Court of Appeal dismisses rape appeal where appellant argues non-availability of DNA evidence rendered trial unfair.

THE COURT OF APPEAL

Neutral Citation No. [2025] IECA 301

Record No: 245/2024

McCarthy J. Butler J. Owens J.

Between/

THE PEOPLE (AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS)

Respondent

V

S. O’D.

Appellant

JUDGMENT of the Court delivered by Ms. Justice Butler on the 19th of December 2025

Introduction

1. This is an appeal against conviction. On 22nd February 2024, the appellant was found guilty by majority verdict of one count of rape contrary to s.48 of the Offences Against the Person Act 1861 and s.2 of the Criminal Law (Rape) Act 1981, as amended by s.21 of the Criminal Law (Rape) (Amendment) Act 1990, and one count of sexual assault contrary to s.2 of the 1990 Act. On 7th August 2024, the appellant was sentenced to eight years imprisonment on the rape count and two years and eight months on the sexual assault count, to run concurrently.

2. The appeal was pursued on two grounds, one of which was abandoned during oral submissions. The remaining ground relates to the failure of the trial judge to direct an acquittal or stay the proceedings pursuant to DPP v. PO’C [2006] 3 I.R. 238 in circumstances where certain material was not available to be tested for DNA evidence.

Background Facts

3. The offences occurred on 26th March 2021. The appellant is the first cousin of the complainant’s partner. On the night in question, the complainant, her partner, her partner’s sister and the appellant were drinking and socialising in the home the complainant shared with her partner and their child. In the early hours of the morning the complainant woke up to someone penetrating her vaginally from behind and touching her breast over her bra. She initially assumed this was her partner but then looked around and realised that it was the appellant who had been having sex with her. Ejaculation did not occur. The complainant’s partner was asleep in the bed and was facing the other way, and their baby was in a crib attached to the bed. The complainant jumped out of the bed and the appellant turned around and went back to sleep. The complainant immediately took a shower and washed herself internally with a facecloth.

4. The complainant went over to her partner’s sister’s house (who lived next door) and told her what happened. The appellant was confronted with what had happened and he did not deny the offences but did not expressly admit them either. The complainant contacted the Rape Crisis Centre the day after these events and attended at the local Sexual Assault Treatment Unit (SATU) where she was examined, and internal and external samples were taken. These samples were sent to the Forensic Science Ireland laboratory for testing for DNA. The underpants and a sanitary towel which the complainant had been wearing were also sent for examination.

5. A complaint was made to the Gardaí two days later. During interviews with the Gardaí, the appellant stated he could not recall certain events of the night but he agreed that he had woken up in bed beside his cousin, the complainant’s partner, and their baby. He denied having sex with the complainant.

6. A forensic scientist gave evidence at the trial and was cross examined on behalf of the appellant. The scientist confirmed that the appellant’s DNA was not found on any of the items tested. The scientist explained that “touch DNA” is not a very strong source of DNA whereas semen and other bodily fluids are very rich sources of DNA. Consequently, because the complainant had consensual sexual intercourse with her partner after the rape but before she was medically examined in SATU, the scientist had no expectation of finding DNA which may have transferred via penile penetration without ejaculation prior to the subsequent sexual intercourse.

7. No semen was found on the underpants or the sanitary towel. The only DNA found on these items matched the complainant’s profile. The scientist confirmed her understanding that these items had not been worn by the complainant after she had consensual intercourse with her partner. The complainant’s bra and the bed sheets that were on the bed at the material time were washed by her and although the bed sheets were given to the Gardaí they were not forensically examined.

Ground of Appeal

8. The appellant submits that the trial judge erred in failing to direct an acquittal or stay the proceedings in accordance with DPP v. PO’C [2006] 3 I.R. 238 in circumstances where two items worn by the complainant at the time of the offences, which the appellant contends could have forensic value, were denied to the jury. The two items in question were the complainant’s bra, which she washed after the offence and which was not exhibited in evidence, and a sanitary pad she was wearing for post-partum bleeding. The latter was provided for DNA testing. During her cross-examination, the complainant admitted she wasn’t sure if she had given the ‘right’ sanitary pad (the one she was wearing during the offence) to the Gardaí.

9. The appellant submits that these “actions of the complainant” have negated the possibility that the appellant could have established that his DNA was not on the bra or the second sanitary pad. The appellant contends that “the expunction of such DNA evidence has fettered the appellant’s ability to defend himself at trial and, in all the circumstances, has rendered his trial unfair.”

Respondent’s Submissions

10. The respondent firstly observes that this ground was not raised during the course of the trial. There was no application made pursuant to PO’C nor in relation to the relevant items. Referring to DPP v. Cronin (No.2) [2006] 4 I.R. 329, the respondent states that it is not normally open to an appellant to raise a new point on appeal and therefore the appellant should not be permitted to pursue this ground.

11. Nonetheless, the respondent submits that the appellant’s argument “ignores the fact that there were already a number of items of forensic evidence in the case, none of which were inculpatory of him”. Additionally, the suggestion that the victim made “deliberate and conscious” efforts to spoil evidence “is a baseless allegation which was not put to the victim at trial and is not supported by any evidence in the case”. In fairness, counsel for the appellant did not pursue this suggestion in oral argument and confined his argument to the complaint that the bra and the correct sanitary pad were not available for testing.

12. It is the respondent’s position that there was no unfairness due to the absence of the bra and possibly the correct sanitary pad and that this ground is “very far from that which would be required for a trial judge to invoke PO’C jurisdiction”.

Discussion and Analysis

13. The starting point for consideration of the issue raised on this appeal is the interaction between the decisions of the Supreme Court in DPP v. PO’C. [2006] IESC 54, [2006]

3 IR 238 and DPP v. Cronin (No.2) [2006] IESC 9, [2006] 4 IR 329.

14. In P.O’C. the Supreme Court (Denham J.) held that the criminal courts have a general and inherent jurisdiction exercisable during the course of a trial to protect its process from abuse which includes a power to safeguard the accused person from oppression or prejudice, albeit that this did not apply to the issue in that case of a preliminary application on the basis of delay. It is common case that no application was made to the trial judge to stay the trial pursuant to the PO’C principles.

15. In Cronin the Supreme Court pointed out that there is an obligation on counsel on both sides to bring to the attention of the trial judge any inadequacies they perceive in his directions to the jury. If an appeal is brought to this court on a point that was not canvassed at trial the party raising it has an obligation to explain why the new point is being made on appeal when it was not made at the trial. Geoghegan J. observed that in protecting the rights of an accused the trial judge is not exclusively dictated by the way the accused (especially when legally represented) has chosen to run his own defence but must pay “heavy regard” to that factor. Kearns J. stated (at paragraph 46): – “It seems to me that some error or oversight of substance, sufficient to ground an apprehension that a real injustice has occurred, must be demonstrated before the court should allow a point not taken at trial to be argued on appeal. There must in addition be some sort of explanation tendered to explain why the particular point was not taken.”

16. Unsurprisingly in circumstances where no application was made to the trial judge pursuant to PO’C in relation to the non-availability for forensic examination of the bra and sanitary pad, the DPP argues that it is not open to the appellant to raise this issue for the first time on appeal. Further, no explanation has been offered, apart from a change in the lawyers representing the appellant, for why the point was not taken at trial.

17. A change in the identity of the lawyers representing an appellant cannot, without more, suffice to explain why a point was not taken at trial. During a trial decisions have to be made by the accused person and his legal team as to how particular evidence should be addressed and how particular witnesses should be cross-examined. Quite often these decisions are made on a tactical basis. A matter which is not fully explained in evidence might be regarded as raising a doubt which could be beneficial to the accused whereas clarification of the same matter might operate to his detriment. Further, in making a

decision of this nature, the defence will frequently have to forego an alternative argument or approach to the same evidence or issue.

18. The appellant argues that the rule in Cronin is not absolute albeit that he acknowledges that exceptions to it are rare. Counsel points to the decision of the Supreme Court in DPP v. Forsey [2018] IESC 55, [2019] 2 IR 417 as an example of a case where not only did the court permit a new point which had not been argued at trial to be raised on appeal but also allowed the appeal on the basis of that point. Whilst this is correct, there is a material difference between Forsey and this case. Forsey involved a trial for corruption in the planning process in which a statutory presumption of corruption arose once the receipt of money in certain circumstances had been proved. The new point concerned the nature of the onus of proof thereby imposed on an accused person to rebut such a presumption. In circumstances where the Supreme Court held that the trial judge had misdirected the jury on this onus of proof by failing to distinguish correctly between the legal burden and the evidential burden, O’Malley J. concluded “the appellant was subjected to a trial process that breached his right to be presumed innocent”. She distinguished this situation from Cronin where the defence had made a choice between alternative lines of defence at trial and subsequently sought to argue on the appeal that the trial judge had erred in not directing the jury at the line not taken.

19. In our view this case does not involve the type of fundamental issue which arose in Forsey where a legal error undermined the jury verdict. Instead, it concerns the manner in which the case was defended in relation to the DNA evidence. As has been noted above, the DNA testing was negative in that none of the appellant’s DNA was found on the items tested. Counsel for the appellant relied on this fact in his closing speech to the jury.

20. The prosecution called a forensic scientist to give evidence as to the nature of the tests which had been carried out on the samples and items of evidence submitted to Forensic Science Ireland and the results of those tests. This witness was cross-examined on behalf of the appellant on certain issues, but no questions were put to her on what DNA she might have expected to find, particularly on the bra and sanitary pad, in light of the account of the incident with which she had been supplied by the Gardaí. Therefore, there was no evidence before the court of the evidential significance, if any, of the absence of the appellant’s DNA apart from the reliance placed by him on the fact that there was no forensic evidence linking him to the incident as described by the complainant.

21. In reality, it is difficult to see what additional benefit the appellant might expect to have gained from the analysis of these items. Counsel for the appellant suggested that the possibility the wrong sanitary pad was examined weakened the evidence on his behalf as he lost the opportunity to put before the jury the argument that the DNA evidence exonerated him. Again, it is difficult to see how this could be so. In the absence of any other evidence as to the potential significance of the fact that the appellant’s DNA was not found, any analysis of these additional items which also produced a negative result (assuming that it would have done so), would have put the evidence no further than it already stood - i.e. that there was no forensic evidence which linked the appellant to the incident as described by the complainant.

22. In our view this appeal is an attempt to argue a new point which was not raised on behalf of the defence at trial in circumstances where the jury did not accept the defence which was run at trial. No explanation has been offered as to why the point which it is now sought to argue was not argued at trial. It is not suggested that refusal to allow the point to be argued for the first time on appeal would give rise to the type of “real injustice” referred to by Kearns J. in Cronin. The new point is inherently connected to the evidence which was led at the trial and is not a fundamental legal proposition such as was in issue in Forsey. Therefore, in our view the appellant should not be permitted to raise this ground.

23. In any event, we are of the view that this a ground of appeal which could not succeed. Even in the absence of DNA evidence linking the appellant to the incident as described by the complainant, there was ample evidence that a crime had been committed by him to allow the matter to go to the jury. There are no grounds on which an application pursuant to PO’C, had it been made, would have been likely to succeed.

24. Finally, we note that implicit in the arguments made on behalf of this appellant is the assumption that in the case of rape or sexual assault the non-availability of certain items for forensic testing will render the trial of a person accused of those crimes automatically unfair. A person who has been subjected to rape or sexual assault will frequently be very upset and distressed as a result. Such person may not proceed methodically to preserve evidence of the assault which has been perpetrated upon them

- although some people in those circumstances, with commendable foresight, do in fact do so. A person subjected to rape or sexual assault may not feel able to make a complaint immediately and indeed may not do so until weeks, months or even years have passed. The law does not impose an obligation to preserve evidence on the victim of a crime. The non-availability of forensic evidence because the person in question has washed themselves, their clothing or their bedding may give rise to difficulties for the prosecution in proving the case but the absence of such evidence does not automatically render a trial unfair.

25. Accordingly, this appeal is dismissed.