The Director of Public Prosecutions v J.A.

APPROVED REDACTED THE COURT OF APPEAL CRIMINAL Court of Appeal Record No.: 174/25 Bill number: CCDP 0205/21 Neutral Citation Number: [2026] IECA 49 Edwards J. Burns J. Hyland J. BETWEEN/ THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) RESPONDENT - AND - J.A. APPLICANT/APPELLANT JUDGMENT delivered by Ms. Justice Hyland delivered on the 27th day of February 2026 INTRODUCTION 1. On 22 November 2024, the Appellant was convicted unanimously on three counts, comprising count 1 - rape (s.4 rape); count 2 - rape (vaginal penetration); and count -2- 3 - sexual assault. On 26 June 2025, the sentencing judge imposed a sentence of 8 years and 6 months. 2. The Appellant has brought a motion seeking bail pending the hearing of his appeal. The substantive appeal is listed for hearing on 4 June 2026. The Appellant argues that the interests of justice require that he be released on bail pending the determination of the within appeal because his grounds of appeal are discrete and straightforward points with a strong chance of success. Accordingly, he argues that the applicable test, as set out in DPP v. Corbally [2001] 1 IR 180, is met. THE CORBALLY TEST 3. In Corbally, the Supreme Court identified some key principles governing the grant of bail to a convicted person pending the hearing of an appeal. First, it noted that the presumption of innocence is displaced post-conviction and that the onus is on the applicant for bail to show why it should be granted, despite the conviction. Second, bail should only be granted where the interests of justice clearly require it, either because the strength of a discrete ground of appeal is such that there is a strong chance of success or the sentence is about to expire or there are some other special circumstances. Third, the Court must exercise its discretion to grant bail sparingly, mindful of the public interest in upholding convictions and ensuring the integrity of the criminal justice system. Here, the Appellant argues that there is a strong ground of appeal and a correspondingly strong chance of success. 4. The application of those principles in Corbally is of assistance in understanding the applicable test. The charges in Corbally included having a firearm with intent to wound a witness, having ammunition with intent to wound a witness, and unlawfully and maliciously wounding the witness in question. The witness did not turn up at the -3- trial. Nonetheless, the trial went ahead in respect of counts 1 and 2, and the accused was convicted on those counts. He appealed on the basis that the trial should not have gone ahead in the absence of the witness and sought bail pending his appeal. In considering whether bail should be granted, Geoghegan J. observed that the entire transcript of the case would have to be considered before the strength of the appeal could properly be assessed, concluding that bail ought not to be granted to a convicted prisoner in that situation. Rather, bail should only be granted where some definite or discrete ground of appeal could be identified and isolated and is of such a nature that there is a strong chance of success on the appeal, observing as follows: “Recent examples of this kind of appeal are D.P.P. v. Ryan (Court of Criminal Appeal unreported judgment 12th of July 1999); D.P.P. v. Higginbotham (Court of Criminal Appeal unreported judgment 17th of November 2000) both of which involved disregarding by the trial judge of the provisions of section 25(2) of the Criminal Justice Act, 1984 in relation to the taking of majority verdicts and D.P.P. v. Acheanpong (Court of Criminal Appeal unreported judgment 28th of July 2000) which related to a failure to instruct the jury as to the significance of a complaint in a sexual case.” 5. He concluded that in the case before him, there was no discrete ground of appeal, the strength of which could be assessed in advance of a full hearing, noting that the substantive appeal would range far and wide across the entire evidence, as well as the many applications and submissions made to the trial judge. ANALYSIS 6. We have come to the same conclusion in this case. The first ground of appeal is in relation to a statement that was made by the complainant in her victim impact statement following conviction, to the effect that she has a small scar on her inner thigh the size of a €2 coin resulting from the events of the night in question. It is said by the Appellant that this is inconsistent with the evidence of a medical examination -4- that took place shortly after the events on the evening in question. That evidence did not identify any such mark or scar. It is contended that this goes to the complainant’s credibility overall and is a strong discrete ground of appeal. 7. We cannot agree. A resolution of this ground of appeal will necessitate a reconsideration of much or all the evidence given by the complainant at the trial, on the basis that her credibility is undermined by this supposed inconsistency. In our view, this is precisely the type of point that Geoghegan J. considered did not warrant a grant of bail. It is not a standalone discrete point the strength of which is immediately obvious. Rather it is a point that necessitates a review of much or all of the complainant’s evidence at trial by reference to the additional evidence in her victim impact statement, in an attempt to undermine her general credibility. Its strength is not obvious in the absence of such a review. As such, it cannot be characterised at this point as an obviously strong argument with a strong chance of success. 8. The second ground of appeal is in relation to material that the Appellant says ought to have been disclosed but was not, being an allegedly relevant statement of the complainant, as recorded by her counsellor in counselling notes after the assault but prior to the trial. It is well established that a conviction is not to be regarded as unsafe simply because there has been a failure by the prosecution to meet the obligations of disclosure. It will depend on the nature and importance of the material in question. 9. We must therefore consider whether the failure to disclose the notes can be characterised as a strong ground of appeal given the nature of the statement relied upon. The statement is as follows. On 13 March 2024, in his patient progress report, the complainant's therapist recorded the following: “Ms. B shared that she had been subject to a serious sexual assault in 2017. She got a recent notice that the case had -5- been postponed again from January to May. It has been a source of constant anxiety and that it is always in the back of her mind. This is not helped by the fact that she sees the person who assaulted her around.” 10. The Appellant alleges that this is relevant to his appeal in two respects. First, he contends that it goes to the issue that he describes as the main point run by the defence at trial i.e. that the complainant was mistaken as to the identity of the person committing the offences and that in fact it was Mr. A, another man with him in the apartment on the night in question, who committed the offences for which he was convicted. This is because, on his case, the complainant could not have seen him, the Appellant, “around” as he was prevented by his bail conditions from going to the area in which she lives. He asserts that this must be a reference to Mr. A, who comes from the same area as the complainant. He points to the account she gave to her friends following the attack, where she said it was Mr. A, rather than the Appellant, that carried out certain actions. Separately, he argues that the notes have the potential of raising a reasonable doubt as to the complainant's credibility. 11. Insofar as credibility is concerned, we take the same view as we previously identified in respect of the first ground i.e. that a statement that goes to the credibility of a complainant generally, thus necessitating a re-evaluation of some or all of her evidence, cannot be considered a discrete point of appeal with a strong chance of success. 12. Turning to the submission that the counselling notes might have strengthened the argument that the complainant was mistaken as to the identity of the person who committed the offences, we do not consider this argument has such an obvious chance of success that it warrants bail for the following reasons. -6- 13. First, the question of the correct identity of the assailant was canvassed extensively at the trial. There was evidence from two of the complainant’s friends as to what she said immediately after the assault and the person she identified as having carried out certain acts, there was evidence from the complainant herself, and she was cross- examined specifically in relation to the identity of the person who attacked her and the statements made by her friends. A consideration of this ground of appeal will likely necessitate a detailed reconsideration of this evidence through an examination of the transcripts and the various applications made by counsel, of the kind described by Geoghegan J. The strength of the argument cannot be assessed in the abstract without this exercise taking place. 14. Second, there is the obvious hurdle that the Appellant will face in relying upon the notes i.e. that the note in question is the therapist’s account of what the complainant said, as opposed to being direct evidence from her. This may or may not be fatal to the argument, but it certainly undermines the attempt to characterise it as obviously strong. 15. Third, there will likely be arguments that the sentence identified can be interpreted in various ways. For example, it may be said that the complainant might in fact have been referring to Mr. A, given that she gave direct evidence that he tried to kiss her, tried to climb on top of her, took off his top, and took her mobile phone. (Ultimately Mr. A was not prosecuted, despite being interviewed by An Garda Síochána). 16. All these considerations make it clear in our view that this is not a ground of appeal of the type envisaged in Corbally. To paraphrase Geoghegan J. in Corbally, the substantive appeal in this respect will range far and wide across the evidence – possibly not the entire evidence but certainly a substantial part of it. It cannot be treated as a clear-cut point, such as an alleged failure on the part of the trial judge to -7- consider a mandatory statutory provision, as referred to in Corbally. As such, it cannot be characterised as an obviously strong ground of appeal warranting bail. 17. For the above reasons, the application for bail is refused.