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...

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