that admission been made in the interview room, when it was being asked about, that that of course would have invited further lines of inquiry, because what you have is a statement that is, I will use the word sparce, it doesn’t go into detail about the oral sex, how that came to be, or how it came to an end, it simply then proceeds to say, well, the last time I saw him he was alive and well. And plainly, there must be more to it than that. Now, nobody can force anybody to make admissions, or -- they're the facts that were chosen to be admitted and you'll have to consider them, but that's it, members of the jury, and it's up to you to decide whether you have a reasonable doubt as to the prosecution proposition at the end of the day.” 30. On the next day (the 12th of December 2022), and before the trial judge resumed his charge, defence counsel raised a concern in the absence of the jury. The following exchanges ensued: “DEFENCE COUNSEL: …it's just by way of a concern. We don't know what the Court is going to say, but the Court has said -- has commented on the unusual nature of the section 22 -JUDGE: Well, I've never seen it in 36 years. DEFENCE COUNSEL: Yes, but obviously that's a legal matter, as such, that relates to the Court's own experience and what we're predominantly concerned with, Judge, is that the Court did say one of the consequences was that that Clara Boland could not comment on it and obviously that's a matter for the prosecution -JUDGE: But it's what she said herself. DEFENCE COUNSEL: But -- sorry, Judge. But I would just ask that you would hear me out on this. Clearly it is a situation where the prosecution could have applied that she gave her evidence this week and they decided not to take that -JUDGE: I wouldn't have allowed that. This jury have to finish their work in a timely fashion. DEFENCE COUNSEL: Yes, but the case was JUDGE: When did this come back to Mr Connolly? DEFENCE COUNSEL: Sorry, Judge? JUDGE: When did this come back to Mr Connolly, the basis of this submission? DEFENCE COUNSEL: Well, sorry, Judge, I don't think it's appropriate that I be cross examined on my instructions. JUDGE: Well, you're making some criticism of me. I'm pointing out and I'm going to point out to the jury, and I don't mind telling you now, that this was made on the seventh day of a trial after four and a half years, and the jury will have to investigate how that comes about, applying their common sense to it. DEFENCE COUNSEL: Yes, Judge, I'm just highlighting my concern that the Court -JUDGE: Well, I'm highlighting -- I'm highlighting my concerns and I have all the way along about the way this has been conducted. DEFENCE COUNSEL: Yes, Judge. I appreciate that, but it is the case that this isn't a complaint that was articulated in the same way by the prosecution in their closing speech and had it been, obviously Mr [DEFENCE SENIOR COUNSEL] would have been in a position to reply to it. The Court has gone on to comment, "Plainly, there must be more to it". JUDGE: Yes, there must be more to it. There must be more to it. DEFENCE COUNSEL: ‘They are the facts that shouldn't be admitted.’ Now, obviously that's the Court's view on the evidence –” 31. Although we do not believe that anything major turns on it, we interrupt the quotation at this point to say that counsel has just inaccurately quoted the trial judge as saying, “They are the facts that shouldn't be admitted.”. What the trial judge had in fact said was, “they're the facts that were chosen to be admitted and you'll have to consider them” transcript 09.12.2022 at page 64, lines 27 and 28. 32. Resuming the relevant quotation: “JUDGE: Well, Ms [DEFENCE COUNSEL], can I ask you this? Well, perhaps I shouldn't ask it in this way, so I'll try and phrase it in a different way. Oral sex is like anything else; it doesn't come out of the blue. It doesn't begin on its own or end on its own. It happens in context. That's what -- that's my point. There's plainly more to it, even on Mr Connolly's account than is covered by those admissions. DEFENCE COUNSEL: But that's the Court's view on the evidence. JUDGE: Are you telling me I'm wrong? DEFENCE COUNSEL: Judge, I'm saying that that's the Court's view on the evidence, and the evidence is a matter for the jury. JUDGE: I'm entitled to comment on the evidence, and this is a formal legal admission which I have to instruct the jury as to how they approach, and they don't approach it by taking it glibly, they look at the context in which it was offered. DEFENCE COUNSEL: Well Judge, I'm instructed and I want to place on the record that there was no issue raised about the section 22 when it was received. JUDGE: I have an issue with it. DEFENCE COUNSEL: It wasn't raised at the time it was received by the Court and the prosecution didn't apply to adjourn the matter and are not disadvantaged, and they could -JUDGE: I consider the prosecution were considerably disadvantaged. DEFENCE COUNSEL: Well, it is the case that the prosecution were on notice of the section 22 and did have an opportunity to consider it with their witness. JUDGE: Since when? DEFENCE COUNSEL: The day before the section 22 -JUDGE: The day before. DEFENCE COUNSEL: -- 22 was formally made and the prosecution were made aware that this -- that this was a likelihood, and obviously the prosecution had an opportunity to consider the matter with her before she was called. So that is part of the background. There wasn't an application -JUDGE: So he remembered these things on the Tuesday, did he? Is that what you're telling me? DEFENCE COUNSEL: Sorry, Judge, the day before -JUDGE: He remembered these things on Tuesday? DEFENCE COUNSEL: Judge, I'm outlining the JUDGE: You say the prosecution were put on notice of these things on Tuesday. That's obviously close to when they came back to his memory? DEFENCE COUNSEL: Judge, I told you I wasn't going to be cross-examined about my instructions. I'm raising the issue -JUDGE: Well, you're raising points of criticism. I'm entitled to respond to them. DEFENCE COUNSEL: And I wish to put on the record that -JUDGE: That doesn't come out of the blue either, Ms [DEFENCE COUNSEL]. DEFENCE COUNSEL: I'm putting it on the record, Judge, that the Court has expressed its own view of a factual matter, which are a matter for the jury. JUDGE: I'm going to comment on the timing of it and I'm going to take -- I'll take my chances on that, DEFENCE COUNSEL. DEFENCE COUNSEL: But, Judge, obviously we're addressing matters in advance on the basis of what you've -- or what JUDGE: I intend to comment on it, and I haven't heard anything that persuades me otherwise and if I'm wrong, you can take it elsewhere, if it all goes wrong. DEFENCE COUNSEL: But Judge, obviously we'll listen to what the Court has had to say. I thought it was appropriate to raise matters that I've raised at this stage. JUDGE: I didn't say it wasn't. I fundamentally disagree with them, but I didn't say it wasn't.” Charge re the roles of Judge and Jury respectively 33. The trial judge then resumed his charge. Among the matters he covered up to the lunch break on this second day of his charge, were the respective roles within the trial of the judge on the one hand, and of the jury on the other hand. In the course of doing so, he made these comments (inter alia): “if I veer beyond strict legal matters -- and the law gives me a right to comment; I will be pointing out what I think are indisputable facts and you may accept them or reject them. Facts ultimately are a matter for you, members of the jury. And I may veer into comment on those facts. Where I do that, as I say, I'm trespassing on your area, if you say, "that fella's a loony, I put that to one side, and, you know, I simply don't accept what he says", the only thing you must accept from me are the pure law propositions. Everything else, really, ultimately is a matter for you. But if I make some observations, you can take them or leave them with a big health warning underneath them, members of the jury. So that's me out of the way. You take the law from me and you take nothing else. I particularly don't want -- and anecdotally, I heard back years ago when I was in the Circuit Court, rather than here, of having presided over a jury trial and somehow came back from somebody who was involved in the case who I met on the Luas, weeks or months afterwards, that they'd met somebody on the jury and they said they returned a verdict because "Well we thought that's what the judge was telling us to do." And, you know -- I always say I'd never be surprised anymore but I'm constantly surprised, in fact by the things I hear and see. And I was very surprised and concerned about that. So ever since then, and it was about 10 years ago or more -- I'm going to emphasise this to you at the outset; I am not giving you any signal as to how you decide this case, members of the jury. You're here on behalf of the community; that includes me. So I, like the other population of the country, minus the 12 of you, am relying on you to do the job. And I'm not telling you what to do with the case. I won't lie to you, and I won't sit here and say, "I haven't some view of where I think I might go with it." But that's all it would be, members of the jury. I don't have the benefit of sitting with 11 other people and discussing, for as long as it takes, each and every aspect of the evidence. I'm a person who is quick to jump and that's probably a bad thing in my job. But I'm quick to change my mind back the other way also, members of the jury. I'm probably too impulsive altogether, so again, be careful of anything that I say on that basis. I probably have a natural infliction that I have to try and sit very firmly on, some people have the benefit of being a bit more relaxed. But there you go, that's the way it is. Everybody is different, members of the jury. But, as I am saying to you, it's your responsibility. I'm not telling you at all what to do with this case. I have maybe formed bits and pieces of a view about bits and pieces of the evidence. Over the weekend, I've had to prepare my remarks to you and I haven't been sitting -that's what I've been concentrating on. I haven't been sitting down thinking, well ultimately, what would I do with this case? I mean I have a vague notion, but I do know what's involved in sitting on a jury strangely enough, members of this jury.” In explication of his last remark in the passage just quoted, the trial judge went on to tell the jury that he had experience of sitting in the Special Criminal Court where three judges performed the roles of both judge and jury. The Charge on Circumstantial Evidence 34. Later that day (the 12th of December 2022), during the afternoon, the judge dealt with how the jury should approach circumstantial evidence, and inferences, before turning to deal with the interviews conducted with the appellant while he had been detained in the garda station. The trial judge gave a lengthy and very detailed charge outlining the principles concerning how circumstantial evidence should be approached and treated by a tribunal of fact. However, objection has been taken to certain remarks of the sentencing judge offered at the beginning of that portion of his charge, wherein he sought to briefly summarise what the prosecution and the defence, respectively, were saying, in so far as the case was based on circumstantial evidence. The appellant complains that the trial judge’s remarks in that respect, which included references to “the spectre of some kind of peeping Tom nearby” and to “peeping Toms”, were disparaging of the defence case and were further evidence of a lack of balance in his charge. 35. Further, objection has also been taken to a portion of what the trial judge said to the jury towards the end of his remarks on circumstantial evidence, where he offered the jury an anecdotal example of how circumstantial evidence had been successfully relied upon in a notorious case involving sexual offending, in which he himself had been prosecuting counsel when he was at the bar. The appellant complains that the manner in which he deployed this anecdote, and particularly by aligning himself with the prosecution in doing so, may have caused the jury to infer that he agreed with the prosecution’s position in the present case. 36. To better contextualise the arguments in regard to these complaints, which will be addressed later in this judgment, it is appropriate to quote the two controversial passages verbatim. 37. In the first passage complained of, the trial judge said: “Turning to circumstantial evidence, this is a case where the prosecution rely upon circumstantial evidence rather than direct testimony in proof of the case against the accused. The prosecution don't say that there was anybody present who witnessed the murder, although Mr [DEFENCE SENIOR COUNSEL], at the end of his closing, raised the spectre of some kind of peeping Tom nearby, who came out of the bushes after Mr Connolly left, and murdered the deceased. Whether this be by reason of arousal, anger or a combination of both, I know not. If you think there's a reasonable basis for drawing such an inference, well, that's there for you to consider. But there must be some reasonable basis for that possibility before you act upon it. So far as the prosecution case is concerned, it doesn't depend on peeping Toms or anybody else, members of the jury. It depends on a combination of the DNA plus what they say are lies on substantial matters in relation to that DNA, corroborating the guilty view of the DNA evidence that they provide. That's as I understand the prosecution case anyway. Perhaps I'm wrong as to that. If I'm wrong about any of these things and I believe myself to be wrong, I'll happily correct you later or in the morning. As I said to you earlier, I want this job done right once, not done badly once and have to be done again on a second occasion. So, when I'm finally silent, members of the jury, you can take what I said about legal matters and as to other matters, you can accept or reject them.” 38. In the second passage complained of, the trial judge said: “The witness in the case, the young girl in the case …, she didn't identify him directly. I can't remember whether there was a parade or not, but she didn't say, ‘that's the man who carried out the sexual assault’. That kind of direct evidence was not available to the prosecution … [I] acted for the prosecution in the Circuit Court in the case and it was the mention of Mr Justice Hardiman that brought it back to mind. So, what we did have was she had a recollection of that it was a Toyota car and the last two registration numbers and maybe there was a colour to it. That added nothing. The city was full of Toyotas with that colour and some of which actually had the last two numbers of the registration plate so that couldn't convict the man, Mr O'Brien, for it. Was he a man called Sean O'Brien? And even though his taxi did coincide with that, or at least a taxi that he shared with another man. But of the course the fact that he shared a taxi with another man, that meant that that fact was not capable of proving anything beyond reasonable doubt on his own. The girl also remembered that in the course of the conversation -- and remember everything is a -- context. This carry on at the back of the Ilac, or in Marlborough Street, didn't come out of the blue. He had a chat with her on the way in, as taxi men do, and he said his name was Sean. Now, there are thousands of taxi men called Sean so that in itself wouldn't have been probative beyond reasonable doubt of the fact that he was involved. The girl remembered one other thing however. She said that he was wearing a polo shirt and when he leaned over to assault her, he was wearing -- like this thing here, except it was a metal badge and it had a taxi licence number on it. Now, our case was that the three of those things -- not one, two or three but the combination was sufficient. The jury in the Circuit Court convicted and he appealed to the Court of Criminal Appeal. Mr Justice Hardiman was the Supreme Court Judge presiding in that and his appeal was unsuccessful. Now, Hardiman J observed that the evidence about the badge was at the boundaries of circumstantial evidence because a taxi badge -- I could take this off, I could give it to Mr Doyle or Mr Hardy, or anybody else. A taxi badge can move around, it can be begged, stolen or borrowed. It could even be forged, God knows, members of the jury. But -- well, he was happy to accept the argument that when you put one, two and three together, that was enough to uphold the jury's conclusion, but he made an interesting remark in the course of it, members of the jury. He said: ‘At the end of the day, this case, like all of these cases, comes down to this question; how much coincidence was this jury expected to stomach?’ It's a very pithy way of putting it, members of the jury. So ask yourselves: ‘Am I content with coincidence? Is this a reasonable possibility? Or am I satisfied beyond reasonable doubt that we don't have coincidence here?’ That's what you have to do, members of the jury, and as I say, resolving all reasonable possibilities consistent with innocence in favour of the accused man.” (Note: (
6. i)This Court has emboldened for emphasis language complained of by the appellant. (
7. ii)The personal pronoun in square brackets has been inserted by this Court for proper context, where the transcript reflects a momentary gap in the DAR recording and where that context is uncontroversial and accepted by both sides.) The Charge Concerning the Interviews 39. When the trial judge had finished dealing with circumstantial evidence and inferences, and had moved on to dealing with the interviews, he dealt uncontroversially with the first three of them. He then proceeded to address the jury with regard to the fourth interview and in doing so returned to the issue of the controversial s. 22 admission, stating: “Interview 4 then was read, members of the jury. He denied ever experimenting sexually with the opposite sex. He said Cameron Reilly was not attracted to him or to anybody in the group. He didn't see Cameron Reilly flirting. He wasn't bothered by the, you know, the gay people or the trans people. He said he was just going home. Nothing happened on the way home. He blacked out after he left him. He did admit that he knew Jack Conway and you heard from Mr Conway, and I adverted to him this morning and I'm not going to advert to him again, but Jack Conway gave evidence in the case when the pre-admission scenario was clearly still operative, members of the jury. Because it was put to him that what he described didn't take place at all. I'm not going back over that, you can make of it what you will. And this is the bit where the DNA was put. ‘That must be wrong, nothing happened sexually. You're questioning the wrong person. I don't accept it's my DNA. The report is wrong. It's still a blackout.’ Well, those matters can't be operative any more, members of the jury, in the light of the admissions, so what you have to decide is, well are these lies, members of the jury? Is this story about a complete blackout over the hour due to drugs, was that an untruthful account at the time? Is it or is it not? I don't know. All I can say to you as a matter of fact is, that it's four and a half years and seven days into this trial, before you are informed and you know, as I pointed out, the day before Mr Conway was cross-examined on a certain basis that may well be inconsistent with the admission. I don't know whether not he was intimate with Mr Connolly and whether he's telling the truth, and I don't know whether you have to make any finding about that, but your finding might well have been influenced one way of the other, by the admission that was subsequently made. But be all that as it may, members of the jury, all I can tell you is that as a matter of fact, the blackout scenario was the operative version for four and a half years and seven days of trial, members of the jury. That's all I can tell you as a matter of fact. I don't know how it comes about, but what you have to look at now, members of the jury, is how does this operate on the blackout scenario. Has this been a recovered memory of a certain number of admitted and asserted facts. Does the blackout persist beyond that? Somebody might take issue with me saying to you that there must be more to it than that. I make no apologies for saying that there must be more to it than that. You don't end up on the end of somebody's penis out of a clear blue sky, members of the jury. There's a prelude to this. And sexual events like that end. Your own experience will tell you they end badly and they end well. But they end and they begin, they don't just happen. So I make no apologies for saying there's more to it than has been admitted to, even now, members of the jury. And I don't know whether that is because the blackout is still there to a limited extent, but I make no apologies for saying, as a matter of ordinary common sense, there must be more to this than that. And that is why I said to you on Friday, and I make no apologies for repeating it now, members of the jury, it would not have been a situation, I suggest to you, as a matter of common sense, that if that was said at the appropriate time, when it was put to him, when the report was put to him and he said no, that's got to be wrong. I mean, it seems to me to be a very obviously (sic) deduction from the report, as to how the DNA came to be there. It's an obvious deduction that was accepted four and a half years and seven days later. But I do not think for one moment - what you think is another matter - I do not think for one moment that if that was said, well yes, I admit that I had oral sex with Cameron Reilly in the field that night, that the guards would have said, "right, turn off the tapes, close up our papers, we're going home". Of course not. They would have asked the questions that you and I, I think would have asked. But tell us, how did that happen? You went down the laneway together, how did it come about that that happened? How did it end? What happened during it? I don't think it's open to you to say that the admissions cover everything in this case. I don't think they do. Maybe you do. But I'm making that as a comment, as a matter of common sense, members of the jury. Whether he remembers or whether he doesn't, there is plainly more to it than point 5 that was read out here last Wednesday afternoon. And the idea that that is the answer for everything is not something that sits comfortably with me, and I don't think it would have sat comfortably with the guards. They would have wanted to know a lot more about what had followed. And you must think about that, members of the jury. Unless you accept the theory that an instance of somebody giving oral sex to somebody else in a darkened field is something that's freestanding, that arises without any connection with any other facts; I don't think so, but maybe you do so, members of the jury. And more than I don't think that a choke hold or the application of a rough implement to somebody's neck is something that arises out of the blue. There has to be more to it than that. The person has to be put into it, unless they're voluntarily consenting to being choked or to being pushed down with an implement, there has to be more to it than that. So as I say, consider everything in the round and don't accept things in a pigeon hole. Look at them and apply your common sense and experience. Apply your common sense and experience to the matter of oral sex. I'm sorry to have to say that to you, members of the jury. But one of the reasons in this case why is it now said that the admission covers everything, that sex is the answer to everything in this case, is that it is said that some answer that Dr Boland gave takes the neck out of the picture, because she understood hands rather an anything else from Dr Mulligan's report. When Dr Mulligan's report was repeated in evidence, she said in her own evidence, that she had Dr Mulligan's report, the DNA is still on the neck. Do the admissions take that out of it? No. What is required to take that out of it is accepting as a matter of reasonable possibility, what was said in the interview about the putting the arm around neck as part of the group photograph. If you think that that's reasonably possible, then you accept that explanation of the DNA around the neck. If you don't think that's reasonably possible, members of the jury, you're entitled to look at the DNA on the neck in the context of, how does that support what the other evidence suggests about the cause of death, and the fact that Aaron Connolly had something to do with the cause of death. You must be satisfied beyond reasonable doubt, that the DNA got on his neck as a result of something to do with an asphyxiation by a choke hold or by the application of a rough implement. If you think it's reasonably possible that there's an innocent explanation for that, then it's gone. Then you have your answer. But the sex doesn't answer that, members of the jury, because you'll recall what the sex does answer, if you accept as a reasonable possibility, that what Aaron Connolly now says, four and a half years later is true, that he put his arms around the back of Mr Reilly, when as I recall it, Mr Reilly was in a standing position, he was administering oral sex on his knees. Well think about that, members of the jury, in the context of a male person receiving oral sex. It doesn't have to be actually from another male, it can be from a female. Think about the modalities of that, members of the jury and apply your common sense and experience to it. If you think it's reasonably possible, well then, it may explain something about those portions of his hoodie that came into contact in performing that, if that's what happened, members of the jury. Does that answer everything? Well you have to look at Dr Boland's evidence and all the DNA findings and look at that.” 40. Shortly afterwards, the trial judge added: “I suggest that you match each and every part of the DNA evidence to each and every part of the other evidence and both suggestions that had been made to you in the case, members of the jury. And if you're satisfied that sex is the answer to everything, well, so be it, members of the jury. If you think that that account is reasonably possible, that he gave oral sex, that he performed that, members of the jury, and that he then left and Mr Reilly was in rude good health, and it's simply coincidental and there's nothing to it beyond that. If you think that's reasonably possible, then you acquit. But that comes from admissions made four and a half years later. They are unsworn admissions. They are not given by way of sworn testimony and they are not subject to cross-examination. And you've seen in [DEFENCE SENIOR COUNSEL]'s hands, with Mr Kenny, what an effective tool crossexamination can be. So, they have not been tested in that way. They are belated. They perhaps don't cover all of the field and they weren't even subject, as they might have been, if they'd been offered in the interview room, to the kind of crossexamination that policemen are allowed to engage in, members of the jury. And I've made a point about Dr Boland's evidence, it's an observation. Take it or leave it. Whatever notice she had, she wasn't prepared to go beyond where she was. So, if you think that that takes Dr Boland's evidence -- that that answers everything in Dr Boland's evidence, fine. Absolutely, members of the jury, that's the defence case. But analyse it very carefully before you come to any conclusions one way or other in relation to the matter.” The Controversial S. 22 Admissions and S. 19A of the Act of 1984 41. In charging the jury with respect to s. 19A of the Act of 1984, the trial judge specifically referenced the controversial s. 22 admissions as being potentially relevant in that context. Having set out the terms of the statutory provision, he stated: “So, in relation to interview number six, what that provision means is as follows. You look at that and you look at the matters that he was asked to account for in relation to those matters. You ask yourselves the question, members of the jury, in the circumstances that existed at the time of that interview, did those matters clearly call for an explanation from the accused? You have to decide whether you are satisfied beyond a reasonable doubt, whether the matters put to him called for such an explanation at that particular time. Where such an explanation was not given, but where facts are subsequently mentioned in defence, members of the jury -- and this is the locus classicus of it. Last Wednesday, facts were mentioned which pertained to the same area that was being asked about in that particular interview, members of the jury. You, if you are satisfied that the circumstances clearly called for an explanation, you are entitled to draw adverse inferences from the fact that that explanation was not provided in response to those questions, but comes at the time and in the circumstances in which it did. It was mentioned as a fact in defence in these proceedings, many years later but not at the time. Now, members of the jury, you may draw inferences adverse to the accused in relation to the specific items that he was asked about. Where there was no answer to a question, you may draw adverse inferences in relation to a failure to answer in relation to the specific material concerned, members of the jury. So, there's a specific provision that arises in relation to those matters. The failure to answer those matters, unless you find excusable as a matter of some reasonable possibility, members of the jury, may be treated by you as capable of amounting to corroboration of any evidence in relation to which the failure is material. So, those items may specifically, under that section, be corroborated by you, members of the jury, if you consider that the failure to answer questions is material to those particular issues, members of the jury. But again, you look at it in the context of what I have told you. If you are satisfied that there is a reasonable explanation for not giving those answers at the time, members of the jury, then you won't draw an adverse inference. But that is the position in relation to that.” Trial Judge’s criticism of treatment of Dean Kenny 42. Senior counsel for the appellant referenced the evidence of Dean Kenny during his closing address to the jury. In doing so, he told the jury it was accepted that Dean Kenny had done nothing wrong, “if wrong it be with a small w, other than tell a lie for understandable reasons which he explains himself as to what had actually happened.”. Counsel alluded with specificity to the fact that Mr. Kenny had given what counsel characterised as “a false account” in his first statement to gardaí by omitting to reference that, on the night in question, he had left Caroline Conlon’s house at a14 certain point and had proceeded alone and on foot to his friend Stephen’s apartment and that, upon finding that his friend Stephen was not at home, he had then walked back again to Caroline Conlon’s house. The fact that Dean Kenny had, it was suggested, “lied to gardaí” was presented to the jury as being “a cautionary tale”. Counsel proceeded to say to the jury: “Now I'm not sure what it is you can or would do with that. But if it's being suggested that when questions are being put to Aaron Connolly and, staccato like -- bullets out of a gun -- he's giving answers, well, Dean Kenny was giving answers in the exact same manner. And you have to juxtapose those against Caroline Conlon's evidence who suggests that there's no way he's banging on the door for 5 minutes. I'm standing there seeing Megan Smith back out. But bullets out of a gun the answers are coming. Do they mean anything? Does that mean that he's an inveterate liar just as it is suggested that Aaron Connolly is? I suggest to you, ladies and gentlemen, you need to be very careful before you form a view of that nature.” 43. The trial judge commented on Dean Kenny’s evidence, and the defence approach to it, at various points in the course of his charge to the jury. 44. Very early on in his charge the trial judge commented “you have to decide whether the evidence, as actually presented, is as representatives of the community, sufficient to damnify somebody on the charge before the Court. It's not a trial about Dean Kenny, although I began to think at various stages that it was, but there's been some explanation of all of that, so that's a matter for you to consider.” 45. Then mid-way through his charge, he referenced Dean Kenny’s evidence again, in the context of telling the jury that it was for them to decide what issues or controversies they needed to resolve in order to determine whether the prosecution had, or had not, satisfied them beyond reasonable doubt as to the guilt of the accused. In doing so, the trial judge said: “But what has to be decided, as a matter of necessity, is for you to decide and it seems to me that you don't have to know everything about everything to make that decision. You have to know what is necessary to know. I don't want to, you know, go into Mr Rumsfeld and his very elegant phrase about known knowns, known unknowns and unknown unknowns. You don't have to worry about all that philosophy; you have to decide, do I have enough, as a citizen, to convict another citizen beyond reasonable doubt? And if I don't have enough, if there are too many unknowns, I acquit and we all move on. So as I say, these are, I don't want to be unfair to these arguments, they are analogies that are put in front of you, that if Dean Kenny can be a liar, Aaron Connolly can be a liar and can be innocent too. Well maybe there is an equivalence, and maybe there's isn't, and maybe I'll return to that and maybe I won't. But I will have to speak about it when I speak to you about lies and how you approach them and lies in context. Personally, I believe that the legal directions that any judge has to give you in a case which involves circumstantial evidence and in a case which involve lies, are sufficient for you and your experience of life, are sufficient for you to determine these matters without resort to complex and clever comparisons. But maybe I'm wrong. Maybe I've been her (sic) too long. Maybe you find them useful and if you do, please take them, members of the jury. But as I say, I kept on having this dissonant note in my head, because after all at the very flag fall in the interviews; ‘I think Dean Kenny did it, he's a violent person’. We seem to be returning to that theme all the time, even though, at the end of the day, well no, Dean Kenny of course is an innocent person and that's, as I say, fine. Take Dean Kenny as an analogy if you want to, but there is no accusation, indeed there's no evidence again (sic) Dean Kenny. There's no DNA on him or his DNA on somebody who's dead, so is that of true equivalence? You think about that, members of the jury. Perhaps you just focus on the warnings and directions I give you, but of course you must consider these analogies, but are they really necessary to tell you that somebody can be put under suspicion by telling lies even though there's nothing to it? The direction I'm going to give you covers all of that. We don't have to have Dean Kenny to know that. It is not a crime to be violent, it is not a crime, of itself, to be a liar. They are only relevant when you have other evidence that suggests that you have committed a crime, and then questions of you being violent and questions of you telling lies may be material to the other evidence. But in a vacuum, they mean nothing, and that is where you have to consider lies, are they trivial lies or are they important lies? Are they on immaterial matters or are they on material matters. So broad brushstrokes I'm afraid, members of the jury, are not something that you apply in considering these matters.” 46. Later, when dealing with the appellant’s interviews, the trial judge again referenced the appellant’s nomination of Dean Kenny as possibly being the killer and his assertion while being interviewed that Dean Kenny was “a very violent person”. In that context the trial judge said to the jury: “So the thing was pointed very firmly in the direction of Dean Kenny. I mean, Mr [DEFENCE SENIOR COUNSEL] has told you repeatedly that there's no accusation now against Dean Kenny, and I'm sure that's all well and good and Dean Kenny is very relieved to know that, but the fact of the matter is, that that was made and I heard Dean Kenny being cross-examined in a very pointed way to establish he was a violent person and a liar and all the rest of it, and he may be such, members of the jury, but this is comment; I've heard no apology for being fingered wrongly in one of these early interviews but there you are. He is put forward as a parable of a person who is wrongly suspected, and if you see some kind of parallel in that, well that's a matter for yourselves, members of the jury. But what is that but a bit of displacement activity designed to point in another direction.” 47. It is again complained that the reference to “displacement” in the last sentence of the passage just quoted was a further disparagement by the trial judge of the defence case, and further evidence of the alleged lack of balance in his charge. Requisitions on the Charge 48. Amongst the requisitions that were raised by defence counsel following the conclusion of the main charge was one concerning an alleged lack of balance by the trial judge, and alleged potential for a perception by the jury of bias or partisanship, in certain remarks which he had made to the jury during his charge. Counsel stated: “I have to say that I'm deeply concerned by the Court having told the jury an anecdote which relates to a time as a prosecutor, where the Court has included in that anecdote, phrases such as, "what we did have", particularly when the Court has gone on then to talk about the account of the accused, and in the context of that: "I don't think it is open to you to say admissions cover everything. It is not something that sits easily with me or with the guards", and what I am concerned about is that the jury have a concern that the Court is aligned to the prosecution or to the gardaí by virtue of having told one anecdote which relates to a case where the Court was clearly on the prosecution team and where the Court has said, "what we did have" referencing very much being part of the prosecution team.” 49. By way of a further alleged factor said to raise a concern of objective bias by the trial judge, defence counsel also referenced adverse comments by the trial judge during his charge concerning the defendant’s failure to apologise to Dean Kenny for suggesting that he was the possible murderer of Cameron Reilly, when it had laterally been accepted that Dean Kenny was wholly innocent. There were the following exchanges in this context: “[DEFENCE COUNSEL]: And then the Court repeatedly … gives a clear impression to the jury that this Court has taken a view and that the accused should be apologising to witnesses, which is -JUDGE: He should. [DEFENCE COUNSEL]: Sorry, the Court is now confirming that it's made a finding JUDGE: Yes. [DEFENCE COUNSEL]: -- that was conveyed to the jury that the accused should have been -JUDGE: As a matter of common decency, absolutely. [DEFENCE COUNSEL]: -- that the accused should have, in the course of this trial apologised to witnesses. JUDGE: Mr Kenny was treated to quite a rough cross-examination. [DEFENCE COUNSEL]: But I'm referring to what was said in the memo of interview. The Court is now contending that counsel should have apologised -JUDGE: Yes. [DEFENCE COUNSEL]: -- to witnesses for what was said in the memo of interview. JUDGE: That's my view. [DEFENCE COUNSEL]: And the Court thinks that it is fair that the jury be told that effectively an inference should be drawn from that. JUDGE: No, I didn't tell them that an inference I didn't say that at all. I said -- [DEFENCE COUNSEL]: Or certainly there's been an impression conveyed -JUDGE: I said Mr Kenny was attacked when perhaps an apology might have been better. But there you go. [DEFENCE COUNSEL]: But no, sorry Judge, you said it in the context of the memos of interview. It's specifically in the context of the memos of interview. JUDGE: It holds good in any context, [DEFENCE COUNSEL]. [DEFENCE COUNSEL]: But the Court did say it twice in the context of the memos of interview. The Court referred to the memo of interview and referred specifically to what was said by the accused in the memo of interview as regards Mr Kenny. And then the Court noted there was no apology, "being fingered wrongly, but there you are". JUDGE: Yes. [DEFENCE COUNSEL]: So, the Court basically asked the jury to draw a negative inference from the failure of counsel to apologise to a witness and whether -JUDGE: I was making an observation. [DEFENCE COUNSEL]: -- that was said by the accused. JUDGE: Is there anything inaccurate about that observation? [DEFENCE COUNSEL]: The Court is asking the jury to draw an inference from the conduct of -JUDGE: I didn't ask them to draw any inference. I pointed out that Mr Kenny, notwithstanding the fact that he is regarded to be innocent of all things, was still robustly cross-examined, in circumstances where he had been wrongly fingered as the murderer. Opening gambit. [DEFENCE COUNSEL]: Sorry, Judge. What is the purpose of pointing out to the jury that there was no apology on multiple occasions in respect of the memos of interview? JUDGE: I was pointing out it's a flat out lie that was never apologised for. [DEFENCE COUNSEL]: But the Court is talking about the conduct of the crossexamination? JUDGE: Yes. [DEFENCE COUNSEL]: And laying that at the door of the accused? JUDGE: I don't think it's a big point. I told them on repeated occasions, if they find something of this to his benefit, as a matter of reasonable possibility, they will act upon it. I'm perfectly entitled to express my view. Mr Kenny was produced in the interview room. He was produced in the witness box. You're entitled to do all of that. I'm entitled to say that it doesn't sit nicely.” 50. Defence counsel contended that the cumulative effect of the three strands of her objection, namely (
8. i)the anecdote told by the trial judge concerning his time as a prosecuting barrister, in which he used the phrase “what we did have” (which in counsel’s contention was self-alignment with the gardaí and prosecution); (
9. ii)the judge’s statement to the jury in the appellant’s case that “I don't think it is open to you to say admissions cover everything. It is not something that sits easily with me or with the guards” (again suggesting possible judicial self-alignment with the gardaí); and (iii) the pointing out by the trial judge to the jury on multiple occasions that there had been no apology offered to Mr. Kenny, “would appear to be an advocacy for the prosecution”. 51. The trial judge responded, “No, I don’t advocate for anyone”, asserting that he had repeatedly referred to the defence case and invited the jury to consider whether or not they accepted it as a matter of reasonable possibility. He added, “I’m not advocating for anybody. I’m entitled to comment on the way that the defence was conducted.”. 52. There was further discourse during requisitions between counsel for the appellant and the trial judge in respect to an alleged failure to obtain DNA from Mr. Kenny. The following exchange occurred: “JUDGE: What is the interest in Dean Kenny? What's that meant to illustrate? [DEFENCE SENIOR COUNSEL]: The fact that, as a consequence of a lie being told, suspicion mounts and through coincidence JUDGE: Yes but Dean Kenny's DNA is not found on anybody's penis. Nobody's DNA is found on his clothes. So, you're not comparing apples with apples. [DEFENCE SENIOR COUNSEL]: Well, Judge, his clothes weren't ever examined. But I JUDGE: Why would they be examined? [DEFENCE SENIOR COUNSEL]: But, Judge, I agree with the Court. I agree with the Court entirely JUDGE: No, you can't help me because I'm going to make up my own mind as to how I deal with this question of Dean Kenny. [DEFENCE SENIOR COUNSEL]: Certainly, Judge.” 53. The trial judge refused the requisitions raised, and in doing so stated (inter alia): “As to the other matters, I am not aligned to the guards. I wear this uniform, not a blue one. I am fully entitled, just as Mr [DEFENCE SENIOR COUNSEL] is, to refer to cases. It's not an anecdote about something in a pub, it's an anecdote about a case that involves circumstantial evidence and shows, in my view, very clearly how circumstantial evidence operates, that each piece wouldn't be enough, but the combined was both for a jury and the Court of Appeal. The fact that I prosecuted somebody 22 years ago, is hardly going to be taken by a jury with the sense that these people obviously have, as being some sort of indication that I'm aligning myself against Mr Connolly. I'm doing no such thing and I make no apology. If somebody somewhere else thinks that it's wrong, so be it. The question of the extract about not being the answer to everything. I don't believe the admission is the answer to everything, but I think I remind the jury on another occasion that if they believed it was the answer to everything, well then so be it, once they had looked to anything. And I in fact specifically told them that. I might not have told them that, but I opted to tell them that it's their view, ultimately. I don't think -- I'm happy that it covers everything, and I think if anybody wants to say that I'm off the wall in saying that I don't think that the guards would have been happy either, that's not me aligning myself with the guards. I'm simply agreeing that the situation as presented, where somebody, in a barefaced sort of way, denies the obvious for four and a half years, but where it's suggested to a jury that everything can now be allayed by this belated admission, I say that simply isn't so. I don't think I'd be happy, and I don't think the guards are happy that that is the situation, as I put it to the jury, that we would simply all pack up our belongings and believe, well, that's the answer to everything. Of course, it isn't the answer to everything. As I've pointed out, in any sane or sensible interview room, Mr Connolly would have been asked searching questions about the admission that he's now made. That's all been precluded. There's no possibility of that. He gets that in front of a jury where it can't be cross-examined on, fair enough. He's entitled to do that. I haven't quarrelled with that. But in those circumstances, I think I'm bound to point out that it may not be the answer to everything, and I don't think the guards would have been content, and I wouldn't have been content to leave it at that. They would have wanted to know, as I said to the jury, how did it happen, what happened, how did it finish and a lot more besides. So, no, I refuse the requisitions. DEFENCE COUNSEL: May it please the Court. JUDGE: As far as I'm concerned - I don't know how many pages all of that will come out at on transcript - the proper approach to these matters is to look at a charge as a whole and what does it convey to a jury. And I did my level best against some fairly strong, contrary instincts that I've developed during this case, to present the issues as fairly as I can, from Mr Connolly's point of view. And this business of picking at three stitches in a jersey to try and unravel the whole jersey, is entirely wrong. It's the tenor of a charge as a whole that's important and I'm happy to live with that. And if somebody else disagrees with it, fair enough. So, I refuse the requisitions.” 54. On the following morning, the trial judge indicated that, having reflected overnight on a submission that had been made to him the previous day in regard to the significance of the DNA found on the deceased’s neck, and the evidence of Dr. Clara Boland, he would give the jury some further instructions. The jury having then been brought out, and by way of an introduction to what he was going to say, he made the following preliminary remarks: “I have a little bit more for you than I thought last night, principally because there's a couple of things that, having given you a time estimate which was, as usual, out of kilter, and in an anxiety to try and get the thing done in substance by 4 o'clock, I didn't do a couple of things I said I was going to do and you may have noticed that and there was a couple of things on my list that, when I thought about it yesterday evening, I didn't do and I'm going to do them again. It may involve threading back over some of yesterday's ground but there's no harm in that. I'm not going to actually change any of the substantive legal directions that I gave you. You can take those to the bank. Anything beyond that, members of the jury, is in the realm of comment and my comment is no better, and is in many ways worse, than any other comment that you get. So, as I say, view any comment that I make sceptically and bin it, throw it overboard if you consider that it is tainted in any way by impartiality or is plain wrong. I am not partial, members of the jury. The fact that I acted for the prosecution once 20 years ago doesn't mean I'm a forever friend of the prosecution. I acted for both sides, as most people in this court do, because acting for both sides is healthy. It's a cab rank. Whoever hires the cab, you drive the fare to the end and if it's the defence that hire you one day, that's fine. When you drop them off, if the prosecution pick you up, you drive them to their destination. That's how the bar works. It's actually healthy because when you get a set of papers for the prosecution you look at it through defence eyes. You try to anticipate how the other side will do it and vice versa. I know a lot of people outside are cynical about that but that's in fact the way the bar works and it's all the better for that. So, you know, I acted lots of times on the other side, it doesn't mean I'm their forever friend either, members of the jury. In the 15 years since I've done this job I have presided over acquittals, I've presided over convictions, I've been directly responsible in the special for convictions and for acquittals, I don't have a fixed view at all and if any of you came away from my remarks with that kind of thought in mind it would be wrong but if you think that my views are skewed or biased, kick them out, throw them overboard. I said that yesterday, I say it again this morning. The fact that I might find myself in agreement with one part of the consequences of these admissions, and that is that the guards might have liked to ask more questions, because I believe, and I agree with the proposition, that more questions arise, members of the jury. That doesn't mean I'm endorsing the prosecution case. It means I agree with one very small part and I'm not that doesn't translate into advocating for a result one way or the other. In fact I agree with some things that were said on the other side. It doesn't mean I'm advocating for their result either, members of the jury. So, that's simply the way the cookie crumbles. There are unfortunate aspects of this case that have to be dealt with, some of which were created by Mr Connolly himself, and there's no way I can sugar coat those or just leave them off to one side. They have to be dealt with. So, that's the position and I, in the interests of balance, hope you remember that when, particularly Sergeant Gill, but also one of his superior officers was giving evidence, and I certainly viewed that we weren't getting straightforward answers to straightforward questions. I was quite strict with them. So, I'm not a flag waver for anybody, members of the jury. Now, there is one aspect I did comment on, and I'm not resiling from the comment, it's the question of the finger pointing in relation to Dean Kenny and what appears to be a made-up story about this man Daniel, and I suggested that was worthy of apology. That's fine, I still believe that, but this is not a criticism of Mr [DEFENCE SENIOR COUNSEL], members of the jury, those who act by way of criminal defence, do so as a matter of instructions and Mr [DEFENCE SENIOR COUNSEL] conducts the case on the basis of the instructions he receives from his client, and any decisions that he makes, in terms of how the case is conducted, are to be validated by the client. So that's the position, I'll be speaking about that in a moment very briefly, in the context of section 22 and the admissions that you heard. So, in no way is that a criticism of Mr [DEFENCE SENIOR COUNSEL], it is not and he plays the cards that are handed to him. If it's a criticism of anybody, it's a criticism of Mr Connolly, but in fact it's an irrelevant criticism and I ask you really to put it to one side, it doesn't actually help you, because what, having thought about it, what you have to focus on, members of the jury, is the question of were lies told at any point in the case, members of the jury, and if they were, what are the consequences of the lies on your deliberations?” 55. The trial judge then continued to give further substantive directions to the jury concerning the correct way to approach lies told. However, having done so, he then returned yet again to the matter of the s. 22 admissions. Having explained again the legal effect of s. 22 of the Act of 1984, he told the jury, “Now, the admissions that you have, and the first four and a half are acceptable, it appears, members of the jury, so you can accept them without further ado.”. He then went on to address how they should approach the 5th admission, stating: “And they also admit, at paragraph five, as follows, and I'll just remind you of this. ‘On the 26th of May 2018, Aaron Connolly was intimate sexually with Cameron Reilly. During the course of such sexual conduct, Aaron Connolly, while on his knees, pulled down the tracksuit bottoms of Cameron Reilly and Cameron Reilly placed his penis in the mouth of Aaron Connolly and Aaron Connolly gave Cameron Reilly oral sex, during which Aaron Connolly placed his arms around the waist of Cameron Reilly. Sexual intimacy took place at the side of the pumphouse at Shamrock Hill, Dunleer, County Louth. When Aaron Connolly left Cameron Reilly on the 26th of May 2018 at Shamrock Hill, Dunleer, County Louth, he was alive and standing up.’ Well, they plainly don't accept the last sentence of that, members of the jury. I've no doubt that the prosecution accept that there was oral sex between the two men, because that is precisely what they were saying since flag fall, since the first DNA evidence became available, and was put to Mr Connolly during the interviews in June. So, that's it, members of the jury, there's certainly no acceptance of the last part, whatever about anything else in it by the prosecution, so that's a matter that falls to be determined by you. Now, members of the jury, there's no particular magic about the implication of section 22, or the fact that these admissions are read to you by a learned senior counsel like Mr [DEFENCE SENIOR COUNSEL]. They are in fact like a section 21 statement, the words of Mr Connolly, they're not the words of Mr [DEFENCE SENIOR COUNSEL] or anybody else, and section 22 doesn't confer any sort of bottom to them, unless the prosecution are in agreement with them, they are otherwise up for grabs and for consideration by you. Now, in the final analysis, members of the jury, as I said to you yesterday, and I will say again, if after careful examination and careful scrutiny you think, and have reason to think, that it's reasonably possible or its true, that the last part of that was as described, well then obviously you will acquit, members of the jury. But as I say, these are the words of Aaron Connolly, they are unsworn words and you are being asked to take them on trust, and that is something you must think very carefully about. They are not subject to cross-examination by the prosecution, in the same way as live witnesses, and you can bear that in mind when you are weighing whether or not to accept them. Perhaps more importantly, members of the jury, they were, even at an earlier stage, not available for examination and for probing by the guards, because although being asked about these matters, different things were said at the time. So, therefore, as a matter of trust, and I'm not -- I can’t sugar-coat this, members of the jury, it's not my fault, at the end of the day, it's Mr Connolly's responsibility, entrusting those you have to take into account what you know about what happened previously, and there's no getting away from that, I suggest to you, in fact section 19 means that what I'm saying isn't revolutionary, section 19 says, that where somebody is told that we're going to put questions to you, and if you don't mention facts now about these questions, but you mention them later on, a jury can be asked to draw adverse inferences, but of course, a jury can't be asked to convict entirely on adverse inferences. That's the same principle, you have to look with a sceptical eye on that, when you know that you're being asked to take on trust, that is, the source has not been entirely reliable in the past.” 56. The trial judge then concluded his remarks by giving the jury, as he had said he would do, some further instructions concerning how they might approach the evidence concerning the finding of the appellant’s DNA on the deceased’s neck, and the evidence of Dr. Clara Boland. Submissions on Issues Raised in this Appeal 57. Understandably, both the appellant’s and the respondent’s submissions are liberally interspersed with quotations from the transcripts from the three days over which the trial judge charged the jury, most of which we have reproduced earlier in this judgment in unfolding the background to this appeal. Ground No 1 58. Shorn of lengthy quotations, the appellant’s submissions in relation to ground no 1 focus on the assertion of lack of balance in the charge, and specifically that: (
10. i)the trial judge hinted repeatedly that he had his own view of the case; (
11. ii)the trial judge had repeatedly sought to disparage the defence case: illustrated by (inter alia) his references to “some kind of peeping Tom” and to “peeping Toms”; and his sarcastic characterisation of defence counsel’s commendation to the jury (that they should regard Dean Kenny’s interactions with the gardaí, in which he had initially given an incomplete account of his movements, as representing “a cautionary tale”) as being “a parable of a person who is wrongly suspected”, coupled with asking of the jury rhetorically, “what is that but a bit of displacement activity designed to point in another direction?”; (iii) the anecdote concerning the trial judge having presided at a trial where he learned afterwards to his surprise and concern that the jury had formed an impression that he wished them to return a particular verdict, may have created an expectation (despite his intentions) that the jury in the appellant’s case were to take their cue from him; (
12. iv)the trial judge referred to the controversial section 22 admission by the appellant as a “theory” and sought to make it explicit to the jury that in his view the appellant was responsible for the death of Mr. Reilly by virtue of a physical interaction in the aftermath of their sexual encounter; (
13. v)the approach of the trial judge called on the jury to focus on what the appellant had not stated in his section 22 admission in a manner that invited them to speculate and directed them on what they were to speculate about; (
14. vi)in focusing on the section 22 admissions, and on his view of them to the extent that he did, the trial judge gave the jury the impression that the burden of proof had shifted to the appellant and that it was for him to establish what had occurred to Mr. Reilly in the aftermath of their sexual encounter as, to quote the trial judge, “There has to be more to it”; (vii) in his approach to the controversial s. 22 admissions the trial judge’s commentary on the limited nature of what was stated by the appellant amounted to impermissible comment on the appellant not giving evidence at trial; (viii) in overly focussing on comparing the account in the Garda station and the controversial s. 22 admissions made during the trial, and repeatedly referencing that they were unsworn, the trial judge was implicitly inviting the jury to draw an adverse inference from the fact that the appellant had not given evidence; (
15. ix)the trial judge, failed in the course of his charge to explain adequately or at all that the jury was entitled to, but did not have to, draw an adverse inference from the appellant’s failure to give an account of the sexual encounter to gardaí during the course of his interview. It is said that the effect of the trial judge’s instructions to the jury was to give the impression that the only option open to the jury was to find in favour of the prosecution case because the appellant had failed to provide his account of the sexual encounter when given an opportunity to do so by the gardaí at an early stage. 59. The Court was referred in submissions on behalf of the appellant to relevant passages from People (DPP) v. D.O’S [2004] IECCA 23; People (DPP) v. Slattery, unreported, ex tempore (per Hardiman J), Court of Criminal Appeal, 4th of February 2004; and People (DPP) v. Rattigan [2018] 3 I.R 417 concerning the limits of the (acknowledged) right of a trial judge to comment on the evidence in the course of instructing a jury. 60. In replying submissions on behalf of the DPP the point was made that the trial judge was careful to repeatedly indicate to the jury that they could accept or reject his comments on the evidence. Further, it was suggested, relying on People (DPP) v. Eadon [2021] 1 IR 417 that a judge’s charge ought not to be approached with a fine tooth comb with “individual sentences parsed for any trivial error of law”. It was submitted that in light of the factual matrix of this particular case the trial judge had faced unique challenges in fulfilling a dual criterion of balance and fairness in the delivery of his charge. 61. Further, the respondent submitted that the evolution of the evidence at trial necessitated a lengthy and comprehensive treatment of a body of circumstantial evidence as well as the applicable legal principles and statutes, and that the trial judge was correct, in law and in fact, in his assertion within the charge that the charge ought to be considered as a whole. 62. It was submitted that the trial judge had properly observed that the statutory admissions procedure had been used in a novel way, in as much as there was a mix of admissions as to conduct and assertions as to fact. The appellant had not only elected to admit something that the prosecution must otherwise prove, but went further than that and introduced a free-standing fact that he wished to have before the jury. The respondent contends that the trial judge was entitled to comment on the sparce nature of the admissions particularly given that the jury was being tasked with the accepting or rejecting of individual pieces of circumstantial evidence with a view to weaving them together in their assessment of the guilt or innocence of the appellant. 63. The trial judge had flagged his intention to remark on the timing of the admissions to the jury on the basis that they would have to investigate how they came about and further to apply their common sense to the fact, and it was submitted that in circumstances where the timing of the said statutory admissions was part of the factual matrix of the case the trial judge was not only entitled, but obliged, to comment on the timing of their delivery to the jury. 64. It was submitted that, in circumstances where the trial judge considered that the prosecution was considerably disadvantaged by the timing of the statutory admissions, the trial judge had properly instructed the jury on the impact of the timing of the statutory admissions on the expert evidence presented by the prosecution. In support of this we were referred to the observation in Archbold, Criminal Pleading, Evidence and Practice, (2024 edn) referencing in turn Evan DJ