[2026] IECA 100

APPROVED JUDGMENT NO REDACTION NEEDED THE COURT OF APPEAL [2026] IECA 100 Record No: 199/2023 Edwards J. McCarthy J. Burns J. Between/ THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) Respondent V B.M. Appellant JUDGMENT of the Court delivered by Mr. Justice Edwards on the 11th day of May, 2026. Introduction 1. Mr. B.M. (i.e., “the appellant”) was charged with 50 counts on the indictment. On the 4th of November 2021, at the outset of his trial in the Central Criminal Court, he entered pleas of guilty to 32 counts of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997 (“the Act of 1997”), being Counts No’s 1 to 7, 15 to 35, 43, 44, 46 and 47, respectively. 2 A trial proceeded in respect of the remaining counts and on the 19th of November 2. 2021, the appellant was convicted by a jury in the Central Criminal Court of 18 counts, namely: (

1. i)Count No’s 8 to 14, 36 to 42, and 45, respectively relate to the offence of assault causing harm contrary to s. 3 of the Act of 1997; (
2. ii)Count No 48 concerns an offence of making a threat contrary to s. 5 of the Act of 1997; (iii) Count No 49 concerns an offence of rape contrary to common law and s. 48 of the Offences Against the Person Act 1861 and s. 2 of the Criminal Law (Rape) Act 1981, as amended by s. 21 of the Criminal Law (Rape) (Amendment) Act 1990; (
3. iv)Count No 50 concerns an offence of rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990. 3. Sentencing took place on the 5th of December 2022, on which occasion the appellant was duly sentenced to concurrent terms of imprisonment of varying lengths, but effectively amounting to an aggregate carceral term of 12 years imprisonment, with the final 6 months suspended, which was to date from the 20th of December 2021 to account for time spent in custody. 4. The appellant by a Notice of Appeal dated the 21st of December 2022 has appealed against both his conviction and sentence. The present judgment deals with the conviction module of the said appeal. Background 5. Following entering guilty pleas to 32 counts of assault causing harm, the appellant went on trial in relation to the remaining counts. He was convicted by the unanimous verdict of a jury, after a contested trial before the Central Criminal Court that lasted 10 days, of eighteen counts consisting of assault causing harm, making a threat, rape and s. 4 rape. 3 6. The appellant and the complainant had met in London in 2003, and they commenced a relationship. They ultimately moved to Ireland in 2014. By August 2016 they had been in a relationship for 13 years and they had two children together, a girl aged 11 and a boy aged 7. 7. The evidence established that the offending occurred between the 15th of August 2016 and the 5th of September 2016 in the home shared by the appellant and the complainant. 8. In 2016 the complainant was working in a pharmaceutical company in Dublin. She gave evidence that on the 12th of August 2016, she went out after work for a couple of drinks with two work colleagues. When they were out, they went to another premises where there were other men present, one of whom was her work colleague’s fiancé. She gave evidence that she returned home at approximately 2.30 am. She informed the appellant that she had gone to the second venue and that her work colleague’s fiancé had been there. She described that the appellant was upset and angry that there were people other than who she had anticipated being there that evening, and that he did not talk to her for the whole weekend. 9. On the 15th of August 2016, the complainant received an email from one of her work colleagues whom she had been out with on the 12th of August 2016 containing photographs which were taken on the night of the 12th of August 2016. One of these photographs showed the complainant standing with three men and two of her work colleagues. The appellant had accessed these photographs on an iPad at home. He immediately displayed his irritation to the complainant, complaining to her that she was being unfaithful and he told her not to come back to the house that evening. 10. The complainant described the appellant’s anger as “going to a whole new level” when she arrived home that evening. She described that the appellant accused her of being unfaithful, of being “Only a slut and a whore”. She further described him throwing her bag everywhere and becoming extremely angry and that he accused her of “shagging” the men in the photograph. 4 11. Between the 15th of August 2016 and the 5th of September 2016, the complainant described receiving multiple phone calls and texts on a daily basis from the appellant where he asserted, she was “a slut”, “a whore”, “a Judas”, and “scum”. During this period, she described that the appellant’s aggression would manifest in a variety of different courses. The appellant slapped her to the head area and spat in her face, and she described that this would occur multiple times a day. She stated that this was extremely hard and that she would get an ear-ringing sensation that shook her from the inside, and that she would wake up in the morning having to clean blood from her ears. 12. She described that once the children were in bed, the appellant would slap her; punch her in the arms, the stomach, the back; that he would kick her in the back; and that he would drag her by the hair and throw her to the floor. She stated that this would occur every day during the offending period. She also described being slammed and pushed into walls and doors, being punched to the arms, the stomach, the back, the kidneys, from the neck down so no bruises would be visible. When asked if there were any bruises, the complainant stated that she had multiple, including bruises on her arms, and her back. She also described that she had scratches on her neck and her legs. 13. The complainant described the appellant applying pressure to her neck on multiple occasions, in total approximately 10 to the best of her recollection. She described being grabbed by the neck, the appellant spitting in her face, and yelling different things at her, such as “You are a slut” and “You deserve it” and “May as well kill you”. She stated that, “There were a couple of occasions I thought I was going to pass out, but he always stopped just before I passed out and it was horrible not being able to breathe, and the way it felt the next day. It hurt to swallow.”. 14. The complainant described another occasion where the appellant hit her head against an easel, which she clarified was a blackboard on one side and a whiteboard on the other side, 5 whereby he smashed her head with such force against this easel that it broke. She further described that her head had been flushed down the toilet by the appellant on two occasions. She stated that this occurred in the upstairs bathroom and that he put her head down the toilet and he flushed it, and that he would push her head down again when she began to come back up. 15. The complainant gave evidence of yet further incidents of an assaultive, abusive, degrading and humiliating kind, perpetrated on her by the appellant. Particularisation of these is unnecessary for the purposes of this judgment, having regard to the legal issues that have been raised, beyond stating that the evidence included a description of an occasion where the complainant having been ordered to the bedroom to “earn the roof over your head” had delayed in order to finish ironing a child’s school uniform, with the result that the appellant then threatened to brand her with the hot iron, as well as occasions of non-consensual vaginal intercourse and digital anal penetration on which the rape and s. 4 rape counts on the indictment were based. 16. The complainant gave evidence that any time she said no or tried to stop it, he would carry on and “it would be rougher and [he] would grab me and pull me apart himself and it was extremely painful”. 17. Videos which were taken unbeknownst to the complainant were played during the appellant’s trial. In one video the appellant makes reference at a particular point to sexual activity previously engaged in, and the complainant indicates that she did not like it, and he said, “I don't care if you don't like it.”. And she says, “I know you don’t”. And he answered then, “Cos you're gonna do it, do you hear me?”. 18. On a specific occasion, the 6th of September 2016, the complainant described returning home from work and the appellant refusing her entry to their house. She described that he took her bag and emptied out the contents, that he took her phone and keys and told 6 her that she was not going back into the house. Eventually the complainant put her things back in her bag (except the keys and the phone which the appellant had taken), the appellant called her a liar and “he just grabbed by the arm, pulled me up, dragged me around to the side gate, dragged me out, threw me out into the street and told me to go”. 19. The complainant gave evidence that following this she contacted the appellant’s brother, P.M. who lived in London in the United Kingdom, and it was decided that she should go that evening to G.M.’s house, who was also a brother of the appellant. When she arrived there, she was in some distress, and by reason of what had been communicated to him, B.M. decided to travel from London to Ireland that week. 20. On the 9th of September 2016, the complainant in the company of P.M. travelled back to the house she had shared with the appellant in order to get her children. While there an altercation seems to have arisen between P.M. and the appellant. The complainant, her two children, followed by P.M. ran to a nearby takeaway to escape the appellant. During the course of the trial, workers of this takeaway gave evidence to the effect that the complainant was scared, shocked, distressed, that she was shaking, that she was very pale, and that she was crying and cowering in the corner. The workers closed the door to the takeaway and denied the appellant entry. They then called An Garda Síochána. 21. A Garda Ray Lynn arrived on the scene and arrangements were made for the complainant and her two children to go to a women’s refuge. On the 11th of September 2016, the complainant took photographs of bruising on her arm, which were made exhibits at trial. She then attended a doctor attached to the refuge on the 14th of September 2016 and she made a complaint of unwanted sexual activity occurring. 22. A search warrant was obtained on the 16th of December 2016 for the premises shared by the appellant and the complainant, and on foot of this warrant two mobile phones were 7 retrieved, which contained multiple videos which had been taken unbeknownst to the complainant. Text messages between the appellant and the complainant were also recovered. 23. The appellant was arrested on the 16th of December 2016 on which occasion he was detained and interviewed but nothing of evidential value arose. He was subsequently arrested again on the 24th of February 2017 for the offence of rape. On this occasion he was shown the videos retrieved from the phone on the 16th of December 2016 during the currency of his interviews, but again, nothing of evidential value arose. 24. The appellant was subsequently charged with the within offences, of which he pleaded guilty to 32 counts of assault causing harm contrary to s. 3 of the Act of 1997 and was convicted of a further 18 counts by unanimous verdicts of the jury in the Central Criminal Court. Notice of Appeal 25. By a Notice of Appeal dated the 21st of December 2022, the appellant appealed against his conviction and severity of sentence. In support of his appeal against conviction, he advanced four grounds of appeal. However, in substantive written submissions supplied to this Court, he indicated that he was not proceeding with one of these grounds (Gound No 4). The remaining grounds of appeal to be decided upon are as follows: 1. “The trial was unsatisfactory and the trial judge erred in failing to discharge the jury upon prosecuting counsel telling the jury, on more than one occasion, that counsel believed the account of the complainant was credible. 2. The trial was unsatisfactory by reason of the constant interruptions during crossexamination by counsel for the prosecution. 3. The effect of Grounds 1 and 2 was such as to render the trial unsatisfactory.” The Issues on Appeal Ground No 1 8 26. The substance of this complaint is that the appellant contends that the trial judge failed to discharge the jury upon counsel for the prosecution telling the jury that counsel believed the account of the complainant was credible. 27. The appellant complains specifically of eleven instances from counsel for the prosecutions closing speech to the jury. These instances are underlined in the following transcript extract from counsel for the prosecution’s closing speech: “So [the complainant] who I'm going to talk about now, [the complainant] gave evidence in this case of a kind I say that was clear, was consistent, was true, it was credible and it was reliable. Is there any part of you that imagines or thinks that she came here to tell you a pack of lies? Do you think that she told a story or an account to the gardaí about any number of different assaults and then threw in punching, threw in pressure being applied to her neck, threw in him throwing the bucket of urine and bleach on her or in fact is that what happened? She was crystal clear about the dates, between the 16th -- the 15th of August, my apologies, and 16th of August and the 5th of September. I say that you've had very clear evidence from that witness, and I say respectfully, it's my view, that's all it is, it's nothing more than that, that there can be no reasonable doubt in your minds but that that is what happened. Look at the text that [the appellant] sent her on the 9th of September, "I thought I killed you with the abuse." That came from his, his mouth is the wrong word, but from his fingers on a text. "I thought I killed you with the abuse", he sent that on the 9th of September." Look at the bruise you'll see on her, I think it is video 76, the enormous bruise. She was never shown video 76 by the gardaí, so I'm not asking you to conclude that that was a bruise as a result of a punch. But listen to what she told you about the bruises on her body. 9 Factor in the cross-examination of Dr Julie Carney who was pressed to say, well you'd have seen bruises. She says not necessarily, she saw her on the 15th of September she'd been out of the house ten days, the physical abuse had been going on for a month previous to her being seen by Dr Julie Carney, bear all of these things in mind. You must give the benefit of the doubt to [the appellant]. So if you think he didn't punch her, if you think he didn't throw a bucket of bleach and urine on her, if you think he didn't apply pressure to her neck, if you think there's a reasonable possibility he didn't do those things, well then he's not guilty. But I say that any proper common sense analysis of the evidence would result in a conclusion that I believe is correct, that [the appellant] was guilty of those physical assaults. She wasn't asked anything at all about the iron, but we know that [the appellant] pleaded not guilty to it. Nothing was said to [the complainant] about that incident that she told you about, where he held up the iron and says, "I should brand you with it", a threat to cause serious injury. She says she believed him, and why wouldn't she believe him knowing what we know happened in that house. "You're a slut, you're a whore, I may as well kill you", he spat in her face. "Go up and earn the roof over your head." Isn't there a consistent line in terms of all of that evidence that is completely credible and reliable? "I thought I killed you with the abuse." And let's go back to the timeline of what we're involved in here. He rapes her, we say, and that's for you to decide, on the 5th of September. She comes back on the 6th, isn't allowed into the house. She gets out of that house on the 6th. You heard conflicting evidence about when she went to Dr Emer Keeling, I wonder is it 10 that the doctor is wrong about the date, she said it was the 12th of September. But we know from [P.M.], we know from [G.M.], we know indeed from [the complainant] that she went to the doctor the day before she went back to the house to get her kids. We know the only thing from the doctor she was interested in was her kids. We know that from her own evidence, we know that from [G.M.’s] evidence, we know that from [P.M.’s] evidence. We know what happened into the early hours of the morning of the 10th of September and you'll remember much was made, I thought, maybe I'm wrong, as to why we were calling the witnesses from the chipper to tell you what had happened. You see each of those people saw with their own eyes, with their own senses, could see the utter terror that that woman was in. The gardaí could see the terror. Her state of mind, [the complainant’s], a matter of significance I say to you in your assessment of what went on in that house. We know that she made a statement to Garda Wa Li, a male member of An Garda Síochána from Crumlin Garda Station and we know she didn't tell him about the rape. We know she told Dr Julie Carney when she was finally in a refuge with her children on the 16th, if I'm correct, if I'm wrong about that date I'll come back to it. We know that she told Dr Julie Carney about the rape. Now, the fact that she told Dr Julie Carney about the rape doesn't mean -- that's not evidence that a rape happened. It's evidence of a consistency from [the complainant] as to what had occurred to her, and the judge will explain that to you. But these are all highly significant matters in terms of your assessment or knowledge of what was going on in that house, because when we come to the two remaining charges that I haven't already touched upon, the rape charges, I think, I think it's going to be the position that 11 you're going to spend some of your time, if not a lot of your time, looking at issues of consent and state of knowledge. And I don't know if it's going to be suggested to you that she was consenting on the 5th of September it seems to me it will be. I think it's going to be suggested to you, certain things about the state of mind of [the appellant]. So that's why I'm hoping that you'll hear what I'm saying and listen to me when I ask you to look at the circumstances in that house. "I thought I killed you with the abuse." The terror that that woman was in the Borza take away on the 9th of September into the morning of the 10th of September, because she told you some things about the relationship. "I got permission to go out that night", the 12th of August. "He looked at my e-mail on the 15th of August", well what was he doing looking at your e-mail, why was he looking at your e-mail, she couldn't really see a problem, "Well, he checked my e-mail." She repeatedly said in her evidence on occasion, repeatedly is probably putting it too far, but on occasion said to you in her evidence, "I've nothing to compare this to, it's my first relationship, first person I'd been with." She described when certain videos of prior sexual encounters were put to her. She said in the course of that evidence that she didn't know that when you'd say stop, she didn't know anything about somebody continuing, as indeed [the appellant] did on previous occasions. You know something of the relationship between the parties, you know about the violence, the all-pervasive violence visited by [the appellant] on [the complainant] in the three weeks we're interested in. You have the text messages, and you have I say, in those text messages an insight into 12 something very significant in this case because you see, a number of people were asked about this idea that [the appellant] had some sort of psychiatric issue. And the judge and I'm going to, you know, maybe stop repeating myself the whole time. But it is important to underscore, if I say anything about this that's wrong, listen to what the judge says, [THE TRIAL JUDGE] is in charge of the law. But he will explain to you that evidence, you require evidence of a fact if you are to act upon it. And of course, there is no evidence at all in this case that [the appellant] had any psychiatric difficulty. We know he told his brother he was a functional alcoholic. We know that [the complainant] told us that the drinking and the alcoholism hadn't changed, that was the same. We know that who knows who, because we haven't heard, somebody said he might have alcoholic paranoia. But there is nothing in this case to do with a psychiatric breakdown of any kind, because you see if there was evidence of that, you would have heard it or sorry, if there was evidence that you could act upon, leave aside in general, then you must have heard that if you're to act upon it. But I wonder is in fact what's going on here, applying what I think is pure ordinary bog standard common sense, rage, anger, fury. Do you remember when [G.M.] was being asked about this idea that [the appellant] was in a state of deep distress. And he said, very honestly, I thought in answering, well he told me he was a functioning alcoholic and he seemed really angry that [the complainant] had gone out, because that is exactly, it seems to me when you look at the texts, you see a totally consistent stream of information with what [the complainant] told us. This man, [the appellant], was furious, angry, in a rage that [the complainant] had gone out, and this prompted then a campaign of physical violence culminating in 13 sexual violence which worsened at the end of the period, committing as he did, we say, the rapes with which he is charged on the 5th of September. So I just want you to be very careful in looking at this idea of the so called distress and asking yourself, well what actually was the evidence? What can I conclude from everything I've heard and where does it leave me? And is it, as I've suggested to you, a very very very angry man, furious that his partner, who when you look through our text messages, you got all of her text messages, look there for the text messages from friends and family. Look at the support she was getting from other people, there's none, she is visited every day with a barrage of abusive texts from [the appellant], comes home, is physically assaulted in a very significant way. And then we heard about the sexual routine that was asked of her and that she performed. And that sexual routine culminated in a worsening towards the end of the period and the commission of sexual violence.” … “Consent is voluntary, it's free, it's not brought about by force or threat of force. That's what consent is and if someone does something, so if you succumb, if you succumb to the act of rape, the intercourse because of force or threat of force, that isn't consent. If you perform a routine because of force or threat of force, that's not consent. [The complainant] told you herself she wasn't consenting. And in this case very unusually we have a video, the video is one part of the equation. I told you when I opened this case that perhaps for obvious reasons, we don't have videos of all of the assaults that took place, we don't involve videos of the worsening sexual violence in the last number of days. And one of the things that was said repeatedly to [the complainant] was that she hadn't said no. And I want to be crystal clear about this and 14 [THE TRIAL JUDGE], I believe and understand will inform you, if I'm wrong about this, absolutely there is no requirement on the victim of a rape to say no, there is no formula that the person has to employ because what was happening in this house was this woman, [the complainant], was performing this sexual routine and it was never put to her that that wasn't the case, never put to her that that wasn't the case. Performing a routine and she described to you how towards the end when she said no, it got more forceful, more violent, it hurt her more, she needed to get to the next morning. She was asked did you say no on the 5th? I don't know was the answer, but it didn't matter. So I want to be very clear and I hope I've been clear as to what consent is, and what it isn't, and the evidence in this case unequivocally I say and believe, that's my belief, reject it, or accept it, is that [the complainant] didn't consent. And if she performs like a puppet because of the threat of force, that's not consent. You see, the law also says, just to be clear about this idea that you don't have to fight off your attacker, any failure or omission by that person to offer resistance to the act does not of itself constitute consent to the act. So I think and believe it's the position that nothing I've said to you should offend your common sense. I hope that nothing you're hearing offends that common sense and that you understand that consent has to be voluntary, free. Submission because of force or threat of force is not consent. And then you move to the next stage, if you're satisfied that there wasn't consent to these acts. And the next stage is, did [the appellant] know or was he reckless as to whether she was consenting? And I don't know, but you might be saying to yourself, how am I meant to know that? And 15 the law says you look at the reasonable grounds, you look at the evidence and what you know of the events to assess that question. "Earn the roof over your head, you slut, you whore." The roof in fact that it turns out that [P.M.] was paying for. But you might get some insight into what [the appellant] on the 5th of September when he was raping [the complainant], what his state of mind was. When you go to about -- about two minutes 40 seconds into the video of the -- video 78 of the 5th of September, "I don't care if you don't like it, you're going to do it." He was talking about one particular sexual act. "You're going to do it." He'd set in place the routine, he'd engaged in the physical assaults we know about. He was the person who perpetrated the worsening sexual violence and one of the things I wonder, and I think might concern you, is the idea that in fact what you saw on the video of the 5th of September was simply the way these people have sex. You know that [the complainant] had shown to her by the gardaí video 78 and then in the course of the cross-examination other videos were shown to her. And then through An Garda Síochána other videos were shown to you. Now, I haven't a clue, I don't know what submissions are going to be made by the defence, but I just hope I can address some things that I think might be in your minds. I wonder is it going to be suggested or do you think that really, those videos you saw back in 2015 and the rape I say you saw on September the 5th, sure it's just the same. Do you remember there was some suggestion that words like, "Slut", et cetera, "You dirty slut" were used before, "You whore." And I hope and believe that your common sense would lead you to the same conclusion I have, which is that whatever you saw in terms of the sexual activity in 2015 bears no relation to what you saw on the 5th of September of 2016 16 when this woman was raped. You see, she told you from her own mouth about the nature of their relationship previously, about things that would happen, her understanding of things. She told you and was asked extensively about the 28th of August, do you remember about did you say no then? I don't know, I was -- that entire period she said was such that there was sexual activity, that could have been consensual on occasion. And is it going to be suggested to you that there is somehow a continuum whereby he thought for a half a second that on the 5th of September she was consenting to what he was doing to her. "You'll do it anyway cause you're going to do it", is that -- are those words from the man's own mouth conceivably or possibly consistent with someone thinking that she is consenting to what's happening? Go back on the proofs, penetration, absence of consent and then a knowledge or recklessness. And to be clear, recklessness is when you consider something, but you go on anyway. Sometimes juries are invited to conclude or told well he honestly believed that she was consenting. Well, that's -- respectfully that couldn't sit with, "You're going to do it anyway", "Cause you're going to do it", rather. You see, it's crystal clear I say to you applying common sense and logic, knowing that everything that [the complainant] has told us about violence and worsening and increasing sexual violence resulting in rape, about the state of mind of [the appellant] when we say he raped [the complainant] on the 5th of September. You see, it's not for me, and I can't, and don't want you and I won't try and tell you about the day when his treatment of her sexually moved to rape because I don't have to 17 do that. I'm only here for the purpose of addressing what happened on the 5th of September. So that you, I think have a proper context in which to view it, you might look at the slippery slope of behaviour by [the appellant] over a period of time. You might look at what she told you about on previous occasions not stopping et cetera. But her having consented on other occasions to sexual activity. But what you're asked to do is focus on the 5th of September and if you accept, if it's to be suggested to you and you accept that what you saw there on the 5th of September, a woman crying on the video, listen to -- listen to what I say -- if I'm wrong about that, and I want to be crystal clear about what I say I can hear on the video, that's what I hear. You unfortunately have to do that job yourselves and you've got to conclude yourselves what you hear on the video. But if I'm right about what I say you hear, obviously look at the video but listen carefully to the words and I say you'll conclude, I think I hope, and I believe you'll conclude that indeed [the appellant] knew or was reckless as to whether she is consenting. And I say to you that that is when you stand back from this, or you get right up close and granular, that this was a woman doing exactly as she told you she was made to do. Listen to her voice in that video. You see I believe, and it is my submission to you that [the complainant] was a powerful witness, and the power doesn't come from personality or appearance or demeanour or anything like that, it comes from the truth of what she was telling you. And it's her testimony coupled with the external evidence, the videos and indeed the text messages that I say is the evidence that leads to what I submit to you, respectfully, is the conclusion that the offences of rape are made out.” 28. An application was made by counsel for the appellant to discharge the jury following the closing speech by counsel for the prosecution. The trial judge considered the decision of 18 the Court of Appeal in People (DPP) v. M.R. [2009] IECCA 87 and noted that it is clear from this decision that it is not appropriate for counsel to personalise their role or to give personal opinion on evidence or in respect of the credibility of a witness. The trial judge acknowledged the danger, which was referred to by counsel for the appellant, but he indicated that he would direct the jury accordingly, and that that was the most appropriate and safest way to proceed. The trial judge reiterated that before counsel for the appellant addressed the jury, that what counsel says is not evidence and that any opinion expressed by counsel is not evidence in the case. 29. The trial judge then addressed the jury as follows: “Mr [Jury Foreman], ladies and gentlemen of the jury, I just want to reiterate something I said from the very outset before counsel for the prosecution made her closing address to you. And I want to reiterate that whatever counsel has said to you or indeed what counsel says to you in closing submissions is not evidence of any kind, just bear that in mind. I'll address you further on that tomorrow, thank you.” 30. In his charge to the jury, the trial judge noted the following: “Now, I must also tell you something else, that insofar as in the closing address for the prosecution, counsel expressed any personal opinion on the evidence or on the credibility of a witness or witnesses, some years ago the Court of Appeal said that that was not an appropriate thing to do. The concern was that the Court of Appeal said that there was a danger that a jury might regard counsel as giving expert evidence. Now, as I have explained to you, whatever was said by counsel is not evidence, it is not expert evidence. You, ladies and gentlemen of the jury, are the experts in relation to the evidence in this case. You are the sole arbiters of the evidence and to the extent that counsel may have indicated to you a personal belief in either reliability, powerfulness or credibility of any witness, and in particular that of [the complainant], 19 you should completely disregard that. I repeat that anything that counsel said in that regard is not evidence and is not to be considered as such.” Submissions to this Court 31. Counsel for the appellant has submitted that it was not appropriate for counsel for the prosecution to personalise their role or to give a personal opinion on evidence or the credibility of witnesses, since there is a danger that a jury might regard counsel as giving expert evidence. The appellant asserted that as these expressions of personal belief were stated on more than one occasion, it rendered if more difficult for the trial judge to direct a jury to ignore them and thus, it must be differentiated from a situation where it was a single oversight. 32. Counsel for the appellant has referred this Court to People (DPP) v. M.R. (previously cited) wherein the Court held that it was satisfied that it is not appropriate for counsel to personalise their role or to give a personal opinion on evidence and or on the credibility of witnesses. There is a danger that a jury might regard them as giving expert evidence. 33. The appellant has submitted that counsel for the prosecution’s opinion trespassed on the exclusive domain of the jury which he argues does not sit well with the requirement that the jury and they alone, are the sole arbiters of fact and must not allow their own considered assessment to be overborne by counsels’ opinion. 34. In response, counsel for the respondent has submitted that prosecution counsel repeatedly indicated that she was proffering a view as to the conclusions to be drawn from the evidence, which could be accepted or rejected by the jury and that the fact-finding function was theirs alone. The respondent argued that there was no possibility that the jury could have been left with a view that the prosecution was offering any “expert opinion”. 20 35. Counsel for the respondent has noted that the Court in People (DPP) v. M.R. was silent in respect of the nature of the personalised comments made and the respondent contended that it would seem that no remedial action was taken by the trial judge in that case. 36. The respondent has submitted that if any danger of the type contended for by the appellant did exist, which is not accepted, there was no prospect that the jury, in entering into their deliberations, were in any way unclear about their oath or their duty in respect of the analysis of the evidence in the case. Ground No 2 37. The substance of this complaint is that the appellant contends that his trial was unsatisfactory due to constant interruptions by counsel for the prosecution during the crossexamination of the complainant. The complainant was cross-examined by the defence on the 9th of November 2021, 38. and she was recalled for further cross-examination by the defence on the 11th of November 2021. 39. Counsel for the appellant has averred to six interruptions made by prosecution counsel during the defence’s cross-examination of the complainant. These are as follows: (
4. i)“I just respectfully have an issue, Judge, and I think I need to canvass it in the absence of the jury.” (
5. ii)“A. We had sex multiple times over that time period. Q. Well, you have also told us that you are unaware that videos were being taken? [PROSECUTION COUNSEL]: That's not what the witness said, Judge. [DEFENCE COUNSEL]: Please, the witness will deal with it. [PROSECUTION COUNSEL]: Judge, I have a duty to ensure that incorrect matters are not put to the witness. 21 [DEFENCE COUNSEL]: Very good, sorry, what are you saying about your knowledge of whether videos were being taken? A. There were many occasions I was not aware video was being taken.” (iii) “A. I have seen them and as I stated, I've tried – [PROSECUTION COUNSEL]: Sorry, this was elicited yesterday, the witness was shown three videos and my friend has far in excess of three videos. Q. [DEFENCE COUNSEL]: Yes, sorry, I can clarify that. Were you shown all of the videos or only three? A. I can't recall how many I was shown, it was a few years ago and as I stated I tried to block them out. Q. All right. So I just want to clarify that? JUDGE: Sorry, just bear with me one second. [PROSECUTION COUNSEL]: Sorry, Judge. JUDGE: [PROSECUTION COUNSEL], your microphone, could you bring that closer to you? [PROSECUTION COUNSEL]: Sorry, sorry, I moved it deliberately because I didn't want there to be – JUDGE: Yes, yes. [PROSECUTION COUNSEL]: Judge, a garda will deal with precisely with what was shown to [the complainant], there were three incidents, five videos in total as I understand it. But that can be – [DEFENCE COUNSEL]: Well, I wonder should [the complainant] give this evidence rather than my friend? 22 JUDGE: Well, [PROSECUTION COUNSEL], I think the question, I think the question which [DEFENCE COUNSEL] is asking, he's asking in a general way at this stage, I think in relation – [PROSECUTION COUNSEL]: Yes, yes. [DEFENCE COUNSEL]: Yes, yes. JUDGE: In relation to videos, but if [the complainant] has a particular answer to give – [PROSECUTION COUNSEL]: Of course. JUDGE: -- in relation to what she actually saw, then the matter can be developed from there. [PROSECUTION COUNSEL]: Of course. JUDGE: I understand that there will be further evidence in the case? [PROSECUTION COUNSEL]: Yes, absolutely. JUDGE: Very well, thank you.” (
6. iv)“[PROSECUTION COUNSEL]: An issue arises in respect of a matter, Judge. JUDGE: Very well, all right. Just take a break at this stage, please, ladies and gentlemen of the jury. If you wouldn't mind going to your room for a few moments? . . . . [PROSECUTION COUNSEL]: Judge, the last question that was asked of the witness was, "Did you say that was rape?" Rape is a legal concept involving as the Court is aware, Judge --. . . . [PROSECUTION COUNSEL]: In any event, this -- the last question was, "Do you say that was rape?" So the witness is being invited to comment on the legal concept of rape which as the Court is aware, is a matter subject to a very strict and particular legal definition. . . . . But respectfully, I say she cannot be invited to 23 answer the question whether something amounted to the legal definition of rape and the use of the term rape as I say, is not one that this witness should be invited to comment upon. JUDGE: [DEFENCE COUNSEL]. [DEFENCE COUNSEL]: Firstly, cross-examination is not aided by continual interruption by the prosecution. This was something, this was an allegation of rape or sorry, a statement of rape, it was questioned by the gardaí and certain answers were given which may be relevant to the complainant's view of what is, or is not, consensual or acceptable legal or illegal or rape. Now, in my submission, there was no need for this interjection and that it is done for the purposes of disrupting cross-examination because I am entitled, in my submission, to acquire as to what view the complainant takes in relation to certain types of sexual activity. And it is what is acceptable and not acceptable, clearly rape is not acceptable and that's all I have to say. [PROSECUTION COUNSEL]: I think, judges probably have a hard enough job without standing in the playground and refereeing irrelevant and frankly time wasting discussions between counsel where accusations are levelled and then have to be rebutted. I didn't interrupt cross-examination for any purpose or reason other than to deal with a matter of concern to me, in relation to what is permissible by way of cross-examination. This is the second time I've interrupted, it's two of perhaps very many times I could have. I do so very carefully and properly, I respectfully say to the Court, and it's matter for you, Judge, whether it is to be the position that this witness is going to be asked what is rape or what was rape. . . . . I had actually discussed this at length with my junior counsel as to the legal position and the interruption is borne of a very real concern as to the 24 propriety of that question and indeed, that question if it is to be employed in relation to other matters. But certainly, we say that it cannot be asked of a witness whose only evidence could ever be as to the element of the offence to which she is in a position to give personal account of. She cannot then be invited to say whether the legal definition of an offence is met. JUDGE: Just on that point, [PROSECUTION COUNSEL], my understanding that this line of questioning arises from the exchange that took place during the course of the video where the witness said, "There was no love, that was rape", and then that was expanded upon during the course of cross-examination. So to that extent, the issue is raised by what's on the video. But I do take the point that rape has a particular specific legal definition. And it may be, [DEFENCE COUNSEL], that perhaps -- I think [PROSECUTION COUNSEL], [DEFENCE COUNSEL], I think [DEFENCE COUNSEL] is entitled to pursue this line, not to the extent of extracting or getting the witness's -- the witness to effectively tell the jury what the legal definition of rape is or not. And I'm just wondering if before, and I'm open to suggestions on this, but I'm just trying to deal with this as best I can. If before you continue your cross-examination, if I was simply to say to the jury that I would be charging them in due course on what the legal definition of rape is. [DEFENCE COUNSEL]: Yes, that would be of help. But I'm attempting to crossexamine in relation to what was stated to the gardaí. JUDGE: Yes, I understand that . . . . . JUDGE: But [PROSECUTION COUNSEL], [DEFENCE COUNSEL], I want to try and move this on as best I can. If I was to simply say to the jury that in the context of any questioning that might take place in relation to this expression of 25 the use of the word rape, that I will be charging them in due course that on the specific definition, legal definition of rape that they will have to ultimately consider. [DEFENCE COUNSEL]: Yes. JUDGE: Would that meet the situation, [PROSECUTION COUNSEL]? [PROSECUTION COUNSEL]: Again, it's really a matter for the Court, and I'm not going to try and be overly pre-descriptive, I think that would be certainly useful. What I'm seeking to avoid is a situation whereas is occurring, I say respectfully, and it is my position which either it commends itself to the Court or not, that you have a witness consistently being asked to opine upon matters which are not within her sphere of knowledge. And particularly in relation to her having already told us about her consenting, or not consenting, and what she said to the gardaí and much of which hasn't been put to her, some of which has. The entirety of the exchange with the gardaí has not been put to her. The idea that she would then be a person who could say whether an act amounted to an offence is just not one that I say she can ... JUDGE: Well, do you think if I address the jury before any further questioning that that might deal with the situation and at the same time, it is something that was brought up by [the complainant] in that video. . . . . [PROSECUTION COUNSEL]: So the concern is that we have a witness being asked whether an offence was committed, I don't know if that's going to be asked about the 5th of September as well, but it's not something we say that this witness can opine upon. But we're hoping, we're completely in the hands of the Court. JUDGE: Yes, I think perhaps the best way of dealing with this is to remind the jury that in terms of what they will have to consider as a matter of law is something 26 that I will be addressing them, addressing them on in due course in the charge. And that in the context of any line of questioning, they must bear that in mind in terms of any questions that might be asked as to the complainant's use of the word rape, it seems to me, would meet the -- would meet the situation. [DEFENCE OCUNSEL]?” (
7. v)“Q. Yes, and that you'd remembered it was rough and it ended up with you almost face, face first on to the floor and you were saying there was no love in that, so it - you were saying it was rape? A. Yes. [PROSECUTION COUNSEL]: I wonder if the entirety of what was put could be put to the witness. [DEFENCE COUNSEL]: If my friend would just let me cross-examine – JUDGE: Very well. [DEFENCE COUNSEL]: -- my friend can deal with it. [PROSECUTION COUNSEL]: May it please the Court. [DEFENCE COUNSEL]: These constant interruptions. JUDGE: Sorry, [PROSECUTION COUNSEL], just for my benefit, what page is that on? [PROSECUTION COUNSEL]: Yes, if we look at page -- Judge, go to page 20 of the book of evidence, the Court will see what I'm referring to. JUDGE: All right. [PROSECUTION COUNSEL]: And the Court will see there is a question and answer at the end of page 20, page 21 and what my friend has done is he has put a question at the start of a series of questions on page 20, then has skipped two questions and answered and moved to the fourth question and answer, and I'm just 27 concerned that in fairness to this witness, it wouldn't be put to her that certain things were said without her -- because she obviously doesn't have this in front of her at all, without the entirety of it being put to her if she's to be questioned in regards to it. [DEFENCE COUNSEL]: Well, I don't follow that objection at all. [PROSECUTION COUNSEL]: I explain it better perhaps – [DEFENCE COUNSEL]: Well – JUDGE: Just sorry, [DEFENCE COUNSEL] – [PROSECUTION COUNSEL]: -- if my friend doesn't understand it. [DEFENCE COUNSEL]: And the giving of evidence is done by the witness, my friend has the opportunity to examine and re-examine, I don't follow the objection and if there is to be a formal legal objection, then it will have to be done in the absence of the jury, but I do not follow it. JUDGE: Yes. Well, I'm sure that [DEFENCE COUNSEL], you will -- you will put things in the appropriate context, but by the same token, I think if a matter arises that the counsel for the prosecution feels wasn't in proper contexts, it's a matter she can address on re-examination. [DEFENCE COUNSEL]: Of course, and that is the way it is usually done. JUDGE: Thank you. Q. [DEFENCE COUNSEL]: I'm somewhat distracted yet again from the questions I was asking. Yes, I was asking you about this night that you're referring back to, it's the video of the 25th of May. Now, I'm sorry to bring you through all of this but I have to do it, and it's material that has been served on us.” (
8. vi)“A. I don't remember that. Q. Well, your answer was, "It was regular enough, not every time but 28 regular." Now --? [PROSECUTION COUNSEL]: Sorry, Judge, I don't want to interrupt again, but I wonder if the Court can intervene maybe in terms of what this witness is being asked -JUDGE: Yes, yes, I think just to be clear, [DEFENCE COUNSEL]. [DEFENCE COUNSEL]: Yes. JUDGE: In terms of my understanding is that you have reverted to -[DEFENCE COUNSEL]: Oh yes, of course. JUDGE: -- of May of -[DEFENCE COUNSEL]: Yes, yes. JUDGE: You asked one question in relation to -[DEFENCE COUNSEL]: Ah I've moved back. JUDGE: -- the 5th of September and you've now moved back to May, that's my understanding? Q. [DEFENCE COUNSEL]: To the interview where they were talking about what happened on the night before the 25th. "So that sort of sexual intercourse, was that normal for your relationship?" "It was regular enough, not every time, but regular." Would you agree with that?” Submissions to this Court 40. Counsel for the appellant has submitted that the excessive interference and interruption by counsel for the prosecution rendered it impossible for the defence to conduct an effective cross-examination of the complainant and thereby disrupted and prejudiced the appellant’s defence to such an extent to render the trial unfair. 41. The appellant has asserted that it is well established that excessive interruptions during the giving of evidence by a trial judge can render a trial unsatisfactory, and it is 29 contended that the same arises to interruptions from counsel and particularly so where the trial judge has not intervened as to the impropriety of the question. Counsel for the appellant has referred this Court to the cases of People (DPP) v. K.McD. [2022] IECA 186; People (DPP) v. W.L. [2016] IECA 284; People (DPP) v. A.H. [2022] IECA 156; and People (DPP) v. McGuinness [1978] I.R. 189 in this regard. 42. In response to the first interruption, counsel for the respondent outlined that this refers to an instance where the complainant was being questioned about matters concerning garda procedure in respect of mental welfare. The respondent has submitted that the objection made on behalf of the prosecution to the witness being asked to comment on matters which were outside of her knowledge was well founded, and has referred to the following portion of the transcript in support of this: “JUDGE: But where I think the real objection lies is to the question that An Garda Síochána do not lightly engage on X, Y or Z, that seems to be asking the witness something that's not within her purview or her knowledge, that seems to me to be the heart of the objection. [DEFENCE COUNSEL]: Well, I can understand the objection, I wouldn't have seen it myself as very deep. JUDGE: Yes. Well, it seems to me that I think also bearing in mind that the -- bearing in mind the case has, as it has run, and in terms of what has been said, I think that in the interests of justice, I should allow questions in relation to this matter in the context of what [the complainant’s] knowledge is of them. But in terms of [DEFENCE COUNSEL], in terms of going beyond that as to what the procedures of An Garda Síochána are or how -[DEFENCE COUNSEL]: I certainly won't be going there. JUDGE: I just don't see how this witness could answer those questions, or nor 30 indeed, do I think that it would be reasonable to expect her to know how to answer those questions. So in those circumstances, I'm partially upholding your objection, [PROSECUTION COUNSEL], certainly to latter -- latter question. But in respect of the former, that obviously it will be a matter, depending on what the state of the evidence is, it may very well that it will be a matter of comment, or perhaps something in my charge ultimately to balance things out in relation to what defence is being suggested or not suggested or what the prosecution is suggesting or not suggesting. [PROSECUTION COUNSEL]: Yes. JUDGE: In relation to the state of the evidence regarding mental health or mental health difficulties, it may be that that's the way to deal with the matters. [PROSECUTION COUNSEL]: May it please the Court. JUDGE: But you can take it that I am, I am, [PROSECUTION COUNSEL], rightly or wrongly, I think that in the interests of justice that [DEFENCE COUNSEL] should be allowed explore matters. I have indicated that a certain point may come during the course of the evidence, certainly in relation to section 3, that I know that it may be that I may have to intervene at that stage, but I'm not saying I'm going to have to. But I think at this stage, [DEFENCE COUNSEL] is entitled to explore this background knowledge. [PROSECUTION COUNSEL]: Within the parameters of what you've indicated. JUDGE: Yes, I think so. [DEFENCE COUNSEL], do you have any difficulty with that? [DEFENCE COUNSEL]: None.” 43. In response to the second interruption raised by the appellant, the respondent has submitted that this was to correct the false premise of the question as the complainant had not 31 said what was being incorrectly attributed to her. The respondent has referred to the following extract from the complainant’s direct evidence here: “Q. … Just in terms then of the video we are looking at, that was one of three videos the gardaí showed you; isn't that right? A. Yes. Q. And I think you told them you hadn't been aware you were being videoed in those three; is that right? A. That's correct. Q. Were there any other videos in existence? A. Probably. Q. All right. Had [the appellant] ever taken video footage in the past of sexual activity? A. Yes. Q. All right. But this was the only video you were shown of the 5th of September; isn't that correct? A. 44. Yes.” Concerning the third interruption averred to by the appellant, counsel for the respondent has stated that this occurred in circumstances where counsel for the appellant referred to what was about to be shown on a video in circumstances where it was unclear which of the many videos was being referred to, whether it was one of the videos which had been shown to the complainant by the gardaí and of which she was aware, or another video which she had never seen at all and was potentially unaware of its existence. It was contended that it was therefore important that the question be framed in a way which did not mislead the witness. 32 45. In response to the fourth interruption referred to by the appellant, the respondent has outlined that this referred to an instance where the complainant was being asked to comment on what she meant by “rape”. Counsel for the respondent has asserted that this was properly dealt with by the trial judge by telling the jury that he would be directing them at the end of the trial in relation to the “legal meaning of rape and the constituent elements that are required to be proved by the prosecution in respect of that definition and that offence”. 46. In reply to the fifth admission referred to by the appellant, the respondent has submitted that this relates to an instance where counsel for the appellant put to the complainant excerpts from her statement referring to a sequence of answers but omitted the totality and full context of her answers. 47. Concerning the sixth interruption referred to by the appellant, the respondent has submitted that prosecution counsel sought, in a very measured way, for the court to clarify what the witness was being asked. The respondent has referred to the following extract from the transcript to demonstrate this: “Q. Now, on the night of the 5th of -- the 5th of August, I don't know if I've got the date right, the video that was shown by the prosecution, on that night, you didn't say no? JUDGE: [DEFENCE COUNSEL], that's the 5th of September. Q. [DEFENCE COUNSEL]: The 5th of September, yes, my apologies? A. I don't recall if I said no on that occasion. Q. Well, the police asked you, the gardaí asked you and you said you hadn't said no? A. Okay, well that would be the answer so. Q. That is the answer indeed. So you were asked again and the guard asked you the following question, "On the video recording both you and [the appellant] 33 are laughing afterwards, do you think he understood that the night before you weren't consenting?" And you said, "I don't think he took me seriously, he would think I'm moaning or being frigid, I don't think he took it seriously." And then you're asked, "That sort of sexual intercourse, was that normal for your relationship?" Do you remember that? A. I don't remember that. Q. Well, your answer was, "It was regular enough, not every time but regular." Now --? [PROSECUTION COUNSEL]: Sorry, Judge, I don't want to interrupt again, but I wonder if the Court can intervene maybe in terms of what this witness is being asked -JUDGE: Yes, yes, I think just to be clear, [DEFENCE COUNSEL]. [DEFENCE COUNSEL]: Yes. JUDGE: In terms of my understanding is that you have reverted to -[DEFENCE COUNSEL]: Oh yes, of course. JUDGE: -- of May of -[DEFENCE COUNSEL]: Yes, yes. JUDGE: You asked one question in relation to -[DEFENCE COUNSEL]: Ah I've moved back. JUDGE: -- the 5th of September and you've now moved back to May, that's my understanding? Q. [DEFENCE COUNSEL]: To the interview where they were talking about what happened on the night before the 25th. "So that sort of sexual intercourse, was that normal for your relationship?" "It was regular enough, not every time, but regular." Would you agree with that?” 34 48. Counsel for the respondent has asserted that the trial process is an adversarial one and counsel for the prosecution is not obliged to wait for a trial judge to take issue with questions asked by the defence. In response to the appellant’s submission that it is “well established” that “excessive interruptions during the giving of evidence by a Trial Judge can render a trial unsatisfactory” and his contention that “the same arises to interruptions from Counsel and particularly so where the Trial Judge has not intervened as to the impropriety of the question”, the respondent has argued that firstly, it is a rare case indeed where interruptions by a trial judge render a conviction unsafe. Secondly, the respondent has contended that the rationale underpinning such cases does not obtain in relation to interruptions by prosecution counsel in light of their differing roles in the adversarial process, and thirdly, the trial judge is frequently unaware of the totality of the materials and may not appreciate the misstatement or mischaracterisation of comments where the context is not properly clarified with a witness. 49. Counsel for the respondent has submitted that the role of the trial judge and therefore the status of a trial judge’s interruptions with a jury are markedly different than that of prosecution counsel and may have the appearance of him “entering the arena”. The respondent has submitted that as a consequence the caselaw as it obtains to interruptions by a trial judge does not properly inform the consideration of interruptions by counsel for the prosecution, still less where same are warranted. 50. Ultimately, the respondent has submitted that any interruptions made by counsel for the prosecution were not such as could have resulted in an unfair trial. Ground No 3 51. The substance of this complaint is that the appellant contends that the combined effects of Grounds No’s 1 & 2 were enough to render the trial unsatisfactory. 52. The appellant has argued that when the defence to a charge of rape is that the complainant consented to sexual intercourse, the task of counsel for the defence is a difficult 35 one. Counsel for the appellant has asserted that interruptions of this difficult task cannot but create an impediment to the task. The appellant further argues that interruptions of this nature may also imply to the jury that counsel for the appellant is acting unfairly or in an inappropriate manner. 53. Counsel for the appellant has submitted that the curtailment of cross-examination together with counsel for the prosecution’s personal view as to the credibility of the complainant rendered the trial unsatisfactory. 54. In response, counsel for the respondent has submitted that the combination of evidence in this case led to the inexorable conclusion that the appellant was guilty of the offences charged in the indictment and there was no unfairness in the trial of the appellant such as would justify any interference with the verdict of the jury. Analysis & Decision 55. At the oral hearing of this appeal, counsel for the appellant, while not abandoning any of his points, conceded that if his sole complaint had related to prosecution counsel’s interruptions of his cross-examination, that he “would not be here”. Rather, his main complaint related to the inappropriate expression of personal opinions by prosecuting counsel during her closing speech. He contended that, viewed in isolation, prosecuting counsel’s closing speech was so unfair to his client that the trial judge ought to have discharged the jury on that account alone and had been wrong not to do so, thereby rendering his client’s trial unfair; but he asserted that even if this Court did not agree with that contention, his fallback position was that the unfairness visited upon his client by prosecuting counsel’s closing speech was compounded by further unfairness associated with earlier persistent interruptions of his cross-examination by prosecuting counsel to such an extent that cumulatively his client had faced irremediable unfairness, and that the jury ought to have been discharged on that account. It was submitted in substance that he had relied on cumulative irremediable 36 unfairness in seeking a discharge of the jury, that there was a failure on the part of the trial judge to adequately engage with the totality of the unfairness being visited on his client and that because the trial judge had not discharged the jury his client had not received a fair trial. 56. We have considered the entirety of the evidence in this case, focusing in detail on the complainant’s evidence (both her examination in chief and cross-examination). We have also considered the relevant applications to and rulings by the trial judge, the closing speeches of counsel, the judge’s charge and requisitions on the charge. Having done so we are satisfied that the trial judge was justified in not discharging the jury in response to applications that he should do so, and that he dealt appropriately with the complaints that were made in instructions given by him to the jury. 57. By way of elaboration, we should state that we are satisfied that the prosecution closing speech did contain repeated inappropriate expressions of the personal opinions of prosecuting counsel concerning the reliability and credibility of the evidence given by various witnesses, including the complainant, and concerning the significance which should be attached to it. In fairness to prosecuting counsel in this case we believe that she crossed the line between what was appropriate and inappropriate due primarily to infelicitous language used in, and in the phraseology of, her closing submissions; and that there was not any deliberate attempt on her part to inappropriately influence the jury. Be that as it may, we are satisfied that the line was crossed. 58. However, we also believe that the degree of unfairness created, was not such as to be irremediable by means of appropriate instructions given to the jury by the trial judge. Moreover, as stated, we are satisfied that the trial judge properly dealt with it in that way. 59. As regards the secondary complaint of excessive interruptions by prosecuting counsel of defence counsel’s cross-examination, we believe the case in that regard is overstated to the extent that it is complained that “such interference rendered it impossible for the defence to 37 conduct an effective cross-examination of the complainant and thereby … prejudiced the appellant’s defence to such an extent as to render the trial unfair.”. Having considered the transcript we consider that counsel for the appellant conducted an excellent, thorough and forensic cross-examination of the complainant, and we see no evidence, notwithstanding his protesting against interruptions, that he was put off his stride. As is pointed out by the respondent in her submissions, the appellant criticises six interruptions by prosecuting counsel. The respondent has explained the circumstances of each of these interruptions, and we are satisfied that none of them were gratuitous and made inappropriately in an attempt to put defence counsel off his stride. As far as we can see, many of them were in fact plainly justified (e.g., where the witness was asked to comment on something outside her knowledge, where a question contained a false premise, where the witness was asked to comment on what she, the witness, understood as “rape”), and the remainder were at least arguably so (e.g., where it was contended that a question concerning a video lacked sufficient precision to enable the witness to know which video was being referenced, where excerpts from the witness’s statement were being selectively put to her omitting the totality and full context of her answers; and where, when the witness was being asked about an incident recorded on video, it was suggested to her that she had offered a comment in respect of it which she had in fact made in respect of an entirely different video). 60. In most instances, the trial judge, rather than ruling definitively on whatever the particular objection might be, sought to defuse the issue in some way (e.g., by suggesting the rephrasing of a question; or suggesting that an alternative path might be pursued by the objector, such as revisiting the issue in re-examination) which sufficed to allow matters to continue without the jury needing to be sent out. Be that as it may, we are completely satisfied that there was not excessive interruption of what was quite a lengthy crossexamination, and we find that no unfairness on that account has been demonstrated. It is true 38 that by convention, the prosecution should be sparing in seeking to interrupt defence counsel’s cross examination. However, prosecuting counsel also has a job to do, and there is no inhibition to the raising of appropriate objections. Whether it is necessary to do so represents a question for judgement by counsel. The respondent emphasises, in what we consider to be a point well made, that a trial judge is frequently unaware of the totality of the materials and may not appreciate a misstatement or mischaracterisation of comments where the context is not properly clarified with a witness. It is right and proper for prosecuting counsel in their role as Ministers of Justice to object where there is a real and legitimate perception that a question or line of questioning may be unfair to a witness. We are satisfied that prosecuting counsel did not act inappropriately in the instances where she did interrupt in this case. 61. Returning to the principal complaint in the appeal, namely that inappropriate expressions of the personal opinions of prosecuting counsel created an irremediable unfairness, we wish to make some additional observations. 62. The position in law is clearly stated in the judgment of Denham J. on behalf of the former Court of Criminal Appeal in The People (DPP) v. M.R. [2009] IECCA 87, where she stated: “32. The fourth and final ground of appeal was the submission that the conviction is unsafe as prosecuting counsel in his closing speech improperly expressed his opinions as to the truthfulness of the evidence of the complainant, which opinion, it was submitted, ought not to have been given. On behalf of the Director of Public Prosecutions, it was submitted that prosecuting counsel is entitled to give his view in relation to the evidence and the credibility of witnesses, provided he makes it clear that it is his or her view only, and that the jury must come to its own view after deliberation. 39 33. The Court is satisfied that it is not appropriate for counsel to personalise his role or to give a personal opinion on evidence and or on the credibility of witnesses. There is a danger that a jury might regard him as giving expert evidence. However, in the circumstances of this case the Court is satisfied that the remarks of counsel were not such as to lead to an unfair trial.” 63. The role of prosecuting counsel more generally was discussed by Murray C.J. in People (DPP) v. D.O’S. [2006] 3 I.R. 57 at 59 [3]. The former Chief Justice stated: “It has long been laid down that the duty of prosecuting counsel is not to obtain a conviction at all costs. Such counsel should not regard himself or herself, as appearing for a party. He or she should present all relevant evidence to the jury fairly and objectively. Prosecuting counsel is, of course, entitled to present the case for the prosecution thoroughly and firmly and highlight the strength of the prosecution’s case or the weakness of the defence. The duty of prosecuting counsel to act fairly and objectively has long been a requirement of the common law system generally in which criminal trials are conducted in accordance with an adversarial procedure. As far back as 1865 in R. v Puddick