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[2026] IECA 102

THE COURT OF APPEAL CRIMINAL APPROVED NO REDACTION NEEDED [2026] IECA 102 Appeal Ref: CCAOT0184/2024 Bill No: LKDP128/2021 Edwards J. McCarthy J. Hyland J. BETWEEN: THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) RESPONDENT AND D.O’D. APPELLANT JUDGMENT of the Court delivered on the 18th May 2026 by Ms. Justice Niamh Hyland INTRODUCTION 1. This is an appeal against the conviction of D.O’D. (the “Appellant”) for one offence contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997 (the “1997 Act”), one offence contrary to s. 15 of the 1997 Act (false imprisonment) and two counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990. The Appellant was convicted by a jury, and a sentence was imposed on 7 June 2024. On count 1, he was sentenced to 4 years imprisonment. On count 2, he was sentenced to 5 years imprisonment, On counts 3 and 4, he was sentenced to six and a half years imprisonment. The sentences are to run concurrently. 2. The Appellant appealed his conviction on the following two grounds: (

  1. a)that the trial judge erred in principle and in law in ruling as admissible the entire audio of the emergency 999 call which ran to approximately 40 minutes in length and permitting same to be played to the jury; (
  2. b)that the trial judge erred in the response he gave to the jury relating to their question concerning the absence of analysis of the forensic samples taken from the motor vehicle. FACTS 3. All the offences relate to 17 January 2020 at a rural location in Co. Limerick and involve one Complainant. The Complainant and the Appellant were known to each other and had previously been in an intimate relationship. The Appellant had gone to her home unannounced by car. Due to an absence of outside lighting, the Complainant had gone outside and was pulled into the car by the Appellant. She was falsely imprisoned and taken 2 from her home by car to a location in a nearby lane where she was violently assaulted both physically and sexually. The physical assault included choking with one hand, while the sexual assaults included the Appellant jabbing his fingers in her vagina and licking her vagina. The Complainant managed to escape from the car and after climbing through a ditch, tearing her arms, she hid. During the time she was hiding, she could hear the Appellant’s car driving up and down the road, and she believed he was looking for her. She returned to her home, called 999 and had a conversation with the operator during the time it took for An Garda Síochána to arrive at her house. Due to the remote location of her house, that took some 40 to 45 minutes, and the call as played to the jury (with some excisions) took 40 minutes. 4. The Appellant denied the charges, although in his sixth interview with the Gardaí, in response to DNA results, he admitted – contrary to his earlier position – that the Complainant was in his car, and he asserted that there had been a tussle between them. The Appellant maintained that his reason for going to the Complainant’s home was to confront her about a rape allegation from November 2018, which he disputed, and that a dispute arose between them in that context. 5. The Complainant was cross-examined on her past sexual history with the Appellant, including the rape that she alleged, and he denied. She said she had not told anybody about it, and she had not reported it until after the incident in January 2020. The evidence included the direct evidence of the Complainant, the 999 call that was played to the jury, DNA evidence, fibre evidence, and medical evidence consistent with the account of the Complainant. FIRST GROUND OF APPEAL: THE 999 CALL 3 6. It is important to understand that the ground of appeal in respect of the call is concerned not with its admission but with the extent of its admission. The Appellant argued that only part of it should go in, on the basis that allowing the entirety of it was so prejudicial to the Appellant that this outweighed its probative value. The trial judge ruled against the Appellant and allowed the preponderance of the recording to go to the jury. The Appellant argues he erred in law in so doing. 7. To evaluate and rule upon this ground of appeal, it is necessary to consider the basis upon which the call was admitted. Both parties accepted in their submissions that the call would normally be hearsay evidence and, as such, inadmissible, given the definition of hearsay as identified by Murray J. in DPP v Connorton [2023] IESC 19. 8. Murray J. identified two different definitions, the first being what he described as the narrow hearsay rule i.e., that evidence of the speaking of words spoken by a person who was not produced as a witness is inadmissible to prove the truth of the facts which they assert, the reason being is that the truth of the words cannot be tested by cross-examination. 9. The second definition, referred to by Murray J. as the “fused” rule, and the one ultimately adopted by him, having reviewed relevant case law and leading textbooks, is as expressed in Cooper-Flynn v. RTE [2004] 2 I.R. 72 i.e. that “the hearsay rule means that a statement made by a person, other than one which is made by a witness while giving oral evidence in proceedings, is inadmissible as evidence of any fact stated” (paragraph 54). Charleton J. concurs with this definition. On this analysis, the introduction of the call would ordinarily be a breach of the hearsay rule if introduced to prove the facts referred to therein. 10. It would also be a breach of what is known as the rule against narrative, or the selfcorroboration rule i.e. that a witness should not be bolstered as to their evidence by other 4 witnesses being called into court and narrating what that witness had told them. Here, the evidence in question is a recording containing statements from the Complainant rather than testimony by a third person as to what was told to them; but the principle remains the same. 11. Both sets of counsel agreed that the recording could be admitted under two different exceptions to the hearsay rule and the rule against self-corroboration, those exceptions being the doctrine of recent complaint and the doctrine of res gestae. The defence accepted that the recording could be played up to page 5 on a transcript, on the basis that, up until that point, the recording constituted evidence of recent complaint and came within the res gestae rule. It was also agreed that certain parts of the call relating to the previous history of the Appellant should be excised and this was done. 12. The dispute arose in respect of the remainder of the recording. On the typed transcript given to the trial judge and to this Court, there were a further five pages of transcript. There was some discussion in the course of requisitions as to whether certain portions of the recording after the accepted point could be extracted to shorten the recording, but ultimately counsel for the Appellant took the view that it would be more prejudicial to him to have the parts that the prosecution sought to rely on spliced together and therefore indicated that his objection was to the entirety of the section of the call not agreed. He indicated that if he was unsuccessful in that respect, the entirety of the recording should be played rather than portions of same. 13. Ultimately, having heard argument from both sides, the trial judge decided that the entirety of the recording should be played to the jury save those parts that were excised by agreement. As played to the jury, the recording was about 40 minutes in length. Recent Complaint 5 14. To properly evaluate this ground of appeal, it is necessary to consider the nature of the exceptions pursuant to which the recording was admitted. It is well established that recent complaint is admissible exclusively in the context of sexual offending. Evidence of the complaint is not evidence of the truth of the contents of the complaints, but rather as evidence of the consistency of the complainant's evidence. The backdrop to the rule is the treatment of such evidence in the Middle Ages, where a person alleging rape would only be believed if they had raised what was known as “hue and cry” i.e. complained immediately after the event. Absent evidence of same, an accused could not be convicted of rape. Although that requirement withered over time and is no longer a feature of the requisite elements of proof in a sexual offence type charge, nonetheless the underlying principle, i.e. that evidence of complaint should be admitted, remains part of the law. 15. In the latter part of the 20th century, when considering the admissibility of a complaint, the focus was on whether the complaint was close in time to the incident. However, as Kennedy J. observed in her judgment in DPP v. PS [2023] IECA 135, a requirement that the complaint be made as speedily as could reasonably be expected has been interpreted with more flexibility in recent times, as courts become more aware of the impact of sexual offending. In DPP v. Brophy [1992] ILRM 709, the Court of Criminal Appeal set out the requirements in relation to the admission of evidence pursuant to the doctrine of recent complaint. The test in Brophy is as follows: “(
  3. a)Complaints may only be proved in criminal prosecutions for a sexual offence. (
  4. b)The complaint must have been made as speedily as could reasonably be expected and in a voluntary fashion, not as a result of any inducements or exhortations. Once evidence of the making of a complaint is admissible then particulars of the complaint may also be proved. 6 (
  5. c)It should always be made clear to the jury that such evidence is not evidence of the facts on which the complaint is based but to show that the victim's conduct in so complaining was consistent with her testimony. (
  6. d)While there is mention in one of the older cases, R. v. Osborne

(1905)1 KB 551, of a complaint being "corroborative of the complainant's credibility" this does not mean that such a complaint amounts to corroboration of her testimony in the legal sense of that term but as as pointing to the consistency of her testimony. Corroboration in the strict sense involves independent evidence, that is evidence other than the complainant's evidence (e) The law on complaints should not be confused with what takes place once the police institute their inquiries. That is a separate matter. A complaint made to the police may, as such, be admissible or not under the guidelines set out above but just because a complaint is not made at the first opportunity to the police does not, of course, inhibit their inquiries. Indeed, a complaint to the police may be made by someone other than the injured party.”
  1. Of particular relevance to the ground of appeal at issue here is paragraph (b), which makes clear that once evidence of the making of a complaint is admissible, particulars of the complaint may also be proved. The 999 recording constitutes the particulars of the complaint.
  2. We have carefully considered the transcript of the call that was played to the jury. It was not considered necessary for this Court to hear the recording itself and no application to that effect was made by counsel for the Appellant.
  3. Counsel for the Appellant argued that the trial judge was wrong to refuse his application that only the first part of the recording should be played, arguing that playing the entirety of the recording was more prejudicial than probative. No authority was cited by counsel to support his application in this respect. His submission fails to engage with the essence of the doctrine of recent complaint i.e. to show that there has been consistency between the account given by the accused at trial and the account given in the complaint. In any 7 application to exclude recent complaint, consideration must be given to the justification for permitting such evidence i.e. to show consistency. In this case, the entirety of the recording demonstrates consistency of account.
  4. The Complainant starts the 999 call to the operator by describing what had happened to her, then describing her fear that the assailant was still around, and then the conversation moves to the efforts by the operator to obtain the address and Eircode from the Complainant. The Complainant then returns to expressing her fear that the assailant is still nearby and the operator advises the Complainant to lock herself into the bathroom. There is then a discussion of a previous rape by the assailant alleged by the Complainant, then a detailed description by the Complainant of what happened, including her efforts to escape from the car by jumping into a ditch, becoming covered in thorns and hiding in the ditch for 20 to 30 minutes while the assailant drove down towards her house looking for her. The Complainant then goes on to describe again the events and her view that the assailant was drunk. She recounts again in more detail her previous experience, where she alleges he sexually assaulted her, and the operator obtains her Eircode, despite her obvious panic. The Complainant gives a description of her house, and of the car that the accused was driving. There is a discussion about the reason for the delay in the Gardaí arriving and she mentions that her back is “killing her” because the accused injured her. She observes that she was covered in thorns when she jumped over the ditch and describes how she pulled herself in over the ditch. She refers again to hiding in the ditch and the assailant looking for her. The call comes to an end when the Gardaí arrive.
  5. The Complainant gave evidence at the trial and was fully cross-examined, and the call is consistent with the nature of the evidence she gave. As may be seen in the above summary 8 of the call, the call goes into various aspects of her complaint, including those matters upon which she was cross-examined.
  6. In our view, to excise part of the complaint would be to undermine the basis upon which the call was admitted i.e. that particulars of a recent complaint may be proved. The recording echoes the evidence given by the Complainant at trial and demonstrates her consistency. The fact that the call was prejudicial to the Appellant is not in our view a reason to treat the trial judge's decision as erroneous. All prosecution evidence is of its nature prejudicial to an accused: that is the purpose of it. In our view, the entirety of the call is probative of the consistency of the Complainant’s stance: there is no basis for treating any part of it as less probative than any other. Given that this is so, its prejudicial nature does not in our view provide a basis for excluding it. Res Gestae
  7. Turning to the other basis upon which the recording was admitted, i.e. that it formed part of the res gestae, the justification for admission of evidence on this basis was recently restated by Charleton J. in the context of a 999 call. In DPP v. Connorton, Charleton J. held a 999 call was admissible where the caller’s statements were “so enmeshed in the emotion of an ongoing situation” that they formed part of the res gestae.
  8. The Appellant accepts that a portion of the call should be admitted on res gestae grounds but argues that beyond page 5 of the transcript, it is “too far beyond spontaneity for res gestae to continue to apply”. It is contended that the Complainant’s voice, tone and emotional state were obvious from the initial part of the recording and that the prejudicial value of permitting the remainder of the recording to be played outweighed the probative effect. However, as pointed out by the DPP, the incident remained ongoing, as was 9 acknowledged by the trial judge. In his ruling on 22 April, he observed that the incident was still ongoing and the 999 call was so enmeshed in that incident, that what the Complainant had to say was spontaneous and she had no opportunity for concoction or fabrication or deliberate distortion. He noted she was still anxious about the possibility of the assailant returning and had hidden herself in her own home awaiting the arrival of the Gardaí.
  9. It is hard to find a more obvious example of res gestae given the proximity of the call to the incident, the obvious fear and panic on the part of the Complainant, and the actions she took – on the advice of the call operator – to safeguard herself, i.e. locking herself in the bathroom. In our view, to exclude part of the call would be to exclude evidence that comes comfortably within the res gestae exception.
  10. The Appellant argues that including the entirety of the call is more prejudicial than probative and therefore the trial judge erred in permitting the entirety of the call to be included. But in our view his decision was well within the discretion given to a trial judge. We see no error in his conclusion that the entirety of the call should be treated as sufficiently probative to justify its inclusion, given the basis on which it was admitted, despite its prejudicial nature. TREATMENT OF THE QUESTION POSED BY THE JURY
  11. The second ground of appeal is that the trial judge erred in the response he gave to the jury relating to their question concerning the absence of analysis of the forensic samples taken from the motor vehicle.
  12. To put this in context, the Appellant had initially denied that the Complainant was ever in his car but when confronted with DNA evidence in relation to saliva on the Complainant’s 10 underwear, he accepted that she had been in his car. The Complainant had been menstruating at the time of the assault. There was fibre evidence consistent with a struggle between the parties. The detectives saw no blood staining when they examined the car, although they took swabs of the car, including the steering wheel. No evidence was given as to the results of those swabs.
  13. Following the charge to the jury, the following question was posed by the jury: “We would kindly ask if the defence could have looked for further testing of the car from the Forensic Ireland during the last four years?”
  14. During legal argument as to the appropriate answer to this question, counsel for the Appellant argued that the trial judge ought to convey to the jury that the onus of proof did not shift back to the accused to disprove any allegation. He argued that if there was material evidence that was absent, this could be a route to reasonable doubt and that only the State could explain why the evidence was missing.
  15. The response of the trial judge to the question posed by the jury was as follows: “You must act on the evidence. And there was no evidence of the defence asking for testing in the last four years or anything to do with that, so you can just act on the evidence, otherwise we would find it impossible because you must act on the evidence and you must not speculate”.
  16. The Appellant argues the trial judge erred as he ought to have advised the jury that they could factor in the absence of forensic analysis of car swabs as a material issue. However, when one looks at the reply to the question, not in isolation but in conjunction with the judge’s charge to the jury, and the way in which the Appellant mounted his defence, we cannot agree the trial judge erred. 11
  17. The Appellant had admitted that the Complainant was in his car on the incident date and ran the case on that basis. The absence of analysis must be considered in that context. The trial judge made it absolutely clear that the onus of proof rested on the DPP and never shifted to the Appellant. He specifically addressed the issue of the swabs as follows in his charge: “I want to just remind you again of something that came up from the two scenes of crime experts, who are now retired from the Gardaí, who examined the car and how you might deal with the issue. They took these swabs. They swabbed the car carefully and the swabs have not been tested for blood. In particular, the steering wheel was swabbed. It hasn't been tested for blood. In relation to the swabs from the Rio car, because it was a Rio car, they were not analysed for blood. And if you think that's material, first of all, you can take that into account in your deliberations and you can give it such weight as you consider proper and appropriate. So you can take it into account in that way”.
  18. It is contended that the learned judge erred in answering the question as he failed to advise the jury that if the absence of such analysis left unanswered a material or critical issue in the case, they could factor that matter into their consideration. But that argument carries little weight where he had already expressly averted to the fact that swabs had been taken, were not analysed for blood, and if the jury thought that was material, they could take it into account. He was not required to repeat what he had already said in response to the question posed by the jury.
  19. Moreover, his answer correctly informed the jury that they could only take into account what was before them. No forensic evidence from the swabs was before them and it was made clear they could only proceed on that basis. He told them they could not speculate as to the cause of the absence of that evidence. That was an appropriate approach. 12
  20. In all the circumstances, the appellant has failed to establish any error on the part of the trial judge in respect of the second ground of appeal and his appeal is unsuccessful on this ground also. CONCLUSION
  21. In the circumstances, the appeal is dismissed. 13

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