Court of Criminal Appeal dismisses appeal against rape conviction, upholding trial judge's evidence rulings.

THE COURT OF CRIMINAL APPEAL

[Appeal No: CCA 20/10]

Clarke J.

Moriarty J.

White Michael J.

Between/

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Respondent

and

Edward Piotrowski

Defendant/Appellant

Judgment of the Court delivered by Mr. Justice Clarke on the 30th April, 2014.

1. Introduction

1.1 In the early hours of the 25th November, 2007, what, on any view, was a very serious incident occurred at a dwelling house

outside a provincial town in the midlands. The house was owned by an Irish national (“Mr. Y”) and had, not long before the incident

concerned, been rented to a female Polish national (“Ms. Z"). The defendant/appellant ("Mr. Piotrowski") had previously been

romantically involved with the woman concerned. However, their relationship had terminated in August 2007 when Mr. Piotrowski was

on leave and had returned to Poland to visit his family. On the occasion of the incident the subject of these proceedings, Ms. Z and

Mr. Y, who had by that time commenced a relationship, were in the house together when Mr. Piotrowski gained access.

1.2 In that context, he stood charged on eight counts involving allegations of aggravated burglary, assault causing harm, false

imprisonment, aggravated sexual assault and rape. On the 13th October 2009, Mr. Piotrowski pleaded guilty to count no. 2 which

involved an allegation of assault causing harm, contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997, against Mr.

Y. He pleaded not guilty to the remaining seven counts. On the 24th October, 2009, a jury found Mr. Piotrowski guilty on each of

those seven counts.

1.3 A sentencing hearing occurred on the 29th January, 2010. Mr. Piotrowski was sentenced to various terms of imprisonment but

most particularly to life imprisonment in respect of each of the counts of rape and the count of false imprisonment against Ms. Z. Mr.

Piotrowski has appealed to this Court, both against his conviction on those counts to which he pleaded not guilty and against his

sentence on the grounds of severity.

1.4 This judgment is concerned solely with the question of the appeal in respect of conviction with the question of sentence being

left over until the issues raised on this aspect of the appeal have been determined. However, before going on to consider the grounds

put forward for suggesting that Mr. Piotrowski's conviction in respect of the relevant counts ought be overturned, it is of some

importance to note that there was also before the Court, on the occasion of the hearing of the appeal against conviction, a motion in

which it was sought by Mr. Piotrowski to introduce further evidence. Having heard that application, the Court indicated that it would

not permit further evidence to be tendered but that it would give its reasons for coming to that conclusion at a later stage. The

Court should, therefore, start by setting out those reasons.

2. The reasons why further evidence was not permitted

2.1 That the Court has a jurisdiction, under s. 33 of the Criminal Justice Act 1924, as substituted by s. 7 of the Criminal Justice

(Miscellaneous Provisions) Act 1997, to hear "new or additional evidence" is not doubted. The principles applicable have recently been

comprehensively considered in cases such as D.P.P. v. Willoughby [2005] IECCA. 4, The People (Director of Public Prosecutions) v.

O'Regan [2007] 3 I.R. 805 and Kelly v. Director of Public Prosecutions [2008] 3 I.R. 697, where the judgment of this Court was

delivered by Kearns J. In Kelly, this Court reiterated the following principles, as set out in Willoughby, as representing the law:-

"(a) Given that the public interest requires that a defendant bring forward his entire case at trial, exceptional

circumstances must be established before the court should allow further evidence to be called. That onus is

particularly heavy in the case of expert testimony, having regard to the availability generally of expertise from

multiple sources.

(b) The evidence must not have been known at the time of the trial and must be such that it could not reasonably

have been known or acquired at the time of the trial.

(c) It must be evidence which is credible and which might have a material and important influence on the result of

the case.

(d) The assessment of credibility or materiality must be conducted by reference to the other evidence at the trial

and not in isolation."

2.2 Those principles appear to suggest that, in order for new or additional evidence to be admitted, amongst other things, the

relevant evidence must not have been known at the time of the trial and must be such that it could not reasonably have been know

or acquired at that time. The reason for that principle, as pointed out in all of the case law, is that if it were to be otherwise, parties

could adopt a tactical approach to the evidence which they decided to present at a trial and, if that tactic did not work, seek a

retrial on the basis of wishing to run the case again in a different manner by calling different evidence.

2.3 In a subtle argument, counsel for Mr. Piotrowski drew attention to the possibility, by reference to the judgment of the Supreme

Court in O'Regan, that it may be appropriate for the court, in exceptional circumstances, to depart from what Professor O'Malley, in

"The Criminal Process" (Round Hall, 2009) at para. 23.18, described as a rule which might run the risk of "excessive rigidity".

2.4 Without seeking to define the type of circumstances where it might, nonetheless, be appropriate, in such exceptional

circumstances so as to meet the overall interests of justice, to permit new or additional evidence to be led on a criminal appeal

notwithstanding that the evidence concerned could or ought to have been available at the trial, the Court was prepared, for the

purposes of this application, and without so deciding, to accept that such a possibility might exist.

2.5 In that context, it is necessary to refer to the basis on which it was asserted that new or additional evidence ought be admitted.

In an affidavit sworn on the 5th December of last year, Mr. Piotrowski suggested that, after he was arrested and was in custody in

connection with these alleged offences, associates of Ms. Z threatened members of Mr. Piotrowski's family in Poland. He stated in

that affidavit that, through a contact in prison, he became aware of three conditions imposed on him to avoid such threats being

carried out, being that he was (1) to admit the charges, (2) not to give evidence or explain anything and (3) admit to all evidence

and not to question same.

2.6 Mr. Piotrowski indicated that he did not inform his lawyers about that situation, that he was forced to remain silent because of

the threats to which he referred, and that it was in that context that he gave instructions as to how his defence was to be

conducted.

2.7 A number of points bear making concerning that account. Firstly, no independent evidence was put forward in respect of any of

the matters referred to nor is there any suggestion that independent evidence might be made available in that regard. The only

evidence of the relevant threats and the other circumstances which were said to have led to the approach adopted by Mr. Piotrowski

at his trial, is, apparently, the evidence of Mr. Piotrowski himself. Obviously, in that context, the extent to which any credence might

be placed on the matters which Mr. Piotrowski puts forward is wholly dependent on the credibility of Mr. Piotrowski's own evidence.

But, of course, that was exactly the position that pertained at the trial. Leaving aside some forensic evidence to which reference will

be made in due course, the principal focus of the issues which were canvassed at his trial concerned the credibility of the evidence of

Ms. Z and Mr. Y, both of whom gave clear evidence of the crimes in respect of which Mr. Piotrowski stood charged. It is fair to say

that the defence mounted a sustained attack on the credibility of both of those witnesses giving rise, indeed, to some of the events

at the trial of which complaint is made on this appeal. However, Mr. Piotrowski did not give evidence. If he had, then, doubtless, his

own credibility would have been a matter which the jury would also have to have taken into account in reaching their assessment.

Mr. Piotrowski did not, however, choose to give the jury an opportunity to assess his credibility. In such circumstances, and in the

absence of any compelling external and objective evidence concerning the threats of which he now complains, to allow an appeal

court to take an allegation (for it was not more than that) about those matters into account would be to invite the Court to now

place credibility on Mr. Piotrowski's unsupported evidence in circumstances where he did not choose to allow the jury to reach a

conclusion on his credibility at the trial.

2.8 It must also be stated that the approach adopted by Mr. Piotrowski at the trial did not, in fact, conform with the conditions which

he asserted were imposed on him as a result of the alleged threats to his family. On his own affidavit evidence, amongst other things,

he was required to admit all of the prosecution evidence and not to question same. What in fact happened at his trial was that almost

all of the prosecution evidence was strongly challenged as to its credibility. No basis was put forward on behalf of Mr. Piotrowski as to

how it could be explained that, by reason of threats, he was forced to comply with conditions (1) and (2), but not condition (3).

There was, quite frankly, an inherent implausibility about the account which Mr. Piotrowski sought to give for that very reason.

2.9 In addition, Mr. Piotrowski was, of course, perfectly entitled not to give evidence. It is no criticism of him to note that he did not.

However, having made that choice, it did not seem to the Court that it would be appropriate for this Court to have regard to

unsubstantiated and uncorroborated accounts of the circumstances of the background of his trial which are, for the reasons already

addressed, internally inconsistent. The Court was more than satisfied that it should not entertain new or additional evidence which

was or ought to have been available at the trial, and which, even on Mr. Piotrowski's case, did not come remotely close to a case of

exceptional circumstances.

2.10 It was for those reasons that the Court declined to allow the additional evidence to be admitted on the appeal.

2.11 It is next necessary to turn to the substantive grounds which were relied on on behalf of Mr. Piotrowski for suggesting that his

conviction should be overturned. A significant number of different grounds of appeal, both in respect of conviction and sentence,

were included in the notice of appeal filed on his behalf. However, counsel who presented his appeal before this Court helpfully

grouped those grounds into logical combinations (while abandoning one specific ground) so that the Court's task was made a lot

easier. While there are some overlaps between the grounds they are, to quite a significant extent, stand alone or discrete sets of

grounds. The Court, therefore, proposes to consider each separately.

3. Grounds 1 and 2 - the presumption of innocence

3.1 As these grounds and some of the following grounds are concerned with the judge's charge, it is, perhaps, appropriate for the

Court to commence by noting that in our jurisprudence there is no standard formula by reference to which the judge is required to

address the jury at the close of the trial. There are, of course, many matters (some of them present in every case and some only in

certain types of cases) on which the judge is required to direct the jury. This Court, on appeal, is, however, required to assess

whether the substance of the judge's charge dealt adequately and appropriately with all of those matters. It is a question of

substance rather than one of form. Indeed, it is worth noting that, in certain other jurisdictions (the United States is a particular

example), a judge's direction to a jury is in exact accordance with precise wording applied in each like case. The view in this

jurisdiction is that there may be an advantage to allowing the judge to convey the required substance in a more freestyle form which

avoids the risk of a jury being less well informed in practice by the repetition of well worn formulas.

3.2 Second, it is worth stating that many experienced trial judges in the past (not least Finlay C.J. when he was a trial judge

presiding over the Central Criminal Court) adopted a broad structure to their charge to the jury which dealt with, in sequence, (a)

those matters, such as the role of judge and jury, the presumption of innocence, the burden and standard or proof and the like, which

the jury was required to be told about in every case; (b) matters connected with the specific offence or offences before the court

including the matters of which the jury needs to be satisfied beyond reasonable doubt in order to convict and any specific defences

which may, as a matter of law, be relevant and; (c) a review of the issues in the case in question by reference to the evidence and

the case made by both prosecution and defence.

3.3 Such a structure has the merit of bringing the jury logically through all of the matters which they require to know but it is only

one means of achieving the end of ensuring that the jury is adequately instructed on their task. Provided that all necessary matters

are addressed to the jury and provided that the way in which the trial judge approaches the charge is not so disjointed as to run the

real risk of the jury not fully understanding the task which they have been set, then the structure and form of a charge is essentially

a matter for the trial judge.

3.4 In that context, it is appropriate to refer to the complaint made on behalf of Mr. Piotrowski that the trial judge did not adequately

address the jury on the presumption of innocence. The Court's attention was drawn to a previous decision of this Court in Director of

Public Prosecutions v. D. O'T. [2003] 4 I.R. 286, in which the judgment of the Court was delivered by Hardiman J. The comments of

Hardiman J. in D. O'T. need to be seen in the context of what had actually occurred at the trial in that case. The trial judge had

omitted to make any reference to the presumption of innocence. Having been requisitioned, the trial judge, on recharging the jury,

said only the following about the presumption of innocence:-

"I thought I referred to the fact that there was a presumption of innocence in favour of the accused. I still think I did.

In case I did not, there is a presumption of innocence and it’s a very serious presumption. The onus is on the

prosecution to prove, to rebut that presumption and that at every stage, not just on the simple question of guilt or

innocence but on every question you are asking yourself in the case, where there is a difference, the onus of proof is on

the prosecution."

3.5 It was in that context that this Court noted, at p. 290, that "to state the incidence of the burden of proof without indicating its

basis in the presumption is to risk understating its importance and perhaps relegating it to the status of a mere technical rule."

Likewise, at p. 292, this Court went on to suggest that "the form of a recharge may have been dictated by the trial judge's genuine

but incorrect belief that he had already discussed the presumption of innocence. However, in the context of there having been no

such discussion in fact, the single sentence of the presumption in the recharge is difficult to regard as an adequate statement. He

says no more than that the presumption exists and is a serious one."

3.6 In contrast, in this case, the trial judge, when he had finished dealing with the burden of proof in some detail, commenced,

(transcript day 8, page 25, line 33), to deal with the presumption of innocence and puts the burden of proof (and indeed the standard

of proof) which lies on the prosecution in the context of the presumption of innocence by going on, in the same passage, to indicate

that there is no desired result in the case other than that there be a verdict "on whether the prosecution have proved their case

beyond reasonable doubt on each of these charges" (transcript day 8, page 26, lines 14-15).

3.7 It seems to this Court that the charge of the trial judge in this case was far removed from that which was criticised by this Court

in D. O'T. The presumption of innocence was fully dealt with and the burden and standard of proof on the prosecution was put in the

context of the importance of the presumption of innocence. The substance of the requirements for a proper charge in relation to

those matters are all present and there is nothing, in this Court's view, in the form of the charge which could have confused the jury

or left them with an inadequate understanding of the proper approach to be adopted. Likewise, this Court is satisfied that the trial

judge properly explained the question of the benefit of the doubt to the jury. Indeed, the trial judge, with admirable clarity,

synopsised the position correctly in the following passage from his charge:-

"The accused is presumed to be innocent and so a person of good character and the purpose of a criminal trial is this;

let’s see have the prosecution rebutted the presumption of innocence." (transcript day 8, p. 26, lines 17-19)

3.8 For those reasons, the Court rejects grounds 1 and 2 of the appeal.

4. Grounds 3 and 4 - alleged failure to put the defence case

4.1 The starting point has to be to note, as was pointed out by this Court in People (Director of Public Prosecutions v. Hanley

(Unreported, Court of Criminal Appeal, 5th November 1999), that it "is a fundamental rule in a criminal trial that the defence must be

put to the jury and that it is the right of defence counsel to say what the defence is". It is also clear from the decision of this Court

in People (Director of Public Prosecutions) v. Bishop [2005] IECCA 2, that the trial judge is not obliged to refer to every piece of

evidence the jury heard or every argument put forward in speeches to the jury.

4.2 In substance, it is clear from those, and other, authorities that there is a duty on a trial judge to fairly put both the prosecution

and the defence case to the jury. In so doing, the trial judge is not confined to any formulaic rules but rather has an obligation to

ensure that the jury are assisted in understanding the substance of the case. It is in that context that the complaints made in these

grounds concerning the way in which the defence case was put to the jury need to be considered.

4.3 In the written submissions filed on behalf of Mr. Piotrowski, it is submitted that "a central line in the defence case was that a

sexual assault did not happen as was alleged" and the trial judge's charge was, it was said, silent on that matter. However, the trial

judge said, (transcript day 8, p. 34, lines 8-10): "On the sexual assault, the defence says it's only the word of two people and there

is not a screed of medical or forensic evidence. The defence case is that (Mr. Y) and (Ms. Z) are not reliable witnesses". Further

examples of reasons why it might be said that those witnesses were unreliable are then identified. The defence case that Mr. Y was a

reluctant partner to the actions by Ms. Z "to make up a false allegation" is fully put to the jury. It seems to this Court that the

substance of the defence case was properly put to the jury.

4.4 As pointed out in Bishop, it is not the function of this Court to entertain argument which seeks to go through the judge's charge

with a fine tooth comb and identify some element of the evidence or argument which, it might be said, had not been fully addressed

to the jury. Rather, it is the function of this Court to assess whether the substance of the case made at the trial on behalf of the

accused is fairly put. As noted earlier, the prosecution case was, to a very high degree, dependent on the credibility of the two

alleged victims. Their credibility was challenged both by reference to their accounts of the events which they allege occurred on the

night in question and also, to some extent, by reference to external events, not least when a sexual relationship between the two

alleged victims had commenced. It is correct that not every detail of that case is mentioned in the trial judge's charge. However, the

substance of that case is fully put and many of the details relied on are specifically addressed to the jury.

4.5 It is also important to note a significant aspect of the context in which the defence case was put. Mr. Piotrowski did not go into

evidence. When Mr. Piotrowski was questioned after arrest, he denied having been in the house at all on the night in question.

However, as already noted, he pleaded guilty to one count involving an incident in that house on that occasion. Thus, so far as the

evidence was concerned, the only statement of Mr. Piotrowski's position was one denying presence in the house on the occasion in

question, while the formal position adopted by him at trial was inconsistent with his not having been in the house at all. Thus, there

was no evidence before the Court giving an account of events which explained the presence of Mr. Piotrowski in the house in

question (necessarily implicit in his plea of guilty) in the context of him being innocent of the offences of a sexual nature. It was, of

course, entirely open to the defence to seek to challenge the credibility of the prosecution witnesses by suggesting that, while

aspects of the account given by them were correct, other aspects, most particularly those alleging a sexual aspect to the assaults,

were not. However, it is difficult to characterise that defence as being anything other than one which was largely based on attacking,

on a range of bases, the credibility of the prosecution witnesses rather than one which placed any reliance on an account of events

given by the accused, whether in statements made during the investigation or at trial. In the view of this Court, the defence so

characterised was properly put to the jury.

4.6 The Court is not, therefore, satisfied that any basis for allowing the appeal under grounds 3 and 4 has been made out.

5. Grounds 5 and 7

5.1 The backdrop to these grounds is s. 22 of the Criminal Justice Act 1984 ("section 22"). That section allows either prosecution or

defence to make a formal admission of any fact. Where, in accordance with the procedures set out in that section, such admission is

made then, under subs. (1), it shall as "against that party be conclusive evidence in those proceedings of the fact admitted".

5.2 Such admissions were made on behalf of Mr. Piotrowski at his trial. However, it was a curious feature of the relevant admissions

that they occurred almost at the end, rather than at an early stage, of the trial. This is a point to which I will return. However, the

substance of the admissions were, of course, in a form determined on by Mr. Piotrowski, doubtless with the benefit of legal advice.

The admissions were made through counsel and appear at p. 57 of day 7 of the transcript. In that context, counsel indicated that Mr.

Piotrowski would not be giving evidence but that he had some admissions to make on behalf of his client. There was no specific

reference to s. 22 by counsel on that occasion. The admissions were as follows:-

(1) That he did assault Mr. Y and Ms. Z;

(2) that he inflicted some but not all of the wounds on Mr. Y;

(3) that he did have a knife;

(4) that there was a quarrel in the bedroom and downstairs; and

(5) that he did issue some threats in the house, but not any threat to a daughter of Mr. Y.

5.3 One of the issues which arose in the course of the trial was an obvious concern on the part of the trial judge that, in his view,

the defence case was not being specifically put to the two principal prosecution witnesses. As indicated earlier, those witnesses gave

evidence which, if believe beyond reasonable doubt by the jury, was more than sufficient to secure the conviction of Mr. Piotrowski

An attack on the credibility of those witnesses was, therefore, the central focus of the defence case. However, Mr. Piotrowski had,

at the beginning of his trial, pleaded guilty to an assault on the occasion in question so that it followed that the defence case was

not based on a contention that Mr. Piotrowski had no involvement in any relevant incidents on the night in question at all. Rather, it

emerged that the defence case was, in substance, to the effect that Ms. Z and, to an extent, Mr. Y had significantly exaggerated

the relevant events with a view, it was said, to ensuring that Mr. Piotrowski was convicted of more serious offences, and thus likely

to be sentenced on a significantly more severe basis.

5.4 In addition, it needs to be noted that the trial judge posed two specific questions which the jury were required to answer in

addition to the question of guilt or innocence on the counts in respect of which there was a plea of not guilty. Those questions are

referred to in the transcript on day 9, p. 20, immediately after a passage in which the trial judge reminded the jury of the five

admissions which had been made by Mr. Piotrowski The trial judge did note that the jury should only answer yes to either of the

questions if the jury were satisfied beyond reasonable doubt as to the answer; otherwise the jury were directed to answer no. The

first question was as to whether Mr. Piotrowski had inflicted the injuries on Mr. Y which Mr. Y had said that he did (that question

needs to be seen in the light of the limited nature of admission no. 2). The second question was as to whether Mr. Piotrowski had

issued threats both to Mr. Y and Ms. Z, including a threat to the daughter of Mr. Y (that question needs to be seen in the light of the

limited nature of admission no. 5).

5.5 Against that background, two complaints are made on behalf of Mr. Piotrowski concerning the trial judge's charge to the jury.

First, it is said that the trial judge failed to explain, or at least to properly explain, the legal basis and nature of the statutory

admissions to which reference has been made. It is said that there was a risk that the jury were, thereby, confused as to the precise

status of those admissions. Second, it is said that, while conceding that there is a jurisdiction for the trial judge to ask questions of

the jury in a criminal trial, such a procedure is, it was submitted, so unusual that it was inappropriate for the trial judge to do so

without having given the parties (and in particular Mr. Piotrowski) an opportunity to address the trial judge, both on the issue whether

such a question should be asked, at all, and also, if questions were to be asked, as to their form.

5.6 For instance, in People (Director of Public Prosecutions) v. Courtney (Unreported, Court of Criminal Appeal, 21st July 1994), the

trial judge, Lynch J., also left two questions to the jury in relation to the mens rea of an accused, primarily in relation to the defence

of insanity. However, in that case, both the prosecution and the defence agreed that it was appropriate to leave such questions to

the jury and the form of the questions was agreed between them. The Court of Criminal Appeal dismissed the conviction appeal and,

in so doing, noted that those questions had been posed in the charge, but made no further comment on the matter as they had been

agreed by both sides.

5.7 As to the first of those grounds, the Court is not persuaded that any basis has been put forward to suggest that the jury could

have been confused as to the effect of the statutory admissions made. The jury were aware that admissions had been made. Indeed,

the foreman of the jury intervened at the beginning of day 8 to inquire about the admissions. While it was suggested in the written

submissions filed on behalf of Mr. Piotrowski that the intervention concerned reflected some confusion on the part of the jury, it

seems to this Court that the jury wished only to have counsel for Mr. Piotrowski go through those admissions before he started his

closing address. A reading of the transcript makes clear that the suggestion in the written submissions filed on behalf of Mr. Piotrowski

that the foreman asked the trial judge about the relevant admissions is simply incorrect. What the foreman says, between lines 7 and

13 on p. 1 of day 8 (it is clear that the foreman is speaking at much the same time as counsel for Mr. Piotrowski) is as follows:-

"Is it possible before you start - you made some - admitted some items on behalf of your - yes could you go through

those submissions quickly before you start your"

5.8 It seems clear, therefore, that the jury wished to understand what the admissions were rather than that the jury were in any way

confused about the status of the admissions.

5.9 Next, it is clear that the trial judge referred the jury again to those admissions towards the close of his charge. The legal status

of such admissions does not differ from a common sense understanding of an admission made. As already pointed out, the status of

the admissions concerned is that they amount to conclusive evidence against the accused of the matter admitted. The remaining

provisions of s. 22 are concerned with the way in which an admission can be made, the status of such an admission in respect of any

subsequent criminal proceedings relating to the matter in question and the circumstances in which an admission may be withdrawn.

No such questions arose on the facts of this case. What then was the trial judge to say? The jury had already been told of the

admissions. The text of the admissions was reiterated to the jury by the trial judge in the course of his charge. This Court finds it

difficult to see what would have been added to the situation by the trial judge indicating that the admissions were conclusive proof of

the facts admitted against Mr. Piotrowski

5.10 So far as the questions addressed to the jury are concerned, this Court is satisfied that, at the level of principle, there may be

cases where it is appropriate for a trial judge to add questions to the issues which the jury are asked to decide. This Court would

emphasise that such a practice should very much be the exception rather than the rule. In the vast majority of cases, the

appropriate course of action to adopt is simply to allow the jury to find the accused guilty or not guilty in respect of each count

which goes to the jury for determination. However, there may be cases where some additional questions are considered to be

necessary not least where there may be a number of different ways in which a jury might, on the evidence, find the accused guilty on

one or more counts and where answers to questions posed might, thus, clarify for the trial judge the true basis on which the jury

were persuaded beyond reasonable doubt that the accused was guilty. Additional questions may be particularly useful where it would

be likely, in such circumstances, that the answers to the relevant questions would be of particular assistance to the trial judge in

imposing sentence in the event that the accused was convicted. While not relevant on the facts of this case, there may also be

circumstances where discrete legal issues were raised at the trial and where it might be reasonable to anticipate that there was a

significant possibility that those issues might arise again on appeal. If there were questions whose answers might assist an appeal

court in dealing with issues likely to arise on such an appeal, then it may be appropriate to add such questions.

5.11 The Court also feels that it should add that it is desirable, in the event that the trial judge feels that the addition of questions

might, unusually, be appropriate, for the trial judge to give the parties an opportunity to be heard, both on the issue of whether there

should be questions at all and, if there are to be questions, on their form. It is ultimately a matter for the trial judge to decide

whether questions should be allowed. However, it is important to note that no controversy arose as to the questions added in

Courtney precisely because the parties had agreed to the relevant questions.

5.12 On the facts of this case, the Court is satisfied that the questions posed were appropriate. As already noted, admissions had

been made on behalf of Mr. Piotrowski which, in two cases, were qualified. The two questions added by the trial judge were precisely

directed to giving an opportunity to the jury, if the jury were satisfied that the accused was guilty in respect of the specific counts

to which those admissions related, to make clear whether that finding of guilty only went so far as the qualified admissions made by

Mr. Piotrowski or went much further by reference to the case made by the prosecution supported by the evidence of the two chief

prosecution witnesses. The Court is not, therefore, satisfied that there was anything wrong with the trial judge exercising his

adjudicative role in determining that questions were appropriate on the facts of this case.

5.13 The Court is concerned that the trial judge did not consult with the parties prior to posing those questions. There might well be

cases where a failure so to consult could be decisive in leading to a proper conclusion that a trial was unsafe. However, on the facts

of this case, the Court is not satisfied that there was anything inappropriate about the questions asked or that the jury could have,

in any way, been misled as to the proper approach to their task by the presence of those questions.

5.14 The Court, therefore, rejects these two grounds of appeal. The Court should also record that grounds 6 and 8 were not

proceeded with at the hearing and the Court, therefore, makes no comment on the issues thereby raised. In that context, it is

appropriate to turn to ground 9.

6. Ground 9

6.1 Ground 9 concerns an attempt made but ruled out by the trial judge, on the part of Mr. Piotrowski's legal team, to have admitted

in court certain evidence to the effect that Mr. Piotrowski had no convictions recorded against him. The trial judge ruled such

evidence inadmissible on the grounds that Mr. Piotrowski had previously told the Gardaí that he had a conviction in Poland arising out

of an incident whereby he spent two months in prison. The judge ruled that to allow testimony to the effect that it had been

confirmed by the Polish administration to the Gardaí that Mr. Piotrowski had no recorded convictions in that jurisdiction would be “to

flatly contradict what the accused has told the gardaí on a hearsay basis.” (transcript day 6, p. 89, line 23). The judge further

commented on day 7 (p. 2 lines 6-10):

“In any event, to call a witness… to tell something the jury that is untrue is my view a fundamental violation of the

constitutional obligation of this Court to conduct itself in accordance with fairness. Fairness implies that one has regard

to reality and to the truth.”

6.2 There can be no doubt but that evidence which might have been given by a member of An Garda Síochána of having been told by

Polish authorities that there was no recorded conviction against Mr. Piotrowski would have been hearsay evidence. Indeed, the

circumstances of this issue provide a classic illustration as to why hearsay evidence is not normally admissible. The member of An

Garda Síochána who might have given such evidence could not, in practice, have been questioned further on the matter by being

asked, for example, as to whether there might be any explanation, in the light of Polish criminal practice, as to why Mr. Piotrowski

might have acknowledged a conviction when none appeared to be recorded. Different legal systems deal with the recording of

convictions or other findings in criminal proceedings in different ways.

6.3 If it had been desired to put formal and proper evidence concerning Mr. Piotrowski's record in Poland before the Court, then there

were, of course, ways in which that could have been sought to have been achieved. However, if proper evidence were tendered in

that way then questions such as those just mentioned or others could also have been addressed. As the trial judge noted, hearsay is

hearsay and is no more admissible because the defence wishes to lead hearsay evidence from a prosecution witness than in other

circumstances.

6.4 On that basis the relevant evidence was, in the Court's view, correctly excluded and this ground of appeal fails.

6.5 It is then necessary to turn to the next ground.

7. Ground 10

7.1 Under this ground, it is said that the trial judge failed to properly explain the necessary ingredients of the offence of sexual

assault. In this regard, attention is drawn the decision of this Court in Director of Public Prosecutions v. M.R. [2009] IECCA 87, in

which the judgment of the Court was delivered by Denham J. In M.R., this Court made it clear that where there were alternative

bases on which an accused might be convicted of sexual assault (being different acts potentially involving different parts of the

body), it was important that the jury be directed that they were required to be unanimous (or in a sufficient majority if appropriate)

on the act or acts which formed the basis of their verdict. This Court made it clear that it is permissible to specify a number of

matters in a charge as together constituting one ingredient of the offence in question, and that a jury which is satisfied beyond

reasonable doubt that any one or more of them is made out, is entitled to convict. The point made by this Court is that the jury must

be satisfied beyond reasonable doubt in respect of the same act or acts. A jury where, for example, four members were not satisfied

in respect of one act and four members were not satisfied in respect of another act but where each of the members were satisfied

that some act occurred, could not properly convict for there would not be unanimity (or even a sufficient majority of ten) as to the

occurrence of any one specified act.

7.2 What the trial judge said to the jury in the context of the offence in question was the following:-

"If you are satisfied that there was an attack on (Ms. Z), that there was manipulation of her private parts and of her

breasts prior to the incident with the vibrator, then that can be a sexual assault." (transcript day 8, p. 30, lines 13-15)

The reference to the incident with a vibrator concerned an allegation of rape which was the basis of one of the other counts.

7.3 Requisitions were not made by counsel on the trial judge’s explanation in his charge as to what the jury ought be satisfied in order

to find Mr. Piotrowski guilty of sexual assault. However, counsel did ask the judge to re-iterate to the jury that the complainant was

not embarrassed in talking about her sexual matters, which the trial judge did. The trial judge, in response to a later question by the

foreman, also explained what may amount to corroboration in respect of the sexual assault charge.

7.4 It is important to emphasise that there are a whole range of factual scenarios, or alleged factual scenarios, which may be present

in a case involving an accusation of sexual assault. It must further be emphasised that the range of matters which may be put in

issue by the defence may vary. The precise way in which a trial judge, in charging a jury, will be required to address these issues is

very much dependent on the evidence given at the trial and the nature of any challenge to that evidence. In that context, it is

important to note that, in M.R., (as appears from para. 14 of the judgment of this Court delivered by Denham J.), the accused in

question had given evidence and had made a specific admission in relation to one incident but had entirely denied a second incident.

It was in that context the ruling of this Court was delivered. The Court went on to note that there may be factual details not at the

core of the alleged acts which would not be subject to the principle and that the need for a direction might only arise in rare cases. It

is also important that this Court quoted with approval from the judgment of Lord Bingham C.J. in R. v. Carr [2000] 2 Cr. App. R. 149

which drew attention to the principle arising in cases where there was "a stark difference in the evidence of witnesses describing the

two events". In addition, as Lord Bingham C.J. also noted in Carr, the ultimate question is whether the conviction is unsafe.

7.5 Here, there was, on the run of the case, no distinction between the two elements of sexual assault described. There was no

conflicting evidence between different witnesses. The accused did not himself go into evidence. While there was a general attack on

the credibility of the evidence of Ms. Z, no suggestion was made which could raise any legitimate distinction between the two forms

of sexual assault of which she gave evidence. This is not, therefore, a case where there was any distinction between the totality of

the evidence relevant to the two separate allegations of sexual assault. Nor was it a case where there was any distinction between

the potential credibility of that evidence as and between those two instances. On that basis, the Court is not satisfied that there

was any need for the trial judge to go further than he did in his charge to the jury. As he put it to the jury, they were required to be

satisfied beyond reasonable doubt that the instances occurred. On a strict reading of the words used by the trial judge, it might,

indeed, be said that the jury had been told that they must be satisfied that both occurred. However, the reality was that no

distinction between the two instances arose in the context of this trial and there is, therefore, no basis on which the jury could have

been confused as to their role. That ground of appeal is, therefore, rejected. The Court, therefore, turns to the next grounds.

8. Grounds 11 and 16

8.1 Under this heading, complaint is made about a number of interventions by the trial judge in the course of the trial which, it is said,

might have conveyed to the jury dissatisfaction on the part of the trial judge with the way in which the defence was being

conducted. While a significant number of instances were specified in the written submissions filed on behalf of Mr. Piotrowski, counsel

was more specific in his complaints at the hearing of the appeal. Four interventions occurred during the cross-examination of Ms. Z on

days 2 (p. 66, lines 18-22; p. 66, lines 27-33 and p. 67, lines 1-3) and 3 (p. 24, lines 20-26; p. 28 lines 15-24) of the trial when the

judge enquired as to the relevance of questions regarding when the relationship between Ms. Z and Mr. Y commenced. Also on day 2,

(p. 73, lines 20-25), the trial judge interjected when counsel was addressing a matter with Ms. Z relating to a dressing gown to ask

counsel to put a contradictory version of events to the witness. The other instances were during the cross-examination of Mr. Y on

day 4 (p. 34, line 21- p. 35 line 12; and p. 38 lines 5-20), when he was asked as to the nature of his relationship with Ms. Z.

8.2 It is fair to say that, insofar as each of the relevant instances are concerned, the trial judge suggested to counsel that it was, at

least to some extent, inappropriate to pursue generalised issues concerning the credibility of the principal witnesses without putting

to those witnesses the case which the defence made. It seems to this Court that it is clear that, at least for much of the trial, the

attack on the credibility of the principal witnesses for the prosecution was primarily based on collateral issues which were not directly

relevant to the case itself (such as the timing of the relationship of Ms. Z with respectively, Mr. Y and Mr. Piotrowski) but which were

indirectly relevant to the case and potentially material to the question of whether the jury would regard the evidence of the principal

witnesses as being sufficiently trustworthy to establish proof beyond reasonable doubt.

8.3 The defence is, of course, entitled to some latitude in pursuing issues concerning the credibility of important prosecution

evidence. However, it is also true that the trial judge has an important role in ensuring that the case is confined to questions which

are at least of sufficient relevance to the issues which the jury has to decide to make their pursuit material. If the issues being

pursued by cross-examination are directly relevant to the facts of the case in the sense of the facts which are alleged to constitute

the offence charged or the guilt of the accused in respect of that offence, then wide latitude must be allowed. Where the issues

raised simply go to general credibility not directly connected with the offence but connected with matters which may have some

indirect bearing on the credibility of witnesses in relation to the offence, then it seems to this Court that the trial judge is entitled to

exercise a greater degree of control over the extent to which such issues can be pursued.

8.4 It also needs to be noted that counsel for Mr. Piotrowski had made an application, pursuant to s. 3(1) of the Criminal Law (Rape)

Act 1981, as substituted by s. 13 of the Criminal Law (Rape) (Amendment) Act 1990, to the trial judge (see transcript day 1 p. 60)

for leave to cross-examine Ms. Z about her prior sexual history in relation both to Mr. Piotrowski and Mr. Y. The trial judge allowed

such cross examination to take place. In giving his ruling (see transcript day 1 p. 63), the trial judge did note that he did not know

what the defence was but that he would have to allow "the defence to unfold in the natural course of cross examination" rather than

require the defence to tell him then what the defence was. The trial judge did, in so ruling, also indicate that cross-examination into

such matters would have to be relevant. In so indicating, the trial judge was clearly correct. Aspects of the sexual relationship

between Ms. Z and both Mr. Piotrowski and Mr. Y were clearly potentially relevant to the case. However, cross examination on that

sexual history was quite properly confined only to any aspects of it which could be shown to have some bearing on the case. There

is, therefore, a clear obligation on a trial judge to ensure that any permitted cross-examination on previous sexual history keeps within

the bounds of what is relevant to the case. In addition, a judge is entitled to ensure that cross-examination on collateral issues is

kept within reasonable bounds.

8.5 It might be said with some validity that it would have been preferable if the trial judge had addressed some of the comments

which he made to counsel in the absence of the jury. However, that being said, this Court is not satisfied that any comments made

by the trial judge were such as could have misled or prejudiced the jury. The fact remains that it took some considerable period of

time for the precise line of defence being pursued to emerge. The trial judge, in charging the jury, made clear that it was for the jury

to assess the credibility of the evidence given and, in particular, the testimony of the two principal witnesses. The nature of the

challenge to the credibility of those witnesses was a matter for the defence. The way in which that challenge was pursued was

determined by the defence. The fact that much of that challenge was based on indirect issues said to affect the credibility of the

relevant witnesses was again a matter for the defence.

8.6 In all those circumstances, this Court is not satisfied that there is any risk of an unsafe conviction arising from the issues raised

under this ground.

9. Ground 12

9.1 Two points of alleged prejudice in the course of the trial are made under this heading. The first concerns evidence of an alleged

complaint of sexual assault made by Ms. Z which was given by a Sergeant Mulhall. The second concerned evidence of "Nightlux" night

vision binoculars which were found in the console of Mr. Piotrowski's car when he was initially arrested.

9.2 So far as the first point is concerned, an issue arose at the trial as to when Ms. Z had first made a complaint of there being a

sexual element to the events which occurred on the night in question. Given the nature of the defence which ultimately emerged,

being a suggestion that the sexual aspects of the events were a fabrication, then the timing of any such complaint was potentially of

some relevance. On day 5, commencing at p. 79 of the transcript, Sgt. Liam Mulhall gave evidence of an account given by Ms. Z of a

sexual aspect to the assault which account was said to have been given in a conversation after Ms. Z had got out of the back seat

of a car and asked to speak to him. This event would appear to have occurred at about 10.45 on the morning in question. This

conversation was noted and Sgt. Mulhall also gave evidence of having immediately informed Inspector Murray of those matters by

phone.

9.3 However, on day 6, at p. 21, Sgt. Mulhall, under cross-examination, indicated that Ms. Z had talked to him at 9.00 a.m. in

hospital (being earlier that the "motor car" discussion), as a result of which he knew that "something of a sexual nature had

happened". There followed a dispute concerning whether there was any appropriate record of such a conversation and a contention

that the case made by the prosecution on the Book of Evidence did not include any such reference. Notes, which had been disclosed

to the defence, were produced, and it was said that those notes recorded a complaint at nine in the morning in the handwriting of a

Garda Marr who was also in attendance. On that basis, counsel for Mr. Piotrowski alleged that he had been prejudiced in the conduct

of his defence and sought a discharge of the jury. The Court is not satisfied that there is any substance to the issue raised under this

heading. The defence was entitled, in the context of seeking to make the case that the allegation of a sexual nature to the events

was fabricated, to explore when a complaint was first made. A failure to make a complaint when it might be expected is, of course, a

matter which can go to the credibility of a complainant. However, in this case, as the trial judge pointed out in his ruling, Ms. Z had

accepted that she had not initially made any complaint of a sexual nature. The question of whether that complaint was subsequently

made at 9.00 or 10.45 was, undoubtedly, a point which the defence might seek to exploit, but it was not fundamental. That was so

because there was already an admission that the complaint had not been made earlier and the question of whether it was made at

9.00 or 10.45 was one only of degree at that stage.

9.4 So far as the evidence of the night vision binoculars is concerned, it is suggested that any connection with the offence was

purely speculative and that the introduction of evidence of the finding of those binoculars was, therefore, more prejudicial than

probative and should have been ruled out. This Court is satisfied that, in the context of the case as whole, it was well within the

entitlement of the trial judge to form the view that, on balance, evidence of the finding of the binoculars in question in Mr.

Piotrowski's car, was potentially more probative than prejudicial and should be admitted.

9.5 It follows that each of the matters raised under ground 12 provide no basis for a proper appeal in this case.

10. Grounds 13 and 14

10.1 At the trial, evidence was admitted concerning the remains of a fire which occurred 0.8 miles away from the house in which the

incidents happened. There was also evidence as to items of clothing alleged to have been worn by Mr. Piotrowski on the night in

question and also of condoms said to have been in the house. It was argued that allowing evidence of the aftermath of the fire was

potentially prejudicial, in the absence of forensic evidence linking those items directly with the case, as it might, without proper proof,

it is said, link the clothing and condoms which were found in the fire with the incidents the subject of the trial. It was said that such

evidence was, on that basis, more prejudicial than probative. The trial judge ruled that, even in the absence of forensic examination,

an assessment of the evidence was "an observation, not a forensic science but of common sense". In this Court's view, the evidence

was admissible as being potentially probative. Clearly, the weight to be attached to that evidence was potentially less in the absence

of forensic testing. However, that was a matter which the defence were more than entitled to explore and seek to rely on.

10.2 Under this heading, a further complaint is made about the admission of evidence. Prior to Ms. Z being sworn, a ruling was made

by judge that certain background evidence relating to an alleged blackmail attempt, assault and threats to kill made by Mr. Piotrowski

prior to the incident in question, could be admitted, provided it was not hearsay on the authority of the decision of the Supreme

Court in Director of Public Prosecutions v. McNeill [2011] 2 I.R. 669. At day 1, p. 68, lines 6-23, the trial judge held:

“Well I take the point that the prosecution are not entitled to lead evidence of prior misconduct simply with a view to

showing that the accused is a man of bad character and is, therefore, likely to have committed an offence. Because

there are many people of bad character walking around who don’t commit offences and therefore, there has to be a

factual nexus between the evidence that’s proposed to be led and the fact in issue before the jury.

The fact in issue insofar as I can discern it at this point in the trial, is as to whether or not an assault transmuted itself

into a sexual assault and in that regard, evidence of the prior relationship between [Mr. Piotrowski] and [Ms. Z] is

relevant, as is apparent jealousy on his part, and the parent (sic) descents into threats and violence, because those are

easily translatable into the events that are supposed to have happened in the house, some of which now seem to be

denied.

So, therefore I haven’t the slightest doubt on the authority of McNeill and on the authority of Joyce and Walshe that the

evidence is admissible. … On the other hand, anything said by the accused is admissible, so definitely the evidence is

admissible.”

10.3 In the view of this Court, evidence given concerning conversations between Mr. Piotrowski and that Ms. Z were admissible to

show the attitude of Mr. Piotrowski on the breakdown of their relationship. It was not hearsay evidence. It was not, as the trial judge

correctly pointed out, simply evidence of previous misconduct. It was evidence that was referable to the events which were alleged

to constitute the offence.

10.4 The evidence was, of course, undoubtedly prejudicial. The trial judge had to execute his adjudicative role in determining

whether, on balance, such prejudicial evidence was sufficiently probative to warrant its admission. This Court is satisfied that it was

within the range of decisions which were open to the trial judge, in all the circumstances of the case, to form the view that the

probative nature of this evidence was sufficient to warrant its admission notwithstanding its prejudicial character. The Court,

therefore, dismisses the appeal on this ground.

11. Ground 15

11.1 The defence sought to admit sexually explicit photographs taken of Mr. Piotrowski and Ms. Z when they were involved in their

prior relationship which the defence sought to argue demonstrated the particular nature of their sexual relationship. The trial judge

ruled out that evidence. It was not disputed but that the parties had had a previous sexual relationship. Equally, the context of this

trial was that the relationship had come to an end.

11.2 It must be recalled, as earlier pointed out, that the trial judge, in his original ruling concerning the cross examination of Ms. Z

about her previous sexual history, had made clear that he retained the right to intervene if such cross examination was unfair. The

Court has already noted that the trial judge was, in the light of the legislative position, as set out in s. 3(1) of the Criminal Law

(Rape) Act 1981, as substituted by s. 13 of the Criminal Law (Rape) (Amendment) Act 1990, concerning such cross-examination,

correct to make clear that he would require any such cross examination to be relevant. Therefore, the trial judge was correct to be

careful in ensuring that any evidence of detail concerning the previous sexual history of Ms. Z was relevant to the case. It is difficult

to see how it was not within the jurisdiction of the trial judge to form the view that the relevant photographs had no direct

relationship to any of the issues in the case, and that any indirect relationship was so tangential as to render it appropriate to

exclude the evidence in question. It follows that, in this Court's view, those grounds also fail.

12. A Cumulative Approach

12.1 Finally, counsel argued that, even if the Court was not persuaded that any one of the specific grounds relied on were sufficient

to render the conviction unsafe, nonetheless the cumulative effect on each of the matters was, it was said, sufficient to warrant

treating the conviction unsafe and directing a retrial. The Court is not persuaded that any of the grounds raised either individually or

cumulatively are sufficient to suggest that the conviction of Mr. Piotrowski was unsafe.

13. Conclusions

13.1 It follows that, in this Court's view, there is not a legitimate basis for overturning the decision of the jury in this case to convict.

The appeal in that regard will, therefore, be dismissed.

13.2 As noted earlier, there remains the question of the appeal brought by Mr. Piotrowski in respect of his sentence. The Court will list

the appeal in relation to sentence in early course.