The Director of Public Prosecutions v J.B.

THE COURT OF APPEAL Neutral Citation: [2025] IECA 243 Record Number: 0289/2024 Kennedy J. Burns J. Collins J. BETWEEN/ THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT/ - AND - J.B. APPELLANT JUDGMENT of the Court delivered (ex tempore) on the 6th day of November 2025 by Ms. Justice Isobel Kennedy. 1. This is an appeal against conviction. The appellant was convicted of 3 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 and 2 counts of rape contrary to section 4 of the Criminal Law (Rape) (Amendment) Act, 1990. The appellant was acquitted of two counts. 2. The appellant was originally tried with a co-accused, PK, who was re-arraigned and pleaded guilty to 3 counts of rape and 1 count of rape contrary to section 4. The jury was discharged and a new jury empanelled. Factual Background 3. The appellant was 40 years old at the time of the offending and the complainant was 16 years old. The co-accused was an ex-boyfriend of the complainant. A pre-recorded DVD interview of the complainant was adduced at trial. She stated that she had broken up with PK months before the events in issue, but he had continued to text her occasionally. On the night of the offending, PK asked the complainant to come out with him and collected her in a car driven by the appellant whom she had not met before. They stopped to buy alcoholic beverages and then drove to a laneway near where both men resided, the complainant drank a can of alcohol, they smoked some cannabis, got back into the car and the appellant gave her a duvet because she was cold. The complainant said that she “kind of passed out”, and when she regained consciousness, PK was on top of her, digitally penetrating her. She pushed him away but he continued. He tried to pull her trousers down while she told him, “No, I’m not in the humour”. She passed out again and when she awoke, the appellant was raping her. She tried to push him away and told him “No”. She recalled hearing PK saying, “Oh, look at that. She doesn’t want to do it with you at all”. The complainant described feeling “like a rag doll in that car, like I was being passed around”. 4. The complainant gave evidence that PK raped her orally, while the appellant simultaneously vaginally raped her. The appellant then anally raped her while PK vaginally raped her. She was crying in pain and telling both men to stop. They eventually stopped, and PK went into his house. Following this, the appellant brought the complainant into his home, pushed her onto his bed and raped her. 5. The following morning, the complainant was reliant on the appellant to give her a lift home, however his car had broken down. She went for a walk with the co-accused and asked him why he had allowed the appellant to rape her to which he replied, “I share all my girls with JB”. They stopped in a field, and he raped her vaginally. They met up with the appellant who brought her to another field, and texted PK to meet them. The co- accused raped her whilst the appellant orally raped her. The complainant recalled that PK asked the appellant “do you want a go of this?”. The appellant then raped the complainant whilst the co-accused orally raped her. She attempted to fight them off. Appeal 6. The appeal consisted of an argument submitted on behalf of the appellant that the trial judge erred in refusing an application to discharge the jury where counsel for the Director made comments which it is argued were prejudicial during her closing speech. Submissions of the Appellant 7. Counsel for the respondent summed up evidence to the jury in the following manner;- “And by the way, you would notice, I asked him specifically what about what she was doing with PK, was that consensual? And he was like, ‘Well I can't speak for PK, but they were engaging, but I can't speak for PK’. The reason he can't speak for PK is because PK was raping (the complainant). Because she was telling PK, ‘No, no, no’. PK is not before the Court at this time, so you needn't -- you don't have to -- you're only asked to bring in a verdict in respect of the charges against JB at this point in time. He's the only one before the Court. But I'd suggest to you that JB knew that anything that was happening with PK was not consensual. But he gives the impression, he's trying to steer -- walk a tightrope, saying, ‘Well, I can't speak for PK, but, you know, it looked like they were engaging’. I'd suggest to you that it was clear and obvious to him that she, (the complainant), was not consenting to anything happening with PK.” [Emphasis added] It is argued that the remarks encroached upon the appellant’s presumption of innocence since the jury could have only concluded that the co-accused had been convicted of rape thereby tainting their view of the appellant. The remarks may have led the jury to draw inferences about the appellant’s guilt, especially in circumstances where the counts of which the appellant was acquitted related to incidents where the co-accused had not been present. 8. Counsel for the respondent went on to say to the jury;- “And again, he said, ‘Look, I'm not speaking for PK’. So, again, he's not speaking for what PK did. He's not going to tell you that was completely consensual, because ‘I can't speak for PK’, because he knows that it wasn't”. The appellant submits that this remark was prejudicial as the question of recklessness, in relation to whether the complainant was consenting, is a subjective one. It is said that the jury may have been led to believe that PK had been convicted and moreover, that recklessness should be assessed objectively, implying that the appellant should have known the co-accused was acting recklessly at the time. This argument is unstateable and misconceived. The presence or absence of consent is an objective fact of which there was evidence. 9. It is further submitted that the jury was instructed that the respondent had to prove either the absence of consent or that the appellant was reckless as to whether there was consent. It is argued that the appellant could not have known whether the complainant was not consenting to intercourse with the co-accused, as recklessness is subjective and therefore the appellant could not have determined what the co-accused understood from the complainant’s words or actions. 10. The appellant says that the remark made by the Counsel for the respondent: “while the other fellow is, on the prosecution case, raping her”, also encroached upon the appellant’s right to a fair trial. It is said the jury could only conclude that the appellant had to be guilty of the same charges as he was present with the co-accused when that offending took place, and that the appellant’s convictions therefore ought to be quashed on this basis. Submissions of the Respondent 11. The respondent submits that there was nothing in the closing speech which undermined the appellant’s right to a fair trial and that the appellant’s submissions misconstrued the reality of the respondent’s closing remarks. Moreover, it is nonsensical to suggest the respondent could not comment on the fact the appellant refused to definitively say whether the complainant was consenting to the co-accused’s behaviour. It is argued that if the complainant was so consenting, then logically she was also consenting to intercourse with the co-accused and that this would be obvious to the appellant. 12. The respondent further submits that the trial judge properly charged the jury on the issue of the consent and that there is no basis for the claim that the respondent’s closing remarks caused the jury to be confused or to misapply the law in relation to the facts of the case. 13. Finally, the respondent says that there was no foundation for asserting that the jury was led to believe the co-accused had been convicted and that the appellant’s assertion is speculative. Discussion and Decision 14. Discharging a jury is a most extreme step and will only be taken in wholly exceptional circumstances. This is particularly so when a trial has almost reached its conclusion as in the present case. It is only where there is a real and substantial risk of an unfair trial as a result of what has occurred that a jury will be discharged. 15. Situations may arise where inadmissible evidence is adduced or counsel makes a remark to which the defence take exception, as in this case, however, such an event will not necessarily give rise to a jury being discharged. As stated in People (DPP) v WM [2018] IECA 150: “Whether or not it requires recourse to that nuclear option depends in every case on the strength of the potential prejudice… the stage of the trial at which the incident has occurred…..” 16. The comments by counsel were comments on the evidence before the jury. The argument that the appellant could not have known whether the victim was consenting to intercourse with the co-accused is utterly misconceived. The actus reus of rape is sexual intercourse by a man with a woman who does not consent to it. Those are the external elements of rape. The absence of consent is an objective fact. The men were present together and on occasion simultaneously raping or sexually assaulting the victim by anally or orally raping her. There was evidence before the jury that she, by her actions and words clearly indicated the absence of consent, which would have been obvious to anyone present. 17. The co-accused’s view as to the presence or absence of consent is subjective, the appellant could not have determined what the co-accused understood from the victim’s words or actions, but that is relevant to the co-accused’s mens rea and not to the objective fact of the presence or absence of consent. 18. The suggestion that the jury could have determined from the comments of counsel that the co-accused had been convicted and that due to his presence with the co-accused the appellant was guilty of the offences is unstateable and ignores the careful directions of the trial judge in his charge to the jury. 19. We have no hesitation in dismissing this appeal.