A MAN WHO was jailed for nine years for repeatedly raping a woman he met on a dating website after giving a false name has had his conviction quashed by the Court of Appeal.
Bajo Ziflai (23) was found guilty by a jury of four counts of raping the 23-year-old woman and one count of sexually assaulting her at an address in County Galway following a Central Court trial in July 2022.
Ziflai, an Albanian national with an address at Lacken Valley, New Ross, Co Wexford, had pleaded not guilty to all five of the charges. He will now face a retrial.
He was jailed for nine years in January this year. Sentencing judge Ms Justice Eileen Creedon said Ziflai had shown no remorse nor acknowledged the harm he caused to the woman on the night in question.
He did not accept the verdicts of the jury and continued to maintain the woman made up the allegations because she was “attention seeking”.
The court heard Ziflai met the woman on a dating website on which he used a false name and it was agreed between them that they would meet at a house near the woman’s home. She was driven there by her mother and told him in advance they would not be having sex, the court heard.
Despite this, Ziflai raped the woman four times and sexually assaulted her before she managed to leave the house and call her mother.
Ziflai had appealed his conviction, arguing that the trial judge erred in law in the manner in which the jury was charged in relation to the lies told by the accused.
In delivering the Court of Appeal’s judgement today, Justice Patrick McCarthy said the three-judge court had a concern that the jury may not have fully understood how they should approach the question of lies.
The court noted that counsel for the prosecution laid “heavy emphasis” on the lies told by the appellant during the course of a number of interviews with gardaí.
He said in a number of interviews with gardaí, Ziflai asserted that consensual sexual intercourse had occurred on one occasion. They said it appeared “on any view of the evidence” that he told many lies in and about his engagement in the matter and its background.
Justice McCarthy said that in light of the fact that the prosecution was placing reliance upon the fact that lies were of evidential value in support of the prosecution case, the judge had, during the course of her charge to the jury, given what is commonly known as a “Lucas warning”.
In the written judgement, the court said the “Lucas warning” is generally necessary in situations where lies told out of court are relied upon by the prosecution as part of their case.
When this occurs, a warning should be given to the jury that individuals may tell lies for many different reasons, and that the telling of lies is not necessarily indicative of guilt for that reason, the judges said.
The court noted that subsequent to the charge, counsel for Ziflai, by way of requisition, submitted that the form of words used by the judge in relation to the question of lies was erroneous and tended to confuse the jury.
A debate took place between the judge and counsel as to the appropriate form of words but the judge declined to recharge the jury on the point.
Justice McCarthy said counsel for the appellant had rightly relied on “the straightforward proposition that what the judge made was a bald error, which it is.”
The court said: “In this instance it is said that the form of words used conveyed the proposition, as they do, viewed on their own, that lies could be relied upon if the jury are sure that there is no innocent explanation, and to the criminal standard of proof.”
The court found that the requisition was well founded and the judge ought to have acceded to it.
“The error could have been remedied without difficulty and if that had been done there would be no basis for an appeal on this ground,” Justice McCarthy said.
He said the court had a concern that the jury may not have fully understood how they should approach the question of the lies.
“The latter factor itself means that one must scrutinise the forms of words used in their context with exceptional care,” the court said.
“We accept that the remainder of the charge is beyond criticism but we do not think that the error on such a crucial question can be ignored.
The court said it found that the verdict was unsafe and unsatisfactory. Accordingly, it quashed the conviction and directed a retrial.
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