Court of Appeal dismisses appeal against rape convictions, upholding trial judge's refusal of Post-Conviction Order application.

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THE COURT OF APPEAL Neutral Citation: [2025] IECA 213 Record Number: 100/2024 Kennedy J. Burns J. MacGrath J.

BETWEEN/ THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT -AND-

ITK APPELLANT

JUDGMENT of the Court delivered on the 7th day of October 2025 by Ms. Justice Tara Burns

1. This is an appeal against conviction. On 21 December 2023, the appellant was convicted by majority verdict of the jury of sexual assault contrary to s. 2 of the Criminal Law (Rape)(Amendment) Act 1990 (Count 1) and by unanimous verdict of the jury of rape contrary to s. 2 of the Criminal Law (Rape) Act 1981 (Count 2) of one of the victims, SMC. These offences occurred on two different dates in June and July 2017 respectively. He was found not guilty of an offence of s. 4 rape (Count 3) against a different complainant, SORS, which was alleged to have occurred on 31 August 2018.

After an unsuccessful application to sever the indictment, the appellant pleaded guilty to a separate count of sexual assault (Count 4) against another victim, LR, which occurred on 31 August 2018.

2. The appellant was sentenced to eleven months imprisonment in respect of Count 1 and three years and nine months imprisonment in respect of Count

2 which sentences were ordered to run concurrently. He was sentenced to two years and three months imprisonment in respect of Count 4 which sentence was ordered to run consecutively to the term of imprisonment imposed on Count 2. Accordingly, an effective sentence of 6 years imprisonment was ordered. However, the final 12 months of the sentence was suspended on certain terms and conditions and three years’ postrelease supervision was imposed on the appellant.

Background

3. The appellant and the complainants were all between the ages of 15 and 17 at the relevant time. They were all part of the same friend group with the appellant and SMC being particularly friendly.

4. Count 1 related to an occasion in June 2017 when SMC stayed at the appellant’s house after a party. She woke to find the appellant (whom she was sharing a bed with) attempting to remove her trousers and pressing his naked penis against her back. Count 2 related to an event which occurred a couple of weeks later at SMC’s house where she was having a party. The appellant was being amorous with LR who was very intoxicated. SMC removed the appellant from the company of LR to put an end to the situation. The appellant then sought sexual engagement with SMC who refused. The appellant threatened that if he would return to LR if SMC did not engage sexually with him. The appellant proceeded to forcibly hold SMC down and rape her against her will.

5. Count 3 related to an allegation of the appellant’s then girlfriend SORS to the effect that after a party on 31 August 2018, she was woken by the appellant who was attempting to put her hand on his penis. She alleged that he then held her down and required her to perform oral sex on him. The appellant was acquitted of this count.

6. Count 4 related to the same party on 31 August 2018 but at an earlier stage of the night to the events reflected in Count 3. LR woke up in the same bed referred to in Count 3. The appellant was attempting to engage in sexual intercourse with her. He proceeded to digitally penetrate her vagina. The appellant pleaded guilty to this Count.

7. The appellant’s position with respect to Counts 1 – 3 was that the acts which were asserted by the complainants happened; however there was either consent to these acts taking place, or he had a genuine mistaken belief that the complainants were consenting.

8. A pre-trial application to sever the indictment was made. The application sought to sever Counts 1 and 2 from Counts 3 and Count 4 with separate trials being sought in relation to Counts 3 and 4. The trial judge refused to sever the indictment.

9. Following on from the trial judge’s ruling, the appellant entered a guilty plea to Count 4. Thereupon, the respondent sought to adduce the evidence of LR relating to the sexual assault she had been subjected to on 31 August 2018 before the jury. This was objected to by the appellant. The trial judge permitted LR’s evidence to be adduced in the trial.

10. Disclosure issues arose in relation to material available from the complainants’ phones. Their phones had not been requested by the investigating guards at the commencement of the investigation. By the time the trial came on for hearing, the complainants had not retained the devices being used by them at the relevant time. However, downloads of those phones were made by each of the complainants onto their new phones. An analysis was conducted of these phones and disclosure was made of the relevant contents. An issue arose as to the sufficiency of the material derived from this process with an assertion being made that more material could have been available to the appellant had he been in a position to examine the original phones. It was further asserted that it was reasonably likely that such material would have assisted his defence. An application pursuant to DPP v. PO’C [2000] 3 I.R. 87 seeking to withdraw the case from the jury on the basis of unfairness which relied on this asserted missing evidence, together with other grounds, was made but refused by the trial judge

Grounds of Appeal

11. The appellant filed a Notice of Appeal on 26 March 2024 against both his conviction and sentence. The grounds of appeal which relate to his conviction are:-

1. “In all the circumstances the trial was unsatisfactory and the verdicts are unsafe, in particular having regard to the various applications, submissions and requisitions made on behalf of the Appellant and the adverse rulings made by the Learned Trial Judge in respect of same;

2. The learned trial Judge erred in law in refusing the defence application for a separate trial in respect of each of the complainants, including on the basis that having regard to the unavailability of phone evidence, it was not possible to ascertain the nature and effect of communications as between the complainants;

3. The learned trial Judge erred in law in admitting evidence of LR;

4. The trial was unsatisfactory and the Appellant was denied a fair trial in all the circumstances, in particular in the manner in which the telephone evidence evolved throughout the course of the trial;

5. The learned trial Judge erred in law in refusing to direct verdicts of not guilty on the basis that same was necessary to uphold the right of the Appellant to a fair trial

6. The learned trial Judge erred in law in the manner in which the jury was charged in relation to the telephone evidence in the case.”

12. At the hearing before us, Counsel for the appellant indicated that ground of appeal No. 6 was not being pursued and that the grounds of appeal being pursued could be summarised as: a) the refusal to sever the indictment and the admission of the evidence of LR; and b) the failure to grant the PO’C application having regard to the problems with disclosure of telephone evidence which had emerged in the case.

Refusal to Sever the Indictment

13. In a pre-trial application, the appellant sought to sever Counts 1 and 2 from Count 3 and Count 4. The basis for this application was that the particulars of the rape allegation reflected in Count 2 was of a different nature to the particulars of the sexual assault offences reflected in the other counts and, further, that the appellant would be prejudiced by the jury learning of the forceful rape allegation where SMC had expressly stated that she was not consenting. It was submitted that forceful behaviour by the appellant was not a feature of the other sexual assaults reflected on the indictment and that the issue of consent differed in the rape allegation as SMC had expressly stated that she was not consenting which was not a feature of the other sexual assaults. The appellant’s position, as outlined in the s. 19 (of the Criminal Justice Act 1984) inference interviews which were conducted with him by the investigating guards, was that the rape event had not occurred but rather the parties had consensual sexual intercourse at another stage of the night. He accepted that the other sexual events occurred but asserted that the complainants consented to these acts. It was submitted that the differing position of the appellant with respect to the rape and the sexual assaults required the indictment to be severed for fairness to be achieved in terms of the jury considering his defence. The question of possible collusion as between the complainants was also raised in the context of the application to sever. Counsel for the appellant accepted that as Counts 1 and 2 related to the same complainant, SMC, Count 1 would not be severed from Count 2.

14. As the application was made prior to the commencement of the trial, the submissions made were based on a review of relevant statements contained in the Book of Evidence rather than evidence given.

15. The trial judge, having considered the circumstances of the offending alleged and the various connections between the parties as reflected in relevant statements in the Book of Evidence, together with the judgment of O’Malley J in DPP v. Limen [2021] 2IR 546 (‘Limen’), determined that the offending alleged by each of the complainants was of a similar nature within the meaning of Rule 3 of Schedule 1 of the Criminal Justice Act 1924 (‘the 1924 Act’) which permitted the offences to be tried together. She further determined that the appellant was not prejudiced or embarrassed in his defence within the meaning of s. 6(3) of the 1924 Act. The trial judge noted that that the common features in relation to the allegations of the complainants were: that they were all friends; they were all in the same age group; they were all of the same gender; the allegations arose during or in the aftermath of parties; the appellant was part of their friend group and in a position of trust; and each of the complainants alleged a sexual assault occurring in circumstances where they were awoken from their sleep by the appellant who was engaging sexually with them. The trial judged accepted that there was a difference with the rape allegation of SMC in terms of the act alleged and the manner of its commission. However, having considered this difference, she was of the view that it was not of such a nature which required severance of the indictment. She noted that the appellant’s principal concern was that the jury might engage in the forbidden reasoning of assuming guilty behaviour on his part by virtue of the series of allegations against him. However, she was of the view that this concern could readily be dealt with by giving the jury an appropriate direction indicating that they were prohibited from adopting such reasoning and directing them as to how they should consider this evidence. (Of note, no issue is taken with the direction of the trial judge to the jury in this regard). With respect to the issue of possible collusion, the trial judge noted that the evidence reflected on the Book of Evidence did not meet the high threshold as referred to in Limen to require severance of the indictment. However, she indicated that she would keep this issue under review in the course of the trial when evidence was given by the complainants.

16. As already noted, following the trial judge’s ruling on the application to sever the indictment, the appellant entered a plea of guilty to Count 4 on the indictment which related to LR. Thereupon, the respondent sought to adduce the evidence of LR as probative evidence on the remaining counts.

This course of action was objected to by the appellant. Having regard to the similarities which the trial judge had already identified when dealing with the severance application, she determined that the evidence of LR was probative of the remaining counts on the indictment with its probative value being greater than its prejudicial effect. Accordingly, she deemed LR’s evidence admissible.

Submissions of the Parties

17. With respect to the trial judge’s refusal to sever the indictment, the appellant repeated the arguments made in the course of the trial with respect to the dissimilarity of the rape allegation to the other allegations submitting that the difference in the nature of the conduct and the manner of its commission was such that it was inappropriate that Counts 1 and 2 were not severed from Count 3 and Count 4.

18. The respondent argued that the trial judge was correct not to sever the indictment and that while the rape allegation differed in nature and manner of commission to the other allegations, there were similarities running through all the offending which illuminated the appellant’s engagement with female members of his friend group which necessitated the allegations being tried together.

Discussion and Determination

19. The arguments of the appellant fail to have regard to the outcome of the trial and have not been tailored to take this into account. They proceed on the basis of the application before the trial judge. However, in light of the guilty plea entered by the appellant to Count 4, it is a moot issue as to whether the trial judge was correct not to sever this count. In addition, the fact that the jury returned a ‘not guilty’ verdict in relation to Count 3 also renders not severing this count moot. Accordingly, the real issue which this Court must concern itself with is the effect of not severing the indictment on the guilty verdicts returned by the jury in respect of Counts 1 and 2 (which the appellant did not seek severance internally between) and whether an unsafe conviction arises. The focus therefore is whether the trial judge was correct to permit the evidence of SORS and LR be heard in the context of SMC’s allegations.

20. Rule 3 of Schedule 1 of the 1924 Act states, inter alia:-

“Charges for an offence…may be joined in the same indictment if those charges are founded on the same facts, or form or are part of a series of offences or the same or a similar character.”

21. Section 6(3) of the 1924 Act states:-

“Where before trial or at any stage of a trial, the Court is of the opinion that the accused may be prejudiced or embarrassed in his defence due to his being charged with more than one offence in one indictment or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in the indictment, the Court may order a separate trial of any count or counts of such indictment.”

22. Limen has been considered on many occasions by this Court since its delivery by the Supreme Court in 2021 and we therefore do not propose to refer extensively to it. With respect to the facts of this particular case, the most significant principles in Limen (set out at para 193 of the judgment of O’Malley J), are as follows:-

“(b) Where the accused is charged with multiple offences of the same nature against several individuals, some probative value may be found in the inherent unlikelihood that several people have made the same or similar false accusations. The accusations need not be identical or “strikingly similar” but must be of the same nature.

However, similarity may add to the probative value, and the greater the similarity is, the greater the probative value.

(c) The inherent unlikelihood of multiple false accusations, and therefore the probative value, rises in situations where the complainants are independent of each other and there is no reason to fear collusion or mutual contamination.

(d) Where an application is made to sever the indictment (or, indeed, if the trial develops in such a way as to give rise to the issue), the Judge will have to consider whether or not the complainants are independent of each other, and whether there are any grounds for concern that there may have been either collusion or innocent mutual contamination. This does not mean that, for example, accusations by a number of family members against a relative cannot be tried together. They may not be independent of each other, and may very probably have discussed the matter together and with other family members, but there may nonetheless be probative value in the content of their various accounts.”

23. The offending charged in this matter was all of a sexual nature. Whilst there were differences in the offences alleged and the manner in which it was asserted the offences were committed, particularly with respect to the rape offence, a significant amount of similarity existed between the offending on a general basis: the complainants were of a similar age; they were all friendly with the appellant and with each other; the appellant was also within the same age bracket; the offending occurred in the context of parties taking place; and all of the complainants alleged that they found themselves being subjected to sexual acts by the appellant having woken up in bed with him beside them. Whilst SMC alleged that on another occasion, the appellant raped her in a different context, it nonetheless remains the case that she made a similar complaint to SORS and LR with respect to an offence of sexual assault.

24. Limen recognises that a probative value arises from the fact of the inherent unlikelihood that a person finds themselves accused of multiple accusations by different people. The extent of that probative value is dependent on the individual facts of the complaints. Similarity between complaints may increase the probative value of multiple complaints having been made. The fact that the alleged sexual offending in the instant case occurred within a friend group, in a similar manner (apart from the rape allegation) and within a similar context renders the joinder of the individual offences on the same indictment appropriate as similar offences. The appellant argues that the fact that all of the parties were of the same age group and within the same friend group is not a similarity which can be relied upon as these similarities simply relate to the social scene in which the offences were alleged to have been committed. We do not agree. The fact that all of the parties were part of the same friend group (and of a similar age) is of relevance in terms of illuminating the appellant’s involvement and engagement with female friends within that friend group.

25. The prejudice which the appellant alleged was that the jury may engage in the forbidden reasoning of assuming guilty behaviour on his part by virtue of the series of allegations against him. Explaining to the jury that such reasoning is prohibited and explaining how they should approach this evidence negatives that concern. Of note, no issue was raised with the manner in which the trial judge instructed the jury in this regard.

26. In addition, the outcome of the trial is instructive with respect to this ground of appeal. The appellant ultimately pleaded guilty to Count 4 and was found not guilty of Count 3. Accordingly, the concern of the appellant as to the prejudice which he would suffer by virtue of the jury learning of the rape allegation when determining Counts 3 and 4 did not arise, as the jury did not consider Count 4 and acquitted the appellant of Count 3.

27. The prejudice or embarrassment which was alleged by the appellant by trying Counts 3 and 4 with Counts 1 and 2 was not made out. Furthermore, the similarity within the offending, as already set out, rendered it appropriate that the indictment not be severed and the trial judge did not err in her decision in this regard.

28. The second issue pursued within this ground of appeal is whether the trial judge erred in permitting LR’s evidence to be adduced, after the appellant had entered a guilty plea to Count 4.

29. In light of the factual scenario presenting in this case and the similarity between the offending which was existent, we agree with the trial judge that the evidence of LR was probative (as was the evidence of SORS). The offending occurred within a friend group where all the parties were between the ages of 15 and 17; it occurred in the context of parties; both LR and SMC were awoken to find the appellant attempting to engage in sexual intercourse with them. While the rape offence was of a different character, it was not of such a different nature to render LR’s evidence inadmissible.

We also agree with the trial judge’s assessment that the prejudicial nature of this evidence did not outweigh its probative effect. Once the jury were directed not to engage in forbidden reasoning with respect to this evidence and were properly instructed as to how to approach the evidence, LR’s evidence was admissible on the remaining counts before the jury.

30. We therefore are of the opinion that the trial judge did not err in refusing to sever the indictment or in permitting the respondent to adduce LR’s evidence relating to the sexual assault she was subjected to by the appellant.

31. We accordingly dismiss the grounds of appeal relevant to these issues.

Failure to Withdraw Case from the Jury

32. An application to withdraw the case from the jury on the basis of unfairness was made pursuant PO’C v. DPP at the conclusion of the respondent’s evidence. While the appellant advanced that application on a number of grounds, the area which he sought to litigate in this appeal related to asserted missing evidence arising from the failure to retain the complainants’ phones.

33. As already indicated, the complainants did not provide their phones to the investigating guards when they made their initial complaints which in both SMC and SORS’s cases was over a year after the events which they alleged.

By the time the trial commenced, the complainants had all changed phones and the phones in use by them at the relevant time had not been retained.

However, they had downloaded the contents of their old phones to set up

their new phones and disclosure of relevant material from this download was disclosed to the defence.

34. The appellant asserted that the failure to have access to the complainants’ original phones resulted in him being unable to properly pursue two issues relevant to his defence, namely that the friendship between SMC and the appellant continued after the date of the alleged rape which thereby called into question the veracity of SMC’s allegation, and that there was collusion between the complainants with respect to their allegations.

35. With respect to the assertion that there was a continuing friendship between SMC and the appellant after the rape, the disclosure from the complainants’ phones revealed a number of photographs of SMC in the company of the appellant in situations where she seemed comfortable to be in his presence. Issues arose as to the dates of some of these photographs with evidence given by an expert that downloading from a previous phone can have an effect on the date assigned to a photograph on the new phone.

However, it was established in evidence that some of these photographs were taken after July 2017 and into 2018, and therefore after the date of the rape offence. There was also other evidence in the case in the nature of internet postings which displayed SMC in the company of the appellant at a charity walk after the date of the rape allegation.

36. With respect to the claim that the complainants had colluded together in relation to their allegations, the complainants accepted that there had been some contact between them about the fact that they were making complaints against the appellant. The disclosure of the download from the complainants’ phones did not reveal any significant contact. The appellant sought to explore whether the complainants had deleted messages between each other. The evidence of the complainants was that they had not but with a rider that it was possible. Evidence was called to the effect that an

examination of the original phones may have revealed whether messages had been deleted if certain circumstances existed.

37. The trial judge conducted a very extensive analysis of the evidence relating to this application and the applicable law, most particularly the various judgments of the Supreme Court delivered in DPP v. CC [2019] IESC 94.

Having considered the evidence in relation to the possibility of material having been deleted from the phones by the complainants and whether an examination of the original phones would have assisted in this line of enquiry, she determined that there was “no actual evidence of anyone having pertinent material deleted from phones, relating to these allegations, that is the details of these allegations”. She further determined “that the issue in relation to deleted material is no more than a missed opportunity that falls very short of any suggestion that the defence have lost a real possibility of an obviously useful line of defence.”

38. In relation to the issue of the uncertainty surrounding dates of photographs of SMC and the appellant, the trial judge expressed the view that she did not have sufficient confidence that there was a reasonable possibility that had the original phones been examined that it would have yielded data favourable to the defence. Furthermore, the appellant already had evidence available to him which was utilised in the trial of photographs taken of them after the date of the rape. This was in addition to other internet material relevant to this issue which did not emanate from phone downloads.

Discussion and Determination

39. As already indicated, the trial judge conducted a very thorough review of the evidence in this case and made a finding of fact based on her assessment of the evidence that the height of what was missing from the case could be categorised as a missed opportunity rather than evidence which had a real possibility of providing an obviously useful line of defence.

Having reviewed the trial judge’s extensive analysis of the evidence and her reasoning, we are of the view that she did not err in this determination.

40. With respect to the assertion of collusion between the complainants, the most that an inspection of the original phones could have displayed was that there had been messages deleted. The contents of any deleted message, if any even existed, could never be discovered. Accordingly, it was mere speculation that a deleted message, if this was established, would reveal collusion between the complainants. The issue of collusion was before the jury in any event with all of the complainants being cross examined about this. The fact that texts had been deleted, if this was even capable of being established from the original handset, without knowledge of what those texts referred to could not lead to the real possibility of an obviously useful line of defence.

41. With respect to the issue of the date of the photographs, several photographs from the downloads were established to have been taken after the date of the rape. Accordingly, the fact that there may have been more photographs which established the possibility of a continuing friendship between SMC and the appellant could not be of significant assistance to the defence case when evidence of this nature was already before the jury.

42. In either regard, we are of the opinion that the most which could be said of the missing evidence is that it amounted to a missed opportunity. In light of the nature of what was asserted to be missing, its role in the case could not be classed as of a nature that an obviously useful line of defence was lost to the appellant.

43. We therefore are of the opinion that the trial judge did not err in dismissing the PO’C application and permitting the case to proceed to the jury. The grounds of appeal relating to this issue are therefore dismissed.

Conclusion

44. In circumstances where we have not upheld any of the grounds of appeal pursued by the appellant before us, we dismiss his appeal against conviction.

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