Court of Appeal dismisses appeal against convictions for assault, rape, and coercive control, upholding jury verdicts.

NO REDACTION NEEDED

THE COURT OF APPEAL Record No: 168/2022 Edwards J. Neutral Citation Number [2025] IECA 286 McCarthy J. Burns J.

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

RESPONDENT V D.W.

APPELLANT

JUDGMENT of the Court delivered by Mr. Justice Edwards on the 12th day of December 2025.

Introduction

1. On the 2nd of June 2022, Mr. D.W. (i.e., “the appellant”) was convicted by a jury in the Central Criminal Court of twelve counts, namely:

(i) Count no’s 1, 2, 6 and 9 relate to the offence of assault causing harm contrary to s.

3 of the Non-Fatal Offences Against the Person Act 1997 (“the Act of 1997”);

(ii) Count no’s 3 and 8 concern an offence of production of an article contrary to s. 11 of the Firearms and Offensive Weapons Act 1990;

(iii) Count no 4 concerns an offence of threatening to kill or cause serious harm contrary to s. 5 of the Act of 1997;

(iv) Count no 5 concerns an offence of false imprisonment contrary to s. 15 of the Act of 1997;

(v) Count no’s 7, 10 and 11 relate to the offence of rape contrary to s. 48 of the Offences Against the Persons 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;

(vi) Count no 12 concerns the offence of coercive control contrary to s. 39(3) of the Domestic Violence Act 2018 (“the Act of 2018”).

2. Sentencing took place on the 28th of July 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 18 years imprisonment, with the final 12 months suspended, which was to date from the 17th of July 2019 to account for time spent in custody.

3. The appellant by Notice of Appeal dated the 4th of July 2024 has appealed against both his conviction and sentence. The present judgment deals with the conviction module of the said appeal.

Background to the Appeal

4. The appellant was convicted by the unanimous verdict of a jury, after a contested trial before Letterkenny Central Criminal Court that lasted 8 days, of twelve counts consisting of offences of assault, production of an article capable of inflicting serious harm, threats to kill or cause serious harm, false imprisonment, rape, and coercive control.

5. The complainant gave lengthy evidence before the jury over several days, during which she was examined in chief, cross-examined and re-examined. It is not practical in a judgment such as this to rehearse her evidence in all its detail. However, the summary hereinafter provided sets out some of the main features of her testimony.

6. The evidence established that the offending behaviour was committed by the appellant over a period of six weeks in June and July 2019. A Ms. S.O. (i.e., “the complainant”)

had emigrated to the United States of America in 1995, where she subsequently gave birth to her son. In 2006, she returned with her son to Donegal to live and she began working in a nursing home shortly after.

7. In May 2019, the appellant met the complainant on a dating app called “Plenty of Fish”. A picture of the appellant on the dating app showed that he purported to be from Letterkenny. After exchanging various messages back and forth, they met up on Friday the 31st of May 2019. On this date, the complainant was returning home from work after

8 pm, she gave the appellant her address and he arrived at her home between 9 and 10 pm. The pair appeared to get on very well and the appellant spent the night with the complainant.

8. The complainant thought that the appellant would only stay until Sunday as he had said he was due to start work on a construction site in Monaghan. However, on the Sunday he said he could not go to Monaghan until after he had completed a Safe Pass course which he was due to undertake on the following Thursday. Accordingly, the appellant stayed in the complainant’s home until the following Wednesday evening, and then left ostensibly to do the scheduled Safe Pass course on the Thursday. The appellant phoned the complainant on Thursday evening and informed her that he had lied about where he was living on his dating profile, that he was not in fact living in Letterkenny but was instead living in Dublin. The complainant was annoyed that he had lied to her and hung up the phone. She received numerous messages from the appellant following this, all of which she ignored.

9. The following morning, the appellant unexpectedly walked into the complainant’s house.

In evidence, she stated that she was surprised to see him, and she asked him where he had been, to which the appellant informed her that he had been in her shed all night. The evidence established that this shed is directly at the back of her house, and it was normally left unlocked. She stated that the appellant started crying and begged her not to leave him. He said “Please don’t leave me, don’t cheat on me, I love you. I want to be with you”, to which she replied that she would not cheat on him as long he did not lie to her anymore.

10. The complainant became aware that the appellant was monitoring searches made by her on Google using her phone while she was out of the house at work. He eventually told her that her phone was synced with her laptop, which meant that if she googled anything on her phone her search automatically appeared also on her laptop screen at home. She noticed that her friends were contacting her with messages which she did not understand and asked the appellant if he was messaging her friends pretending to be her, to which he replied, “Yes, well you need to know if [M] is talking about you”. The complainant described feeling angry and controlled and that her privacy had been violated. She asked him to stop and to leave her stuff alone.

11. The complainant later realised that the appellant was reading her e-mails. It was also outlined in the evidence, that the appellant was deleting friends from the complainant’s Facebook account and taking them out of her contacts list. The evidence adduced at trial demonstrated hundreds of the complainant’s friends who had been blocked, without her authority.

12. Evidence was also given by the complainant which established that the appellant would “bombard” her with messages while she was at work, these messages included asking her what she was doing at that exact moment and others would ask her to send a photograph of where she was at that point in time, in order to prove that she was at work.

Count no 1

13. On the 11th of June 2019, the complainant became aware that the appellant had sent friend requests from his Facebook account to some of her friends. The complainant and appellant were together in the living room downstairs at the time the complainant made this discovery. The complainant became upset and went upstairs to her bedroom and locked the door. The appellant came up, was banging on the door and threatened to kick it in if she did not unlock it. The complainant unlocked the door, and the appellant entered the room. The complainant asked him to leave her alone and informed him that she was deleting messages he had sent to her phone. The appellant attempted to grab her phone and then sprayed her in the face with Mace, an incapacitant spray which the complainant had lawfully purchased in the USA and which she kept in her bathroom. The complainant gave evidence that her eyes were “extremely sore”, that they began stinging and closing up as a result. She was unable to see until she flushed out her eyes with water.

Count no’s 2 to 7, inclusive

14. On the 12th of June 2019, the complainant called in sick to work as her eyes were still affected by the Mace. The same day, the pair went shopping in a nearby supermarket.

The complainant attempted to check her bank account to confirm her account balance.

She was unable to do so and queried with the appellant whether he had accessed her accounts. He replied “No, no” and walked off. Subsequently, she was able to reset and access her current account, which showed that she had in excess of €5,000 available. She testified that “then I thought, no, something’s not right. I shouldn’t have that much money”. She noted that this amount was similar to that which was in her savings account, and soon after she realised that it was in fact the same money. However, she had not moved it herself from her savings account to her current account. The complainant described that she became extremely upset by this and transferred the money back into her savings account. Following the appellant’s arrest, his Facebook messages were retrieved, and those records showed that on the day following this incident, on the 13th of June 2019, the appellant sent by way of Facebook messenger the identity documents of the complainant, being her driver’s license, medical card, her bank account and her bank cards to a Ms. McN who was unknown to the complainant.

15. The complainant gave evidence that following her discovery that her bank accounts had been accessed they drove back to her house in silence, without buying anything in the supermarket. She stated that she was trying to figure out how she could get the appellant out of her house without her getting hurt at this time. When they arrived at her house, she asked the appellant to remain in the car, telling him that she needed a break. She gave evidence to the effect that each time she went to put the key in the lock, the appellant would move towards her. She stated that she was frightened at this stage, but she managed to get inside the house and lock the door.

16. As the complainant was packing up the appellant’s belongings, she heard a loud bang from upstairs and then she saw the appellant come “flying down the stairs” and he jumped over the banister. The appellant had entered her house through an upstairs bedroom window. She described that she panicked as a result and slammed the kitchen door shut. The appellant pushed it open, punched her on the head and she fell to the ground. He kept her face down on the floor with his hand on her neck, while she was crying. She asked him “Why are you doing this? Please Stop” and he responded, very calmly, “Are you finished, are you finished”. When she stopped crying, he then directed her upstairs, with his hand remaining on the back of her neck. He instructed her to, “get on to the bed and don’t move”, and she did as instructed and did not move thereafter as she was too afraid. The complainant stated in evidence that the appellant then stated, “You know I can’t let you go, I’m going to have to kill you, you’re going to go to the guards”. The appellant then pulled down the blinds in the hallway and bedroom, took a knife and began shredding a towel. He used the shredded towel to tie up the complainant’s wrists, knees and ankles. The appellant dumped the complainant’s handbag on the floor, took out her bank card and asked her for the PIN number, which she gave him. He said, “This better be right, because I’ll be back and I will kill you.”. The appellant then threatened to go to her son’s university and do the same to him. The complainant stated, “If you want me dead, that’s fine, give me the knife, I’ll slit my own wrists” as she believed that this would keep her son safe. Throughout she kept promising that she would never go to the guards and would never tell anyone. The appellant smiled and said, “No, I’m going to kill you”.

17. At one point the complainant recalled the appellant being in contact with somebody on his mobile phone. It was a man’s voice, she thought but was not 100% certain of this. She heard the appellant say to the person on the phone, “yeah, its okay, she’s letting me use her card” and “No, don’t worry, I will show up”. At the end of the call the appellant said to the complainant, “Did you hear that, babe? Oh, he said to put ecstasy in your drink or your water or whatever.”.

18. The appellant went into the complainant’s son’s bedroom and changed his clothes. He repositioned the complainant on the bed and said, “you’re going to have a long wait. You might as well watch something” and indicated an intention to put a DVD on to play on the television.

19. The appellant then became upset stating “I can’t do this, I can’t do this. I can’t keep doing this”. He untied the complainant’s hands and knees, leaving her ankles tied.

Subsequently, he untied her ankles and ran a bath for the complainant. When she queried why he was running a bath he replied, “You told me the other day of your fears of dying, that your fear of dying would be drowning or suffocation” and he stated, “Today you’re going to experience one or the other”. The complainant stated that she was certain he was going to drown her. He threw a pad and paper at her, saying, “write something for your son”, and when she refused, he said, “don’t you want to leave something for your son to remember?”. She refused to get off the bed for the appellant, and so he left the room and drained the bath.

20. Following this, he turned on the hoover in the hallway, which the complainant believed he was going to use to suffocate her. He then allowed the complainant to take approximately

30 or 60 tablets of a herbal product called melatonin, as she hoped that by doing so she would just drift off before he killed her. The appellant then positioned himself behind her on the bed; he had his forearm over her throat and used his other hand to re-enforce the pressure on her throat. The complainant stated that she could not breathe, nor speak and she could not get his arms away from her throat. She lost control of her bladder and urinated, which caused the appellant to release his grip and throw her onto the floor. He instructed her to take off her clothes and to go into the bathroom and to get into the bath, where he would have a bath with her. The complainant believed that he was going to drown her at this stage. The appellant undressed and entered the bathroom naked, got into the bath and sat in front of the complainant, facing away from her. He asked her to wash his back and there was no physical violence while they were in the bath.

21. After a short time, they both got out of the bath and returning to the bedroom got into bed. During the course of the night, they engaged in sexual intercourse. The complainant gave evidence that she felt she had “absolutely no choice” as she did not want to trigger him or upset him to do anything that might provoke him into killing her.

22. The following day, the complainant went to work. She attempted to cover up her bruises, however, her manager noticed something strange about her face. The complainant told her that she was using a new cream.

23. From the 12th of June 2019 onwards, the appellant remained in the complainant’s home.

During his time there, he did not allow the complainant to go on any walks or to meet with friends. Evidence was given that they did again have sexual intercourse during this time. The complainant googled certain questions about sexual intercourse, which the appellant confronted her about. She was very upset at this as it was a further indication that the appellant knew what she was doing and was monitoring her phone.

24. The complainant gave evidence that she was not interested in having another child, and she was using a contraceptive called NuvaRing, which is inserted into the vagina on the first day of the period. The appellant informed her that she had no business being on birth control and that he intended on getting her pregnant. At a later date, the appellant informed the complainant that he had removed her NuvaRing while they were in bed. The complainant described feeling stunned and angry by this.

Count no’s 8, 9 and 10

25. On the 22nd of June 2019, the appellant and the complainant had gone out for dinner and then went to one or two public houses afterwards for the complainant’s birthday. In a public house at the end of the night, an individual bought the complainant a drink while the appellant had gone out to the smoking area. She could not recall who had bought her the drink and the appellant became very angry when he learned of this. A Ms. McG, the bar manager, gave evidence that she had seen the appellant shouting at the complainant for at least five to seven minutes in an alley beside the public house. The appellant left the alley and Ms. McG went out and noticed the complainant crying and also that she had a black mark on her right cheekbone with heavy makeup over it. There was a conversation between the two of them. While the bar manager was with the complainant, a male person (later established as being the appellant), who indicated that he was outside the bar, kept calling the complainant on her mobile phone while she was with her, and he was shouting down the phone, “where are you”, and “what do you think you’re playing at?”. After the phone call ended, the appellant’s voice could still be heard from further up the street. The complainant walked towards him and decided to leave with the appellant. The bar manager was sufficiently concerned for the complainant’s safety and welfare that she contacted the gardaí. A garda visited the bar premises and she made a report to him as to her concerns.

26. As the appellant and the complainant arrived back to the complainant’s house, the appellant entered the premises, but the complainant remained outside as she was afraid.

The garda who had attended in response to the bar manager’s call, a Garda McCrossan, came on the scene and asked what he could do to help her, to which she replied that she was just drunk and entered the house. The appellant had put a chair in front of the sink, and he made her sit on it. He was visibly angry, and he had a hammer which he kept pulling and swinging around over his shoulder. He informed the complainant that he wanted to know who had bought her the drink earlier in the night while they were at the public house, or he was going to “smash her head in”. The complainant described feeling terrified and at one stage the appellant poured a glass of alcohol and forced her to drink it. He also sprayed Mace above her head. However, she described how some of it went into her face and mouth and she could feel her eyes and mouth burning as a result. He then told the complainant to go upstairs, and following her compliance with this direction they had sexual intercourse. The complainant stated in evidence that she felt she did not have any other option, given that he had just threatened her with a hammer and what had previously occurred on the 12th of June 2019.

27. The following morning, on the 23rd of June 2019, the complainant received a text message from the bar manager checking in on her, and her response, also by text message, was dictated by the appellant.

28. Following this, Garda McCrossan called to the complainant’s house and got no answer. He could see a man and the complainant through the sitting room window. He then noticed the man “bolting” from the room and the complainant came to the door. Initially, she denied that the appellant was there, but then called him down. He gave a contact number which in fact was his mother’s. Garda McCrossan left at that point.

29. The jury heard evidence that in the days following these events, matters continued along in the same vein, namely that the complainant went to work, but while there she would have to constantly text the appellant and send him photographs to prove she was in work. During this time, he also changed the furniture in her bathroom, moved her clothes to different locations and painted the bathroom a colour she did not like. The complainant described feeling controlled by this.

Count no 11

30. The complainant testified that on the 11th of July 2019 she came home following a 12- hour shift and went to bed. Shortly after, the appellant came into the bedroom and “harassed” her to have sexual intercourse. She told him that she was tired and needed to sleep, to which he replied, “I’ve been waiting here all day on my own with no attention from you, waiting on you to come home and now you’re going to ignore me”. He stated words to the effect that if she was that tired, she should call out sick from work on the following day. When the complainant stated that she couldn’t afford to do so, that she needed the money, he replied, “You don’t need money where you’re going”. The complainant described that she took this as a threat that he was going to kill her. She then had sexual intercourse with him and described in evidence that it “was that or die”

as far as she was concerned.

31. In or about the 13th of July 2019, the complainant disclosed her situation to a friend and work colleague, a Ms. C, and she advised the complainant to go the gardaí. The complainant stated it needed to be fool proof. The two women came up with a method of communication whereby Ms. C would send a text message to the complainant and if she replied with a long message, that would mean she was doing fine and did not need help.

Whereas if she responded with a short message, that would be a signal that something was wrong.

32. On the 17th of July 2019, the complainant wrote out a description of events which had occurred since she met the appellant while she was at work. The purpose of this was to give it to the gardaí. At 2 pm on that date she picked up the appellant and they went back to her house. At 6 pm, Ms. C texted the complainant and asked her to come into work for two hours, which was a signal that they were going to the gardaí. Ms. C gave evidence that the complainant was in a state of extreme panic and was terrified while they attended the garda station. After 10 pm it was indicated to her that the appellant had been arrested.

33. A number of gardaí, assisted with the Armed Support Unit attended the complainant’s house and arrested the appellant. The gardaí arrived at approximately 10.30 pm, and the appellant attempted to flee. He was holding a canister of Mace, which he later dropped when a Garda Dolan fired his TASER. The TASER did not make contact with the appellant, but the fact that it had been fired at him caused him to stop and he was subsequently arrested.

34. The appellant was brought to the garda station, where he was detained and interviewed.

In interviews, he denied ever having Mace and claimed that he had never laid a hand on the complainant and that she was making it all up because she was jealous. He denied rowing with the complainant outside the public house as witnessed by the bar manager and he further denied ever having raped the complainant.

35. The appellant was subsequently charged with the offences of which he was later convicted, and returned for trial before the Central Criminal Court. Following an arraignment in which he pleaded not guilty to all twelve counts, he underwent a 9-day jury trial, and was convicted on all counts by unanimous verdicts of the jury.

Notice of Appeal

36. By a Notice of Appeal dated the 4th of July 2024, the appellant appealed against his conviction and severity of sentence. In support of his appeal against conviction, he advanced six grounds of appeal. However, in substantive written submissions supplied to this Court, he indicated that he was not proceeding with three of these grounds (Grounds 1, 4 and 5). The remaining grounds of appeal to be decided upon are as follows:

“2. The Learned Trial Judge erred in law and, in fact, in failing to discharge the jury when requested to do so by Counsel for the Appellant.

3. The trial was unsatisfactory in all the circumstances.

6. The Learned Trial Judge erred in law and, in fact, by admitting evidence of the impact of the offences on the Complainant during her evidence-in-chief, which said evidence was irrelevant to the issue to be tried and prejudiced the Appellant’s right to a fair trial.”

Ground No 2 - Failure to Discharge the Jury

37. The substance of this complaint is that the appellant contends that the trial court failed to discharge the jury on two separate occasions when requested to do so by counsel for the appellant.

The first application to discharge the jury

38. At the conclusion of the complainant’s examination in chief, counsel for the appellant made an application to the trial court to discharge the jury on the basis that the complainant made several references to the appellant having tried to kill her, where there was no charge of attempted murder on the indictment.

39. A first set of references occurred during evidence given by the complainant relating to the alleged offence of rape which was said to have occurred on the 12th of June 2019.

40. To recap the detail of this from the summary of evidence received at the trial already given, the jury had heard that the appellant essentially broke into the complainant’s home after they had had an argument, the complainant having entered the house and locked the door to exclude the appellant. The appellant, having somehow gained entry at the upstairs level, came down the stairs, punched the complainant, and held her face down on the floor until she stopped crying. He then ordered her upstairs, where he used a knife to shred a towel, bound her arms, knees and ankles, informed her that he was going to kill her and also threatened to kill her son. He untied her only after she had lost control of her bladder and urinated, and then forced her into the bath. Thereafter, the evidence was that there was no violence and sexual intercourse occurred.

41. Evidence in chief having been given by the complainant as to these matters, prosecuting counsel then asked her:

“Q. Why did you have sex with [the appellant]?

A. I didn't have a choice.

Q. And if you can just explain to the jury, why was that?

A. He had just attempted to kill me twice, I wasn't going to trigger or upset him or do anything.

Q. I see?

A. Anything against his wish.

Q. And if you had refused to have sex, did you have a view as to what might happen?

A. That it would start again.

Q. And when you say it would start again, I'm sorry, just --?

A. The abuse would start again. He would try to kill me again.

Q. I see. So, was that the reason that you had sex on that occasion?

A. Yes.”

42. The second set of references were in the context of testimony given by the complainant in relation to her alleged rape at the hands of the appellant on the 23rd of June 2019. Again, it will be recalled that the jury had heard that the appellant and complainant had been out drinking, that a stranger had bought the complainant a drink and that the appellant was angered by this which prompted a row to ensue. Later that evening when the pair returned to the complainant’s house, a Garda McCrossan attended following a phone call;

however, the complainant informed him that everything was fine and that she was just drunk. When she entered her home, the appellant threatened to smash her head in with a hammer if she did not inform him who had bought her the drink. He sprayed Mace around her head, and he poured her a glass of alcohol which he forced her to drink. Following this, they went up to the bedroom and engaged in sexual intercourse.

43. In her evidence, the complainant described that she submitted to this sexual intercourse because, “He had just threatened me with a hammer, he had tried to kill me previously, I wasn’t going to go against anything he said or wanted.”

44. When asked if she wanted to have sexual intercourse with the appellant, she replied:

“A. No

Q. Did you consent to have sex with him?

A. I never said no.

Q. So, you said that the reason you had sex again was?

A. Because he had just threatened me with a hammer. And tried to kill me previously.

Q. So, what, if anything, did you fear if you didn’t have sex with him?

1. I was scared to death of him, that he would kill me.”

45. The trial judge refused to discharge the jury ruling:

“I'm not going to discharge the jury and I think, more fundamentally, I accept the submission from the prosecution. not that your application was nonsensical, by the way, I perfectly understand the sense of it. The evidence is -- the evidence to which the Complainant refers is the evidence of what she described as being choked. That she wasn't able to breathe and the long-term effects, and that, that put her in fear.

And from her perspective, I accept it was her characterisation of what was happening to her, that as far as she was concerned, he had been trying, the accused had been trying to kill her. I think it's admissible, in fact, in those terms to reveal what her state of mind was and what her level of fear was. If I remember correctly, and I'll be corrected if I'm wrong about that, it arose in the context of her explaining why, amongst other things, she acquiesced in having sex on her account and that she did it because as far as she was concerned, he had earlier attempted to kill her. So, I actually think it's admissible in those terms as evidence the jury can adjudicate on to assess her state of mind as to her level of fear. So, I accept it is actually admissible in the terms in which it was put and I agree, it would not be appropriate to edit her evidence by asking her to use different language because her language reveals the level of fear that she says she was experiencing. What the jury will make of it is a matter entirely for themselves, and I can explain it to the jury or you can think of an appropriate form of words between you that I can use to explain to the jury, to make it perfectly clear he isn't, the accused is not charged with attempted murder, and they shouldn't consider in any way that that is something for them to adjudicate on. That that is only evidence admissible as to her state of mind, which is relevant to the issue as to why, on the prosecution case, she acquiesced to sex in circumstances where she was not in fact consenting. But we can discuss how that can be dealt with before the jury in due course. But I understand why you made the application, Mr [Surname]. I'm refusing it, obviously, for the reasons given and I think the evidence is admissible, in fact, in the terms in which it was given. Because it is her genuine state of mind that she is giving evidence of, whether or not the jury accept any of that is a matter entirely for them, of course.”

46. In written and oral submissions to this Court, the appellant submitted that the references to attempts to kill by the complainant in her evidence were prejudicial for the jury to hear. It was further submitted that this evidence ought to have been inadmissible as the offence of attempt to kill was not an offence on the indictment. Counsel for the appellant referred to People (DPP) v. Gierlowski [2021] IECA 13.

47. In replying submissions, counsel for the respondent identified that the complainant did not give evidence that she protested the sexual intercourse nor that she physically tried to fight off the appellant, but she stated that she was afraid of the appellant, and this was why she submitted to the sexual intercourse.

48. Counsel for the respondent argued that the complainant had to give evidence to the jury as to why she submitted to the sexual intercourse in the immediate aftermath of these events. The fact that she claimed to have been afraid and the asserted basis for her fear was, it was contended, relevant to the issue as to whether there had or had not been consensual sexual intercourse, and it was potentially probative. It was further contended that it would have been impossible to ask the complainant to sanitise in some way her description of why she submitted to the sexual intercourse, and thus the trial court judge was correct in deeming her evidence admissible and in not discharging the jury in this instance.

49. Counsel for the respondent made the further point that the jury would have been aware of the reason this evidence was before them, as they were properly instructed by the trial judge in the course of his charge concerning s. 9(2)(a) of the Criminal Law (Rape)

(Amendment) Act 1990 (“the Act of 1990”). That provides:

“9. (2) A person does not consent to a sexual act if –

(a) He or she permits the act to take place or submits to it because of the application of force to him or her or to some other person, or because of the threat of the application of force to him or her or to some other person, or because of a well-founded fear that force may be applied to him or her or to some other person.”

Counsel for the respondent further submitted that, in circumstances where s. 9(2)(a) of the Act of 1990 was potentially engaged, it was essential that the jury understood the state of mind of the complainant who did not appear to offer any resistance at the moment of sexual intercourse.

50. We were also asked to note that the trial judge further made it clear in his charge to the jury that they were not concerned with offences not on the issue paper.

Our decision re the refusal of the first application to discharge the jury

51. We fully uphold the decision of the trial judge not to discharge the jury following the first application to him to do so. He was correct not to do so. It is clear to us that the provisions of s. 9(2)(a) of the Act of 1990 were potentially engaged on the evidence which the jury had heard. The evidence in controversy was both relevant and potentially probative. The complainant’s evidence of believing that the appellant had made previous attempts to kill her, of being in fear on that account, and as to how she was affected by that fear, was all properly in the case and the jury were entitled to receive it and make of it what they would.

The second application to discharge the jury

52. A further application to discharge the jury was made by counsel for the appellant at the close of the prosecution’s closing speech. The appellant stated that the prosecution in its closing speech had suggested that the appellant was involved in, or going to be involved in, defrauding the complainant by sending photocopies of her bank card details to a third party.

53. It is appropriate to quote exactly what counsel for the prosecution said to the jury that is complained about. Prosecuting counsel said:

“And then you look at the current account and you'll see that money went in to the credit of that current account. You then see on her savings account, that on the same day €5,800 is put back, but it's put back in portions, 600, 200, 2,000, so it's put back bit by bit. I don't know if that is something to do with how much you can transfer from your current account in any go, but in any event, it goes back into her savings account. But going back to her personal account and I would remind you of the material you have showing what [the appellant] said on his Facebook -- by Facebook to a woman called [Ms. McN], well at least that's the name on the account, on the 13th, a day later, he sends to [Ms. McN] copies of all [the complainant’s] identity documents. He sends copies of her medical card, her driver's licence, her bank accounts and then, interestingly, there's one shot which you'll see halfway through, and it's an amount of money and it shows a balance in her current account at that moment of €5,327. So, €5,327. And I'd suggest to you if you look at her personal -- her current account, she had an overdraft of €388.07 starting that day. She gets the €5,740 in, but then out comes €24 to Donegal Waste. At some point during that day I'd suggest to you there was the sum of -- she was in credit to the sum of €5,327. It's not shown on this statement, but that is what happened as these transactions went through. How did [the appellant] manage to have a snapshot of that moment in time in her current account? He obviously had control of it at that time. He was able to take a snapshot, because he sent that snapshot on to whoever [Ms. McN] is. So he is in control of her bank account on that day. What was he doing? He was moving money from her savings account to her current account. But we all know what you can do with a current account. You've a bank card to go with it. I'm not going to go there, because he is not being tried for a single offence relating to what he might have been doing that for. I just point that out to you to show the control he had at that time of her money, of her bank account.”

54. Counsel for the appellant argued that this had been irredeemably prejudicial to him in circumstances where there were no charges of fraud or dishonest conduct before the jury, and that the jury should therefore be discharged.

55. The application was opposed by the prosecution, who argued that the evidence complained of was relevant and probative because it went to the issue of whether the prosecution had established knowing or persistent engagement by the appellant in behaviour that is controlling or coercive, which was an ingredient of the charge of coercive control, i.e., count no 12 on the indictment.

56. The trial judge ruled:

“JUDGE: In relation to discharging the jury, I don’t think that’s necessary I have to say, Mr [Surname]. I do think the prosecution made it clear the purpose for which that evidence was admitted into the case. If you want me to I’ll say something in my charge that he’s charged only with the offences that he is charged with and no other offences, and all the evidence in the case is there only on the prosecution evidence to support the charges that he is charged with. I can say something to that effect.”

57. In his submissions to this Court, counsel for the appellant has submitted that the reference to moving money from the complainant’s savings account to her current account and the comment “but we all know what you can do with a current account”, went beyond what the prosecution needed to establish. It was said to be highly inflammatory and invited the jury to speculate about and consider allegations that were not on the indictment. Its limited probative value was, it was suggested, significantly outweighed by the resulting prejudice to the appellant.

58. In reply, counsel for the respondent has submitted that the trial judge did not err in law or in fact in refusing to discharge the jury at this juncture, in circumstances where there was no basis to ground such an application and any reference by prosecuting counsel to specific behaviours of the appellant in the particular context of the offending and especially in light of the background of coercive control, were matters that were in evidence and were therefore matters that counsel was entitled to point out to the jury.

59. It was further submitted that where there existed a charge of coercive control on the indictment, surrounding supportive evidence in respect of how that control manifested in the relationship, including financial and emotional control, is evidence that the jury was entitled to consider and assess in determining the issue and therefore, the fact that such evidence was adduced during the trial and highlighted to the jury by prosecuting counsel at the close of the case for that expressly clear purpose constituted no error in law or in fact.

60. Counsel for the respondent disagreed with the assertion on behalf of the appellant that as there was no specific charge on the indictment that related to an offence of fraud or theft, there could be no reference in closing to the coercive and/or controlling financial behaviour that was adduced in evidence during the trial. It was submitted that the intention of the legislature in introducing the offence of coercive control was to capture within the criminal law in this jurisdiction the exact type of conduct exhibited by the appellant herein which included the exertion of financial control.

Our decision re the refusal of the second application to discharge the jury

61. We are satisfied that once again the trial judge was correct not to discharge the jury on this occasion. We have previously emphasised in People (DPP) v. Cawley and Da Silva [2015] IECA 100 that while a trial court always has jurisdiction to discharge a jury in the case of a truly egregious unfairness arising from remarks of counsel, a case justifying so extreme a measure will be rare indeed. This is not such a case. We consider that the circumstances of this case did not remotely approach what would have been necessary to justify such an intervention.

62. In that regard, we do not consider that there was in fact any unfairness in prosecuting counsel’s remarks. We ask rhetorically, how could it be inflammatory, and an invitation to the jury to speculate, in light of the prosecution’s case, to have said to the jury:

“What was he doing? He was moving money from her savings account to her current account. But we all know what you can do with a current account.

You've a bank card to go with it.”

We absolutely think not. There was clear evidence in the case that the complainant discovered on or about the 12th of July 2019 that money had been moved from her savings account to her current account. There was also evidence that later on the same date, while subjecting the complainant to a dreadful ordeal, the appellant had coercively demanded from the complainant, and had received, both her Bank card and her PIN number, with the appellant stating to her at the time, “This better be right, because I’ll be back and I will kill you.”. Later during the same incident, the appellant was overheard by the complainant talking to an associate on his mobile phone, and saying to that associate, “yeah, its okay, she’s letting me use her card”.

63. Jurors are entitled to bring their experience of life to bear on the assessment of evidence, and counsel was entitled to appeal to jurors’ experience of life. Bank ATM cards are ubiquitous today, and were similarly so in 2022 when this trial was held. The type of bank accounts with which Bank ATM cards may be used are also ubiquitously understood in modern Irish life. Counsel did no more than allude to that ubiquity and, in essence, was urging the jury to apply their common sense and experience of life in assessing whether this was evidence that supported the charge of coercive control. We do not consider that any line was crossed by counsel, and find no error in how the trial judge dealt with the issue. The trial judge was scrupulously fair and balanced in how he dealt with the matter.

Notwithstanding his view that a discharge of the jury was not merited (and we entirely agree with him), he nonetheless offered,

“If you want me to I’ll say something in my charge that he’s charged only with the offences that he is charged with and no other offences, and all the evidence in the case is there only on the prosecution evidence to support the charges that he is charged with. I can say something to that effect.”

This was, in our assessment, appropriate and should have been more than adequate to meet any residual concerns harboured by the appellant arising out of prosecuting counsel’s closing speech. However, defence counsel declined this offer, stating that he would deal with it himself in his speech to the jury.

64. In the circumstances, Ground of Appeal No 2 is dismissed.

Ground No 6 – Evidence Concerning the Impact of the Offending on the Complainant

65. The substance of this complaint is a contention that the evidence adduced by the respondent at trial to establish the nature of the effect that the appellant’s conduct had on the complainant fell outside the parameters of s. 39 of the Domestic Violence Act 2018.

66. Section 39 of the Domestic Violence Act 2018 records:

“39. (1) A person commits an offence where he or she knowingly and persistently engages in behaviour that—

(a) is controlling or coercive,

(b) has a serious effect on a relevant person, and

(c) a reasonable person would consider likely to have a serious effect on a relevant person.

(2) For the purposes of subsection (1), a person’s behaviour has a serious effect on a relevant person if the behaviour causes the relevant person—

(a) to fear that violence will be used against him or her, or

(b) serious alarm or distress that has a substantial adverse impact on his or her usual day-to-day activities.”

67. The issue unfolded on day 4 of the trial, as the complainant was coming towards the end of her evidence in chief. Prosecuting counsel asked her: “Q. And at this stage you've given evidence about your ‑‑ the fact that he could track where you were through your phone, you've given evidence that he deleted people from your Facebook, you've given evidence that he had gone into your bank account, and you've given evidence in relation to his taking out the NuvaRing and you've given evidence of the various times when he became aggressive and whatever else. And how did all of that make you feel …?”

68. At this point defence counsel interjected, and raised the following objection in the absence of the jury:

“DEFENCE COUNSEL: Effectively my friend has asked a very long question about how this witness felt after each and every single episode. The witness has already given that evidence of how she felt after each and every single episode. We've now reached a point where my client has been arrested, and she is aware my client has been arrested. So I say that she has already given this evidence, this is just a second playing or re‑visiting of the same evidence that's been given. And if one goes to page 39 of the book of evidence, it goes into what understandably, and it's not a criticism of the witness at all, but it goes into what I respectfully submit is the commencement of something more akin to a victim impact statement rather than evidence of guilt or innocence of an accused. Where she describes on the accused being arrested, that she had to change her looks, that she used to leave the bathroom door open when she had a shower, all this type of information, which is understandable. But I say it's not materially relevant to what the jury have to consider, and I would fear that evidence going into the court.

As for how the witness felt, the question has been framed in such a way as to, I respectfully submit, put in evidence more of a victim impact statement type, evidence rather than how she was feeling and she has already given the evidence, as she has presented in her evidence in the last two days, how she felt after each and every incident which she alleges. So I say this is immaterial and irrelevant evidence to what the jury have to decide now. This is more akin to victim impact statement material.”

69. The trial judge queried with defence counsel whether such evidence could be treated as admissible in circumstances where a charge of coercive control was included on the indictment, given the requirement on the prosecution in those circumstances to prove that the “cumulative effect of the coercive control had a serious effect on the complainant”.

70. Defence counsel responded as follows, and prompting the further exchanges set out below: “A serious effect. I say the evidence, the prima facie as presented, that is already there because the complainant has indicated that for instance, the last episode of sexual intercourse, she said she agreed to have sexual intercourse because of her fear, because of what had been done to her. She clearly said, I didn't say no to the sexual intercourse, I didn't, I didn't inform [the appellant] that I didn't want to have sexual intercourse. But she gave us her state of mind as to why she was having sexual intercourse.

That, I respectfully submit, was her state of mind because she was acting under a control, a coercive control as defined by the Act. And I say, the indictment stops on a particular date, how she is feeling after that date is significant for another ‑‑ another forum, should there be a conviction in this case. But not for now, they have to prove the coercion at the time and the effect of acts of ‑‑ alleged acts of violence or alleged acts of sexual violence in rape, the threats et cetera, that has commenced from the 11th of June until the ‑‑ I think it's the 17th of July. And that is all encompassed within the time frame as set out by the indictment. And I think to go into how she was feeling afterwards, things like, "He destroyed my life inside and out, I feel completely broken and I don't know how I'll get my life back together to be normal. He ruined everything, even financially." They are ‑‑

JUDGE: But is that not all evidence that it had a serious effect on her?

DEFENCE COUNSEL: Yes.

JUDGE: I mean I appreciate that the indictment ends on the 17th and that captures the conduct that is alleged to have given rise to the offence. But the effect on her can go beyond that, can't it.

DEFENCE COUNSEL: Well ‑‑

JUDGE: And I'm saying this conversationally, Mr [Surname], I want to know what your view is?

DEFENCE COUNSEL: Well, juries are everyday people and if they are such that they take credence in what the witness is saying, it's clear as day we can infer that this witness didn't walk off into the sunshine the day this 17th of July finished. That of course, anybody faced with such things, it would have a serious effect. But to go into, I mean that can be absolutely inferred from the evidence, I say that's already given, would this or did this have a serious effect on a person. But to go into each and every detail of what that effect is, I say is irrelevant for the considerations of the jury. JUDGE: I don't want to be a smart‑aleck, Mr [Surname], but if you're conceding that the jury will be entitled to draw the inference of the effect on her long‑term, then that means that evidence would be available to the jury. And why should the prosecution not be allowed to give direct evidence of it rather than rely on the inference?

DEFENCE COUNSEL: I suppose, the inference might be the wrong word. But it could be a conclusion they draw from the facts already given, without having to get into the nitty gritty of what I submit, and I've already said it, is more akin to a victim impact statement. The effect of the coercion as opposed to ‑‑

JUDGE: All right, I understand the point you're making.”

71. Prosecuting counsel opposed the application to exclude the evidence the subject matter of the objection, stating:

“Yes, Judge, in relation to each and every count on the indictment, apart from count 12, I would be in agreement with [Defence Counsel], of course. The impact of an offence on a victim is a matter for sentence and for victim impact statement. However, this is a new offence, which has as an essential ingredient proof that it had a serious effect on the complainant. It's an essential ingredient of the offence and the defence have been on notice since the book of evidence was served. Throughout the complainant's statements, she has indicated how she felt about the control of her life, how terrified she was, she couldn't go out with friends anymore. And it's ‑‑ I'd respectfully submit, Judge, I have to be able, I have to be permitted to adduce evidence of the impact on her, or I don't see how my case can succeed. And I'd perhaps disagree in a small way with [Defence Counsel] as to what the jury can infer in relation to the impact on a person.

I know that an essential ingredient of the offence is that a reasonable person would consider the behaviour likely to have a serious affect. But that's in addition to having a serious effect on her. And as the Court knows, people are built differently emotionally and a matter that has a serious impact on one person might not have on another person. And I think then with respect, Judge, that it's absolutely essential, the defence have been on notice that I elicit from the witness what the impact was on her and not leave it just for the jury to infer, thank you, Judge.”

72. The trial judge ruled:

“JUDGE: Thank you Mr [Surname]. Now, I think on the coercive control, and I agree entirely that ‑‑ with [Defence Counsel] in relation to all of the other offences it would amount to no more than victim impact evidence, which would be inadmissible in the trial obviously. But in respect of the coercive control, I'm satisfied that the prosecution are entitled to adduce evidence to establish the nature of any effect that the conduct taken together had or that the Complainant says had on her.”

73. Having so ruled, the trial judge further noted that the defence were on notice of the proposed evidence in the Book of Evidence, and he added that he did not propose to circumscribe how such evidence might be led.

74. In submissions to this Court, the appellant argued that as the offence of coercive control was not the only offence before the jury and by ruling that the complainant’s evidence in this regard was admissible, this may have had an impact in relation to the other charges before the jury against the appellant.

75. In reply counsel for the respondent has submitted that the impact of the offending on the complainant is an essential ingredient of the offence of coercive control. It was submitted that examples such as the appellant’s access to the complainant’s Facebook page, her Facebook messages and her bank account were put to the complainant in order to ask her what impact this had on her. The respondent outlined that it is difficult to understand how a jury could properly determine whether the elements of the offence of coercive control have been proven without there having been evidence of effect and adverse impact on the complainant. It was therefore submitted that there was nothing improper about this and instead, it was an essential proof, and it would have been remiss of the prosecution not to adduce that evidence.

Analysis & Decision in relation to Ground No 6

76. We are satisfied that such evidence as was led by the prosecution concerning the appellant’s alleged coercive controlling behaviour, including the full context in which it occurred, and the extent of the effects of it on the complainant, was entirely relevant, probative and necessary.

77. Further, and for the avoidance of doubt we do not accept that the evidence as to effects which was led exceeded what was required for the purposes of s. 39 of the Act of 2018.

78. The jury could not realistically be asked or expected to approach the appellant’s alleged offending in a blinkered or compartmentalised fashion in a case such as this. The jury had already heard the complainant’s allegations that she had been subjected to various other egregiously violatory behaviours and abuses at the hands of the appellant. Given the nature of those allegations, about which they had already heard in detail, it would not have been materially further prejudicial to the appellant for the jury to discover that the complainant was also saying that she had been seriously affected by the appellant’s alleged coercive controlling behaviour. The issue for them was whether the appellant was guilty or not guilty of each of the charges on the indictment. The evidence received by the jury as to serious effects suffered by the complainant arising from the appellants alleged coercive controlling behaviour specifically, would not have rendered it more likely that they would convict, other than in respect of the charge of coercive control where proof of serious effects is an ingredient of the offence that requires to be proven beyond reasonable doubt.

79. The offence of coercive control was not charged as a standalone offence, but rather as a charge amongst numerous others arising out of a continuum of events and dealings involving the complainant and this appellant. A crime cannot be viewed in isolation from its surrounding circumstances. Indeed, in the context of a charge of coercive control the controlling behaviour must be shown to have been “persistently” engaged in, and so will never comprise a single event or have occurred on a single date. Accordingly, the indictment in this case charged the coercive control as occurring between the 11th of June and the 17th of June 2019. The fact that other offences arising from the overall events and dealings between the parties, some of which were alleged to have also occurred on dates within those brackets, and some others within a few days subsequent to the 17th of June 2019, were also charged on the same indictment, was not a reason not to try everything together, or to exclude evidence relevant solely to the coercive control charge. It was absolutely proper and appropriate that these offences should all have been tried together, and in that regard we note that the defence did not seek a severance of the indictment. That there was alleged coercive control occurring concurrently with other offences was part of the background to those offences, and the fact that other offences were being committed concurrently, or temporally proximate, to the alleged coercive control was also part of the background to that offence.

80. Accordingly, we reiterate our belief that the evidence in question was properly admitted.

81. We are satisfied in the circumstances that the ruling by the trial judge rejecting the objection raised by the defence to the admissibility of such evidence was correct. Ground of Appeal No 6 is accordingly also dismissed.

Ground of Appeal No 3

82. This ground is based on a non-specific rolled up plea contending that the trial was unsatisfactory and the verdicts unsafe. Having rejected the specific complaints the subject matters of Grounds of Appeal No’s 2 and 6; there being no other specific complaints; and having had the opportunity to consider the transcript in detail in addressing such specific complaints as were made, we consider that the appellant’s trial was in fact satisfactory.

The trial judge exhibited scrupulous fairness, and his rulings were correct in law. We are therefore further satisfied that the verdicts are safe.

83. In the circumstances we reject Ground of Appeal No 3.

Conclusion

84. The appellant’s appeal against his convictions must be dismissed. ste Special >Unformatted Text