2026 IECA 64

THE COURT OF APPEAL APPROVED Record No.60/2025 Bill No. CCDP0011/2024 Neutral Citation Number [2026] IECA 64 Kennedy J. Butler J. O’Moore J. BETWEEN/ THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) RESPONDENT -AND- RANDI GLADSTONE APPELLANT JUDGMENT of the Court delivered by Mr. Justice Brian O’Moore on the 19th day of March 2026 1 Introduction 1. This is an appeal against conviction. On the 23 January 2025, the appellant was found guilty of: Count 1: Rape contrary to section 48 of the Offences Against the Person Act 1861 and Section 2 of the Criminal Law (Rape) Act 1981 as amended by section 21 of the Criminal Law (Rape) (Amendment) Act 1990. Counts 2,3, and 4: Sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990 as amended by section 37 of the Sex Offenders Act 2001. Count 5: False imprisonment contrary to section 15 of the Non-Fatal Offences Against the Person Act 1997. 2. On the 14 March 2025, the appellant was sentenced to 10 years imprisonment on Count 1, such sentence to run concurrently and to date from the 28 August 2023. The appellant was also sentenced to imprisonment for five years on Counts 2,3,4, and 5; this sentence to run concurrently and to date from the 28 August 2023. Background to the Appeal 3. While in Ireland temporarily, the appellant was living in co-living/hostel accommodation. The complainant, her mother, father, and two brothers arrived at this hostel five days before the offences occurred. The complainant had just turned 18 at the time. 4. Her parents were staying in one room in the hostel, and the complainant and her two brothers were staying in another. During the course of their stay, they met the appellant, who had become friendly with one of the complainant’s brothers. 5. Prior to the offences being committed, the complainant had stepped out of the room that she shared with her brothers and was dictating a voice note to a friend when approached by the appellant. The appellant said to her : "What are you doing? Why are you in the corridor?" He also asked her, her age, and she told him she was 18.’ 2 6. The offences occurred after the appellant asked the complainant to step into his room so that he could ask her a question. Once the complainant stepped into the room, she realised that something was not right because the appellant effectively locked the door to the room, asked her if she had a boyfriend, made comments to her, and asked the her if she would hook-up with him. She stated that she was raped by the appellant. Shortly afterwards, she told her mother what had happened; the latter shortly thereafter confronted the appellant. He denied all wrongdoing. Grounds of Appeal The grounds of appeal, as set out in the Notice of Appeal, are as follows:

1. a)The trial judge’s answer to a jury question regarding false imprisonment failed to adequately protect the rights of the accused as it highlighted the prosecution version of the false imprisonment only and ignored the defence position.
2. b)The time at which the complainant’s telephone number was entered into the accused’s phone was not dealt with correctly by the trial judge at the requisition stage.
3. c)The accused was unfairly put in a position whereby it appeared that the Court was intending to introduce his previous convictions as he had purportedly dropped his shield, which resulted in the accused agreeing to a statement before the jury which likely greatly harmed his defence. It is acknowledged at the outset that the defence agreed to the formula of words at the trial which was put before the jury. Submissions on Appeal Appellant’s Submissions Ground 1: ‘The trial judges' answer to the jury question regarding false imprisonment failed to adequately protect the rights of the accused as it highlighted the prosecution version of the false imprisonment only and ignored the defence position’. 3 7. During the course of their deliberations, the jury asked for further clarification on the meaning of false imprisonment. Counsel for the appellant submits that in answering the jury’s question regarding the meaning of false imprisonment, the explanation only focused on the prosecution’s version of events. Counsel rely on the judgment in The People (DPP) v Hardiman: ‘A charge does not have to include every single comment or material adduced on behalf of the defence or indeed the prosecution, but must fairly draw the jury's attention to the important elements in the case, including the defence being put forward, and by reference to specific evidence.’ 8. It is argued that the trial judge opted to prefer one side only and instead should have included the defence’s version of events also. It is submitted that the appellant was adamant that the complainant was not locked in the room, which they claim is consistent with evidence given under cross-examination: Q. So, that in fact, you cannot lock the door to prevent someone getting out from the inside? A. No. There's no mechanical way of locking it, such as with a key. The deadbolt is engaged. The purpose of the deadbolt is to stop someone coming in from the hallway outside. Q. But not to stop someone getting out? A. No. If you pull the handle down, it'll disengage the deadbolt. Q. And it opens the door? A. It'll open the door then, yes.’ 9. It is argued this evidence should also have been put before the jury in answer to their question, given that the prosecution’s account was provided to them. It is submitted that the trial judge failed to ensure that the jury received a balanced explanation on how the law applied to both version of events. 4 Ground 2: ‘The time at which the complainant's telephone number was entered into the accused's phone was not dealt with correctly by the trial judge at the requisition stage’. 10. Counsel for the appellant submits that his phone recorded the time when the complainant entered her phone number into it. This time is stated to be 23:03pm which is claimed to be relevant to the defence’s case as it is consistent with the appellant’s version of events. It is submitted that the timing of receiving the number and then entering the room supported his version and should have been included in the judge’s charge. 11. It is further submitted that the appellant’s timeline can be supported by timestamps from voice messages sent by the complainant at the time of the alleged offences: ‘The first voice note can be seen on the transcript of the 21st of January 2025, at page 4, line 34 and page 5, line 1-10, where it is established that said voice note was sent by the complainant to her friend at around 23:05pm. In this voice note, conversation from the Appellant and the complainant can be heard prior to 23:05pm. The second voice note sent by the complainant is also relevant as it goes to the credibility of the Appellant’s account of events that the complainant was on her phone in the Appellant’s room during their sexual interactions. The Appellant asserts that during consensual sexual activity with the complainant, his phone kept ringing and making noise. The sexual activity stopped so the Appellant could check his phone, and he then insisted that the complainant also check her phone in which she did. This can be seen on the transcript of the 21st of January 2025 at page 48, line 20-24 and page 49, line 1-14.’ 12. It is argued that the complainant denied the appellant’s account but that ‘on the transcript dated the 21st of January 2025, Detective Garda Padraig Conway gave objective evidence of the complainant’s telephone records which are able to identify that the complainant was on her phone and sent a voice message around the same time she was said to have been in the Appellant’s room.’ 5 13. Counsel for the appellant argue that this timeline is consistent with the appellant’s version of events and establish that the complainant voluntarily gave the appellant her phone number at 23:03pm to engage in friendly conversation, which resulted in her voluntarily entering the appellant’s room at 23:06pm. 14. It is submitted that the timeline and objective telephone evidence is consistent with the appellant’s version of events and directly contradicts the complainant’s version. It is therefore argued that the fact that it was not put before the jury in the trial judge’s charge caused an injustice to the appellant. 15. Counsel refers to the trial judge refusing the requisition made by counsel for the appellant: ‘It is important to note the principles referred to in DPP v. Daniel Hayden [2020] IECA 164 and distinguish them from the present case, where McCarthy J at para. 7 established that: “...a charge must be considered as a whole that it is a summary only of the relevant evidence as seen by the trial judge, and it does not consist of what might be termed the fulfilment of a wish list in terms of its contents from the point of view of either side.” While it is accepted that the trial judge did not have to go into every single detail of the case, it is submitted that DPP v. Daniel Hayden does not apply and is distinguishable from the present case. The Appellant did not seek to add additional detail, elaboration or emphasis to evidence already summarised in the charge. Rather, the Appellant sought to ensure that the jury had a correct, clear, and complete understanding of material objective evidence that was central to the defence case. The Appellant sought to bring attention to the objective timeline evidence which had been omitted from the charge. Of course a jury could then decide what weight such evidence should be given, however to omit the evidence altogether from the charge resulted in unfairness. It is important that such evidence emanates from the impartial judge at charge as opposed to the partisan defence lawyer at closing.’ 6 Ground 3: ‘The accused was unfairly put in a position whereby it appeared that the court was intending to allow the introduction of his previous convictions as he had purportedly dropped his shield, which resulted in the accused agreeing to a statement to be put before the jury which is likely to have greatly harmed his defence. It is acknowledged at the outset that the defence agreed to the formula of words at the trial which was put before the jury’. 16. It is submitted that on the 22 January 2025, when the appellant was giving evidence to explain certain WhatsApp messages, it was alleged by the prosecution that the appellant had given evidence of good character, thereby dropping his shield. This would then have the result of the jury being informed of his previous convictions. It would have been very damaging to the defence if this had occurred. Further, it is stated that the trial judge appeared to agree with the prosecution. 17. It is argued by counsel that the appellant did not satisfy the test in DPP v Ferris as he did not give evidence of general reputation and thereby did not forfeit his protection: ‘First, it is important to note that the WhatsApp text messages had been introduced by the prosecution prior to the Appellant giving evidence to explain them. Additionally, the prosecution intended to provide the WhatsApp text messages in their entirety to the jury (page 18, line 20). It is argued that the Appellant was entitled to give context to those messages. The context being that the Appellant’s mother criticised the Appellant for being too friendly and kind and she warned him that this will have negative repercussions for the Appellant. The Appellant was not giving evidence of general reputation but rather explaining what his mother had said about him in text messages. Second, during cross-examination, the Appellant was asked by the prosecution at page 9, line 1: “Q. So, you're problem is you're too friendly and too kind is that it?”. In which the Appellant replied at page 9, line 2: “A. Yes sir”. It is submitted that this answer was based on the Appellant’s acceptance of his mother’s characterisation of him and not the Appellant giving evidence of 7 general reputation. The Appellant simply agreed with his mother who identified these traits in him as negative and sought to criticise and warn the Appellant, rather than praise him. Next, during cross-examination on page 9, line 4, the Appellant stated: “A. Throughout my life, I've been helping people, sir”. It is submitted that the Appellant’s answer was directly connected to WhatsApp messages where his mother characterised him as someone who helps people, this was stated at page 7, line 6-8: “Witness: …Basically, what she says that I don't know…the mother, the father from anywhere, why am I trying to help them? Why am I being kind to them? That is what she was saying.”. Therefore, it is submitted that the Appellant’s response was directly connected to his mother's characterisation of him rather than an assertion of good character. Finally, on page 9, line 31, the Appellant during cross-examination stated that: “A. I do not trust the police. I'm a black man, and throughout my life the run-ins I've had with police has never been positive. You're always being stopped and searched and just because of the way -- how I look or the way you dress, you're assumed guilty until innocent.” This statement is not evidence of good character but admission of the Appellant’s negative experiences with police. The trial judge erred in characterising this as the Appellant indicating that he is a “…persecuted person…”. Even if the trial judge viewed this as a claim of persecution, it is submitted that persecution by police is not the same as giving evidence of general reputation. 18. The appellant relies on DPP v McGrail [1990] 2 IR 38 to the effect that the appellant’s explanation of the WhatsApp messages was reasonable and fell short of permitting previous convictions to be put before the jury or to “drop his shield”. 19. It is argued that ‘the Appellant’s previous convictions were so closely linked to the nature of the offence charged that had they been admitted in the trial, it would have guaranteed an unfair trial for the Appellant”. Accordingly, given that “it appeared certain that previous convictions were going to be introduced…” a Section 22 admission was agreed. 8 20. With regard to the Section 22 admission, this was made on the 22 January 2025 in these terms: ‘May it please the Court. Before we proceed with crossexamination, it's necessary for me to make an admission under section 22 of the 1984 Criminal Justice Act and it is the accused withdraws any evidence given in either evidence in chief, which is the first part and cross examination which is on now of his good character. All right.’ (Appellant’s submissions at paragraph 58). 21. Counsel submit that the defence agreed to this formula of words to avoid the admission of the appellant’s previous convictions; therefore, it is argued that the way in which the Section 22 admission came to be was not fair and rendered the trial unfair. ‘While the Appellant was not ultimately cross-examined on bad character evidence, the section 22 admission which was put to the jury had the same prejudicial effect. This prejudice has flowed directly from the trial judge’s erroneous agreement that the shield had been dropped. It is submitted that the section 22 admission made it impossible for the jury to avoid the conclusion that the Appellant was in fact of bad character. The withdrawal itself became evidence against the accused which affirmatively eroded his right to presumption of innocence and his right to a fair trial. It is submitted that the conviction is therefore unsafe on the basis that the learned trial judge erred in appearing to rule in favour of introducing the Appellant’s previous convictions which resulted in the Appellant having no real choice but to agree to a section 22 admission which created obvious bias in the eyes of the jury. It appeared to be the view of the court that previous convictions should be introduced. This was perhaps harsh given that these were messages from a mother to a son and no doubt a jury would have been able to properly contextualise them and his evidence. 9 When the evidence of the appellant is examined in the whole on is issue, it is respectfully submitted that he did not give evidence which was good character evidence in such a way as to necessitate the introducing previous convictions and/or the section 22 admission. It is once again fully accepted that the defence suggested and then agreed to a formula of words. However, this occurred on the understanding that, had the previous convictions been adduced in evidence, a conviction was inevitable.’ 22. The submissions conclude by saying that the conviction is “unsafe”. Respondent’s Submissions Ground 1 - False Imprisonment 23.Counsel for the DPP submit that the jury sought clarification with regards to the false imprisonment count. In addressing the jury’s question, the trial judge said: ‘in this case you've heard the evidence and the evidence of the prosecution, namely the evidence of [the complainant], is that when she was in that room she was brought into the room in the manner that she's described for the purpose which she believed was other than the purpose which she says the accused had in his mind. And when she was in that room she was prevented from leaving that room. So, the prosecution say that she was intentionally detained or restricted otherwise in her personal liberty because she was not allowed to leave that room. So, you have to be satisfied beyond a reasonable doubt that she was detained and 'detained' means detained, you know, prevented from leaving in other words in this case, held against her will, otherwise restricted of her personal liberty. Restricted, prevented from in her exercising her personal liberty leaving the room and that that was done intentionally. And that was without her consent.’ 24. It is argued that the intention of the trial judge was to remind the jury about the elements of false imprisonment. It also argued that this section of the transcript shows the court clarifying the elements required to establish the offence of false 10 imprisonment. The passage does not, counsel argue, recap the respondent’s case for false imprisonment at the expense of the appellant. 25. Counsel for the respondent argue that the trial judge summarised the evidence fairly, including the appellant’s version of events:‘He was adamant that he'd never touched the knob on the door, that's the locking knob. That he didn't even know it was there and said his fingerprints wouldn't be on it. He said, this was 30 minutes when all of this took place, that he asked for consent to kiss and he said, "It was common," he agreed it was not common to have sex without protection, that he never heard her say, "No," and he did not punch the sofa.’ 26. It is further argued that the appellant’s counsel at trial appeared to acknowledge that ‘the issue now grounding this limb of the appeal was “very basic and simple and the jury know it”. It is therefore submitted that the trial judge did not err. He merely focused on the law in relation to the offence of false imprisonment and what was required to be proved before the appellant could be convicted of the offence. Ground 2 – Declined Requisition 27. It is submitted that the trial judge carefully considered the appellant’s case, and this was seen in the charge and the response to requisitions. The written submissions read; ‘[The court] acceded to three of the four requests initially invited by the appellant. In declining to redirect on the issue now complained of, the learned trial court correctly stated that “I don’t have to go into every single detail”. The respondent seeks to borrow the lines of authority advanced by the appellant in its written submissions to support its argument including the comments of Macken J in DPP v Hardiman: “A charge does not have to include every single comment or material adduced on behalf of the defence or indeed the prosecution but must fairly the jury’s attention to the important elements in the case, including the defence being put forward, and by reference to specific evidence”.’ (Respondent’s submissions at paragraph 9). 11 28. Additionally, counsel for the DPP rely on the judgment of McCarthy J. in The People (DPP) v Daniel Hayden [2020] 4 IECA 16; a charge must be considered as a whole rather than a “wish list of contents” from either side’s perspective. Ground 3 – Section 22 Admission 29. It is submitted that during the trial, the appellant had agreed to a “formula of words” which amounted to an admission pursuant to section 22 of the Criminal Justice Act 1984 and that this is what he now seeks to litigate in this appeal. 30. Counsel for the DPP refer to The People (DPP) v Cronin: ‘some error or oversight of substance sufficient to grounds an apprehension that a real injustice has occurred, must be demonstrated before the Court should allow a point not taken at trial to be argued on appeal’. In this context, counsel submit:
4. a)‘In this case the accused was represented by two counsel with considerable experience.
5. b)No ruling was made by the trial judge before whom the matter had been discussed in a voir dire and in a to and fro fashion.
6. c)Rather, both defence counsel without objection made submissions and ultimately to the effect that a formula of words might be crafted amongst counsel.
7. d)That was done and the Section 22 admission was read to the jury. It did not mention lies, previous convictions for assault, sexual assault, rape (5/6 in number), false imprisonment, robbery, kidnapping, breaches of notification requirements etc.
8. e)The Section 22 admission fell well below what might have been properly put in cross examination had the judge so ruled that the accused had dropped his shield. Pacta sunt servanda.’ 31. The respondent submits that this ground of appeal is: ‘…speculative, posited on that “the accused was unfairly put in a position”. Who put the accused in this position? The trial judge who made no ruling? Or the prosecution? Moreover “it appearing that the court was intending to introduce 12 his previous convictions’ is not established since the matter was never brought to a final ruling by the trial judge. Indeed the to and fro of argument cannot properly be deployed to justify a decision taken by the accused’s lawyers. Elsewise a defendant can make any number of tactical decisions and reopen them all on appeal. Here the agreed Section 22 did not alert the jury to his previous misconduct”.’ (Respondent’s submissions at paragraph 12). 32. The submissions refer to the following passage in McGrath on Evidence (3rd Edition at page 754): ‘This exception is designed to prevent an accused abusing the protection conferred by section 1(
9. f)to mislead the jury in relation to his or her character. As the Earl of Reading, Chief Justice, explained in R v. Wood, 'if the defendant endeavours to show that he is of good character when he is in fact of bad character, he presents a false view of the case, and the prosecution are not only entitled but bound to do what they can to proof to the jury that he ought not to be placed upon the high pedestal which he desires to occupy.'" And then there was a line of English authority to the effect that where character is usually an exception, there is a broader meaning than that which applies at common law, and so an accused could forfeit his protection and would be exposed to cross-examination on his or her entire record or he or she gave evidence as to his or her reputation or her general disposition. However, it was held in People v. Ferris, which is from 2008, that the word "character" as used in the section should be given its common law meaning, which is confined to evidence of general reputation. Thus an accused will only forfeit the protection of section 1(
10. f)where he or she has given or by question sought to elicit evidence that he or she has a good character in the sense of general reputation.’ 33. Counsel note that: ‘…it was the appellant who suggested the recourse that he is complaining about. Further, it is stated that the admission came before any determination from the trial judge on ‘the application to drop the shield or permit questioning on misconduct evidence’. (Respondent’s submissions at paragraph 14). The submissions quote a passage where the trial judge emphasised this: 13 ‘I can understand where both sides are coming from. I mean, obviously I have a function to make decisions, so that's not good to anyone. But I'm just saying it anyway, and I'm very conscious that the jury should not be misled ….I'm very conscious that [the appellant] should have a fair trial, and this -- these matters are very significant.’ (Respondent’s submissions at paragraph 14). 34. Counsel continues by stating that the form of words was ‘sufficiently benign not to have created a risk of an unfair trial. The jury were informed as follows: ‘Before we proceed with cross-examination, it's necessary for me to make an admission under section 22 of the 1984 Criminal Justice Act and it is the accused withdraws any evidence given in either evidence-in-chief, which is the first part and cross-examination which is on now of his good character. All right.’ (Respondent’s submissions at paragraph 16). Analysis and Decision 35. In his oral submissions opening the appeal, counsel for the appellant suggested a connection between the first two grounds. He argued that they “revolve around a balance or a fairness in relation to the trial judge” by which we understand him to mean that the trial judge did not address the relevant issues in a balanced or fair way. It is helpful to analyse these two grounds of appeal by reference to these concepts. 36. The question put by the jury concerned the offence of false imprisonment. Undoubtedly, this happened at a critical time in the trial; it occurred during the jury’s deliberations, when they were focused on the issues that concerned them in coming to their verdict. No complaint is made of the clarification provided by the trial judge on the legal definition of false imprisonment. Instead, a lack of “balance” is suggested in the trial judge’s treatment of the evidence lead by the prosecution as against the position taken by the defence. 37. However, the correct characterisation of the trial judge’s reply to the jury’s question is that he simply explained, in the context of the legal clarification, the precise allegation made against the appellant in this regard. In doing so, he emphasised the need for the prosecution to establish its case beyond reasonable 14 doubt. None of this required the trial judge to repeat what he had already said to the jury in his charge about the evidence supporting the defence. 38. Importantly, when this issue was being teased out at the appeal hearing, counsel for the appellant (when asked about the precise difficulty presented by the judge’s handling of the jury’s question) replied: ‘In my submission, the court should have gone a step further and reminded the jury of the evidential dispute in relation to that [charge], given how central that was to the defence case.’ 39. However, this submission ignores entirely what was said on behalf of the appellant at the trial. As is noted in the appellant’s own written submissions in this appeal (and recorded at paragraph 26 of this judgment, in the context of the DPP’s written submissions) the appellant’s counsel made the following application to the trial judge: ‘I was just going to say I know the Court in explaining that put the prosecution version or the prosecution evidence, but I don’t know if the Court will consider just putting the defence evidence. I know it’s very basic and simple and the jury know it.’ 40. This submission correctly records the fact that the jury were fully aware of the uncomplicated and “basic” account put forward in the defence of the charge of false imprisonment. There was therefore no need to “remind the jury of the evidential dispute…” No unfairness or lack of balance was caused by the trial judge’s answer to the jury’s question about false imprisonment. This ground of appeal therefore fails. 41. The second ground of appeal also requires a careful consideration of what happened at the trial. While it is argued on appeal that the need to remind the jury about the evidence as to when the appellant provided his phone number to the complainant constituted critical “independent evidence”, that is not the way it was approached at trial. In fact, the appellant’s counsel did not mention this issue at all in the body of his own requisitions (on Day 7) and instead only did so (after the lunch interval) when the judge was about to address the jury after the main exchanges on the judge’s charge. Counsel stated: ‘JUDGE: Yes, we'll have the jury and I'll make those few comments. Thank 15 you. [COUNSEL]: One moment, please Judge. There's one matter my client has brought to my attention that it's that the moment when he gets [the complainant’s] telephone number and puts it into his phone is recorded on his phones as 23:03 and the entrance into the room is 23:06. JUDGE: I'm not going to go there. [COUNSEL]: Well, I'm bringing it to your attention because they are my instructions. JUDGE: No, no, I don't have to go into every single detail. Thank you.’ 42. If his own counsel did not feel that this part of the evidence was sufficiently important for it to feature in requisitions, it is understandable that the trial judge felt that it was a detail that he did not need to bring to the attention of the jury. 43. The second strand of this ground of appeal, concerning the timing of WhatsApp messages and noted at paragraph 11 of this judgment, was the subject of the most diffident requisition imaginable at the trial. It was made in these terms: ‘[COUNSEL]: Yes. With regard to the -- and I think this may be just a matter of semantics, but with regard to when the voice message is sent out of [the complainant’s] phone, Garda Conway indicated that while you can pause creating the message, that when you press the 'send' button, that's when it sent. JUDGE: That's not -- we all know that's not the case. I mean anyone who uses WhatsApp knows that, I mean that's a common -- I mean. [COUNSEL]: Look, as I said, Judge, it's a matter of semantics, I'm not going to push it. JUDGE: Yes. [COUNSEL]: What I am concerned about though much more importantly is the question of the knot in the shorts.’ 44. As is submitted by counsel for the DPP, the way in which this question was approached by the appellant’s counsel at trial underscores that this was a matter of detail on which the trial judge was not required to address the jury. It must be kept in mind that the phone evidence, like much else in the trial, was very 16 straightforward and did not require an elaborate exposition to the jury by the trial judge. 45. This ground of appeal falls squarely within the concept of a “wishlist” as described by McCarthy J. in Hayden. The telephone evidence is something that the appellant clearly wished to be included in the charge to the jury. In the circumstances of this case, the trial judge did not err in refusing to do so. 46. This ground of appeal also fails. 47. The third ground of appeal is an extraordinary one. It was described by counsel for the appellant in his oral submission as “tricky”; this is, if anything, an understatement. As we have noted at paragraph 31 of this judgment, the written submissions of the DPP pithily put a number of reasons why this ground of appeal is unstateable. The first of these is, of course, that the appellant’s own counsel agreed to the Section 22 admission. This was done as a tactical move in order to avoid a ruling that the appellant’s previous convictions could be put to him, in the presence of the jury. As summarised in the DPP’s written submissions to this court, these included convictions for “assault, sexual assault, rape (5/6 in number), false imprisonment, robbery, kidnapping, breaches of notification requirements etc”. There is also no suggestion of incompetence on the part of the appellant’s legal representatives at trial. Indeed, given the likely effect on the jury that disclosure of this string of convictions would have probably had, the agreement to the Section 22 admission (which was couched in innocuous terms) appears to have been a shrewd one. Unsurprisingly, the appellant’s counsel was unable to identify any decision of this court (or any of the Superior Courts) in which an appeal with these characteristics had succeeded. On this basis alone, this ground of appeal cannot succeed. 48. Apart from the fact that the admission was agreed, the second fundamental point made on behalf of the Director is that there is no decision of the trial judge against which to appeal. As we note at paragraph 19 of this judgment, it is argued by the appellant that “it appeared certain that previous convictions were going to be introduced…” but no such ruling was in fact made. The appeal therefore proceeded on the basis that a decision not actually delivered would have been wrong. That is not a satisfactory way for an appeal to be advanced. It involves not a consideration of how the trial actually proceeded, but rather an assessment of a counterfactual of how the appellant’s team thought the trial was likely to progress. 17 His counsel’s rueful acknowledgment at the appeal hearing that it would have been “more judicious for a ruling to have been awaited from the trial judge…” is a further understatement. The behaviour of the appellant’s team at the trial, in anticipating an adverse ruling and taking a tactical course of action to avert it, is precisely the sort of conduct that prevents any such point being taken on appeal; see DPP v Cronin (No. 2) [2006] 4 IR 329. 49. In these circumstances, it is not necessary to consider whether the trial judge would have been correct to admit evidence of the appellant’s previous convictions. This ground of appeal fails. 50. The appeal will therefore be dismissed. 18