Court of Appeal dismisses appeal against High Court refusal of injunction to stop re-trial of sexual assault charge.

APPROVED NO REDACTION NEEDED

THE COURT OF APPEAL

Neutral Citation: [2026] IECA 6 Record Number: 2025/40 Meenan J. Burns J. Collins J.

BETWEEN:

QR APPELLANT -AND-

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Ms. Justice Tara Burns delivered on the 28th day of January, 2026

1. This is an appeal against the judgment of the High Court (Mulcahy J.)

([2025] IEHC 10) refusing the appellant an injunction by way of judicial review to restrain the respondent from taking any further steps in the prosecution of the appellant for an offence of sexual assault.

2. In October 2023, the appellant was prosecuted before the Central Criminal Court in respect of 6 charges alleging sexual offending which all arose from the same event and involved a single complainant. He was acquitted of 5 charges, with the jury disagreeing in respect of Count 5 on the indictment:

an alleged offence of sexual assault.

3. The respondent has directed a re-trial in relation to this outstanding count.

Background

4. The appellant was charged with three counts of rape contrary to common law, as provided for by s. 2 of the Criminal Law (Rape) Act 1981; one count of rape contrary to section 4 of the Criminal Law (Rape)(Amendment) Act 1990 (‘the 1990 Act’); and two counts of sexual assault contrary to section 2(1) of the 1990 Act.

5. The appellant and the complainant were attending a house party. They went to the bathroom of the house whereupon a number of sexual acts occurred. The sequence in which the sexual acts occurred is important for the argument made on behalf of the appellant. The complainant asserted that the appellant initially sexually assaulted her by performing oral sex on her (Count 1); vaginally raped her (Count 2); required the complainant to perform oral sex on him (Count 3); vaginally raped her again (Count 4);

performed oral sex on her which on this occasion included biting her vagina (Count 5); and finally had vaginal sex with her again (Count 6). In her evidence before the Central Criminal Court, the sequencing of the sexual acts changed somewhat, but the complainant’s position remained that other sexual offending occurred after the sexual offending reflected at Count 5.

6. The appellant’s case at trial was not that these sexual acts did not occur but rather that the complainant consented to the sexual acts or, if she did not consent, the appellant did not know that she was not consenting and was not reckless as to this fact.

7. The appellant’s application to injunct a re-trial in respect of Count 5 was based on his assertions that a re-trial in respect of the single count of sexual assault (in respect of which the jury disagreed) would fail to respect the not guilty verdicts returned by the jury on all of the other charges; and in light of the continuum of the sexual activity engaged in, a re-trial in respect of one single act of sexual activity, when the other acts resulted in not guilty verdicts, would result in an unfair trial having regard to the evidence which would be given.

Determination of the High Court

8. The High Court refused to grant the appellant relief sought. Mulcahy J stated:-

“26. The applicant asks this court to determine that it is inevitable that any re-trial will be unfair. In so doing, he is required to hypothesise as to how such a trial may proceed, what evidence may be tendered, and what directions may be given by the trial judge. However, any trial judge will not be required to hypothesise, rather they will be in a position to assess the fairness of the trial on the basis of the evidence actually sought to be adduced and in light of the tools available to that judge to ensure a fair trial. It is readily apparent, therefore, that the trial judge will be in a far better position to assess fairness than is this court in judicial review proceedings.

27. I am not persuaded that the hypothetical scenarios laid out by the applicant reflect the only possible outcomes should a re-trial take place. More importantly, I am not persuaded that the scenarios painted would inevitably breach the applicant’s constitutional right to a trial in due course of law. The applicant contends that no direction from a trial judge regarding the treatment of evidence could prevent the risk of an unsafe conviction. I do not accept that this is so, or at least, I do not accept that the applicant has proven that, on the balance of probabilities, this is inevitably the case. In any event, the trial judge will be in a better position than this court to determine, should the situation arise, whether any direction is necessary, and, if it is necessary, whether it would be sufficient to ensure a fair trial. …

31. Even if the court accepts, for the purpose of this argument, the applicant’s explanation of the jury’s decision to acquit on five counts to be correct, the logic of the argument is wholly flawed. It simply does not follow that a conclusion that the absence of consent had not been proved beyond a reasonable doubt in relation to some sexual activity means that it is not open to a jury to conclude that there was no consent to other activity. To suggest otherwise is plainly wrong and inconsistent with the law in relation to consent. This remains the case when the activity complained of is part of a single sequence of event, even, as here, where it occurs in the course of a sequence of events where the absence of consent has not been proven in respect of sexual activity both before and after the matter the subject of the remaining charge.

32. Moreover, it is apparent that that conclusion is consistent with the jury’s original verdict. On the applicant’s case, having been acquitted on the other five counts, the only logical conclusion was that he should have been acquitted on the remaining count. However, the jury did not acquit on that count; rather, they could not agree. It is apparent, therefore, that for the original jury, acquittal on the other counts did not lead to an inevitable conclusion that there must be an acquittal on the remaining count. To permit a jury in a re-trial to consider that remaining count afresh is, therefore, entirely consistent with the original jury’s verdict and respects it. To prohibit a re-trial, by contrast, would be, in effect, to re-write the decision of the jury on that count.

33. In all the circumstances, the applicant has not established that this is one of the exceptional cases in which it can be determined a priori that a trial will be unfair such that it is appropriate to prevent that trial taking place. A re-trial will not inevitably be unfair, and the trial judge will have adequate tools to ensure a fair trial or to determine, in light of the conduct of the trial, whether a fair trial remains possible. The matter should, therefore, proceed to re-trial, as directed by the respondent. Should any issue of alleged unfairness arise in the course of the trial, it is open to the applicant to make a PO’C application to the trial judge.”

Grounds of Appeal

9. By Notice of Appeal dated 4 April 2025, the appellant filed Grounds of Appeal claiming that the High Court judge was wrong in fact and in law in concluding that:-

a) a fair trial will be possible in this case;

b) directions from a trial judge can prevent an unfair trial in this case;

c) the decision of the [respondent] respects the Jury’s decision in the first trial;

d) the instant case was not one of the exceptional cases in which a retrial would be unfair in all the circumstances.

Submissions of the Parties

10. The appellant submitted that a re-trial on this single count, would undermine the jury’s verdict of not guilty on the other counts in light of the fact that all of the sexual acts alleged formed part of one continuum and that the sexual assault directed to be re-tried occurred in the middle of this continuum. The appellant further submitted that there is a real risk that the intended trial will be an unfair trial, as undoubtedly evidence will be given of events in respect of which the appellant has been acquitted which will severely prejudice him before the jury. Finally, the appellant asserted that this is an exceptional case where relief to injunct the trial should be granted by way of judicial review rather than by an application to the trial judge to withdraw the case from the jury on grounds of unfairness. Whilst acknowledging the dicta of the Superior Courts that an application of this nature is more properly brought before the trial judge, it was submitted that the particular circumstances of this case rendered it appropriate to have sought the relief by way of Judicial Review due to the inevitability of the evidential difficulty which will emerge.

11. The respondent submitted that a re-trial on the single count in respect of which the jury disagreed would not undermine the jury’s verdict on the counts in respect of which not guilty verdicts were returned: the jury’s verdict on those counts stands. However, as the jury disagreed in relation to Count 5, it is legitimately open to the respondent to re-litigate that charge. With respect to the assertion that there is a real risk of an unfair trial, the respondent submitted that this has not been established by the appellant, nor could it be so established, as it remains unknown what evidence will be given in the intended trial. In this regard, counsel for the respondent noted that inadmissible evidence cannot be led by the respondent and emphasised the duty on a trial judge to conduct a fair trial.

Finally, the respondent asserted that the appropriate venue to litigate this issue was before the trial court. It was submitted that the question of unfairness can only properly be assessed and determined when the evidence in the case is known.

Failure to respect the Jury Verdict

12. The appellant’s assertion that a re-trial on Count 5 is an impermissible interference with the not guilty verdicts returned by the jury on the other counts is not made out.

13. Count 5 relates to a sexual act involving the biting of the complainant’s vagina. At trial, the complainant’s evidence was to the effect that when this event occurred, she told the appellant to stop and that it really hurt. The complainant accepted that in the course of the sexual activity which occurred, she had not spoken previously.

14. The particular difficulty which the appellant identifies is the fact that the sexual act now sought to be re-tried occurred in the middle of the offending.

In light of the jury verdict of not guilty on the other charges which had been proffered and their disagreement with respect to this count, it is argued that the sexual acts must be viewed as the complainant initially consenting to various sexual activities, withdrawing her consent for the alleged sexual assault which remains at issue, and then consenting again for further sexual activity. The appellant asserts that this is implausible.

15. I do not agree with that assessment. In relation to the charges before the jury, it was for the jury to determine, in respect of each individual charge whether they were satisfied beyond reasonable doubt that the complainant had not consented to each individual sexual act. If they were satisfied that she had not consented in respect of an individual sexual act, they then had to proceed to consider, in respect of that sexual act, whether the applicant knew that she was not consenting to that sexual act, or whether he was reckless as whether she was consenting.

16. In light of the nature of the sexual act alleged (biting of her vagina); and the fact that the complainant told the applicant to stop doing that sexual act (having not spoken previously during the sexual activity), a jury

decision which returned not guilty verdicts either side of this offending is not implausible. The jury verdict must be respected. In light of the particular facts of this alleged offending, an inherent contradiction does not exist in the verdicts of not guilty recorded in respect of the other charges and the disagreement recorded in relation to Count 5. There is nothing impermissible, per se, in the respondent proceeding to retry the respondent on the outstanding count in respect of which a verdict has not been returned and it is not an impermissible interference with the verdicts of not guilty returned by the jury to do so, nor does it fail to respect the jury verdict on the other counts.

17. For these reasons, the trial judge did not err in his determination that a retrial on the outstanding count did not amount to an unjustifiable interference with the jury verdict on the other counts.

An Unfair trial?

18. The appellant asserted that it is not possible for the complainant to give evidence about the outstanding charge of sexual assault, without reference being made to the continuum of sexual activity which comprise the other sexual acts in respect of which the appellant has been found not guilty. The effect of this, it is asserted, is that the jury will learn of the other sexual incidents which is highly prejudicial to the appellant.

The venue to litigate the assertion of an unfair trial

19. Judicial review had, at one stage, been the recognised means by which an order of prohibition preventing a trial from proceeding on grounds of unfairness could be obtained.

20. That position has changed dramatically with the development of what has become known as a PO’C application. In DPP v. PO’C [2006] 3 IR 2381 (‘PO’C’) Denham J delivering the judgment of the Supreme Court stated at p. 247:-

This is the correct PO’C judgment which developed this jurisdiction rather than the judgment which the High Court judge was referred to and which has appeared in the authorities lodged for this appeal.

“Thus, in the course of the trial matters may arise, evidence may be given, which renders a trial unfair, or the process unfair. In these circumstances the trial judge retains the jurisdiction of preventing the trial from proceedings.”

21. From this brief statement, a rich and expansive jurisdiction has emerged which gives effect to the requirement imposed on a trial judge to ensure that a trial is conducted fairly and in accordance with Article 38 of the Constitution.

22. The jurisdiction was considered in detail by the Supreme Court in DPP v.

CC [2019] IESC 94 where the principles to be considered in a PO’C application were expounded.

23. The question has of course arisen as to what route is appropriate with respect to an application seeking to halt a trial. In Nash v. DPP [2015] IESC 32, Charleton J. stated:-

“23. […] The trial judge now has the primary role in decisions of this kind and judicial review is rarely appropriate. An application to the trial judge is an alternative to judicial review. As Clarke J states in his judgment on this appeal, if the case is one that there has been a diminishment in the availability of a trial that would be otherwise complete in every respect due to the factors complained of, then this judgment would concur that since the appropriate balance may best be seen by the trial judge in the context of a complete analysis of the facts of the case, it is preferable that an application to halt the trial be made to that forum. Where however, as Clarke J states, the case is one of a clear denial of justice resultant upon the factors found to be culpably wanting, prohibition by the High Court should be granted. An application to stop a trial before the trial judge may best be decided upon a consideration of all of the evidence and how the alleged defect, be it delay or missing evidence or unavailable witnesses, impacts on the overall case. Whether the real risk of an unfair trial that cannot otherwise be avoided then exists is, in such cases of an argument that justice has been diminished, often best seen in the context of such live evidence as has been presented and not through the contest on affidavit that characterises these cases on judicial review seeking prohibition in the High Court or on appeal. As a matter of factual analysis, however, the nature of the prosecution case and the effect of the missing evidence in the selection of cases previously outlined is demonstrated as central to the issue of the safety of the trials prohibited.”

24. It seems to me that the practical meaning of Nash is that where a significant unfairness issue arises which is inevitable and unavoidable and which no other evidence will have an impact on, then to seek to prohibit the trial by way of judicial review is an appropriate avenue to litigate this concern.

However, where the parameters of the asserted unfairness issue arising are not fixed and determined and evidence, or directions from a trial judge, may have an impact on the issue, then judicial review is not the appropriate avenue to seek to prohibit a trial and a PO’C application is instead the correct means to litigate that issue. This is because the effect of the unfairness issue arising can only properly be considered by the trial judge within the factual matrix of the trial and a determination made as to whether and how a fair trial can be achieved.

Considerations Relating to an Application to Prohibit a Trial

25. It is apposite to reflect on considerations (as are relevant to the instant case) governing an application to prohibit a trial on grounds of unfairness, as set out in K v. His Honour Judge Moran [2010] IEHC 23 and reiterated by Charleton J in DPP v. CC at para. 12 of his judgment:-

“K v His Honour Judge Carroll Moran and DPP … still remains useful as a guide around the case law in prohibition cases generally:

(1) The High Court should be slow to interfere with a decision by the Director of Public Prosecutions that a prosecution should be brought.

The proper forum for the adjudication of guilt in serious criminal cases is, under the Constitution, a trial by judge and jury; D.C. v. DPP [2005] 4 IR 281 at p. 284.

(2) It is to be presumed that an accused person facing a criminal trial will receive a trial in due course of law, one that is fair and abides by constitutional procedures. The trial judge is the primary party to uphold the relevant rights which are: the entitlement of the accused to a fair trial; the right of the community to have serious crime prosecuted; and the right of the victims of crime to have recourse to the forum of criminal trial where there is reasonable evidence and the trial can be fairly conducted; P.C. v. DPP [1999] 2 IR 25 at p. 77 and The People (DPP) v J.T. (1988) 3 Frewen 141.

(3) The onus of proof is therefore on the accused, when taking judicial review as an applicant is to stop a criminal trial. That onus is discharged only where it is proved that there is a real risk of an unfair trial occurring. In this context, an unfair trial means one where any potential unfairness cannot be avoided by appropriate rulings and directions on the part of the trial Judge. The unfairness of the trial must therefore be unavoidable; Z. v. DPP [1994] 2 I.R. 476 at p. 506

– 507.”

The Present Case

26. In the instant matter, the respondent has committed to not referring to the previous trial in the direct examination of the complainant. However, what evidence will ultimately be given is unknown. The respondent obviously cannot commit to what evidence will be given by the complainant.

27. It is clear that prosecuting or defending this case will be very difficult. Many different approaches could be adopted by either side, but even with planning and careful questioning, the evidence which ultimately will emerge is an unknown. However, it is because it is unknown what ultimately will come to pass in terms of the evidence given and its effect on the fairness of the trial, that the person best placed to determine this issue is the trial judge. Until the evidence crystallises, the effect of the evidence on the fairness of the trial cannot be determined.

28. Accordingly, the trial judge did not err in his determination that the appellant’s case did not fall within the exceptional category of cases where judicial review is the appropriate avenue to seek to halt a trial.

29. The concerns arising in the instant matter, recognising that concerns exist, are more properly a matter for the trial judge who can consider the evidence which has been given in the trial and then determine whether a trial in due course of law and in compliance with Article 38 of the Constitution can be held, having regard to any appropriate ruling and/or directions which might be given by him/her. It must be presumed that a trial in due course of law will take place, before a trial judge who is duty bound to ensure that a fair trial is held.

Conclusion

30. For the reasons set out, the appellant has not been successful in any of his grounds of appeal and his appeal is accordingly dismissed.

31. As this judgment is being delivered electronically, Meenan and Collins JJ have authorised me to indicate their agreement with it.

32. The usual rule that costs follow the event should apply which would result in a cost order of the High Court proceedings and the appeal before this Court being made against the appellant.

33. If the appellant wishes to contend otherwise in relation to the cost order, I will give him leave to file and serve a short written submission – not exceeding 1,000 words - within fourteen days of the delivery of this judgment in the event of which I would allow the appellant fourteen days to file and serve a response, similarly so limited.

Approved No Redaction Needed