C O'R v DPP

 
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[2016] IESCDET 3

An Chúirt Uachtarach

The Supreme Court

DETERMINATION

Denham C.J.

Laffoy J.

Charleton J.

Between:
C O'R (George)
APPLICANT
AND
The People (at the suit of the Director of Public Prosecutions)
RESPONDENT
APPLICATION REFERRED TO IN ARTICLE 34.5.3° OF THE CONSTITUTION
RESULT: The Court makes an order allowing an appeal to this Court under Article 34.5.3° of the Constitution from the judgment of the Court of Appeal delivered on the 27th day of March 2015.
REASONS:
1

This determination concerns an application brought by the applicant, CO'R, in which the applicant seeks a determination under Article 34.5.3° of the Constitution to allow an appeal to this Court from the decision of the Court of Appeal delivered on the 27th of March 2015: judgment of Ryan P and Birmingham and Edwards JJ. CO'R will have the assumed name George for the purposes of this determination.

2

The applicant George was convicted 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 at the Central Criminal Court after a four day criminal trial ending on 4th July 2012. He was sentenced to 12 years imprisonment. The rape perpetrated by George was on his mother, a lady in her 60s.

3

Sexual intercourse was admitted by George following a complaint by his mother. The issue at trial before White J and a jury was that of consent. The jury convicted by a 10:2 majority. The appeal to the Court of Appeal centred on that issue of consent and the definition of the mental element of rape but in doing so also ruled on other issues as to the sufficiency of evidence and the discovery of medical records. It is clear, however, that what assumes significance in this application is the issue of consent to sexual intercourse and the nature of the mental element that must be present for an accused person who has intercourse with a woman who does not consent to be convicted. Questions of the sufficiency of evidence, whether a direction to acquit should or should not have been granted by the trial judge at the close of the prosecution case and whether there had been proper disclosure must ordinarily be regarded as issues for the Court of Appeal: only extraordinary circumstances would justify a further appeal to this Court on issues of that kind.

4

The Court of Appeal considered the issue of consent in the context of the circumstances and the trial judge's charge to the jury. The accused George had made the case that he genuinely believed that his mother consented to having sexual intercourse with him. George claimed that his mother had danced in a sensual manner with him prior to that event and that alcohol had been consumed. Prescription medication had been taken in the ordinary way, apparently, by her. His mother characterised the dance as being of a ballroom kind and further denied consent. She, for some moments prior to the intercourse, had a failure of recollection for whatever reason. On behalf of George, it was argued that this meant ‘she was unsure on crucial matters.’ It is claimed that counsel for the prosecution in closing the case to the jury described the elements of the offence of rape as being fulfilled where an accused had no reasonable belief that the woman was consenting. For the accused, in the defence closing address, the law was stated as merely requiring an actual belief that consent was present. The Court of Appeal dealt with this significant point at paragraph 48 of their judgment thus:

There was no complaint about the judge's charge to the jury and the judge did say that the jury must take the law from him. The trial judge set out the provisions of s. 2(2) of the Criminal Law (Rape) Act 1981 as follows:

‘The Act goes on to further provide, Ladies and Gentlemen, that if at a trial for a rape offence, the jury has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard in conjunction with other relevant matters in considering whether o not he so believed. In this case, the case is made that the accused man believed that the woman was consenting. So you must look and see whether or not there is present or absent reasonable grounds of such a belief and they are matters that you have to have regard to, considering the overall picture, the entire picture. Was there a reason why the man might believe that she was consenting or was there an absence of any...

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