Court of Appeal dismisses rape appeal where prior inconsistent statement was inadmissible hearsay not properly tested.

THE COURT OF APPEAL APPROVED JUDGMENT NO REDACTION NEEDED

Neutral Citation: [2025] IECA 247 Bill No: CCDP0145/2023 Court of Appeal Record No: 305/2024 Charleton J Edwards J. Owens J.

BETWEEN/ THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

V

H.D.

APPELLANT

JUDGMENT of the Court delivered by Mr. Justice Edwards on the 7th of November, 2025.

Introduction

1. On the 20th of June 2024 the appellant was convicted by a jury in the Central Criminal Court of a single count of rape contrary to common law and as provided for in 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. He was subsequently sentenced to a term of imprisonment of 6 years, with a post release supervision order.

2. The appellant now appeals against his conviction.

3. Following the appeal hearing on the 3rd of November 2025 we announced our intention to dismiss this appeal and stated that we would give our reason in a written judgment to be delivered on today’s date. We now provide our reasons.

Background to the case

4. The written submissions filed on behalf of both the appellant and the respondent, respectively, each contain summaries of the evidence adduced at trial. The Court has considered the transcript in full and is satisfied that both summaries are fair and largely accurate in so far as they go. There are some minor conflicts between them, mostly as to timings given or established in evidence, but these minor conflicts are not of significance in the context of this appeal. However, in circumstances where the respondent’s summary contains somewhat more detail, appears from a review of the transcript to be more accurate as to timings, and is the more comprehensive of the two, the Court proposes to adopt that summary for the purposes of this judgment.

5. The complainant first met the appellant in 2020 and had socialised together on a number of occasions prior to the date of the offence.

6. The complainant gave evidence that, on the evening of the 6th of July 2021, she attended a friend’s housewarming party and, while there, she consumed half a tablet of 2C-B, a synthetic drug at “probably half 10/11 o’clock cause it lasted half an hour and then half an hour after that I left again to go home”. Elsewhere she said that she left the party “half an hour to an hour” after the effects of the 2C-B wore off. Her evidence was that she left to return to her shared rented apartment “just before” midnight and thought she got home “probably quarter past / 20 past 12”. However, there was evidence, from telephone records, that a taxi called to collect her at circa 1.15 a.m. on the 7th of July 2021.

7. The complainant described the effects of the 2C-B as seeing “different colours” and “flashing colours”. Later, she added that this was in the midst of the LED lights that were present in the house where the party was being held.

8. The complainant gave evidence that she returned home via a friend’s house to collect her apartment key. Her evidence was that, once home, she cooked and ate a pizza, drank coffee, turned on the television and she also smoked a cannabis joint and conversed with the appellant, who had not been at the housewarming party, via Snapchat and FaceTime.

Communications of this nature, for approximately one hour between 3.30 a.m. and 4.27 a.m., were established in evidence by telephone records.

9. The complainant’s evidence was that, during the FaceTime call, the appellant expressed a desire to smoke cannabis, and by invitation, he then left his home (circa 4.32 a.m.

according to telephone records) and travelled by taxi to the complainant’s apartment where it was intended that they would smoke cannabis together. The complainant gave evidence that, on his arrival, she escorted the appellant into the building from the front door. Indeed, in cross-examination, it was put to the complainant, and she accepted, that she was awake and alert and not in any way sleepy when the appellant arrived and, in the course of his first interview with An Garda Síochána, the appellant said that he knew that the complainant had taken drugs “but she seemed fine”.

10. She gave evidence of having rolled a cannabis joint that they both smoked in her bedroom and that she fell asleep beside the appellant on her bed. Before ever being shown some images / videos that were recovered from the appellant’s device and his Snapchat account pertaining to 5.02 a.m. to 5.15 a.m. depicting both the complainant and the appellant, the complainant had given evidence that was consistent with what was depicted thereon, including what she had been wearing, and where each of them sat and smoked on the bed.

11. The complainant gave evidence that, having fallen asleep beside her on her bed, she awoke to the appellant vaginally penetrating her with his penis. The complainant gave evidence that she repeatedly said “no” and asked the appellant to “stop”, and that he persisted for a period of a further five minutes until he had ejaculated.

12. The complainant gave evidence that, in the aftermath, the appellant initially sought to convince her that sexual intercourse had not taken place, that she was imagining it because she was on drugs, that she would be in trouble and that he then told her that he too had taken 2C-B, and that she tried to record him but he grabbed her phone. There followed a protracted sequence of events during which the complainant attempted to get the appellant to leave her home, and, in the midst of which, the appellant asked her to call an ambulance for him and said that he wanted to talk to the complainant, which she agreed to do outside her building. Ultimately, this culminated in the complainant leaving her apartment in the company of the appellant and her plan was to go to the home of a friend who lived in the same estate.

13. The complainant’s evidence was that, when outside, she asked the appellant to leave her alone and to get away, but that the appellant grabbed her telephone at one point, and he started trying to give her explanations as to why he had “done it” and said that his mother was sick. The complainant said that she ran up an alleyway, with the appellant behind her, which was the route to her friend’s house and encountered a woman who was smoking in a garden of a house (and then another woman from the same house). She asked for help and told the ladies what had happened namely that the appellant had had sex with her when she was asleep. At this point, the appellant said that he was depressed and on antidepressants. Ultimately, the appellant left the estate and, having initially gone into the house occupied by the ladies, the complainant subsequently travelled by taxi to a friend’s home, reported the matter to An Garda Síochána and attended a Sexual Assault Treatment Unit (or “SATU”) that same morning. Events outside the apartment block, within the estate and outside the ladies house were captured on CCTV and adduced in evidence.

14. Evidence was also given of her receiving a Snapchat message saying “[Complainant], I’m so sorry, don’t know what got over. My wasn’t myself and I comed in you. Please get morning after pill”. The evidence was that this message, a screenshot of which was adduced in evidence, was received at 18.36 on the 7th of July 2021, and followed by one saying “Please listen”, followed by a call that was mistakenly answered wherein the appellant said “[complainant], let me explain. Let me explain” before she terminated the call. This was at 18.43 on the 7th of July 2021, and again a confirmatory screenshot was adduced in evidence.

15. Evidence was given of the arrest and detention of the appellant and that, in interview, he admitted that an act or acts of sexual intercourse took place and maintained that it was on a consensual basis.

The Grounds of Appeal

16. The appeal is advanced on three substantive grounds, viz:

1. The learned trial judge erred in law in her rulings as to whether the case was properly put by the defence to the complainant in relation to whether a full 2 C-B tablet or a half 2 C-B tablet had been consumed by the complainant when such was not necessary or required as the evidence was brought out with another witness to whom an inconsistent statement was made;

2. The learned trial judge erred in law in ruling (after the closing speeches had been made) that evidence brought out in cross-examination was hearsay when no challenge was made to the evidence at the time it was brought out and in circumstances where the defence had made a closing speech on the basis of the evidence brought out during the trial;

3. The learned trial judge erred in law in directing the Jury in her charge that evidence brought out in cross-examination of a specialist nurse about the consumption of 2 C- B was hearsay and incapable of being relied upon when such was admissible as an exception to the hearsay rule, being an inconsistent statement.

Evidence potentially relevant to the pleaded Grounds of Appeal:

17. On Day 1 of the trial, the complainant underwent examination-in-chief during which the following exchange took place:

“Q. Okay. And did you drunk alcohol at the party?

A. No, I didn't drink alcohol but I did take half a tablet but it didn't -- the effects had half an hour effects of seeing different colours and that was it.

Q. Half a tablet I think you said?

A. Yes.

Q. Half a tablet of what?

A. 2C B.

Q. Okay. Now, do you know what time of the evening you took that half a tablet of 2C B?

A. About I'd say it was probably half 10/11 o'clock cause it lasted half an hour and then half an hour after that I left again to go home.

Q. Now, had you taken that drug before?

A. No.

Q. Okay. Now, just when you took it, this is the half tablet, when you took it did it affect you in any way?

A. No, I just seen different colours.”

18. On Day 2 of the appellant’s trial, the complainant was cross-examined during which the following exchange took place:

“Q. Okay. And were other people taking this 2C B tablet?

Q. Okay.

A. I took the half.

Q. Okay.

…

Q. Okay. And do I take it that your friends were more experienced in taking that than you were?

A. Yes. They had done lots of drugs.

Q. Okay. So, they had conditioned themselves to taking maybe a higher quantity, would that be a fair thing to say?

A. Yes.

Q. And you had never taken it before so you were trying to go in, not at the scale they were going in at, but by taking half a tablet; is that correct?

A. Well, I looked it up and it said that I wouldn't have any major outcomes if I only took that small amount so.”

19. Following cross-examination, the complainant was re-examined, leading to the following exchange:

“Q. If you would, Ms [complainant]. Now, one of the -- you were asked about other people at the party taking 2C B and I think you said ‘They all took two or three tablets, I took the half. So, their effects were more pronounced and I saw how they were when I came in so.’ And I think you didn't finish that -- I think another question was asked but in any event was there any particular reason you took a half versus the two or three that your friends were taking?

A. Because I had never done it before. I didn't know what effect it was going to have on me.

Q. And you said you looked it up?

A. Yes.”

20. On Day 3, a Nurse [C.S.] was cross-examined in respect of an examination which she carried out on the complainant while working in the SATU which the complainant had attended. During the course of the cross examination the following exchange took place in regard to the complainant’s reported drug use:

“Q. And that she had taken a half a pill of 2C B; isn't that correct?

A. That's correct.

Q. And I think you enquired of her as to what that was and she told you that it was a hallucinogenic drug; isn't that correct?

A. That's correct.

Q. And was that the words she used?

A. Yes, yes. I would believe -- yes, that's her word.

Q. And you noted the word hallucinogenic coming from her?

A. Hallucinogenic, yes, yes, because I wasn't aware of what a 2C B was.

Q. You had never heard of it before?

A. No, no.

Q. And she told you that she had taken this at a party the previous night; isn't that correct?

A. That's correct.

Q. I think when she gave you the account she told you that she took a tablet at the party last night but then in the other section you have written down half a pill?

A. Yes.

Q. Was there two different conversations at two different times?

A. Well, I keep the format of the SATU chart. So, I would have asked -- on page 4 I would have asked first and then I --

Q. So, you asked her about recreational drug use prior to the incident?

A. Yes.

Q. Seven days prior to the incident. She told you about half a pill at that stage?

A. Yes.

Q. And then later on when you're taking a brief account the word she used was "I took a tablet"?

A. Yes.

Q. Okay.

A. That's correct.”

Closing Speech References and Issues Arising:

21. During counsel for the appellant’s closing speech on Day 5 of the trial, the quantity of 2 C- B consumed by the complainant was discussed three times as follows:

“And we know that she has taken this 2C B drug, this hallucinogenic drug, at the party and I am going to come back to that later on when I talk to you in relation to the evidence but we know that she is effectively taking drugs and she certainly is at least experimenting with a hallucinogenic drug that particular evening. And I am going to come to the distinction between two accounts that she gave to the nurse at the SATU because you recall that at one point when the nurse was taking an account as to how much she had taken she said she had taken half a 2C B tablet and that at another point when the nurse was talking to her and she asked her about it again, she said she had taken a tablet. Now, they are two different accounts in relation to the quantity of drugs that she had taken that are part of the narrative that she gave to the nurse. She has given her oral evidence that she took half a tablet here before you but in her previous recounting to the nurse there's at least two different ways in which she described that. And that would come into bear when you have to analyse the facts upon a burden of the prosecution to prove a case beyond a reasonable doubt. If there are two ways of looking at something, you accept the prosecution version if they have proven it to you beyond a reasonable doubt. If they haven't, well then you accept the version that is more favourable to the defence.”

…

“…if there are two alternatives open to you, for example, Ms [the Complainant] took half a tablet of 2C B as told to you by her and in one of the versions that she said to the nurse or she took a tablet of 2C B which is one of the versions it was a taken by down the nurse as relayed to her in a different section. You are obliged adopt the view more favourable to the defence unless the prosecution has proved the other view of the evidence beyond a reasonable doubt.”

…

“She told the nurse in a section on recreational drug use prior to the incident that she had taken a half a tablet of 2C B and the nurse didn't know what 2C B was, she had never heard of it before, and she took a note in her records that Ms [the Complainant] told her that it was a hallucinogenic drug and she said that was her word, hallucinogenic.

On another section which came after when taking a brief account of the incident the nurse had noted that she said that she took a tablet. Now, we say that's important because you have got to weigh up the evidence as to the quantity that was taken and I appreciate that the complainant said that she took half a tablet and I appreciate that she said that on one occasion and the nurse noted it but it would appear that on a second occasion she said a tablet. So, when you're weighing up the evidence have the prosecution proven beyond a reasonable doubt that it was a half 2C B that was taken as opposed to a full tablet. And where does that get you in relation to the case?”

22. Following the closing speeches, counsel for the prosecution raised two concerns in respect of the counsel for the appellant’s emphasis on the issue of whether a full tablet or half tablet was consumed. The first such concern was to the effect that, if this formed part of the defence case, that case had not been put in terms to the complainant. The second was that the jury were in effect being asked to have regard to inadmissible hearsay and to speculate on the basis of it. The prosecutor’s position was that while it might have been lawfully possible to rely upon what was said to the SATU nurse as being evidence of a prior inconsistent statement by the complainant, if a proper evidential foundation for doing so had been laid in the manner prescribed in s. 4 and s. 5 of the Criminal Procedure Act, 1865 (“Lord Denman’s Act”), that had not been done. Prosecuting counsel requested the trial judge to tell the jury in the course of her charge that what had supposedly been said to the SATU nurse was inadmissible hearsay which they were not entitled to have regard to.

23. In reply defence counsel maintained that he had been entitled to close the case as he did, and that no judicial intervention in regard to what he had said was required.

The Rulings in Controversy

24. The trial judge did not rule immediately on the objections raised by prosecuting counsel, but rather reserved the issues overnight to enable transcripts to be checked, and authorities to be submitted by counsel if they wished to do so. The first of the concerns raised was then resolved by the trial judge in favour of the defence, who ruled on Day 6 of the trial:

“JUDGE: So, I have had an opportunity to review the cross examination of the complainant. I can see that authorities have been submitted but I am satisfied that on the cross examination of the complainant that the defence in essence has been put and I think that the issue of drug consumption has been in the case from the outset and that started as a consequence of the accused suggesting to Ms [the Complainant] that it was the drugs. That was the starting point but I don't consider that the defence case hasn't been adequately put to the complainant. So, I am not going to make any comment in relation to that in my directions.”

25. The trial judge then engaged with the second of the concerns that had been raised by the prosecution, stating:

“The issue of half a tablet versus a tablet is a matter that I intend addressing. I will hear from you, Mr [DEFENCE COUNSEL], but I don't think that there's any real grey area in relation to the matter.”

26. The trial judge then received brief further submissions from defence counsel, to the effect that when the evidence in controversy, and complained of as being hearsay, had been brought out in cross-examination there had been no objection from the prosecution.

Further, there was, it was submitted, a cogent practical reason not to address the SATU notes during the complainant’s cross-examination, i.e., the fact that the nurse concerned had not yet given evidence in the trial.

27. The trial judge then further ruled:

“JUDGE: Yes, all right. Well, very considerable significance is being attached by the defence to what it says is a discrepancy and the discrepancy was neither raised with Ms [Complainant] herself, nor was it specifically raised with the witness from SATU that there was a discrepancy there and the possibility of the witness either being mistaken in what she noted or having misheard or having not exercised sufficient care in the note which she took are all matters which have not been explored and the only actual evidence as to what was consumed by Ms [Complainant] came from Ms [Complainant] herself. If she had been interrogated or cross examined in relation to the two versions that she had given to the nurse in SATU and if the nurse maintained that both versions were in fact accurately noted, that is something that could have been identified as relating to her credibility concerning how much 2C B she had consumed but that is not how it was approached and for that reason I intend to advise the jury that the only admissible evidence in relation to the consumption of 2C B is the evidence which [the Complainant] herself gave in relation to it.

…

I will just give you advance notice of what I am going to say. All right. I am going to give them a brief explanation of hearsay and it starts with ‘The mere fact that someone says to somebody else that something occurred or occurred in a particular way does not make it true. This is what in law is known as hearsay. Hearsay evidence comes in many forms. For instance, statements made by witnesses to gardaí are hearsay. As a general rule the law requires a person who has made a statement, either orally or in writing, to come to court and give evidence on oath or affirmation where the evidence is capable of being tested by cross examination. Hearsay evidence comes in many forms and includes discussions with investigators and medical witnesses. When people take notes or records mistakes can be made.

Things can be misheard or misnoted. In this trial you heard evidence from [Nurse C.S.], the nurse who conducted the examination of [the complainant], she gave evidence under cross examination that [the complainant] told her that she took half a tablet initially and at a later stage of the examination she said she took a tablet.

Those conversations and the notes of them are hearsay. [The complainant] gave evidence that she took half a tablet and she was not cross examined about it or about the discrepancy in [Nurse C.S.’s] notes. So, members of the jury, just to be clear, the only admissible evidence about how much 2C B [the complainant] took is her own uncontradicted sworn testimony that she took half a tablet. Anything she told the nurse is not admissible and should be excluded from consideration.”

28. The trial judge subsequently charged in these terms:

“So, I just want you to be clear, members of the jury, that the only admissible evidence regarding how much CB-2 [the complainant] took was her own uncontradicted sworn evidence which was that she took half a tablet. So, anything noted by the nurse is not admissible evidence in the trial and it should be excluded from your consideration of the evidence.”

The Appeal

29. The gravamen of the appeal is the appellant’s contention that his counsel had been entitled to rely on the evidence of what had been stated to the SATU nurse in addressing the jury in the manner in which he did so, and that the trial judge had been wrong to tell the jury that anything noted by the nurse was not admissible evidence in the trial and that it should be excluded from their consideration.

30. While both sides have filed written submissions for the purposes of the appeal, these submissions simply reflected the respective positions of the parties taken at trial.

Analysis and Decision

31. The out of court statement by the complainant to the SATU nurse was prima facie hearsay and inadmissible, unless the defence could legitimately rely on some recognised exception to the rule against hearsay. It is true to say that the evidence in controversy was not objected to when it was led. That sometimes happens in trials. While technically the rules of evidence should be tightly adhered to, a trial is a fluid dynamic and it is not always desirable that the flow of a trial, and a witness’s evidence, should be interrupted to voice an objection to an ostensible breach of the rules of evidence where it is thought that nothing may turn on it. Sometimes inadmissible evidence is introduced, either deliberately (but without express consent) or inadvertently, the potential significance of which is not immediately obvious, so that it is not objected to at the time. However, that cannot be taken as a waiver by the opponent of the party leading the inadmissible evidence of their right to object later in the trial to it being relied upon before the jury, or raise a bar to an objection being subsequently ventilated before the jury is sent out to deliberate. As was stated by Donnelly J in People (DPP) v. S.M. [2020] IECA 170, at para 16:

“the rules of evidence apply to both the prosecution and to the defence. They exist to protect the integrity of the trial and to ensure that the truth emerges on the central issue.”

32. An exception to the hearsay rule that might potentially have been relied upon by the defence, was if it had been intended to rely upon the evidence in controversy to demonstrate the making of a prior inconsistent statement by the complainant. If that was the purpose for which it was introduced, then it would have been a matter going to the credibility of the witness only and not evidence of the truth of the contents of the out of court statement. In the event that the prior inconsistent statement exception to the hearsay rule was being invoked, the trial judge would have been under an obligation to instruct the jury of the limited purpose for which the statement had been admitted.

33. However, if the prior inconsistent statement exception was to be relied upon, it was incumbent on defence counsel to cross-examine the witness who supposedly made the prior statement for the purpose of comparing what they had said on oath with what they were understood to have said on a previous occasion. In that regard the procedure for crossexamination on prior inconsistent statements in both civil and criminal proceedings is regulated by the provisions of ss. 4 and 5 of Lord Denman’s Act (previously referenced).

34. Section 4 of Lord Denman’s Act provides:

“If a witness, upon cross-examination as to a former statement made by him relative to the subject matter of the indictment or proceeding, and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it; but before such proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.”

35. Section 5 of the same Act then goes on to provide:

“A witness may be cross-examined as to previous statements made by him in writing, or reduced into writing, relative to the subject matter of the indictment or proceeding, without such writing being shown to him; but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always, that it shall be competent for the judge, at any time during the trial, to require the production of the writing for his inspection, and he may thereupon make such use of it for the purposes of the trial as he may think fit.”

36. Counsel for the respondent to this appeal has correctly sought to emphasise that, while the complainant was cross-examined by defence counsel, nowhere in that cross-examination was it put to her that she had taken more than half a tablet of 2C-B, or indeed that she had said on a prior occasion to the SATU nurse that she had done so. There was no engagement with the requirements of Lord Denman’s Act.

37. The correct procedure as to prior inconsistent statements has been reiterated in a number of judgments. In sum, and at risk of repetition, the simple terms may be again stated here.

When a witness in evidence makes a statement of fact, counsel cross-examining who is aware of a prior statement which is inconsistent, may ask the witness whether on a prior occasion he or she had made such a statement. The witness may choose to explain that he or she was tired when making that statement, or upset, and that what they have testified to on oath is correct; or the witness may say that the prior statement is correct. Both of those answers are evidence because the witness has testified to a particular state of fact, either stating that what he or she said in evidence is accurate or that what the prior statement said, while inconsistent with his or her earlier testimony, is correct. There is then no legal basis for going further. If, however, the witness on a prior inconsistent statement being put to him or her, denies making that statement, a witness may be called to prove it. That statement, being denied and not affirmed in evidence, is not proof of what is says but goes to the weight of what the witness has testified to in court.

38. We are satisfied that, in the circumstances of this case, the prior inconsistent statement exception to the rule against hearsay was not, and is not, capable of being relied upon by the appellant’s counsel as justifying his invitations to the jury to rely upon that evidence in the manner in which he did so. It could not be used, even for the limited purpose of assessing the complainant’s credibility (much less for any other purpose), in circumstances where the required evidential foundation for doing so had not been laid.

39. In our assessment the evidence in controversy was clearly inadmissible hearsay, and the trial judge’s direction to the jury to disregard it was entirely correct.

Conclusion:

40. The appeal must be dismissed.