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You are here: BAILII >> Databases >> Irish Court of Appeal >> The Director of Public Prosecutions v Z. R. (Approved) [2025] IECA 112 (08 May 2025)
URL: http://www.bailii.org/ie/cases/IECA/2025/2025IECA112.html
Cite as: [2025] IECA 112

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THE COURT OF APPEAL

Neutral Citation: [2025] IECA 112

Record Number: 266/2023

 

McCarthy J.

Kennedy J.

Butler J.

 

 

BETWEEN/

 

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

 

RESPONDENT/

 

- AND -

 

Z.R.

 

APPELLANT

 

JUDGMENT of the Court delivered on the 8th day of May 2025 by Ms. Justice Isobel Kennedy.

1.        This is an appeal against conviction. On the 1st of August 2023, the appellant was convicted of count 3 on the indictment; rape contrary to s.2 of the Criminal Law (Rape) Act 1981, as amended by s.21 of the Criminal Law (Rape) (Amendment) Act, 1990. The appellant was acquitted of counts 1, 2, and 4 on the indictment on the same date.

Factual Background

2.       The within appeal relates to the offence of rape, which the appellant was found guilty of on the 1st of August 2023 following a 10 day trial.

3.       The appellant and the complainant had been in an intermittent relationship for approximately 3 months up until the day of the offending, having met on a dating website sometime around August 2019.

4.       On the 16th of November 2019, the appellant came to the complainant's home by mutual arrangement. The appellant bought alcohol which he drank at her apartment. The complainant took a shower and then returned to the living room at which point sexual activity took place, the subject of counts 1 and 2 on the indictment.

5.       She then left the room leaving her phone behind her and got into bed with her infant son. She recalled that the bed was a double bed with bed rails. She awoke to the appellant in the bed and gave evidence that he penetrated her anally and vaginally: counts 4 and 3 respectively. She said she was crying and begging him to stop. The appellant was convicted of count 3: the rape offence.

6.       The evidence disclosed that the baby woke up and the appellant left the room. She asked her other children to mind the baby and she went to the sitting room and retrieved her phone. She began communicating with friends in a WhatsApp group chat asking if anybody was awake, and with one friend who replied to her (Mr. W) by way of a private message. She gave evidence that she informed him what had happened, and he indicated he would contact the Gardaí.

7.       With the knowledge that gardaí would arrive, she recorded the conversation which ensued with the appellant on her mobile phone. The audio recording comprising three clips was played to the jury where the appellant proffered an apology to the complainant. The Director contended this related to the appellant's sexual misconduct whereas the appellant contended it concerned the fact that he had made a mistake in visiting the apartment in the first instance.

8.       The admissibility of the audio recording was the subject of a voir dire and forms part of this appeal.

9.       The complainant attended at a Sexual Assault Treatment Unit ("SATU") clinic on the 17th of November and evidence was adduced of an abrasion consistent with recent vaginal penetration.

10.   The complainant accepted in her evidence that she had falsely claimed to have been diagnosed with cervical cancer to the appellant and other individuals in 2019, and that she only confirmed in a July 2022 statement that she had never been so diagnosed.

11.   The appellant gave evidence at trial and denied any sexual activity in the sitting room. He said he had consensual vaginal intercourse with the complainant in the bedroom and denied any attempted vaginal or anal intercourse. He gave evidence that he awoke the next morning and that in effect, everything was normal. However, when he got dressed and went into the sitting room, he said the complainant accused him of rape. He said as follows:-

"A. [S]he came and she start telling me, like, '[Z], you raped me.  Why you didn't stop?'  This -- I just get, like, what she is talking about.  She said, 'I ask you stop.'  I tell her, I said, 'What do you mean?  Why you saying that to me, you was the person who asked me to come.  You asked me for the bringing and what happened between us that was your own wish, you started that.  Now you're saying that to me, why?'  And she said, 'No, I stop you, I ask you to stop... ' -- this and that --  Again I said to her, I said, 'Why you saying that to me?  What do you mean?  Did I ever did that to you before?  Did I ever go against you this?  Why you saying that to me?'  But she was keep saying again and again this thing.  Then I know her mental condition.  So, I just wanted -- I said sorry to her.  I said to her, 'This is my mistake I came.'  Because there was click in my mind, like, she trapped me.  You know, that was plan.  How come, like, a girl like she is doing all the calling, pushing you, suddenly after a break-up and insisting you -- the same day to coming over there in short.  So I said I just wanted to cut off the conversation, I just want to leave this place."

12.   Evidence of recent complaint was adduced, being that of the communication between the complainant and Mr. W, and now forms part of this appeal.

13.   The appellant was convicted on counts 3 and 4 and acquitted on counts 1 and 2.

Grounds of Appeal

14.    The appellant appeals his conviction on four grounds and while there are several sub-grounds, in essence the within appeal now concerns:-

(a)         The failure to exclude the audio/video recording;

(b)         The failure to exclude the evidence of recent complaint;

(c)         The refusal of an application to direct verdicts of not guilty and;

(d)         That the verdict is perverse, unsafe and against the weight of the evidence.

 

A.   The Audio/Video Recording

Background

15.   This section relates to the audio recordings which were recorded by the complainant in the immediate aftermath of the offending and were recovered by investigating gardaí from the complainant's mobile phone.

16.   The appellant makes several submissions regarding this evidence. Firstly, that the evidence ought to have been excluded on the basis that the recording was of poor quality, secondly that the possibility of editing or deletion could not be excluded, thirdly, the loss of opportunity to independently examine the device and fourthly, the failure to preserve the complainant's device caused the loss of potentially relevant evidence, being that of communications between the complainant and her WhatsApp group and the complainant and Mr. W in the immediate aftermath of the offending.

17.   Moreover, that the failure of Gardaí to properly preserve the complainant's device and to seek and preserve Mr. W's device necessitated the case being withdrawn from the jury. These aspects are addressed in a later section of this judgment; however, the background is the same, and the submissions overlap on both points and so are not repeated.

18.   The audio recordings were captured at 07:51, 07:54 and 07:59, and were 1 minute 20 seconds, 1 minute 44 seconds, and 3 minutes long respectively, as stated by Counsel for the appellant during the application for a directed acquittal.

19.   The appellant's legal team sought access to the complainant's phone or a comprehensive download of its full contents on the 6th of April 2021, however, this was not provided, and it was later discovered on the 1st of February 2023 that the phone was rendered unusable for such purposes due to a battery failure which caused internal damage that prevented the device being powered up.

20.   The defence sought to exclude the evidence at trial on the basis that the investigating gardaí had failed to fully and properly investigate the case, leading to a loss of material evidence that might have been of assistance to the defence.

21.   This application was based on a failure to download the full contents of the complainant's phone prior to its self-destruction while in Garda custody, thus depriving the defence of the opportunity to probe whether the audio/visual clips were in any way edited, modified, deleted, or taken out of context with regards to the full contents of the complainant's phone.

22.   The trial judge ruled against the defence finding that:

"The phone should have been retained in a more secure way and I've no doubt in relation to that but I'm not satisfied that the damage which was caused to the phone is such as to deprive the person - the accused person of a fair trial".

Submissions of the Appellant

23.   The appellant challenges the admissibility of the phone evidence on the bases that the audio/video clips as admitted were of low quality, lacked full context and were misleading and that the full context, which would potentially be more favourable to the appellant, was not available because Gardaí failed in their duty to seek and preserve relevant evidence.

24.   The appellant also submits that the case should have been withdrawn from the jury because of said failures of the Gardaí to properly seek out and preserve relevant evidence.

25.   The appellant submits that the clips admitted into evidence were potentially misleading because they did not capture the full uninterrupted conversation between the complainant and the appellant due to the gaps in time between the respective clips, which was unexplained. The appellant also submits that they were of poor quality, rendering it difficult to hear, interpret, or contextualise the clips. Said ambiguity was, on the submission of counsel for the appellant, exacerbated because of the appellant's poor English and because the conversation was occurring as the appellant left the complainant's home, and therefore the full context and meaning of the conversation was not fully captured by the clips.

26.   The appellant argues that the incomplete nature of the recordings invited the jury to speculate as to the correct interpretation of words exchanged between the appellant and complainant, drawing the conclusion that the words "I'm sorry. It was my mistake" was an admission of guilt in respect of count 3. The appellant, however, submits that had the full context been available, said interpretation would not have been reached by the jury.

27.   Counsel for the appellant submits that he was denied the opportunity to have the complainant's phone or its contents examined by his own expert, despite a timely request on the part of the defence to do so, and that the Gardaí were at fault in not facilitating said examination before the destruction of the evidence.

28.   The appellant contends that this failure to seek out and preserve the full contents of the complainant's phone, only completing a partial download of its contents, means that it cannot be ruled out whether there were other recordings, or whether the recordings in evidence were altered or edited. Further, the appellant submits that all text and WhatsApp messages, as well as any metadata attached to the clips, was lost.

29.   The appellant also argues that Gardaí failed to seek out and preserve relevant telephone evidence in respect of Mr. W, who had been in telephone contact with the complainant on the morning of the 17th, and in respect of Ms. O'C, another prosecution witness who had also been in telephone contact with the complainant that morning. The appellant submits that this evidence could have further contextualised the clips before the jury.

30.   The appellant submits that the delay on the part of the prosecution and gardaí in replying to his request to access the mobile phone, combined with the failure by gardaí to complete a full download of the phone data, to take all necessary steps to prevent the destruction of the phone, and to seek out and preserve data from the phones of the two witnesses, meant that potentially important evidence for the defence was lost.

31.   The appellant places reliance upon the line of authority commencing with People (DPP) v Braddish [2001] 3 IR 127 in support of the proposition that there is a duty on the gardaí to seek out and preserve all relevant evidence going to guilt or innocence insofar as necessary and practicable. The appellant also relies on the recent decision of this court in People (DPP) v Philip Dunbar [2024] IECA 85.

32.   Counsel submits that there is a real risk of unfairness to the appellant by way of a lost opportunity through no fault of his own to access evidence that may have been helpful in his defence, and that therefore the trial judge should have not only excluded the mobile phone evidence but withdrawn the case from the jury entirely. This ground of appeal is addressed later in a separate section of this judgment.

33.   The appellant also submits that the only explanation for the diverging verdicts as between counts 3 and 4 was the purported admission of guilt in the video clips before the jury.

34.   Finally, the appellant submits that there was no attempt by the trial judge to remedy the unfairness caused by the loss of the full mobile phone evidence in her charge to the jury, albeit that this is not the subject of a ground of appeal.

Submissions of the Respondent

35.   The respondent relies upon the decisions of Charleton J in People (DPP) v Clement Limen [2021] ILRM 61, People (DPP) v Zoltan Almasi [2020] IESC 35, and the decision of this court in People (DPP) v Quirke [2021] IECA 306.

36.   The respondent submits that the appellant takes no issue with the provenance of the phone and video recordings, but that the appellant merely takes issue with the length of the videos and the circumstances of their recording. However, the appellant does suggest that he had no opportunity to investigate or probe whether clips where cut or edited in a misleading way after their recording.

37.   The respondent proceeds to address this submission, arguing that such suggestions are fanciful and theoretical, and that these possibilities were not put to the complainant during cross examination. The respondent also argues that evidence during the voir dire contradicts the possibility of tampering or manipulating evidence, specifically that the complainant's phone was handed to gardaí less than an hour after the first recording was made (the implication being there was little opportunity for the complainant to edit or delete videos), and that access by gardaí to the phone in storage was controlled and limited.

38.   The respondent acknowledges a duty on investigating gardaí to take reasonable steps to seek out, preserve and disclose relevant evidence, and that the destruction of the phone in this case was regrettable, however, the respondent rejects the contention that the lack of an opportunity to carry out a further examination of the phone led to any unfairness. 

39.   In response to the appellant's submission that he was denied a realistic ground of defence because of a lack of an opportunity to have an expert examine the phone or its contents, the Director submits it is unclear what this defence would or could have been. The Director notes that the appellant retained content on his own phone, which was used during cross examination of the complainant.

40.   The respondent rejects the submission that the recordings were of poor quality, noting that the trial judge was in a position to make her own assessment as to admissibility during the voir dire, and was correct in admitting the evidence. The respondent also rejects the contention that language or cultural issues were a factor mitigating against admissibility, noting a lack of evidence to this effect, and pointing to the fact that the appellant did not request a translator during his interview with gardaí.

Discussion

41.   The appellant's contention that it is reasonable to infer that the recordings led to the conviction for rape is not relevant to this appeal save to observe that this evidence was without doubt relevant evidence and as such was admissible. Relevant evidence is admissible unless there exists a rule of law which necessitates its exclusion. In the present case the jury were charged with determining two issues: whether there was consent to an act of sexual intercourse and whether certain sexual acts occurred at all, those being the acts denied by the appellant in evidence. Quite clearly, the content of the audio recording was relevant to those issues.

42.   The appellant does not challenge the provenance and authenticity of the recordings, the issues rest with the quality of the recordings, and the suggestion of possible editing or deletion of material and that the three recordings were incomplete. It is also argued that the failure to seek out and properly preserve the complainant and Mr. W's device rendered the trial unfair and ought to have led to the exclusion of the evidence.

43.   Insofar as the quality is concerned, the contention being that the visual quality was poor and that the clips were partially inaudible. We note that the recordings were transcribed and during the voir dire, the trial judge heard and assessed the quality of the clips. It does not appear from the ruling of the trial judge that she expressed any concern regarding the quality of the recordings.  Indeed, she considered it would be unfair to deprive the jury of the opportunity to consider the recordings which were made so close in time to the offending and that the material was highly probative. There can be no doubt that this is so. Moreover, the recordings were played to the appellant during his interviews with gardaí, thus providing him with the opportunity to respond to the contents thereof. The appellant does not deny he apologised, merely that the words spoken bore a different meaning than that contended for by the respondent. Therefore, we are not persuaded this is a point of any substance.

44.   It is the position that the defence were denied the opportunity to independently examine the device notwithstanding requests to do so and, when the device was to be made available, it transpired that a battery problem rendered impossible any further analysis. This is indeed regrettable, but the suggestion that material may have been edited, altered or deleted or was incomplete appears to this Court to be highly speculative. It cannot be said that the appellant was denied a "realistic ground of defence" as contended.

45.   It is well established that the Gardaí are under a duty to seek out and preserve all evidence bearing on the guilt or innocence of an accused person, however, the duty to do so is not unlimited and cannot be considered in isolation from the other evidence. Factors including the practicality and the feasibility to execute such a duty are relevant, however, any application to exclude evidence on the basis of a failure to seek out and preserve must be viewed in the context of all the evidence and the central materiality of the missing or lost evidence. In other words, the realities of the situation cannot be ignored.

46.   It is worthwhile looking at the timeline and circumstances of the events in question. In that respect, the complainant was a member of a WhatsApp group comprising persons who suffered from anxiety. It was to this group that she sent a message on the morning of the 17th November 2019. Mr. W replied to her by private message and she replied to him at 07:39 stating that she had been raped. He then makes a 999 call which was played to the judge during the voir dire. At 08:45 Garda Carr received a call to go to the complainant's home. The complainant's device was seized by the gardai and placed in a tamper-proof evident bag and sealed. This bag was then placed in a secure unit known as PEMS where it remained until examined by a garda trained in Cellebrite forensic analysis on the 16th December 2019. The time frame from retrieval of the phone to the extraction of data was from the 14th November 2019 to the 16th December 2019, and the data included the three audio/video clips, call logs and SMS messages. The phone was placed in the tamper-proof bag and returned to PEMS. The defence sought disclosure by letter dated the 6th April 2021, however, sometime in February 2023, on retrieving the phone, it became clear that it was irreparably damaged due to a battery problem.

47.   The device was taken from the complainant in the immediate aftermath of the offending and a partial download of the material was conducted by Gardaí and while the download was not comprehensive, the material which was downloaded was for the purpose of interview with the appellant. The appellant was of the view that his apologies related not to an admission, but to the fact that he ought not to have attended the complainant's apartment in the first place.

48.   It does not appear to this Court that the inability to examine the complainant's device deprived the appellant of a realistic ground of defence. The appellant does not in reality dispute the content of the recordings, he disputes the interpretation of that content and takes issue in a speculative manner as to whether such recordings are comprehensive. As we have said, the "lost" evidence cannot be viewed in vacuo but must be considered in light of the evidence as a whole. Whilst the conversations which were recorded were undoubtedly of evidential significance, they were not of a very special significance such as, evidence recording the commission of a crime, for example by way of CCTV footage.

49.   Moreover, when we scrutinise the content of the recordings by way of the transcript made of them, it is clear that the apologies are placed entirely in the context of the allegations of sexual misconduct as can be seen from the extracts hereunder:-

"[Complainant] what do you mean you're sorry why didn't you stop why didn't you just listen to me

[appellant] Your always said that you don't mind that like when you said anytime

[C] and I told you to stop why didn't you listen to me

[C] Tell me what way I'm suppose to react right now

[A] Its okay

[C] what's okay its not okay

[A] It's my mistake

[C] I begged you and begged you to stop why didn't you stop

[A] I'm sorry that's my mistake

[C] But can you just make sense of it

[A] It's my mistake it's not gona happen again don't worry"

 

In the next clip the complainant is heard to say that she asked him to stop at least 20 times, to which he responds, "sorry I shouldn't have come". Then again in another clip the complainant asks a question clearly related to sexual intercourse:-

"[C] what do you  mean you didn't do anything you put it inside me.  I repeatedly told you and told you, I begged you to stop and you didn't listen to me

[A] I'm sorry that's my mistake"

50.   The appellant gave evidence at trial of his interpretation of the words recorded, however, he did not dispute that he offered an apology to the complainant.

51.    Whilst he gave evidence that the recordings may have been incomplete or edited in some way, no evidence other than this suggestion by the appellant was adduced. Moreover, the suggestion of editing or that the recordings were incomplete was never put to the complainant in cross examination and therefore she was denied the opportunity to respond to this suggestion, thus breaching the rule in Browne v Dunn (1893) 6 R. 67. and impacting on the weight to be afforded to this evidence.

52.   The appellant contends that had the entire interaction between him and the complainant been recorded and thus placed properly in context, his responses would be demonstrably exculpatory and that when one considers that position coupled with "social, cultural and language issues", the admission of this evidence rendered the trial unfair.

53.   Moreover, it is contended that this unfairness was compounded in that the Gardai failed to seek out and preserve Mr. W's mobile phone in circumstances where it is said this device contained messages between Mr. W and the complainant and another acquaintance of the complainant, a Ms. O'C. It appears there was a conflict in the evidence regarding the gathering of this potential evidence in that the Gardai gave evidence that Mr. W refused to provide his device, whereas Mr. W said he was never asked to do so. The absence of Mr. W's phone is an issue more pertinent to the impugned evidence of recent complaint rather than the issue of the audio/visual recordings in our view.

54.   We do not find that there was a real risk of unfairness to the appellant due to the inability to conduct an independent examination of the complainant's device or of Mr. W's device such that he was unable to advance a point material to his defence. The obligation to seek out and preserve relevant evidence must be interpreted in a fair and reasonable manner and with regard as to where such evidence fits in a case. It is undoubtedly regrettable that the disclosure request was not followed up sooner by gardaí, although there is no indication as to when the damage occurred to the device, but the most significant consideration is the materiality of the 'lost' evidence to the defence case.

55.   The appellant had the opportunity to comment on the clips in interview, to cross examine the witnesses and, at his option, to give evidence before the jury. He did so and put forward his interpretation of the material contained in the clips.

56.   We repeat that relevant evidence is always admissible unless some rule of law necessitates its exclusion. For this material to be excluded, it would be necessary that its probative value was outweighed by its prejudicial effect. As stated by Charleton J. in Almasi:

"[W]here evidence does not substantially advance any side's version of a fact in issue but causes marked prejudice against the accused, that evidence should not be admitted. This is a balancing exercise since relevant evidence is always admissible unless there is a countervailing rule which requires the exclusion of that evidence. Hence, the prejudicial effect must overwhelm the limited probative value of the evidence."

 

Conclusion

57.   The evidence in the present case was clearly highly probative, relevant evidence. It may be said that all prosecution evidence is prejudicial to an accused, however, it is only where such evidence does not advance either side's version of events, that it should be excluded and where the evidence is probative but is of limited probative value, then the prejudicial effect must overwhelm that value before the balancing test leans in favour of exclusion. In this case, the evidence was certainly not of limited probative value and nor did its prejudicial effect outweigh, much less overwhelm, it's probative value. There was therefore no rule of law which required its exclusion.

58.   We cannot see any error on the part of the trial judge and accordingly, this ground of appeal fails.

B.   Admissibility of Recent Complaint Evidence

Background

59.    The impugned evidence concerned a WhatsApp message from the complainant to Mr. W stating, "[Mr. W's name], I'm in bits. I know you're not going to believe me but I've just been raped".

60.   The evidence disclosed that early in the morning of the 17th November 2019, the complainant sent a message to a WhatsApp group, following which she received a private message from Mr. W, to which she responded as above. Neither Mr. W's device or the complainant's device was available for independent forensic examination and these messages were not available from the data retrieved from the complainant's phone. This was due to the nature of the download requested by the Gardaí which included SMS text messages but not text messages transmitted over WhatsApp or other social media platforms.

61.   The trial judge rejected this application on the next day of trial, ruling that, "in the opinion of this Court, that is material which can go to the jury in relation to recent complaint".

Submissions of the Appellant

62.    The appellant submits that the failure of gardaí to acquire and preserve relevant mobile phone records from Mr. W and Ms. O'C, mentioned above, also caused significant risk of prejudice to the appellant.

63.   It is submitted that the unavailability of these mobile phone records disadvantaged the appellant in his cross examination of the complainant and Mr. W, and impeded his ability to test the prosecution narrative by reference to the phone messages, which were themselves the very basis for the recent complaint evidence being admitted in the first place.

64.   The appellant also submits that there was a conflict between the evidence of the investigating garda and Mr. W in relation to the gathering of this evidence, with the investigating garda stating that Mr. W had refused to provide his phone, while Mr. W stated that he had never been asked.

65.   The appellant places reliance upon the authorities of DPP v MA [2020] IECA 367, DPP v GMcD [2022] IECA 261, People (DPP) v M.A. [2002] 2 IR 601, The People (DPP) v Brophy [1992] ILRM 709 and People (DPP) v Gavin [2000] 4 IR 557. The appellant also places reliance upon a passage from McGrath on Evidence (3rd ed. 2020) which sets out the law on admissibility of recent complaint evidence.

Submissions of the Respondent

66.   The respondent accepts that there was a difference between the evidence of Mr. W and the investigating garda as to the issue of giving over his phone, however, the respondent does not accept that the absence of this phone in evidence caused any unfairness.

67.   The respondent also accepts the legal principles outlined by the appellant in relation to the doctrine of recent complaint, however, the respondent rejects the contention that the complaint was not made at the first reasonable opportunity.

68.   Insofar as the appellant argues that he was deprived of the opportunity to test the consistency of the narrative by reference to the messages, the respondent submits that the narratives of the complainant and Mr. W were consistent inter se, and the limited purpose of the evidence, to show consistency, was therefore fulfilled. The respondent also submits that the evidence of Mr. W was that he had referenced the phone messages while making his witness statement in order to provide the details of the times of calls and messages.

69.   The respondent expressly rejects any general contention that a mobile phone or other device used to complain about sexual offending must be available in order for that complaint to be admissible pursuant to the doctrine.

70.   Finally, the respondent submits that all the requirements were met for admission of Mr. W's evidence under recent complaint.

Discussion

71.   The doctrine of recent complaint constitutes an exception to the general rule against the admission of a previous consistent statement. There are the well-known conditions of admissibility but once those conditions are met and the trial judge deems the evidence admissible, this Court will be most reluctant to interfere with the decision of the trial judge. The reason being that the admission of a recent complaint is a matter for the discretion of the trial judge, but of course, this Court will interfere with the exercise of that discretion if the trial judge exercised it incorrectly.

72.   The conditions for admissibility were clearly met in the present case, the concerns expressed on behalf of the appellant relate to the unfairness of the admission of the evidence, predicated on the absence of the aforementioned devices and data.

73.   It is most important for the present analysis to focus on the purpose of the admission of this evidence. It is not evidence of the truth of the allegation made, but is evidence which is admitted only for the limited purpose to demonstrate that the victim's conduct in complaining was consistent with the victim's testimony. In short, the purpose of admission is to show consistency on the part of the victim of a sexual offence. This purpose was elegantly stated by Murray J. (as he then was) in People (DPP) v M.A. [2002] 2 IR 601:-

"It is evidence which can be introduced to support the credibility of a complainant, based on the view that it was the natural expression of the victim's feelings that reasonably soon after the offence she would complain to some person with whom she had a personal or confidential relationship."

74.   The complaint to Mr. W was made following the complainant sending a general WhatsApp message to her WhatsApp group which consisted of those suffering from anxiety. Mr. W then sent her a private message and she replied stating that she had been raped. As indicated by the timeline previously set out in this judgment, Mr. W's message is timed at 07:39. He then contacts the Gardai and does so by way of a 999 call which causes the gardai to call to the complainant's address. 

75.   It is not always the situation that a record of the precise words spoken by the victim of a sexual assault will be recorded in some format. Ordinarily, the person to whom the complaint is made will make a statement to the gardaí and subsequently give evidence according to that statement. When making his statement to the Gardai, Mr. W. clearly used his phone to check times and content. He sets out the conversation he had with the complainant by WhatsApp messages and so the appellant had that information from Mr. W's statement. 

76.   It is also recorded in Mr. W's statement that the complainant was very upset and crying and that he was concerned and that was why he decided to call the gardaí.

77.   That was evidence undoubtedly within the remit of the jury. The contention advanced is that it was unfair to admit the evidence without Mr. W's device or the complainant's device, or the content of the WhatsApp messages, and so it is said it was not possible to cross examine the witnesses in a meaningful way.

78.   An accused person is entitled to a fair trial but not a perfect trial. The optimum situation would of course have been if the parties had Mr. W's device and thereby a written record of the WhatsApp conversation. Why this did not occur was the subject of a conflict in the evidence. However, as stated above, one must examine the centrality of the evidence and must do so in the context of the evidence as a whole.

79.   The content of Mr. W's statement was read into the record in the course of the voir dire by counsel for the appellant. It is clear that Mr. W referred to his phone whilst making the statement and so the content of the WhatsApp messages was known. Whilst this is certainly not the optimum situation, it would have been preferable if the device had been seized, nonetheless the material was available to the defence to enable any cross examination on the basis of any perceived inconsistency vis-à-vis Mr. W's evidence of the complaint received and the testimony of the complainant. There is no reason to suppose that he did not read messages accurately to the gardaí. The appellant's counsel was in a position to cross examine regarding the absence of the devices, thus enabling the jury to assess the weight of the evidence, but the absence of this material was not such as to render the trial unfair or the evidence inadmissible.

80.   The complaint made to Mr. W by the complainant was not the central evidence in the trial, the central evidence was that of the complainant. The evidence of Mr. W, as we have stated, was evidence relating to consistency on the part of the complainant. That evidence was not evidence of the truth of the allegation, certainly the evidence had the potential to bolster the credibility of the complainant but that is as far as it went. There is no basis to suggest that an allegation was not made by the complainant to Mr. W, that idea is not supported by the evidence. The evidence actually suggested that Mr. W was so concerned about the complainant that he very quickly contacted the gardaí by way of 999 call, causing them to hasten to her residence.

81.   When making his statement, Mr. W clearly used his phone and while it would certainly have been prudent, indeed optimum practice to take that phone, the fact that a record was not maintained and made available to the parties of the textual conversation does not render the conversation, i.e. the complaint, inadmissible on grounds of unfairness.

82.   Again, we repeat relevant evidence is admissible unless there is some rule of law necessitating its exclusion. This was probative evidence and its probative value was not overwhelmed by its prejudicial effect. There was the capacity to cross examine and to present the entire picture, flaws included, to the jury. We are not persuaded that the absence of the devices impeded the cross-examination of witnesses or otherwise rendered the trial unfair.

Conclusion

83.   Accordingly, for the reasons stated, we are not persuaded as to the merit of this ground and we therefore reject it.

C.   The Refusal of the Direction Application

Background

84.   The defence brought an application to withdraw the case from the jury on the basis of (i) the unreliability of the complainant and (ii) the failure of the Gardaí to collect and preserve all potentially relevant evidence, and the impact this had on the ability to cross examine witnesses.

85.   The appellant contends that the witness was unreliable in that she suffered from mental health issues and had accepted that she had previously told lies to persons in authority and to friends about a false diagnosis of cancer.

86.    The trial judge refused the application, ruling as follows:

"But I'm not satisfied that there is an unfairness on the level which is being suggested.  I think this has been a fair trial, the Court has observed the cross-examination of witnesses, the prosecution witnesses have been cross-examined, the defence witness, the accused person has been cross-examined.  This Court was told at the outset this is a trial where the central issue is whether or not there was consent on the night in question, where the accused person has given an account that there was consensual sex between the parties, and the prosecution case has been that there was no consensual sex between the parties.  In relation to any of the inconsistencies which I have referred to, these are entirely matters for a jury to consider."

Submissions of the Appellant

87.    The appellant places reliance upon DPP v PO'C [2006] 3 IR 238, DPP v John O'Donoghue [2024] IECA 74 and DPP v CC [2019] IESC 94 in regard to the trial judge's inherent power to withdraw a case from a jury.

88.   The appellant submits that cumulatively, all of the purported unfairness about which the appellant complains prejudiced the defence to such an extent that it rendered the trial unfair and in breach of his right to fair procedures and a fair trial in due course of law.

Submissions of the Respondent

89.   The respondent submits that the appellant had an opportunity at trial to address the meaning of the apology uttered on the audio/visual recording, and that ultimately it was a matter for the jury as trier of fact to decide on the meaning of the words.

90.   The respondent seeks to distinguish the facts of DPP v John O'Donoghue from the instant case, on the basis that case related to CCTV not gathered by investigating gardaí which could have supported the defendant's narrative of offending.

91.   The respondent also rejects the contention that the complainant was "manifestly unreliable", and submits that the complainant's reliability was a matter for the jury, and that it was properly before the jury in that the defence were able to cross examine on the basis of considerable disclosure of the complainant's medical and counselling records.

92.   The respondent relies upon comments of O'Donnell J (as he then was) in DPP v CC, setting out the jurisdiction to withdraw a case from a jury, and upon the dicta in DPP v M [2015] IECA 65 in regard to the exceptional nature of this jurisdiction.

Discussion

93.   It appears that the appellant was furnished with extensive disclosure prior to trial which concerned counselling notes, HSE notes, and notes from the Rape Crisis Centre. The material contained therein was deployed in the course of cross examination. The contention that an individual with mental health issues is unreliable is misconceived. It is the position that she told an untruth regarding a health issue and this was made apparent to the jury, that in itself does not render the witnesses unreliable. The witness was cross examined extensively and fully accepted that she had lied and explained the reason why this had occurred, other matters were canvassed in some detail with her.

94.   The application made to the trial judge was in effect twofold, seeking a directed acquittal and to withdraw the case from the jury. The appellant sought directed acquittals and relied on the PO'C jurisprudence, seeking to stop the trial on grounds of unfairness.

95.   Firstly, a judge may direct an acquittal on the second limb of Galbraith where the evidence is so inherently tenuous that a properly charged jury could not properly convict or where there is such deceit on the part of a witness which requires of a directed acquittal as per Buckley. It is an exceptional jurisdiction.

96.   We have no hesitation in rejecting the contention that the witness was so unreliable that the judge erred in failing to direct an acquittal.

97.   Insofar as it is contended that the absence of the devices rendered the trial unfair and so the trial ought to have been stopped or the jury directed to return verdicts of not guilty, it must not be ignored that the appellant was in possession of the printout and details relating to the phone call and text message, the disclosure did not include the WhatsApp messages. This case may be distinguished from People (DPP) v O'Donoghue, where relevant CCTV footage of an incident of violent disorder was not sought giving rise to an unfairness depriving the appellant of a reasonable prospect of a defence, whereas in this case the defendant accepted that he was present, but his version of events differed from that of the prosecution.

98.   In the present case and as stated earlier in this judgment, the absence of the devices was not an issue of materiality which rendered the trial unfair. The appellant had the opportunity to view the audio/video clips and to respond, and the issue really was one of interpretation of the words spoken. While Mr. W's device was not seized, his evidence concerned consistency and was not evidence of the truth of the allegation. In both instances, the jury were aware of the issues.

99.   A trial judge must ensure that an accused's trial is a fair one, again an accused is not entitled to a perfect trial and as stated in CC, the absence of witnesses or a piece of evidence will not render a trial unfair. A trial judge will consider the evidence as adduced at trial and consider the impact, if any, of the missing evidence in terms of materiality. This court is cognisant that a trial judge hears the evidence first-hand and assesses the witnesses including the demeanour of the witnesses and so a considerable margin of appreciation is afforded to the rulings of the trial judge. 

100.   The trial judge approached the ruling with conspicuous care. She commenced by indicating that she had to consider all of the material opened to her in the voir dire and provided an overview of the nature of the application made to her. She considered the lost evidence and the nature of the defence. She assessed the evidence of the complainant, in particular any inconsistencies and the accepted falsehood pertaining to her medical condition, and held as follows:-

"With regard to the risk of a miscarriage of justice in relation to the phone evidence and the videos which have been viewed by the jury, the jury have been their attention has been brought to the fact that there are breaks in the videos.  That will be a matter for them.  But what has been suggested by the defence is largely speculative in respect of what might be available on the phones.  They have the download of [Complainant's] phone for a period up until December, for a period –sorry, I think until December in relation to her phone.  It is, I think, more than unfortunate that the phone was not downloaded in a more thorough fashion, and that should have happened, and the phone should have been retained and preserved in a more acceptable fashion.  But I'm not satisfied that the allegations or the submissions which have been made during the course of this hearing and in the early hearing would be such as to force this Court to remove this trial from the jury.  I'm not satisfied that any perceived unfairness to the defence is at the level which has been submitted by way of oral submissions during the course of the voir dire earlier, and also in the voir dire that took places some days ago."

101.   She went on to say:-

"I think this has been a fair trial, the Court has observed the cross-examination of witnesses, the accused person has been cross-examined.  This Court was told at the outset this is a trial where the central issue is whether or not there was consent on the night in question, where the accused person has given an account that there was consensual sex between the parties, and the prosecution case has been that there was no consensual sex between the partis. In relation to any of the inconsistencies which I have referred to, these are entirely matters for a jury to consider."

Conclusion

102.   It is readily apparent that the judge engaged fully with the submissions made, considered the evidence, and applied the correct legal principles. We do not find an error in her approach or conclusions.

103.   Accordingly, this ground is rejected.

D.  Perverse/Inconsistent Verdict

Background

104.   The appellant was found guilty of count 3 on the indictment by a unanimous verdict, but was found not guilty of counts 1, 2, and 4.

105.   The conduct comprising counts 1 and 2 was said to have occurred in the complainant's living room before the conduct comprising counts 3 and 4, which was said to have occurred later in a bedroom in her home.

Submissions of the Appellant

106.    The appellant submits that the finding of guilty in respect of count 3 by unanimous verdict was inherently contradictory, in that the jury made a unanimous finding of not guilty in respect of count 4, where the two incidents were said to have occurred around the same time and in the same location.

107.   The appellant submits that the verdict in respect of count 3 was perverse and against the weight of the evidence generally, which the appellant submits is supported by the findings of not guilty in respect of the other three counts. The appellant also submits that convicting on one count and acquitting on the other three is in itself supportive of the contention that the verdict is perverse.

108.   The appellant acknowledges that the jurisdiction to set aside a verdict for perversity is exceptional, but submits that such circumstances are present here.

109.   The appellant places reliance upon People (DPP) v Tomkins [2012] IECCA 82, DPP v Nadwodny [2015] IECA 307, People (DPP) v Egan [1990] ILRM 780, DPP v O'Shea [1982] IR 384, People (DPP) v Alchimionek [2019] IECA 49, People (DPP) v Hearns [2020] IECA 181, and upon comments in Professor O'Malley's The Criminal Process (2009).

110.   The appellant submits that the divergent verdicts in respect of counts 3 and 4 is explicable only by reference to the phone recording, and in relying solely upon said recording to ground a finding of guilt, the jury failed to apply the requisite standard of proof in relation to the interpretation of the evidence.

Submissions of the Respondent

111.   The respondent agrees with the appellant's submission that perversity is an exceptional jurisdiction, but disagrees that this is such an exceptional case.

112.   The respondent submits that it is of no consequence that different verdicts were returned in respect of offences that were proximate to each other in time, highlighting that the only charge where it was undisputed that sexual activity occurred was charge 3, for which the jury returned a guilty verdict. The respondent argues that the different verdicts instead demonstrate that the jury conscientiously discharged its task.

113.   The respondent submits that in advancing this ground, the appellant is "merely regurgitating previous grounds", in particular, the ground relating to the reliability of the complainant. The respondent places a reliance upon comments of MacMenamin J in DPP v Tomkins in relation to the exceptional nature of the jurisdiction to set aside a verdict, and submits that the verdict in this case cannot be said to be unsupported or against the weight of the evidence at trial.

Discussion

114.   It is well established that to set aside a verdict on grounds of perversity is an exceptional jurisdiction. We say at this point that we do not consider that this is one of those exceptional cases.

115.   The crux of this argument is that counts 3 and 4 were alleged to have occurred in the same environ ment at the same time. Count 3 concerned a count of rape where the appellant's defence was one of consent whereas the appellant denied any other sexual activity. It was quite clearly open to the jury to reject the prosecution evidence on one count while accepting that the other count was proven to the required standard.

116.   It is clear there was evidence to support the conviction on count 3 and it simply cannot be said that the verdict was against the weight of the evidence in circumstances where the complainant gave clear evidence of the sexual act, and where the defence was one of consent, which the jury were entitled to reject.

117.   Insofar as a suggestion of inconsistency is made, the onus rests on the appellant to show that a verdict is inconsistent. The mere fact that that the jury acquitted the appellant on count 4 while convicting on count 3 is insufficient to establish inconsistent verdicts. 

118.   The jury clearly considered each count separately and applied their collective minds to the evidence adduced. The verdicts returned were clearly open to the jury on the evidence as a whole.

119.   The contention that the evidence of the complainant was unsatisfactory in terms of O'Shea, and thereby brings this case into the exceptional category, is without foundation. The jury were entitled to consider the evidence, which they clearly did, and conclude as they did on the evidence.

120.   The appellant to a large extent repeats the submission made concerning the contention that the video clips were incomplete and contends that the jury can only have been influenced by that evidence in convicting on count 3. This submission is misconceived. The jury were entitled to rely on the audio clip as relevant probative evidence.

Conclusion

121.   The jury's verdict was supported by the evidence, was not perverse or inconsistent, and we have no hesitation in rejecting this ground of appeal.

Decision

122.   The appeal against conviction is dismissed.


Result:     Dismiss

 

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