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[2026] IECA 85

APPROVED JUDGMENT THE COURT OF APPEAL [2026] IECA 85 Record Number: 0294/2023 Kennedy J. O’Moore J. Owens J. BETWEEN/ THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT/ - AND - S.M. APPELLANT JUDGMENT of the Court delivered on the 20th day of April 2026 by Ms. Justice Isobel Kennedy. 1. On the 11th of May 2023, the appellant was convicted of 1 count of rape contrary to common law as provided for by s.48 of the Offences Against the Person Act 1861 and s.2

(1)of the Criminal Law (Rape) Act 1981, as amended by s.21 of the Criminal Law (Rape) Amendment Act
  1. Factual Background
  2. During the trial, the complainant, BK, gave evidence that on the 13th of June 2019, she went with her friend, SK, to the appellant’s home, where SK’s then boyfriend was staying. BK had not met the appellant prior to the events in question. BK told the court that over the course of the evening, all parties were drinking alcohol, and that she had danced with the appellant and they had kissed at least once. She stated at one point that she ”had a bit much” to drink, and that she had gone to the bathroom, where she recalled someone coming in the door. She told the court that the next thing she remembered was waking up in a bedroom and the appellant was having sexual intercourse with her. She said that she had said “no” two or three times before she blacked out. She awoke to find the appellant still having sex with her, and she remembered shouting out for her friend. The appellant pulled BK through the hall, causing her head to hit against the doorframe of the sitting room, causing her to vomit. The complainant then told SK that she had been raped. The appellant did not want the Gardaí to be called, and locked the apartment door so they could not leave. SK then called the complainant’s father.
  3. The call was conducted on speaker phone, and present on this phone call were the complainant, her father, her friend SK, and the appellant. Words attributed to SK are in issue, specifically that she said, regarding the complainant; “I think she’s been raped”.
  4. The appellant was arrested a short time later and was interviewed twice whilst in Garda custody. The court heard that during the first interview, the appellant denied any sexual conduct had taken place between him and the complainant, however during the second interview, the appellant told Gardaí that he and BK had consensual sex on the night in question. Grounds of Appeal
  5. The original Notice of Appeal was filed on the 4th of December
  6. It does not appear to set out any grounds of appeal.
  7. On the 27th of May 2025, grounds of appeal (against both conviction and sentence) were filed. As far as the appeal against conviction was concerned, three grounds of appeal were set out. Only two of these are now being pursued. They are:
  8. The learned Trial Judge erred in refusing the various applications made on behalf of the Appellant in the course of the trial.
  9. [ ]
  10. Having regard to all the circumstances, the trial was unsatisfactory and the verdicts are unsafe.
  11. The appellant’s legal team subsequently obtained the transcript of the trial. A different team had represented the appellant at trial. A motion to amend the grounds of appeal was then brought, and was ultimately returnable to the hearing of this appeal. The Motion
  12. The motion seeks to amend the grounds of appeal to include the following in lieu of Ground
(1)above:a. The learned Trial Judge erred in allowing witness JK to give evidence that he had been told over the phone by SK that BK had been raped; b. The learned Trial Judge erred in allowing the prosecution to adduce prejudicial evidence of the Appellant's conduct upon arrest at some remove from the alleged offence.
  1. The appellant concedes that the original Ground 1 as filed is very general in its terms. However, he contends that the two new grounds were firmly litigated in the court below. The argument is advanced that in People (DPP) v Cronin [2003] 3 IR 377, Hardiman J, in referring to the phrase ‘trawl of the transcript’, did so where there was no engagement with the argument at trial. In the present case, it is said that there is no absence of refinement, engagement or distillation on the two points now being sought to litigate, and that they in essence amount to a particularisation of the original Ground
  3. The respondent strongly objects to the application. She asserts that while these points were argued during the trial, this cannot be a basis to add new grounds of appeal in circumstances where these points were not considered significant when the original grounds of appeal were lodged. The Director says it cannot be the position that an appellant files a generic ground which can subsequently be expanded upon even if it were litigated in the trial court. This would then permit a ‘transcript trawl’ once the transcript came to hand. The Director accepts that this Court may have to consider the grounds in the context of a miscarriage of justice, but suggests that it may be approached in a manner which ensures that simply because an issue was raised at trial does not mean that the Court should permit the grounds to be added.
  4. The respondent refers to the decision of this Court in People (DPP) v Walsh [2017] IECA 111, where Edwards J stated at para 107, “The practice of transcript trawling has been repeatedly deprecated…”. Discussion
  5. It is well established that this Court will be most reluctant to entertain new grounds of appeal which were not raised at trial: People (DPP) v Cronin (No. 2) [2006] 4 IR
  6. If an issue is deemed to be of importance to an accused’s legal team, it will be raised at trial and will form a ground of appeal. The position here is somewhat different in that the two issues were raised at trial. Following conviction, the appellant engaged a new legal team and grounds were filed on the 27th of May
  7. Ground 1 is extremely broad in its terms. It is quite clear grounds of appeal must be set out in specific and precise terms. The idea that a generic ground can be filed which could potentially cover several issues is not the correct way to proceed for obvious reasons.
  8. The extract from Sandes Criminal Practice Procedure and Evidence in Eire (2nd ed., 1939) at p.180, as quoted by Hardiman J. in Cronin, states the position with clarity: “The specific grounds of appeal must be stated in the notice of appeal…The [Court of Criminal Appeal] will not permit a defendant or his counsel, after he has read through the transcript of evidence and has made a meticulous scrutiny of it, then to formulate grounds of appeal. A-G v. Gilligan, C.C.A., 2.5.29.”
  9. Whilst this refers to formulating new grounds after a trawl of the transcript, it seems to us that it is apposite to the drafting of non-specific or generic grounds of appeal.
  10. As we have said, the situation is somewhat different here in that the appellant’s former legal team advanced arguments regarding the admissibility of the evidence which now forms the substance of the new grounds seeking to be advanced. Obviously, there is no suggestion of error or inadvertence as the matter was raised at trial; the issue is whether the new grounds ought to be permitted in the interests of justice.
  11. That an appellant’s grounds must be formulated in advance of sight of the transcript may at first blush seem to be somewhat disadvantageous to an appellant. However, this is not so. If the legal team involved in the trial and therefore in the position of assessing the ‘run of the trial’ do not see an issue as one of importance, then it can be said that the point is not one which, in the view of those present, impacted on the fairness of the trial. There will of course be exceptions to this where the interests of justice calls for intervention.
  12. We acknowledge that the appellant now has a new legal team and that the points were raised at trial. We note also from the affidavit filed in support of the motion that it is averred that material was provided by the former solicitor, but that this did not include notes or information relating to the conduct of the trial.
  13. In these somewhat unusual circumstances, we will therefore consider the substance of the new grounds in assessing whether the amendment to the grounds ought to be permitted. Evidence of JK Submissions of the Appellant
  14. Counsel for the appellant had sought to exclude evidence from the complainant’s father, JK, that he had been told over the phone by SK that she thought his daughter had been raped. The judge permitted the evidence under the doctrine of res gestae. The appellant submits that the trial judge erred in admitting this evidence under the rule, or at all.
  15. The appellant refers to the case of People (DPP) v Connorton [2023] IESC 19, where Murray J explained the rationale for this rule at para 1:“[a] complex proposition which, for the purposes of this appeal at least, can be best understood as including a principle that allows the admission of an otherwise inadmissible hearsay statement to prove the truth of its contents because it presents a reliable and spontaneous account of an event given contemporaneously with, or shortly after, the incident in question.”
  16. It is argued in the written submissions that the words were improperly admitted under the doctrine of res gestae. However, during the hearing of this appeal, counsel for the appellant indicated that he was not suggesting that the telephone call in the immediate aftermath could not properly be considered as part of the res gestae. He added, however, that if the words were admitted to prove the truth of their contents as part of the res gestae, then the judge permitted a witness to give inadmissible opinion evidence.
  17. Thus, the crux of the argument is that even if the words may be said to fall within the doctrine of res gestae, they are inadmissible as opinion evidence.
  18. The appellant further contends that this evidence was inadmissible by reason of the rule against narrative. While the declarant in this instance was technically SK, it is submitted that the evidence was adduced in order to bolster the credibility of both SK and the complainant. The appellant submits that there is a danger that the repetition of the allegation, characterised as important evidence by the respondent, might be relied on by a jury.
  19. The appellant submits that in admitting such evidence, the trial judge allowed counsel for the respondent to tell the jury in closing, “At that stage he was being told, B has been raped”. In allowing statements such as this, it is submitted that there is a danger that a jury may give undue weight to an allegation which has been strengthened through its repetition. Submissions of the Respondent
  20. The respondent submits that the judge gave a legally correct and concise ruling in determining that this evidence was an intrinsic part of the narrative of the sequence of events in the apartment immediately after the alleged rape.
  21. In response to the appellant’s application to exclude the evidence in question, counsel for the respondent stated to the court:“In my submission, that is all part of the res gestae. This was occurring in real time at the other end of the phone line and what S says at that moment is in my submission very important evidence because she was there at the scene. It shows what she believed at that time and it was, as I say, in real time when all this was happening. This was the call that we have heard about that was made to Mr K at the request of B when – after she had come out of the bedroom…”
  22. Whilst on the telephone call, the complainant’s father could hear what the parties were saying and doing in the apartment in the immediate aftermath of the alleged rape, which constituted an intrinsic element of the factual matrix of this case, particularly in circumstances where the complainant had told her friend that she had been raped, and they were calling the complainant’s father for help in this context. Discussion
  23. It is important to examine the context which led to the admission of the impugned words. The complainant in her testimony had stated that she told her friend, Ms. K, that one of the two men had raped her. She said she was screaming for help and that the two men kept saying ‘No guards. No guards.’ She said that the appellant had pulled her into the sitting room, and her head had struck the door. She began vomiting, and the men permitted the women to call the complainant’s father instead of the Gardaí. The telephone was on speaker, and the complainant indicated in her evidence that she shouted for help and that her friend told her father what had happened. All parties were present for the telephone call. The complainant was partially unclothed and was not wearing her tights.
  24. The Director intended to call Ms. K to give evidence of recent complaint following the evidence of the complainant’s father. Ms. K gave her evidence of recent complaint wherein she stated that the complainant told her that he (the appellant) had raped her, that the complainant asked her to call an ambulance, and to call her father. She said that she did so, and while she was making the call, the appellant was naked in the room, that he did not want the women to call the police or an ambulance and that when the ambulance arrived, he would not let them out of the apartment.
  25. Counsel for the appellant objected to the complainant’s father giving evidence that Ms. K said to him over the speaker phone, “I think she’s been raped”. The objection was raised on the basis that the words constituted hearsay and did not fall within any exception to the rule against hearsay.
  26. Counsel for the Director countered that the evidence was part of the res gestae and therefore admissible, and the trial judge permitted the evidence to be adduced.
  27. The appellant does not contend that the fact of the phone call does not form part of the res gestae, but says the words were inadmissible to prove the truth thereof.
  28. It appears to this Court that the words spoken were relevant and admissible in the context of the prevailing situation. It would appear to have been entirely artificial if the complainant’s friend had not indicated to the complainant’s father that she thought the complainant had been raped. There cannot be said to be any prejudice arising when one looks at the sequence of the events and the circumstances of the phone call.
  29. The complainant made a complaint to Ms. K that she had been raped. She was partially unclothed. The complainant was screaming for help; she wanted an ambulance to be called. Her direct evidence was that the appellant was pulling her to the sitting room and that she banged her head on the door frame. Whilst the defence took issue with the following, the direct evidence was that neither man wanted the Gardaí or an ambulance called. The Director contends that the evidence was not sought to be introduced as proof of the truth of the statement, but to rebut the defence contention that the phone call was simply to arrange for an ambulance for someone who had innocuously taken a bump to the head. The argument that Ms. K’s evidence that she thought the complainant had been raped should not have been adduced in the presence of the jury as the effect may have been to usurp the jury’s role cannot have substance when looked at in the context of the prevailing circumstances. The evidence was relevant, admissible evidence. As Charleton J. notes in People (DPP) v SM [2025] IECA 261 at para 6, albeit in a different context:“Generally, what is said in the presence of the accused is admitted in evidence where that dialogue advances understanding of the case.”
  30. No requisition was raised as to how the judge addressed the evidence in her charge, nor is there any ground relating to the judge’s charge. Conclusion
  31. Having engaged with the substance of the proposed new ground of appeal, we are not disposed to permitting the proposed amendment to the grounds of appeal. We are not persuaded that the trial was rendered unsafe or unsatisfactory by the admission of this evidence. Prejudicial evidence of the appellant’s conduct upon arrest Submissions of the Appellant
  32. During the trial, counsel for the appellant sought to exclude evidence which related to aggression displayed by the appellant during Garda dealings with him. It is submitted that counsel for the appellant was correct in arguing that the evidence had no relevance and was of no probative value.
  33. The evidence was that the appellant was co-operative with Gardaí upon being placed under arrest and upon being told that his clothes would be seized. However, on being told his phone was going to be seized, he became aggressive. Nothing of probative value was found on the phone.
  34. It is submitted that this evidence had no possible relevance to determining the central issue, which was that of consent. It is argued that the potential prejudicial effect outweighed any potential probative value. Submissions of the Respondent
  35. The respondent submits that if the evidence of the appellant’s aggression towards the arresting Garda had been excluded, it would have left an artificial picture of the appellant’s conduct a short time after the offending behaviour. The respondent notes that counsel for the appellant sought to place particular reliance on the appellant’s purported compliance with the arresting Garda at other points in time.
  36. It is submitted that the appellant’s conduct at a time close to the alleged offending was of relevance to the jury in their consideration in circumstances where the appellant claimed that he had at all times been calm and that there had been no aggression, which was at odds with the complainant’s recollection of the incident.
  37. It is further submitted that the weight to be attached to this lawfully admitted evidence was a matter for the jury to determine as the tribunal of fact. Discussion and Conclusion
  38. This evidence must also be viewed in its context. The defence contended at trial that the appellant was of calm demeanour and co-operative with the Gardaí. His account was that there had been consensual intercourse and that an ambulance may have been called due to the complainant having a bang to her head. The defence case at trial was that there was no emergency and that the women left of their own volition. The prosecution contended that the appellant did not want the Gardaí called and that he was trying to confine the women, that he was shouting and naked in the room. The respondent contends that the evidence was relevant in circumstances where the appellant contended that he was calm and emphasised his co-operation with the Gardaí.
  39. Insofar as the motion to add this ground is concerned, we are satisfied that no possible miscarriage of justice arose due to the admission of this evidence, and we refuse leave to add this as a ground of appeal. Decision
  40. In our view, if the impugned evidence were not adduced, this would have had the result of the jury being placed in blinkers with positive evidence of his co-operation and calm demeanour but without the evidence that he then lapsed into an aggressive mode of conduct.
  41. It would have been entirely artificial to include evidence of a calm demeanour without the subsequent and immediate evidence pointing to the contrary. The defence had put the appellant’s demeanour in issue. Should this ground have been filed in the first instance, we would have had no hesitation in rejecting it. The evidence was relevant and therefore admissible. We will not permit this proposed amendment to the grounds of appeal.
  42. We will now consider the grounds of appeal in their unamended form, inasmuch as they have not been expressly abandoned. Ground 1 – The learned trial judge erred in refusing the various applications made on behalf of the Appellant in the course of the trial
  43. This ground is formulated in the most general of terms and consequently, it is not possible to litigate such a generic ground of appeal. This Court is firmly of the view that it is not appropriate to simply formulate a ground in general terms with a view to seeking to expand the ground once the transcript becomes available by bringing a motion as in the present case, or by seeking to argue that all or any issues raised at trial fall to be determined within the scope of the generic ground. This is a practice which this Court deprecates. We have engaged with the proposed new grounds of appeal to determine whether any injustice arose as a result the admission of the impugned evidence in each instance and have rejected that suggestion. Accordingly, we reject this ground of appeal. Ground 3 – The trial was unsatisfactory and unsafe
  44. The appellant has clarified that he relies on the two additional grounds, and relies on Ground 3 only insofar as it colours the primary grounds by way of emphasis and depth rather44 than by way of a standalone ground. It is conceded that the ground could not succeed as a standalone ground. As we have refused leave to permit the addition of the new grounds and in coming to that decision have found no error or injustice occurred in admitting the impugned evidence in each instance, it follows that Ground 3 is also rejected.
  45. We will therefore dismiss the appeal.

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