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THE COURT OF APPEAL
[2025] IECA 107
Court of Appeal Record No. 262/2023
McCarthy J
Kennedy J
MacGrath J
BETWEEN/
THE PEOPLE (AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENT
-AND-
J.Q.
APPELLANT
JUDGMENT of the Court delivered on the 28th day of April 2025 by Mr Justice Patrick McCarthy
1. This is an appeal against conviction. On the 17th of July 2023, the appellant was, following a trial, unanimously convicted of: two counts of rape, contrary to section 48 of the Offences Against the Person Act 1861 and section 2 of the Criminal Law (Rape) Act 1981, as amended by section 21 of the Criminal Law (Rape) (Amendment) Act 1990, referred to as 'the 1990 Act' herein, (counts nos. 7 & 9); three counts of rape, contrary to section 4 of the 1990 Act (counts nos. 8, 10 & 11); two counts of aggravated sexual assault, contrary to section 3 of the 1990 Act (counts nos. 4 & 12); and four counts of sexual assault, contrary to section 2 of the 1990 Act, as amended by section 37 of the Sex Offenders Act 2001 (counts nos. 1, 2, 5 & 6).
2. The remaining counts on the indictment (counts nos. 3 & 13) were so-called 'alternative counts' for counts nos. 4 & 12 respectively count no. 3 being an offence of rape, contrary to section 4 of the 1990 Act; and count no. 13 being an offence of sexual assault, contrary to section 2 of the 1990 Act, as amended by section 37 of the Sex Offenders Act 2001.
Factual Background
3. The evidence-in-chief of the complainant, who is a child, was presented by means of a DVD recording of an interview which took place between the complainant and specialist interviewers on the 28th of October 2020 (a transcript of which is available to us). In that interview, the complainant stated that the appellant sexually abused her on a frequent basis (allegedly more than twenty times); however, the prosecution case was that the thirteen counts on the indictment arose out of seven discrete incidents which occurred when the complainant was 6–11 years of age and the respondent was 29–35 years of age. The evidence was that the appellant was, what might shortly be described as, a 'family friend' of the complainant's family.
4. We provide a summary description of each incident below.
Incident No. 1
The complainant exposed himself to the complainant, who was 6 years of age at the time, and subsequently placed his hand down her pants and digitally penetrated her in an upstairs area of a 'party bus' where his daughter's birthday party was being hosted (the appellant's daughter is referred to as 'S.Q.' herein).
Incident No. 2
This incident occurred when the complainant was 7 or 8 years of age and the appellant was driving the complainant and two of his children back from an activity centre. The prosecution case was that the appellant digitally penetrated the complainant when he pulled into a shop en route and his children had exited the vehicle.
Incident No. 3
This incident occurred in the living room of the appellant's house when the complainant was 11 years of age. The prosecution case was that the appellant instructed his daughter to go upstairs and told the complainant to sit in the living room. He subsequently closed the blinds in the living room, lifted the complainant's top, exposing her underwear, slapped her across the face and told her she was worthless. It was alleged that he then pulled down his trousers, placed his penis in the complainant's mouth and began to choke her.
Incident No. 4
This incident occurred in the master bedroom of the appellant's house following what might be described as a children's dispute between the complainant and S.Q. The prosecution case was that having sent S.Q. to her room, the appellant took the complainant's hand, placed it on his penis and made her masturbate him and then trailed his hand down and digitally penetrated the complainant.
Incident No. 7
This incident occurred in the kitchen of the appellant's house when the complainant was 8 or 9 years of age. The prosecution case was that the appellant placed his hand down the complainant's pants and attempted to digitally penetrate her. It was also alleged that he choked the complainant and attempted to record himself doing so on video.
5. We deal with the facts of the fifth and sixth incidents below.
Grounds of Appeal
6. The appellant advances the following grounds in support of his appeal against conviction:-
1. In all the circumstances the trial was unsatisfactory, and the verdicts are unsafe, in particular having regard to the various applications, submissions and requisitions made on behalf of the Appellant and the rulings made by the Learned Trial Judge in respect of same.
2. The Learned Trial Judge erred in fact and in law in refusing to accede to defence counsel's application for a directed acquittal in respect of the various counts on the indictment on the grounds that in all the circumstances, the Appellant could not receive a fair trial including by reason of the manner in which the investigation and prosecution had been conducted, and the prejudice to the Appellant arising.
3. Having regard to all the circumstances, the trial was unsatisfactory, and the verdicts are unsafe.
7. We deal with all grounds together below.
Discussion
8. In his written submissions, counsel for the appellant stated that the proposition, contained in the first ground of appeal, that the trial was unsatisfactory and the verdicts accordingly unsafe, is entirely contingent upon the success of the second ground of appeal; he conceded that were the second ground of appeal to fail then no credible argument could be advanced by the appellant under the first ground [even though counsel did not say so expressly, the same situation must arise in respect of the third ground also]. Furthermore, at the hearing of this appeal, counsel for the appellant stated that his submissions on the second ground, that the judge failed to direct an acquittal on certain counts on the indictment at the conclusion of the trial, were, in truth, confined to counts nos. 7 & 9 on the indictment.
9. Accordingly, the core submission advanced by the appellant on appeal was that the trial judge erred by declining to direct an acquittal on counts nos. 7 & 9 at the conclusion of the trial. We consider the merits of this submission in relation to each count below.
Counts Nos. 7 & 9
10. The particulars of the offence listed as count no. 7 on the indictment were as follows:
"[J.Q.] did on a date unknown between the 6th July 2014 and the 5th July 2016, both dates inclusive, in a bedroom at [REDACTED], have sexual intercourse with [the complainant], a female, who at the time of the intercourse did not consent to it, and at the time, you knew that she did not consent to the intercourse, or were reckless as to whether she did or did not consent to it."
11. The particulars of the offence listed as count no. 9 on the indictment were as follows:
"[J.Q.], did on a date unknown between the 6th July 2017 and the 5th July 2018, both dates inclusive, in [S.Q's] bedroom at [REDACTED], have sexual intercourse with [the complainant], a female, who at the time of the intercourse did not consent to it, and at the time, you knew that she did not consent to the intercourse, or were reckless as to whether she did or did not consent to it."
Evidence on Count No. 7
12. The offending behaviour which forms the basis of count no. 7 was, on the prosecution case, alleged to have occurred during the fifth incident described by the complainant in her evidence. The incident is alleged to have occurred in a bedroom at the complainant's family home when the complainant was 8 or 9 years of age. The background to the incident was that the appellant was building a fence at the complainant's family home when an incident occurred between the complainant and J.Q's daughter which prompted S.Q. to run out, crying, to the appellant. Following this, the appellant came into the house and, on the prosecution case, raped the complainant in an upstairs bedroom. We set out an extract of the evidence from the transcript of the recorded interview relating insofar as it relates to that count below.
13. On the 12th of July 2023, the seventh day of the trial, counsel for the defence applied for a directed acquittal on counts nos. 7 & 9 on the basis that the evidence of the complainant was insufficient to establish the necessary elements of the actus reus of the offence of rape. In making that application, counsel for the defence conceded that the evidence in relation to counts nos. 7 & 9 was sufficient to establish the elements of the inchoate offence of attempted rape. The trial judge declined the defence's application for a directed acquittal on count no. 7 on the basis that the evidence was sufficient to establish the elements of the definition of rape.
14. It is not in debate that the evidence relating to count no. 7 is based on the transcript of the specialist interview. We will now set out the relevant aspects of the complainant's evidence which relate to the necessary elements offence of rape as they appear on the transcript of the complainant's specialist interview which were highlighted in the submissions of counsel both in the original application for a directed acquittal at trial and in this appeal.
15. The extract below is taken from a portion of the interview where the complainant describes how, after leaving the fence and coming into the house, the appellant found her in an upstairs bedroom and positioned her in a certain manner on the bed.
[THE COMPLAINANT]: And this had never happened before. He never did anything
like that and he pulled down my pants. Both -- let's say my leggings or whatever I was wearing and my underpants and he pulled down his pants. I could hear them going down. Like I could hear them fall and he tried to put his penis in my vagina.
[...]
GARDA CUNNINGHAM: Okay?
[THE COMPLAINANT]: And so he grabbed like both my hands backwards and so he had both of my hands kind of pressed against my back but he only had one hand holding it down and he had one of his knees on like the back of my calf and he tried to put himself inside me but that didn't -- it didn't work.
GARDA CUNNINGHAM: Explain that to me?
[THE COMPLAINANT]: He wouldn't fit. Like he couldn't get in.
GARDA CUNNINGHAM: Okay?
[THE COMPLAINANT]: So he tried my bum essentially and he could kind of get in if that makes sense and he couldn't, wasn't like -- he couldn't, like let's say if it was in my mouth, it wasn't like that. He had to like really kind of push. I started to cry and I started pulling away and he did that I'd say for less than a minute and he, I don't know if he finished or whatever but he then got up and he kind of grabbed my chin and he pressed down really hard and he just then kind of pulled himself up and walked out and I got up [...]
In the ensuing portion of the interview the complainant goes on to state, inter alia, that she was going to inform her mother about this incident, but when she went out the front door the appellant grabbed her by the wrist, pulled her back inside and threatened to kill the complainant's pet dog if she disclosed the incident to anyone. The extract below is taken from a portion of the interview where the specialist interviewer returns to ask the complainant about the details of some of the activity which she had described as having occurred in the bedroom.
GARDA CUNNINGHAM: You had said [Complainant] that he had tried to put his penis in your vagina?
[THE COMPLAINANT]: Yes.
GARDA CUNNINGHAM: Tell me all about that?
[THE COMPLAINANT]: He attempted it but it wouldn't fit. He couldn't get it. He couldn't get it in.
GARDA CUNNINGHAM: Okay, explain that to me?
[THE COMPLAINANT]: Like he tried to hold me down and he tried to put it in while I was struggling. Like I tried to pull away. Like he tried to put the top of it in but that's how I knew like it was going to hurt. So I, then I started like fighting and I -- he grabbed both my arms behind my back. He put let's say his elbow to keep it down and he put his leg on my calf because I was like on the bed like but my knees were on the bed and then I was pushed down.
[...]
There followed a discussion between the specialist interviewer and the complainant regarding the position of the bed and some related matters. The extract below is taken from a portion of the interview where the complainant was again questioned about the penetrative activity which was alleged to have occurred in the upstairs bedroom.
GARDA CUNNINGHAM: [Complainant], you'd said that he tried to put his penis in our vagina, how did that feel?
[THE COMPLAINANT]: It felt like, it felt like it kind of stung. It was like it was too big to fit. It couldn't fit. It wouldn't. Like it just it wouldn't have happened. Like he like pushed really hard and he got the top of it in but it didn't really go. It wouldn't go any further and so he pulled it out and then he tried my bum. (our emphasis)
GARDA CUNNINGHAM: Tell me all about that?
[THE COMPLAINANT]: He got a little further with that but he could get further than he did with let's say my vagina and he could kind of get further into me.
GARDA CUNNINGHAM: Okay, explain that to me?
[THE COMPLAINANT]: He could be able to put his penis in to my bum further than he could with my vagina.
GARDA CUNNINGHAM: Okay. How did it feel?
[THE COMPLAINANT]: It felt like it was ripping. Like it felt like it stung. Like it felt like -- like it felt like it was sharp.
GARDA CUNNINGHAM: Okay.
[THE COMPLAINANT]: Do you know?
GARDA CUNNINGHAM: When you say it felt like it was ripping, describe that to me?
[THE COMPLAINANT]: Like it felt like it was sharp. It felt like it was stinging. It felt like it was splitting essentially. Like it was pain when I -- every time I pulled away the more he tightened it, kind of gripping, the harder he pushed.
GARDA CUNNINGHAM: How long did this go on for?
[THE COMPLAINANT]: A minute, maybe two minutes.
GARDA CUNNINGHAM: Okay. Where were his hands?
[THE COMPLAINANT]: Well it was a minute, maybe two minutes of like him as he got fully in and then that was two minutes of it like. Like it was in completely. Like it wasn't -- like it wasn't just the top or anything.
GARDA CUNNINGHAM: Okay and when you say it was going in, tell me everything about that?
[THE COMPLAINANT]: Like his penis was like far in me. Like it was -- like I could feel it further in.
GARDA CUNNINGHAM: Okay?
[THE COMPLAINANT]: Like it wasn't just like the top. It was like a good bit in and he -- and then once he got it he went really, really hard and then as I tried to pull away he pulled back with his hands. He had his hand kind of -- one hand kind of holding there and the other --
16. It is self-evident that the complainant's evidence extended to slight penetration of her vagina with the appellant's penis. On any view it is plain that there is ample evidence to permit a jury to convict of rape on that count and the direction application was rightly refused.
Evidence on Count No. 9
17. It was the prosecution case that the offending behaviour which forms the basis of count no. 9 on the indictment occurred in S.Q's bedroom at the appellant's house when the complainant was 11 years of age. In her evidence, the complainant stated that she was alone in S.Q's bedroom when the appellant entered and began speaking to her, telling her that she was very special to him, that she could be very special to others too and that he would have to give someone else proof that she was special. It was alleged that the appellant exposed himself to the complainant, told her to put her mouth around his penis and recorded her doing so. The prosecution case was that the appellant later pushed his penis into the complainant's vagina and subsequently penetrated her anus with his penis.
18. We have already described above the basis upon which counsel for the defence applied for a directed acquittal on count no. 9 on the 12th of July 2023. This application was refused by the trial judge in a ruling the following day.
19. It is not in debate that the evidence relating to count no. 9 is based on the transcript of the specialist interview. We have set out the relevant aspects of the interview below.
20. The extract below is taken from a portion of the interview which sets out the complainant's evidence of the incident insofar as it relates to the alleged rape of the complainant by the appellant.
[THE COMPLAINANT]: He tried to put his penis inside my vagina and that wouldn't work. He tried it every time and then he then went back to my bum and he videoed it and then after a couple of minutes he put the phone down and finished or like --
GARDA CUNNINGHAM: Okay and when you say he went back to your bum, explain that to me?
[THE COMPLAINANT]: He put his -- once he realised he couldn't put his penis inside my vagina, he put his penis in my bum.
GARDA CUNNINGHAM: Okay. ... (our emphasis)
[...]
It appears from the transcript that the specialist interview experienced some technical difficulties. The extract below is from the portion of the interview where the interviewer returns to question the complainant about the activity described in the foregoing extract.
GARDA CUNNINGHAM: [...] When you say he tried to put it into your vagina, tell me all about that?
[THE COMPLAINANT]: He tried to kind of push in my vagina which hurt and he wouldn't fit. So he then pushed, then he went and kind of resorted to my bum. He put -- then because he knew if he pushed hard enough he could fit it in.
GARDA CUNNINGHAM: Okay. Tell me all about that?
[THE COMPLAINANT]: He like kind of pushed himself in, like into my bum and you know bobbed or bobbed in and out or whatever you want to and then as he videoed it and then he put it, he put, after a couple of minutes he put the camera down and he finished or --
GARDA CUNNINGHAM: Okay, how did it feel?
[THE COMPLAINANT]: Em, like it was always sore and painful but it got less painful over time. Like it was still painful and I'd still cry nearly every time or I'd well up or I'd start to fret but it got less stingy or whatever. (our emphasis)
21. When the complainant was asked to tell the interviewer everything she alleged the appellant had videoed, she stated:
"He videoed my mouth around his penis. He videoed himself trying to get into my vagina and he videoed himself with his penis in my bum." (our emphasis)
22. It will be seen that there was insufficient evidence to allow a jury to consider or convict on a charge of rape on count no. 9, in distinction to count no. 7, we accordingly quash the verdict on that count.
Analysis
23. It was not in debate at the trial, nor is it in debate here, that the evidence on count no. 9 was sufficient to make out a prima facie case of attempted rape of which the jury could properly have convicted. It was not sought at the trial to place such a count before the jury notwithstanding the state of the evidence.
24. It was conceded by counsel that this Court could, pursuant to section 3 of the Criminal Procedure Act 1993, properly substitute a verdict of attempted rape for rape on this count.
25. Section 3 of the Criminal Procedure Act 1993 provides:
(1) On the hearing of an appeal against conviction of an offence the Court may—
[...]
(d) quash the conviction and, if it appears to the Court that the appellant could have been found guilty of some other offence and that the jury must have been satisfied of facts which proved him guilty of the other offence—
(i) substitute for the verdict a verdict of guilty of the other offence [...]
26. We think that the jury must have been satisfied of facts, namely, at least attempted entry however slight by the appellant of his penis into the complainant's vagina, whatever else.
27. The judge directed that each count was to be dealt with separately and we cannot see any reason to believe that the jury did not do so and hence the view we have taken on count no. 9 has no implications for the verdicts on the others.
28. Having quashed the verdict on count no. 9 and we substitute therefor a verdict of guilty of attempted rape.