Court of Appeal dismisses appeal against rape convictions, upholding jury verdict as safe and not perverse.

An Chúirt Achomhairc

The Court of Appeal Bill number: CCDP0147/2022 Court of Appeal Record Number: 308/24 Neutral Citation No: [2025] IECA 287 Charleton J McDermott J Greally J

Between

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Respondent

AND

BM Accused/Appellant

Judgment of Court delivered by Mr Justice Charleton, Tuesday 16 December 2025

1. On the 15th day of trial, and after deliberations that included a second day, the Appellant, BM, was unanimously convicted by a jury on 17 counts of the rape of Ms A and on one count of sexual assault against her.

2. Ms A was 15 years old at the time of count 1, the sexual assault, and was 16 years old at the time of the remaining counts of rape, numbered 2, 4, 5, 6, 7, 8, 9, 10, 11, 17, 18, 19, 20, 21, 22, 23 and

24. The Appellant was her brother-in-law. From counts 1, except count 2, to 11 the location was the home of her sister and the Appellant in a substantial town. From counts 17 to 24, the location was a workshop nearby. Only count 2 had a descriptive location, being “at an unknown Bed & Breakfast in the vicinity of Mondello Park” and dated between 24 September and 27 September 1999. Count 1 was dated “between 1st July 1999 and the 31st July 1999”; counts 3 and onwards proceeded on the basis of weekly divisions from 1 June 2000 to 31 August 2000, up to count 17 where, with a change of location, there are further weekly divisions again from 1 June 2000 to 4 August 2000.

3. The allegations were first made in 2016, that is 16 years after that time, to the brother of Ms A and then reported to the Gardaí. The Appellant was arrested and questioned. Consistently, throughout all interviews and in the testimony at his trial his response was a complete denial that any sexual activity of any kind had occurred between him and Ms A. In his evidence, and in other defence evidence, her allegations were set as fantasy or deceit within a detailed context of a difficult and boundary-challenging adolescence.

Grounds of appeal

4. Nine grounds of appeal were pleaded in the notice of appeal, thus:

1. The trial judge erred in law and in fact in allowing evidence that was inadmissible;

2. The trial judge erred in law and in fact in allowing in evidence that was more prejudicial than probative;

3. The trial judge erred in law and in fact in allowing in evidence purportedly of the temper of the Appellant which was irrelevant and/or where its prejudicial effect outweighed any probative value;

4. The trial judge erred in law and in fact in failing to discharge the jury when such application was made by the Appellant;

5. The trial judge erred in law and in fact in failing to halt the trial at the end of the prosecution evidence in the case;

6. The trial judge erred in law and in fact in failing to halt the trial on the application being made that the delay had caused unfairness and prejudice to the Appellant and prevented him from a fair trial;

7. Further to 6, due to the passage of time a very important defence witness, was deceased by the time the prosecution was initiated;

8. The jury’s verdict was unsafe and unsatisfactory in all the circumstances, including that the dates on which the complainant alleged that the rapes occurred were in contradiction to the report that was produced in evidence, and her evidence put the alleged rapes beyond the dates as set out on the indictment; and

9. The jury's verdict was unsafe and unsatisfactory in all the circumstances having regard to the inconsistencies that arose by reference to the immediate aftermath of the holiday in Tunisia in which here was no evidence of sexual interaction after August 19, 2000 and yet it was contended by the complainant that sexual offending had occurred at certain locations at a time when certain renovations had been carried out but that the independent evidence established such renovations were effected at a time after the said holiday.

5. These grounds as argued essentially contracted to these three: that there was nothing warranting the prosecution to introduce evidence unrelated to the sexual violence charges consisting of testimony from Ms A that she was afraid of the Appellant, and that this infringed the rule that prior convictions or bad conduct should be excluded from any consideration by a jury unless expressly relevant to the charge or to rebut a defence otherwise open to an accused; that a passing reference to a holiday in Tunisia was a prejudicial to a fair trial and would have been construed by the jury as meaning that sexual violence had taken place while on holiday there in the year 2000, in a context where the trial judge had expressly ruled that no extra-territorial count was triable; and that the evidence of Ms A was so weak and contradictory that the trial judge was wrong to leave the case to the jury and should have directed an acquittal on all counts.

Allegations

6. This is how the evidence unfolded. Ms A’s sister and the Appellant had married several years prior to these contested events when Ms A was a child who took the role of flower girl at the wedding because she was much younger than her sister. She lived in a city but would visit the town and stay with her sibling and her husband, the Appellant, some 20 years older than Ms A, from time to time as she was progressing in adolescence. But, at trial, there was an issue as to whether her mother or other relative accompanied her when she was 14 or 15 years old. Her sister used have a regular night out and this became more important as the narrative of the offences progressed. In addition, there was a baby born to the couple in early 2000, which Ms A initially thought had happened the following year, though she corrected herself in testimony. The first count happened, she said, in the summer when she was 15, her birthday being in the autumn, while other counts occurred mainly in the summer of the following year when she was 16 except for the Mondello area count when in 1999 she would have just passed 16 years.

7. Chronologically, the pattern described by Ms A was one of grooming followed by sexual conduct which escalated into rape. A précis of her account is that naturally she visited the house to stay. There, from her teenage years, it seems from 14 or 15, the atmosphere was fraught with the Appellant and in particular his behaviour being so dominating so that she was in fear of him. Letters had to be hidden if there were bills or from accountants or banks etc, or he would blow up. These were put in a pillowcase in the spare room. As between the couple, there were arguments “quite a bit” about money and to calm matters her sister had her intercepting the post and hiding it:

“She was terrified.” The rows were allegations by the Appellant that his wife was spending too much money “and sometimes the arguments would be so bad that they’d be nitpicking at each other for days afterwards about the same argument.” While Ms A asserted not seeing any physical violence, there were signs of that. One was a hole in the door leading to the sitting room and the account given to Ms A by the Appellant was that his wife “swung at him one day with a highheeled shoe and she hit the door.”...So, [Ms A] kind of knew there was physical violence between them but [she] never saw it [herself].” While she did not feel threatened, she felt uncomfortable, “an unnerving feeling”, around the Appellant, whose mood “could flip”.

To others, the couple were “on their best behaviour”, as when they were out. When her sister went out for a regular social event, she stayed behind in the house with the Appellant. As time progressed, being interested, Ms A also started in the workshop business of the couple where she began learning mechanics. In 1998, the Appellant started saying “strange things”; talking about rape “it’s so commonplace” and asserting that family members had been raped, including a sister who had had a miscarriage. This made her “uncomfortable” and she wanted him “to shut up about it”.

As to the temper issue, she described three incidents. A vehicle had been attended to but was not running right: “I saw him take off the helmet and full force drove it into the ground, just smashed it onto the ground. I’d seen him throw things at the wall a few times, but that was the one violent one that really stood out, where he really really lost his temper, and there was a lot of shouting and everything after that.” The second incident involved a row with two people at the door, when suddenly there was a smash and when Ms A went out, there was “glass everywhere in the hall.” This was the panelling on the front door.

Then sitting in the kitchen, the Appellant started giving out about an apprentice which led to him taking a chair “and just drove it across the room and into the oven door” which was “bet into a V” and “little magnets on the oven door . . . just flew off.” She says this “absolutely terrified” her so that she “was frozen solid” and she was “really scared of him at that point.” Ms A also described an incident which was put in 1999, where her sister had to go to hospital with “broken ribs” from a row with the Appellant, which she did not see, but where she took a call from social services as her sister was not in the house.

8. Here, it is worth noting that all of this was denied in testimony by the Appellant and his wife, Ms A’s sister, and while furthermore the incident about the ribs was accepted as resulting from an assault but this was described by them as “bruising”. This was emphasised by the defence since a specific phone call had come to the house not in 1999 but on 12 April 2006 which Ms A answered.

9. A touching during horse play of Ms A’s breast was not charged. When she was 15, she and the Appellant shared a room on a trip with family somewhere near Skerries. In 1999, when Ms A was 15, Ms A’s account is of compliments being paid to her and that on one occasion, having insisted that “he was in love with me”, the Appellant came over to her as she was sitting on a chair, and put his hand into her underwear and a finger inside her. While she put her hands on his arm, she could not push him away; “I froze.” When Ms A turned 16, later that year, the Appellant was treated to a trip to Mondello Park, near Caragh Village in County Kildare. This turned out to be an escalation. There was further talk of “being in a relationship and being in love and all of that rubbish again.” Instead of Mondello, the Appellant was brought to a B&B where she “was afraid to say no, I was afraid to say anything...I’d seen how his temper was with inanimate objects; I’d heard of what he’d done to my sister, breaking her ribs. I was scared for her, if I didn’t do whatever he wanted, he’d go back [home] and basically put her in hospital again.” In the room Ms A’s clothes were taken off, she was pushed on the bed and intercourse took place. This was without consent: “I didn’t say anything to him but he should have known. I just...I was like a dead body. I just didn’t want to be there.” Into the next summer, Ms A received texts about love and relationship ideas but went back down to the home of the Appellant and his wife. There, further rapes took place. Asked why she did not resist: “The threat of what he would do to [my sister] and what he would do to me, because if he’d broken her ribs over a stupid argument over money, if he thought that I was going to go the Guards or go tell anyone I’d probably end up in worse than hospital.”

10. That summer of the year 2000, “about three or four times a week...sometimes in the house, sometimes in the [mechanical workshop]” the rapes continued: “I’d be like a dead body he was undressing. And he’d take off his own clothes either just from the waist down or all of his clothes, and he would do the same thing, he’d have to spread my legs and he’d rape me then.” These incidents took place in a bedroom, or in the workshop or on one occasion in the dead of night when Ms A went into the sitting room and there was porn on the television. One memory of the workshop was of “the carpet in that office; it was tatty, green, horrible thin carpet I used to lie on.” As to the new baby, born in 2000, there was a recollection of him in the cot on occasion.

11. There was then a family holiday in Tunisia. No charge arose on that though there was an allegation in the book of evidence but which was not testified to. After coming back, there was no further physical contact.

Defence case

12. The best source of the defence case is in the Appellant’s own evidence. Partly, that is because some of the allegations against Ms A, as the trial judge noted, were not put to her in accordance with the judgment in The People (DPP) v MS [2025] IESC 4. But, though this does not come within the exception that the defence does not have to ask a question that will supply a missing element in the prosecution case but should fairly put their case to witnesses, in reality this does not amount to much.

13. To reiterate: everything was denied save for the ribs incident which was accepted by everyone, it seems, as being later than remembered by Ms A from the phone call, by about 6 years and of a much milder encounter between husband and wife. Details were challenged, including that the Appellant’s wife would have been in and around the workshop because she was there full time working from early 1999. Hence, the sexual encounters there could not have been in privacy. The sketches drawn by Ms A as to layout were wrong. As to the incident of throwing the motorcycle helmet: “One, she wasn’t there, two, truthfully the motorcycle helmets I wear are very good and very expensive. I have too much respect for a motorcycle helmet of that standard to throw it on the floor.” Concerning two incidents, the chair, here described in the question of counsel as a stool, chucked into the oven and the smashed glass in the front door: “Yes, well no that didn’t happen and she wasn’t there in 1998, so she couldn’t have seen it...Oh, it didn’t happen no.” As to financial problems and resulting rows in 1997 and 1998: “No. There was no financial trouble at that time. We’d only just started the business, we weren’t even there long enough to have been getting returns from an accountant or tax bills. No returns had actually been done as yet. [My wife] was working full-time so her wages kept us going and I had redundancy from a factory that I was using to set up the business so no, there was no financial difficulty at that time, no.” The stiletto heel making a hole in a wall was dismissed as not happening.

14. Moving to the strange talk directed at Ms A as to rape and that offence being common: “Yes, well, that’s grossly upsetting. I read that and I never spoke to her about anything like that. I mean that’s...I’m sorry, that’s just a little disgusting. I’m hurt a bit. I never spoke to her about anything like that.” Furthermore, Ms A was not a solo visitor at that time but stayed alone in the house only from July 1999 after a particular motor race. That time, as an extended family they stayed with relations in Dublin city. Other times, there were trips to other motor events, to Kells, to Londonderry, and the pressure to include Ms A came from her and her parents, motivated by her being a difficult adolescent. There had been sharing of an overnight room, but because of booking pressure and that information was open to the extended family. The behaviour of Ms A was difficult and, specifically in the context of an allegation of brushing against her breast: “Where that comes is a point in time, but it would have been around 2000 or later, she was always jostling and pinching and poking and just jostling around that we didn’t participate with but one time she was doing this and she did say to me a couple of days later that in jostling around that I had brushed off her breast and she liked it. I said “[Ms A] I didn’t” I said “don’t be saying those things because you know I didn’t.” The Appellant recalled his wife intervening.

15. A trip to Mondello was taken, but in 2000, not 1999 and this was because of continual pressure from the extended family to effectively take Ms A under their wing; nothing untoward happened and it was a day trip. Texting love messages was addressed: “I didn’t have a mobile phone at the that time. So, I couldn’t have texted. I’m not a texter anyway. I will be truthful, my spelling is pretty brutal, I wouldn’t be a texter anyway but, no, I was not texting. I didn’t have a mobile phone. So, I would have to text on [my wife’s] phone which she rings and sees anyway, you know what I mean.” Both the Appellant and his wife tried to help Ms A find her feet. There was little success with a course on ancient Egypt, abandoned in UCC after a few days and work in an appliance company that was similarly unsuccessful. At that time, the death of a young person much affected the wider family. Significant also was that the sketch maps produced by Ms A which were missing vital features, such as the baby’s cot.

16. The death affected the opportunity for the commission of any rape since the Appellant’s wife since social events were avoided. Such as there were, Ms A used to accompany the Appellant’s wife and his job was babysitting. As to the allegation of a series of rapes from July to August 2000 in the house and in the workshop: “Well, they just didn’t happen. I didn’t do it” About the middle of the night incident in the sitting room with porn on the television: “That did not happen. Just, well one I don’t have pornography and I’m not into pornography. I wasn’t watching pornography ever. The house, if for argument’s sake it was true, [the baby] was a small baby at that point in time. [My wife] would have been up during the course of the night giving him feeds...It didn’t happen.” As to the workshop encounters: “I never asked her to come up to the shop late in the evenings. And that particular year I wasn’t going to the shop late in the evening.”

18. In addition, the conduct of Ms A was impugned. There was talk about periods from her; a question as to what it was like “to have a dick, she said”; asking the Appellant did he “want a blow job”, necessitating an intervention from his wife; a bout of crying behaviour followed by a suicide note; and a spat at Christmas 2000. Later, in September 2001, Ms A alleged she had been raped in Kilkee, a holiday village in County Clare. Generally, the picture was that Ms A was wild and that her family wanted a steadying influence, which they saw in the Appellant and his wife. In so far as Ms A had claimed that her sister, the Appellant’s wife, had intuited that there was an inappropriate relationship going on, or perhaps that matters were heading in that direction, there was no question of her sister telling her to pack her bags and go home; rather, the couple were accommodating and any comings and goings were dictated by family pressures. The allegations had come as a total shock and the Appellant had given an interview to Gardaí.

19. Other witnesses were called for the defence. These included the Appellant’s wife who confirmed the essential elements of what he had said, in so far as she knew. She emphasised that despite what Ms A had alleged, she was the one “begging to come down.” Further, the idea put across was that if this had happened in 1999 to 2000, there was contact after that with Ms A of an ordinary extended family kind. There was also a mechanic who worked in the business who said he did not see Ms A around the premises. Similar evidence about more presence of Ms A but from 2005 was given. Similarly, the wildness of Ms A was emphasised, the idea being that this was not reliable evidence as to sexual violence as an underlying implication.

Misconduct apart from that charged

20. Evidence which is relevant to a charge is admissible unless some rule of law prevents its consideration. When evidence is relevant, it is thus generally admissible. A piece of evidence is relevant if a consideration of that evidence, either alone or in combination with other evidence, either advances or undermines the proof of a fact in issue in a trial. As every case proceeds on different facts, to demonstrate relevance it is necessary to identify what the building blocks of the prosecution case is and also to take account of any stated defence from the accused. The latter can come either in the form of the attitude to witnesses demonstrated at the trial in the form of questions by way of denial or the putting of any alternative scenario or, as in this case, through the accused having been interviewed and having stated what his defence was. Facts in issue in a trial must have their basis in the elements of what the accused is charged with. Hence, in sexual assault, the prosecution must prove: that the accused intentionally assaulted the victim, meaning that the accused touched the victim purposely; that the assault, or the assault and the circumstances accompanying the assault, are proved to be indecent, which is an objective finding according to the contemporary standards of right-thinking people; and that the accused’s purpose was to assault in these indecent circumstances; The People (DPP) v FN [2022] IESC 22, [2023] 3 IR 38, [2022] 1 ILRM 279. There cannot be an assault unless the person touched did not consent; leaving aside the incapacity of children under 15 to consent to indecent touching. Similarly, the elements of rape are of penetration of the victim’s vagina by the accused’s penis; where the victim did not consent; and where the accused knows of that absence of consent or is reckless as to whether the victim did or did not consent. While s 48 of the Criminal Law (Sexual Offences) Act 2017 consolidates some aspects of what constitutes consent, at the time of these offences it was, and remains, the law that consent is giving of permission to the person accused for sexual contact, or in the case of rape, sexual intercourse, to take place. Most usually that is through active permission and participation in the acts in issue.

21. Consent is the almost invariable focus of rape and sexual assault cases. Notwithstanding that, the prosecution must still prove both lack of consent and the other elements of touching in sexual circumstances for sexual assault or penetration for rape. Here, the defence was a complete denial that any sexual congress of any kind happened between Ms A and the Appellant. There was assertion and denial. Notwithstanding, the prosecution had to prove the actions and the absence of consent. Hence, the building blocks of the case that emerge on a complete reading of the transcript were of Ms A being the unwilling recipient of the sexual attentions of the Appellant, in various locations, without the knowledge of her sister, the Appellant’s wife, or latterly arousing some suspicion, which occurred because of Ms A’s fear of the Appellant and his personality and temper which led to her submitting to him unwillingly; but that this narrative should not be accepted as the truth is because, on the defence case, there was never any sexual contact between Ms A and the Appellant and, furthermore, her explanation of submission due to menace is completely inaccurate as is a significant element as to fractured ribs proven to be six years out of kilter with the reality, and in a context where her wild adolescence led to the expression of inappropriate sexual fantasy. Hence, it is this narrative and counter-narrative together with the over-riding obligation on the prosecution to prove the elements of the charges beyond reasonable doubt that define the facts in issue.

22. In every civil and criminal trial there are passages of evidence which ultimately prove irrelevant or beside the point. Focus on the essential elements in a case and the concentration of minds towards central issues assists a just result. While parties strive for relevance, they may be misplaced by emotion as to what furthers or undermines a case, or take a piece of evidence as having major significance when, in the final analysis, it is of little or no weight in arriving at a decision. Hence, litigation is a process of refining down evidence to what weighs most logically in arriving at a

decision. What is to be avoided, however, is shying away from what is relevant, and hence probative, of a fact in issue and segueing into a decision based on prejudice.

23. In contrast to a decision based on relevance, prejudice is the emotional assumption that a

decision must be made because of some characteristics of an accused that invite a hostile

conclusion because of factors irrelevant to a just conclusion. Obviously, that an accused is from a minority group or religion may excite prejudice; or that in the past he or she has committed other criminal offences and that, consequently, that demonstrates disposition whereby proof of the commission of the offences being tried becomes more likely. Fundamentally, it is a fallacy, subject to the emergence of over-riding relevance, that because A murdered B a decade previously but obtained early release from a life sentence, that on being charged with the recent murder of C that guilt is proven or furthered. Similarly, a serial shoplifter is entitled, notwithstanding hundreds of convictions, to be tried with her or his record never being put before the jury, or in a summary case the judge. It does not follow from prior ill-conduct, that a charge is proven.

24. Hence, the companion rule to the principle that evidence should be relevant is that where evidence is relevant but takes on a momentum of prejudice, that even though relevant, evidence may be excluded where its prejudicial effect outweighs its relevance. This is a balancing exercise by the trial judge. Conscious that relevant evidence should not be excluded, the judge assesses whether on hearing that evidence there is a real danger that the jury will decide the case based not on an objective weighing of the elements of relevant testimony but rather will proceed to conviction due to hostile emotion.

25. Going back into a century of case law, it emerges that even knowledge that in the past the accused has committed other offences may be relevant if it negatives a defence, such as accidental death; R v Smith (1915) 11 Cr App R 229, Makin v AG for New South Wales [1894] AC 57. That kind of evidence may also establish a pattern of conduct which points to the identification of the offender or may establish such common elements as logically promote proof; DPP v P [1991] 3 All ER 337, [1991] 2 AC 447, [1991] 3 WLR 161. Furthermore, it can be relevant that some aspect of prior conduct or training narrows the potential field of suspects towards the accused even though this necessitates the revelation that in the past the accused was imprisoned. Hence, in The People (AG) v Kirwan [1943] IR 279 it was correct to reveal that the accused had learned butchery in prison because the corpse of the victim in that murder case had been dismembered with professional skill. Had the accused been a surgeon, the result would have been the same, save that the study of medicine is creditable. It was because of the probative force of that fact that evidence becomes relevant; simply put, a jury would not acquit because they like doctors and nor would they unjustly convict because the especial relevance of the skill of the former prisoner is so germane to their consideration that prejudice fades into insignificance. No doubt a trial judge will explain this. The possible danger being the misconstruction of the purpose of evidence. So, an instruction is needed. And that is exactly what the trial judge did here.

26. The Appellant accepted in testimony that he had assaulted his wife and caused some bruising. In consequence, it was put to Ms A, and accepted by her, that some kind of social worker call had come to their home when she was there because her sister was in hospital or being checked out in hospital. Much was made of this by the defence since the call could, apparently, be dated to 12 April 2006, and not six years earlier as an assurance of the validity of Ms A’s fear of the Appellant.

27. Here, it is necessary to return to the objection made to the evidence as to the helmet, the oven door, the hall door, the hole or indentation in the wall, the temper and the bills, but not to the most serious matter which could be a criminal offence, namely that the Appellant’s wife had to go to hospital in consequence of what the Appellant described as “bruised” ribs consequent on some “pushing and shoving”.

28. The evidence was relevant. It was also essential to the case that the prosecution were making. The denial, particularly by Ms A accepting that on the social work phone call over the ribs, whether bruised or fractured, was also germane to the defence case that Ms A was both unreliable and more as to the essential narrative. Essential to the proof of rape, whether denied that anything happened or not, is that there was no consent and that the accused had proceeded notwithstanding realising just that. Hence, the narrative for the jury was of fear, of bullying, of temper, of concern by Ms A for her sister, the Appellant’s wife. In this context, that explained, and it was for the jury to assess the degree of credibility such evidence might have, how Ms A resisted on count 1 by trying to push the Appellant’s arm away from intimate touching, how she was frozen, as she put it, as to the Mondello B&B incident and as to how the continual acts of sexual intercourse through the summer of 2000 were ones to which she did not consent but felt she could not physically resist. Without that narrative, there was no explanation as to how any of this happened. Furthermore, while the bruised ribs and social work call was emphasised by the defence as a paradigm of asserted unreliability, but the fact that it had not happened then could have undermined the credibility of Ms A, her having no reason to submit would have utterly shorn the case of an essential building block. And this is apparent from the judge’s charge to the jury as to the mental element of rape:

So exactly the same thing arises in relation to rape charges. The act has to take place. Part of that act is the lack of consent on [Ms A’s] part and [the Accused] at the time must have known she was not consenting or was reckless. So, that means his act, his mind is working with him at the same time in relation to that act. So, either he knows that she is not consenting in all of the circumstances, and knowledge is what it means or what it says on the tin. Recklessness is a legal concept and what that means is that at the time of the act, the penetrative act, it occurred to him that she was not truly consenting and he pressed on regardless.

So, it involves certainly a serious and an unjustifiable risk but the risk is that there's a possibility that [Ms A] was not actually consenting and that possibility had occurred to him and he presses on regardless. So, the important feature of that is in his mind he must have acknowledged the risk that she was not consenting and in spite of that he continues.

So it's a conscious thought that passes through his mind at the time. And if he has had that conscious thought that there is a risk, that there is a risk that there's a possibility she is not consenting, he acts recklessly. So, again that has to be proven to a standard of proof beyond reasonable doubt. Now, in this case the battle lines are on the basis that none of the sexual activity took place on [the Accused’s] account, on the prosecution's case they say it did, and they say to you that they can satisfy you, not only that it did, but that she wasn't consenting in terms of her evidence that she gave to you and that at the time he must have known or was reckless because of her age, her demeanour at the time and all of the circumstances.

29. The trial judge addressed this issue in her charge to the jury in an exemplary way:

Now, the final direction or warning that I have to give you is an important one and that relates to the evidence of temper and assault that you've heard about in the case and [counsel for the prosecution] did touch upon this and rightly so. So it requires a specific warning and hopefully I'll be able to explain it. On the prosecution case [the Accused] loses his temper which manifests itself in shouting, throwing inanimate objects, hitting [the Accused’s wife] and you have received that evidence. So, having received that evidence, you must not engage in what we would call flawed and impermissible reasoning. So, you must not allow yourself to think that just because, if you are satisfied that he lost his temper, hit [the Accused’s wife], would throw inanimate objects on the ground, if you are satisfied of that to a standard of proof beyond a reasonable doubt, so that's the first thing, you can't say to yourselves well because he did those things, he is the type of person who will rape.

Okay. That can't happen. If it happens, take it out of your head and throw it away. Get it into the dustbin, the mental dustbin. That is entirely flawed and impermissible reasoning and again I'll just maybe try and give you an example that will make it easier to understand why that reasoning is so impermissible. If you were in a different case in a lower court and you heard about a robbery in 2024 and the prosecution said that they're going to call a garda who is going to tell you that the man who allegedly committed the robbery hit someone 40 years ago when he was a kid and he has a minor assault conviction against him.

So, why would they be doing that? It had nothing whatsoever got to do with the robbery. It's to throw mud to try and suggest that he is the type of person who commits criminal acts and you can't engage in that type of processing and the DPP is not allowed to ask you to engage in that type of processing. So, you have received that evidence but just to be very careful, and we trust you to be very careful in only using that evidence for the purpose that it was intended to be used for. So, the prosecution say to you that that evidence is relevant to other issues in the case.

Okay. And that is on their case [Ms A’s] perception at the time of the rapes, and at the time of the alleged rapes, and in the aftermath in circumstances where she didn't tell anyone and her perception was one, on her account on the prosecution case, of fear. So that's why it's relevant. That's why that evidence is relevant. And the prosecution are trying to say to you that these incidents, to which you have evidence, are descriptive of the environment that she was living in at the time and show effectively the true relationship between the parties.

So not just [Ms A] and [the Accused] but [the Accused] and [the Accused’s wife] and [the Accused’s wife] and [Ms A] and if that information about the temper and the assaults was kept out of the case it would make it incomplete and difficult to understand her evidence. So, that's why it's been brought into the case, to understand, on the prosecution case, and I do specify that, the true relationship between the parties. So, in order to take the various matters into account for that purpose, you have to look at them all individually, you have to look what the defence says about each of those issues individually and the first thing is you have to satisfy yourself that each of those strands individually have been proven to a standard of proof beyond reasonable doubt.

That's the first step. So, the prosecution rely upon tempers. The defence say that at the time, at the relevant time, [the Accused] didn't have a problem with anger levels and you have to determine, on the evidence that you received, are you satisfied at the relevant time that there was a history of tempers to a standard of proof beyond reasonable doubt.

The second thing you have to be asked to consider in the context of the strands on this issue is the purported tension over money and what might be called sort of a tense environment and [Ms A] being asked to hide the bills. The defence case is that never happened. So again you have to satisfy yourself of that strand to a standard of proof beyond reasonable doubt before you can rely upon it for the purpose upon which it was given to you which is to show the relationship between the parties.

Similarly, and I'm going to go through each of them and each of them involves that process of getting to the standard of proof beyond reasonable doubt, the knowledge that [Ms A] says she had about the hole caused by the shoe and the other evidence about that I think comes from her brother and again the defence case is that never happened. [Ms A] says that [the Accused’s wife] told her about being hit and also she told about the helmet issue, that's the inanimate object I'm referring to, and the defence case is again that never happened.

The next strand is the glass door or cooker incident. The defence case is that never happened and the evidence that suggests that it did is from [Ms A] herself and [Ms A’s brother]. Now, in circumstances where the defence case is that it never happened, they can't say much about the timing but when you go back to that Oglesby principle and you ask yourselves is the defence case true? Is there a reasonable possibility that it's true? And even if you don't find with the defence, you still have to satisfy yourselves to a standard of proof beyond reasonable doubt of the prosecution version. So, this is a kind of example of that. So, bearing in mind that the defence say it never happened, but also looking at the prosecution case, are you satisfied that [Ms A] was there when this happened and the defence say to you, well, [Ms A’s brother] said it could have been 2005 and [the Accused’s son] was there, the prosecution say well look this is how memory works, the peripheral detail goes but the event occurred. So, you have to tease all of that out yourselves again in assessing what she says is true to a standard of proof beyond reasonable doubt.

The supportive evidence in relation to the issue of temper, as [counsel for the defence], and indeed both [counsel for the prosecution] referred to, is the evidence of [Ms A’s mother] and the argument with the person doing the hedges. And [Ms A’s sister] who gave evidence of being down in the house one night with her husband and [the Accused’s wife] telling her that [the Accused] had hit her. The defence say that never happened and [counsel for the prosecution] says in fact that account is consistent with what [the Accused’s wife] told social services in 2004 that there had been an earlier event. Now, all of that is being put to you to consider the issue of the true relationship between the parties, not propensity.

There is a slightly different way in which you are being asked to look at the ribs issue and that I'm going to deal with individually. So, [Ms A], in her evidence in chief indicated that the rib issue was in her mind --was one of the matters in her mind at the time of the rapes and the aftermath that led partially to her fear of [the Accused] and how he presented. So the defence brought to her attention the document in 2004 that -sorry, the document from 2006 that suggests that, from social services, that this event was 2004. So, she effectively accepted that the ribs event occurred after the rapes.

She said that that was her mistake in putting it into the mix in terms of what led to her perception. -She accepted to [counsel for the defence] that she didn't realise she had put it in before it happened but still said that she had reason to be scared of him with reference to the other issues. But what is important is that that doesn't now, because of that concession and because of the crossexamination, inform her mind at the time of the rapes. So again we have to look at the reason why you are getting that evidence or got it rather. Againthe prosecution reason for you relying upon that evidence they say is that it is still relevant to the state of the relationship of [the Accused’s wife] and [the Accused].

The prosecution case is that that event in 2004 could not have been a once off and again asks you to infer, and remember the difference between inference and speculation, that the relationship must have been fraught in the years prior to that event. Thus, consistent with [Ms A’s] account. And to hold that view you'd have to take the view, this is my view on it, that that 2004 event is sufficiently proximate to the time frame that [Ms A] refers to. So, that's one reason why the prosecution say you can take it into account, i.e. that it is relevant to the relationship of [the Accused’s wife] and [the Accused] , even prior to that event as it would not have been, on the prosecution case, a once off. [counsel for the prosecution] also says that it is relevant to the issue of temper generally, that it is suggestive of a person with temper consistent with what [Ms A] says and again the defence come to you on the other side of it and that they say on the defence case this was a once off and it must be viewed at in light of the evidence from the defence from their witnesses but ultimately in light of what [the Accused’s wife] said, and [the Accused], that they were together for 37 years, that they were both embarrassed and ashamed by these events and that they have moved on and remained together.

The third reason why [counsel for the prosecution] says the rib incident is important, again not for propensity, but, and actually not even the assault itself really, but the documentation from social services and the gardaí were put to [the Accused’s wife] and he says that the results of that cross-examinationis important to the prosecution in assessing [the Accused’s wife’s] credibility. So, three reasons; relevant to the state of the relationship of [the Accused’s wife] and [the Accused], relevant to the issue of temper, relevant to the issue of [the Accused’s wife’s] credibility. They're the reasons you have that.

So, I know I am repeating myself but it is so important. The first thing when you rely upon or seek to rely upon any of those strands, you have to be satisfied that they're proven to a standard of proof beyond a reasonable doubt and, if you are, you look at them through the lens of the purpose for which you have received that evidence, whether it be [Ms A’s] state of mind, the true relationship between the parties or [the Accused’s wife’s] credibility, it is critical that you do not say to yourselves because he had a bad temper, because he went into rages, if you do so find that, you are not entitled to take the view that he is somebody who would be the type to commit a rape. So, please don't engage in that reasoning.

30. This ground of appeal has no merit.

Granting a direction

31. Under Article 38 of the Constitution, jury trial is the mandatory mode for serious offences. This informs, but does not change the test for when the judge in a criminal trial should withdraw any charge from the consideration of the jury. That may happen where: 1) there is no evidence to support a charge, as for example where absence of consent is testified to expressly or by inference on a rape count, or there is no evidence of the accused being aware of that absence of consent; 2) evidence is in such a state on an essential building block of the prosecution case that reliance has been so undermined that no reasonable jury could convict; 3) and most exceptionally, where there has been such a demonstration of the unreliability or deceit of a witness that, again, despite there ostensibly being formal proof on a charge, no reasonable jury could safely rely on that evidence; The People (DPP) v Buckley [2007] IEHC 150; 3 IR 745 [14], The People (DPP) v Leacy (3 July 2002, unreported, Court of Criminal Appeal) 6-7, The People (DPP) v M [2015] IECA 65.

32. That was not so here. There was definite evidence of submission, of sexual intercourse, of touching and from inference and express evidence of lack of consent and consequent awareness. The trial judge fully analysed this and her conclusion cannot be faulted:

So, it is undoubtedly the case that the defence seek to rely upon leg 2 of Galbraith and in their silence I think it can be accepted that leg 1 does not arise in circumstances where the essential ingredients of each of the offences that there is evidence before the jury to that effect. In relation to leg 2 it is obviously the case that the threshold is high and before I deal with the actual evidence itself, I just wish to refer to one paragraph of Mr McGrath's book because it sets out effectively the ruling that this court made in relation to the issue of the bad character or misconduct evidence as referred to in Limen and Mr McGrath again at paragraph 19 says that, "The exclusionary rule..." that is the exclusion of bad character evidence of the accused- "...is subject to four exceptions. The first is where the bad character of the accused is actually in issue in the case because it forms an ingredient of an offence or is a necessary proof in a case. The second is where the defence puts the character of the accused in issue by calling or eliciting evidence of his or her good character." Now, that is by and large consistent with the judgment of Limen and I have already indicated that the evidence of misconduct was relevant to an issue in this case and the issue in the case was the mindset of the complainant and in that regard evidence of temper, violence, aggression, verbal or otherwise has become relevant in the case in understanding her perception.-

So, in that regard where is the evidence of the fear that she alleged that she had in circumstances where it becomes relevant for a number of reasons; (1) her mindset at the time of the allegations themselves, (2) her view in relation to whether or not she could report the incidents and (3) her view in relation to how her sister...would perceive her complaint.

So, in relation to her perception, she said clearly that she did not fight or say no because she was afraid of the accused, afraid for herself and her sister. The reason for that fear is identified by her in relation to a number of matters that she considered relevant. Tension in the house, shouting, arguments over bills. Those matters are still very much in this case and must be viewed from the point of view or that tension, perhaps it might be fair to say, even toxicity in the house must be viewed from the point of view of a young teenager, a guest in the house. She said in her evidence that he was always angry. He had a very short temper. There were two or three arguments per week that involved raised voices and she had to hide bills to prevent those arguments. It was put to her that she did no such thing.

She also indicated that [the Accused’s wife] had told her that he was violent with her before and she separately said that she knew he had been violent to [the Accused’s wife] before.

So, there is two extracts from the transcript on day 4 that refer to that issue.

In addition to those two matters, (A) the atmosphere or the environment that she was living in, (B) the information from [the Accused’s wife], she also referred to what I'll call the helmet incident and that is still most certainly in the case. In relation to the ribs incident she concedes that she may have conflated the two by putting one before the other and this again is from the transcript on day 4 in circumstances where she accepts there was only one phone call with social services and that is 2006. In relation to the cooker event, stool or glass event, however you want to classify it, the defence said that it definitively happened in 2005. I am not so sure the evidence is that clear and definitive. [Ms A’s brother] says that [the Accused’s son] would have been there. He says that [Ms A] was not. Of course from that there is a conclusion that the jury can reach that [Ms A] was in fact not there and thus whatever she was referring to in this regard is effectively coming from somebody else. But the jury would also have to consider the manner in which he gave his evidence in circumstances where he gave little enough peripheral detail in terms of who was present. He effectively indicated that he had no recollection of [Ms A] ever going there and the jury will be invited to consider how memories work. Could peripheral detail have fallen away? And again it is notable that the accused in relation to this incident, as the other incidents except perhaps the rib one which is classified as being an unfortunate incident or words to that effect, the accused indicated that the cooker event never occurred. So, I am not entirely sure that it is as clear cut as the defence suggest but even if the defence are correct that the cooker event and the rub event must postdate the allegations with the rape, fear is still very much a live issue, even if those two incidents postdate the rapes.

There has been evidence in the case given by others, either supportive of [Ms A’s] perception with regard to the matters that she spoke to or indeed the behaviour that she specifically recalls, and there is also evidence from other witnesses, not directly related to the incidents that she recalls but is supportive of her account and the view she formed generally in relation to the manner in which the accused behaved.

The second issue is that, in this regard, that those accounts from others rebuts what the Court and the prosecution expect [the wife of the accused’s] assertion to be that no one was ever afraid of her husband. So, in that regard, and in relation to the supportive evidence, either in relation to specific incidents referred to by [Ms A] or matters that were not specifically referred to her but speak to her general view of the accused, [Ms A’s sister] recalls him hitting [the Accused’s wife]. She also recalls him shouting at [Ms A’s mother]. [Ms A’s brother], I'm summarising it, effectively gives a sort of a Jekyll and Hyde type explanation of demeanour in relation to the manner in which he would shout and the cooker incident and he also accepted that in his statement which he said was correct that the accused shouted at [the workshop employee] or [the Accused’s wife]...,The mother of [Ms A] and [Ms A's sister], spoke about a roaring and shouting incident when hedging wasn't picked up and, as I have already indicated, [Ms A’s sister] spoke about her mother being shouted at when they went to collect [Ms A].

So, all of that information is relevant, both to [Ms A’s] state of mind at the time of the incidents and afterwards. As I have said again, and I am repeating myself, it's supportive of her view in relation to the fear that she had of the accused and is also relevant in circumstances where it is anticipated that evidence will be given by [the Accused’s wife] suggestive of her husband being a good man, no one was ever afraid of him and he never displayed any violence. Now, fear can arise from aggression or a violent demeanour, words and how they're spoken and of course acts of violence. It is perhaps also worth mentioning, as [counsel for the prosecution] did yesterday, that there are certain matters in the interviews of the accused that are not corroborative of [Ms A’s] account but are supportive;

a trip to Mondello, whether it be on the occasion of her 16th birthday or not, there was a trip to Mondello where he accepts he took her. There is an overnight stay in a hotel, different locations referred to by the accused and [Ms A] but an overnight stay in a hotel.

Phone communication between the two. And a discussion about breasts. In relation to other witnesses in the case, both [Ms A’s mother] and [Ms A’s sister] made it clear, whether it be Halloween or Christmas, that [Ms A] wanted to come home and did. [Ms A’s mother] indicated that the accused did not want her to go home and also they provided evidence that [the Accused’s wife] would call looking for [Ms A] to go down but [Ms A] didn't want to.

So the evidence, as I said, is of temper, short temper, short fuse, various incidents occurring, is most certainly an issue in this case and potentially relevant in a very meaningful way to the prosecution case and indeed to [Ms A’s] account. The jury will be told undoubtedly that they have received that evidence, whether they wish -whether it is misconduct or bad character evidence, they will be told in the clearest possible terms that they cannot consider that evidence for the purposes of the flawed reasoning determining effectively that because the accused has a short temper, if they find that to be the case, or aggressive tendencies, if they find that to be the case, that they cannot engage in the flawed reasoning of considering him to be a bad person, thus he committed the rapes. In other words cannot consider the issue of propensity to commit rapes because of that evidence.

Limen as I said makes it clear that it has to be relevant to the issue in the case and in that sense a jury can take it into account if they feel that it is proven to a standard of proof beyond reasonable doubt and the issue in this case is that, for a multiplicity of reasons, not just the stool and the rib issue, [Ms A] was, on her account, afraid. Witnesses can support her in her view of the accused. They may have seen different events but their evidence is adduced to support her in her assertion that she was afraid and that the accused had a bad and short temper. They witnessed it and they rebut effectively then what is anticipated [the Accused’s wife] will say. So, in those circumstances where it may well be the case that the jury will find two of the incidents referred to in the overall context of her evidence may have postdated the rapes, that to me does not in any way cause a manifest unfairness. It does not in any way render [Ms A’s] account incoherent. It does not provide a foundation to suggest that her evidence is incapable of belief or is inherently unreliable. There are clearly issues of fact that have to be resolved by this jury in relation to credibility, in relation to memory, in relation to reliability and those issues are undoubtedly matters for the jury.

They are not matters for me and I have no difficulty in holding against the defence in relation to this application. Each of the counts will go to the jury.

33. This approach fully accords with the principles set out in the decided cases and constitutes a fair analysis as to why the case as to proof of guilt had to be left to the jury.

Tunisia

34. Here the point made is that a passing reference to a holiday in Tunisia caused irremediable prejudice, where on the statement of Ms A in the book of evidence, an event similar to those described as happening in the workshop and in the house of her sister, occurred. This had been ruled out of evidence by the trial judge on the basis of extra-territoriality.

35. On day 4 of the trial, counsel for the prosecution in re-examining Ms A said:

[Ms A], I just want to ask you a couple of questions about dates and so forth and I'm going to do so partly by reference to the holiday in Tunisia and I just want to remind you. I'm not asking about anything that took place in Tunisia, but just about the events that summer generally. Do you understand?

36. Further questioning was put to Ms A:

All right, and the matters that have been put to you in terms of dates of renovations to the house, dates in the garage, lay of carpet, those sort of details. Do they in any way affect your confidence in the accuracy of the account you've given of the sexual assault and the rapes that you suffered at the hands of [the Accused]?

37. This was hailed as causing irremediable prejudice. The argument being that something must have happened in Tunisia if a mention was made to Ms A of not talking about Tunisia. That is not tenable. Already there was evidence of multiple rapes in the home of her sister and in the workshop, another event in Tunisia, if it happened, would have been admissible as background; The People (DPP) v McNeill [2011] IESC 12. It was excluded. Further, it is the duty of counsel to control a witness and that can include heading off danger, where that is perceived. Here it was credible approach in the context of a long trial and a tired witness who may not have fully understood the ruling that Tunisia was not to be mentioned (Ms A was outside the court) and whose nerves might be stretched. This is how the trial judge dealt with the matter:

Thanks very much. So this is an application brought by the defence to discharge this jury in circumstances where [counsel for the prosecution] in re-examination yesterday used the following words or thereabouts and [counsel for the prosecution] doesn't deny this: "That I'm clarifying Tunisia. There has been confusion over dates. We won't speak about what happened in Tunisia but I want to clarify it was in the same year as all the rapes took place."

The first thing to say is that a discharge application is, effectively...is a very significant matter and to discharge a jury is one that a judge and a court should be slow to do in circumstances where a complainant has had to give evidence and the jury, obviously, hearing days of evidence. And a discharge, particularly when it's the first time a trial has been listed, will, inevitably, result in a retrial and all that that involves. So, in my view, courts must be slow to discharge and only do so when it is necessary to do so and when whatever wrong has been done it's clear that a wrong has been done.

So [counsel for the defence] indicates that as a consequence of that question and the manner in which it's put that the jury are left with the clearest indication that something happened in Tunisia and that must be the only implication that can be drawn from the question. He submits further that the issue is irrecoverable in circumstances where nothing that I say can remedy the situation. The first thing to indicate is that I can understand how [counsel for the defence] might have that perception in circumstances where he and the legal team are fully aware that there has been an allegation of matters occurring in Tunisia, but that is not knowledge that the jury have. So I think there is perhaps a significant line to be drawn between what the perception of the defence may be and what the actual real perception of a jury might be. So I do not believe that it necessarily follows from that question, "we won't speak about what happened in Tunisia", that a jury will automatically take the view that sexual misconduct must have happened in Tunisia as a consequence.

The position of [counsel for the prosecution] is that he indicates that the reason he put the question in those terms was to ensure fairness and to ensure that the witness did not speak about Tunisia. And while it had been explained to her previously that it would be inappropriate to do so, there is a point to be made that after a lengthy cross-examination and all that that involves there might be a tendency on a witness to either forget or, indeed, out of frustration feel that there's no option but to say what happened in Tunisia. So that's always a concern in terms of managing witnesses and dealing with their undoubted heightened emotion and the stressful situation that they find themselves in.

But whatever the purpose of the question, the Court has to be concerned, sorry, the Court must, of course, consider the impact of the question. And, as I've already indicated, the first thing that springs to my mind is how a person's perception from the defence perspective may not actually be the real perception of the jury. And following on from that, the obvious thing that comes to my mind is that when it is said, "we won't speak about what happened in Tunisia", that could mean all manner of things. It could mean the day-to-day events. It could mean were there arguments. It could mean all manner of innocent explanations, not necessarily one of sexual misconduct. And that is I think perhaps the real perception that the jury would have.

Secondly, this has been an extremely, obviously, capable cross-examination but lengthy cross-examination touching many, many issues. And, again, I don't really think that the reality of the situation must result in the jury putting their minds to that actual question.

To me it, in many ways, it would simply have gone over their heads, as far as I'm concerned.

Now if I am wrong about that in terms of the actual perception of the jury and if there is a risk that they may read something else into the question and how it was posed, I am satisfied that during charge I can remedy that. I am satisfied that when I deal with Tunisia and that question I can put it in terms of, because I will be summarising the evidence [counsel for the prosecution] wasn't interested in the holiday itself, perhaps as one example, and counsel can assist me in using the appropriate terminology. He was simply interested in the dates. So I do believe that even if there is prejudice this Court must look to alternative means of remedying the prejudice as opposed to the nuclear button that might be pressed for a discharge and see if there is another way of dealing with the prejudice.

So, first of all, and in summary, I don't see the prejudice that [counsel for the defence] sees.

I can understand where he's coming from but I do not believe that the reality reflects that.

Even if I am wrong about that, I will make every effort to deal with that question in relation to the Tunisian event in a way that will rule out in the jury's mind any possible view that something untoward happened in Tunisia. Thirdly, the jury will be told, as they always are by Judges, in the clearest possible terms that they must not speculate. And if they adhere to that advice there is, in my view, no means by which they could infer misconduct in Tunisia. The juries of the modern era are robust. Juries, it has been proven time and time again, listen to the Judge's charge, take the legal principles and apply them. And if they apply that principle, which they must, there will be no prejudice. So that's my view in relation to the matter...

38. That ground of appeal has no merit. The jury had a watershed point in Tunisia since Ms A had said that nothing happened after her return to Ireland from the extended family holiday in Tunisia. This was necessary background and in no way is it credible that the jury suddenly leaped to a

conclusion that something happened in North Africa or that it was in some way an addition by way of proof or weight to what they had already heard.

Conclusion

39. In an appeal against conviction this Court has, under s 12 of the Courts (Supplemental Provisions) Act, 1961, “full power to determine any questions necessary to be determined for the purpose of doing justice in the case”. This is a wider power than that originally conferred upon the English Court of Appeal under s 2(1) of the Criminal Appeal Act 1968, which was obliged to allow an appeal if the Court considered “that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory”. This latter power was considered by the Court of Appeal (Criminal Division) in Regina v Cooper (1969) 53 Cr App Rep 82 in which Lord Widgery stated at p 86:

That means that in cases of this kind the court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the court experiences it.

40. While the English legislation was subsequently amended and now provides that an appeal against conviction shall be allowed if the Court of Appeal “think(s) that the conviction is unsafe”, the power remains the same (see Archbold, Criminal Pleading, Evidence and Practice (2021 Sweet and Maxwell) [7-44] – [7-49] and see also Pell v R [2020] HCA 12). That approach has been repeatedly rejected in this jurisdiction. In cases such as The People (DPP) v Madden [1977] IR 336, The People (DPP) v Mulligan (1982) Frewen 16, The People (DPP) v Egan [1990] ILRM 780 and The People (DPP) v PC [2002] 2 IR 285, it has been held that the court has no jurisdiction to substitute its own subjective view of the evidence for the verdict of the jury. If, hence, there is credible evidence to support the verdict the court has no power to interfere with it unless the verdict is considered to be manifestly perverse.

41. The task here on appeal is to ensure that evidence was only admitted correctly and that the jury was properly instructed. In this case there were very many significant issues of fact raised in the course of the trial, challenging the complainant’s recollection and her credibility. These matters have been addressed in argument and are referred to in this judgment. In the course of the trial, they were the subject of extensive cross-examination, defence evidence by way of rebuttal, detailed submissions by counsel to the jury and were also summarised in detail for the jury in the trial judge’s charge. In this context, the Court cannot be satisfied that the jury’s verdict was perverse. The Court is not permitted, as the law stands, to take a different view of the evidence by way of, as has effectively been urged, seeking out or somehow identifying a lingering or lurking doubt and thereby potentially disagreeing with the jury’s verdict. The points on the appeal are not such as to make the conviction unsafe or unsatisfactory. There is nothing warranting this Court on appeal to take a view of the evidence by way of, effectively what has been urged, potentially disagreeing with the jury’s verdict. That is not part of our law.

Result

42. In the result, the application to overturn the convictions cannot be acceded to.