Court of Appeal dismisses appeal against rape convictions, upholding admissibility of complainant's evidence regarding alleged admissions.

APPROVED JUDGMENT NO REDACTION NEEDED

THE COURT OF APPEAL Record No: 151/2024 Neutral Citation Number [2026] IECA 25

Edwards J. Burns J. Hyland J.

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

RESPONDENT V

P. H.

APPELLANT

JUDGMENT of the Court delivered (ex tempore) by Mr. Justice Edwards on the 13th day of February 2026.

Introduction

1. The Court has arrived at a very clear view in relation to this matter and we should say at the outset that we will be dismissing the appeal against conviction. By way of ex tempore remarks, on the 9th of February 2024, the appellant, was convicted by a jury in the Central Criminal Court of Counts Nos 1 to 25 inclusive which were in respect of rape contrary to common law and as provided for by s. 48 of the Offences Against the Person Act 1861; and he was also convicted of Counts Nos 26 to 48 inclusive which were counts of indecent assault contrary to common law. He was initially sentenced on the 26th of April 2024, and sentences of 13 years imprisonment were imposed in respect of each of the rape offences to run concurrently to each other and to date from the 9th of February 2024, with the final 18 months of each suspended. Further, the indecent assault counts, being Count Nos 26 to 48 inclusive, were taken into consideration by the sentencing judge.

2. Following this, there was an undue leniency application pursuant to s. 2 of the Criminal Justice Act, 1993 brought by the Director of Public Prosecutions to this Court and this Court gave a judgment, the neutral citation of which is [2025] IECA 89, and the Court allowed the application, quashed the appellant's original sentence and resentenced this appellant to 19 years imprisonment in respect of the rape offences backdated to the 9th of February 2024, those sentences to run concurrently, and once again the sentences in respect of the indecent assault matters were taken into consideration.

3. By a Notice of Appeal lodged on the 22nd of May 2024, the appellant now appeals to this Court against his conviction and there is a single ground of appeal which is cast on the following terms:

“The Learned Trial Judge erred in law and/or in principle in refusing an application by the defence and in allowing the jury to hear evidence from [the named complainant] of alleged admissions by the Applicant in the presence of three named individuals, namely [Ms. M.H.], [Ms. H.B.] and [Ms. B.B.] in circumstances where these named persons were not being called as witnesses by the prosecution and the defence could not therefore fully and properly test the alleged admissions.”

Background

4. The background to this case was summarised in some detail during the course of the judgment on the undue leniency application, i.e., [2025] IECA 89 at para 2 et seq, and accordingly this judgment is to be considered in conjunction with the judgment in that matter. It is not necessary for the purposes of today's exercise to delve into that in any detail save to say that in the course of the trial there was evidence concerning a confrontation following a family dispute in relation to a matter unrelated to the allegations at the core of this case and that, in the course of that confrontation, it was alleged that the complainant had told her mother about the appellant's offending. When confronted in relation to this, the appellant is said to have admitted to the abuse and to have apologised to the complainant. It was further alleged that this admission was made in the presence of three other persons, namely, the persons referenced in the appellant’s single ground of appeal, i.e., M.H, H.B. and B.B., respectively; M.H. being the mother of the complainant, H.B. being an aunt of the complainant and B.B. being H.B.’s sister-in-law.

Analysis & Decision

5. The net issue for this Court relates to whether the trial judge erred in allowing the jury to hear evidence from the complainant of the alleged admissions by the appellant when they were said to have been made in the presence of M.H, H.B. and B.B., respectively, in circumstances where those three individuals were neither going to be called as witnesses by the prosecution nor indeed, by the trial judge at the trial, and it is contended that the defence could not therefore properly and fully test the alleged admissions.

6. We should return momentarily to the single ground of appeal pleaded and state for completeness that insofar as the first sentence of that ground is concerned, namely that the trial judge erred in law and or in principle in refusing an application by the defence, it has been conceded by counsel for the appellant that that was a reference to an application for a Direction, as indeed we had understood it to be. That complaint was not pursued on this appeal. Accordingly, the only issue remaining is the issue of whether or not the trial judge was right to allow the jury to receive evidence from the complainant of the alleged admissions in circumstances where they were supposedly witnessed and the witnesses were not going to give evidence at the trial.

7. The appellant argued that the trial judge ought to have used her discretion to rule the admissions out in circumstances where the appellant was unable to test those admissions properly or fairly in the absence of the said witnesses. I seems to us, therefore, that there are three issues for this Court to determine. First of all, was the evidence admissible?

Secondly, was the evidence relevant? And thirdly, ought it to have been excluded on grounds of unfairness as is contended by counsel for the appellant?

8. We have a very clear view as to how those three questions should be answered. We are absolutely satisfied that the evidence was admissible. It was not inadmissible hearsay, it was admissible hearsay by virtue of the exception to the hearsay rule which allows evidence of declarations against interest to be admitted notwithstanding that they are hearsay. This was an admission made in the presence of the complainant by the appellant against his interest, and it was properly admissible as an exception to the hearsay rule. There is no doubt in our minds about that.

9. We also believe it to be beyond dispute that the evidence was potentially relevant.

Counsel for the respondent has said that it was of profound relevance to the prosecution's case. It was highly relevant to their case that the accused should have admitted in the course of this confrontation what it was alleged was done by him to the complainant.

10. In fairness to counsel for the appellant he does not demur from contentions that the controversial evidence was admissible hearsay and relevant. He does not seek to suggest otherwise. So the evidence was both admissible and relevant and the only question then is ought it to have been excluded as being in some way so unfair as to prevent the appellant from receiving a fair trial in due course of law, that being a trial to which he is entitled under the Constitution? We are very firmly of the view that that was not so. The trial judge had independently also formed that view and decided to allow in the evidence.

It is pertinent to set out her ruling which was in the following terms. She said:

“Thank you, so I've thought about this and I suppose my feeling is that these remarks are certainly admissible, I don't see that there's any issue in that regard. The question that [defence counsel] asks me, and that gave me pause for thought is the question of whether or not there is an inherent unfairness in having these admissions go in in circumstances where he may have difficulty properly testing them, and this is a historic case. If [defence counsel] was saying to me that [Ms.

B.B.] I think is her name, or just one moment now, so [Ms. B.B.] and [Ms. HB], if [defence counsel] was saying to me that they were dead for example, or not available to him because of some circumstance which prevented him from calling them in any way, I think his application would have more weight. The fact is however that [Ms. M.H.], the mother of complainant, [Ms. B.B.] and [Ms. H.B.], they are all alive. [Ms M.H.] it may be difficult to call her, as she has health issues as I understand it, and I note that the prosecution don't intend to call her although she's in the book, but there is no such case being made out in respect of [Ms. B.B.] or [Ms. H.B]. It is open to the defence to look for a witness order, it is open to the defence to challenge what was said in that way if they wish and that applies in relation to the second of the alleged admissions, the phrase “I'm sorry for what I did but I didn't think you were mine”. This was allegedly made, not in the presence of [Ms. H.B.] indeed I know [Ms. H.B.] was actually outside the door but she kept opening the door and kept the conversation going. So as to whether or not [Ms.

H.B.] heard all of this is perhaps a moot point. But in any event, so in relation to that alleged admission, I feel that [Ms. H.B.] could be brought by the defence if they wish to have her as a witness and deal with the matter, and as I say, I don't think there's necessarily, of necessity any particular clear indication that she heard it in any event.

And then separately, in relation to the mother, I don't think the defence are prejudiced in circumstances where she is still alive, she is in the book, she was interviewed, she does not refer to this admission and I think it is open to [defence counsel] to crossexamine on that issue, and I have no doubt he will do an excellent job so I think that all of the, all of that evidence I think can be led and I'm prepared to have it led before the jury.”.

11. W agree with the view taken by the trial judge that there were options open to the defence which neutralised any potential unfairness. First of all, as has been pointed out, it was open to the defence to call the witnesses in question, to seek witness orders or witness summonses and to have the witnesses brought to court and to seek to elicit testimony from them. Now the Court can readily understand why there might be a reticence about doing so, particularly in circumstances where the defence, if they did that, would be bound by those witnesses’ answers and would not be in a position to cross examine, but it was an option open to them.

12. The other option, of course, as was raised by this Court in the course of an exchange earlier this afternoon with counsel for the respondent, was to have asked the trial judge to summons those witnesses to Court and for the trial court itself to call the witnesses to give evidence in chief so that they could then be cross examined by the defence. Again, that was not done. So that was the second option that was open to the defence.

13. The third thing that could be done, and which was in fact done, it appears either by agreement or it may have been on the sole initiative of the Director of Public Prosecutions, but one way or the other, the jury were made aware that both H.B. and B.B. had been approached and had declined to make statements. Further, the jury were also made aware that the mother M.H. was not giving evidence. We are not sure if it was made known to the jury whether or not she was unwell, but it was certainly put by defence counsel to the complainant that her mother had no recollection of the alleged admission and there was a very firm response to that received., As it was summarised by counsel for the respondent, it was to the effect that “I do not care what my mother might have said. I have a firm recollection of the admissions being made.” But it was certainly the position that the jury were made aware that there were no supporting witnesses going to give evidence, that they were made aware that at least one of them, the mother, had made a statement in which she had not purported to remember any such admissions having been made and, of course, the jury had heard the complainant being cross examined with respect to all of that in circumstances where the defence case was that everything that the complainant was saying represented lies and fabrications.

14. So, it cannot be said that the defence were unable to make their case. There were options open to them which they did not avail of for perhaps good strategic reasons; but that is the nature of the adversarial trial process, that such decisions have to be made and the fact that one may have to make such decisions does not mean that the trial process is unfair. The defence were on notice of the case the prosecution were making and they were aware of the rules of evidence. They were aware that evidence compliant with those rules which is probative is required to be admitted. And in that regard, the Court's attention was drawn to what was said in People (DPP) v. McHugh [2024] IECA 176, in regard to that, and it is perhaps apposite just in concluding these ex tempore remarks to recall that in the McHugh case it was said, at para. 8, that:

“The law of evidence, whereby evidence relevant in a civil case or in a criminal prosecution, may be excluded is rarely a matter of discretion. Evidence which is relevant is admissible unless a rule of law prevents such evidence. Hence, evidence which is relevant is required by the laws of evidence to be admitted unless a rule of law requires that it be excluded. It is part of the function of a trial in due course of law under Article 38.1 and 38.5 of the Constitution for the jury to consider all relevant and admissible evidence. Otherwise, the jury function may be stripped away in favor of some amorphous concept of what seems vaguely fair or unfair.

That undermines the rule of law.”

The case made by counsel for the respondent is that the contention of unfairness that is relied on in this case is vague and amorphous, and we agree. This was relevant and admissible evidence, and it was evidence that was proper to put before the jury. There was no rule of law requiring it not to go before the jury and the judge, in considering the circumstances, was right not to find an unfairness and was correct in saying that the evidence should go before the jury.

15. So, in those circumstances, we do not believe that the complaint which is articulated in the sole ground of appeal advanced is properly made out and we are not disposed to allow the appeal. We will dismiss the appeal.