DPP v B.F.

JurisdictionIreland
JudgeMr. Justice Edwards
Judgment Date17 July 2017
Neutral Citation[2017] IECA 219
Docket NumberRecord No: 2016/23
CourtCourt of Appeal (Ireland)
Date17 July 2017

[2017] IECA 219

THE COURT OF APPEAL

Edwards J.

Birmingham J.

Mahon J.

Edwards J.

Record No: 2016/23

THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
V
B.F.
Appellant

Conviction – Attempted rape – Unsafe verdict – Appellant seeking to appeal against conviction – Whether the verdict of the jury finding the appellant guilty of attempted rape was perverse, inconsistent with the verdicts delivered on the other counts, against the evidence and the weight of the evidence

Facts: The appellant was charged with a count of attempted vaginal rape contrary to common law, a count of oral rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990, and three counts of sexual assault contrary to s. 2 of the 1990 Act, on the 24th of September 2011. At the appellant’s trial before a jury on all five counts, the trial judge directed a not guilty verdict in respect of one count of sexual assault on the basis that there was insufficient evidence, and the jury delivered not guilty verdicts on the two further counts of sexual assault and also on the count of oral rape. However, by a unanimous verdict the jury found the appellant guilty of the remaining count, namely that of attempted rape. The appellant was subsequently sentenced to six years imprisonment to date from the 11th of December 2015, with the final three years suspended upon conditions. The appellant appealed to the Court of Appeal against his conviction on the following grounds: (i) The trial judge erred in law and in fact in failing to grant a direction on the attempted rape count; (ii) The verdict of the jury finding the appellant guilty of attempted rape was perverse, inconsistent with the verdicts delivered on the other counts, against the evidence and the weight of the evidence.

Held by the Court that the trial judge was correct to refuse the application for a direction; viewed at its height there was clear evidence on which a jury, properly instructed, could have convicted. Having concluded that possible explanations existed for the ostensibly inconsistent verdicts returned, the Court was satisfied that the jury’s verdict convicting the appellant of attempted rape was safe notwithstanding the other verdicts returned.

The Court held that the appeal must be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered 17th of July 2017 by Mr. Justice Edwards .
Introduction
1

The appellant, B.F., a male, was charged with a count of attempted vaginal rape contrary to common law, a count of oral rape contrary to s.4 of the Criminal Law (Rape) (Amendment) Act 1990, and three counts of sexual assault contrary to s.2 of the Criminal Law (Rape) (Amendment) Act 1990, all in respect of one A.C., a female, on the 24th of September 2011.

2

At the appellant's trial before a jury on all five counts, the trial judge directed a not guilty verdict in respect of one count of sexual assault on the basis that there was insufficient evidence, and the jury delivered not guilty verdicts on the two further counts of sexual assault and also on the count of oral rape. However, by a unanimous verdict the jury found the appellant guilty of the remaining count, namely that of attempted rape.

3

The appellant was subsequently sentenced to six years imprisonment to date from the 11th of December 2015, with the final three years suspended upon conditions.

4

The appellant now appeals against his conviction only.

The Relevant Evidence in the Case
5

The appellant, who was with a male friend, Q, and the complainant, who was with a female friend, R, met by chance on the 24th of September 2011 while socialising. They had both consumed a large amount of alcohol on the previous night. They crossed paths on a Dublin City street while each pair was looking for an ‘early house’ to serve them more alcohol. Having joined up together the group of four then proceeded to a licensed premises in Dublin City centre where they were served one drink before being refused further service. R decided to go home and the complainant, the appellant and Q decided to get more alcohol from an off-licence and to return to the appellant's rented accommodation in Palmerstown.

6

When they reached the appellant's house, the three continued drinking in the appellant's bedroom until they all fell asleep on the bed together. At some point Q awoke and left the house.

7

Under examination in chief, the complainant told the jury, inter alia, that some time later, she awoke on the bed to find her tights pulled down to her knees. The appellant was shirtless and on top of her. The complainant told the jury how the appellant tried to kiss her and she just kept moving her head out of the way. He then grabbed her arms and put them behind her head, while still trying to kiss her. The complainant tried to wriggle out from under him and screamed a few times. He then pulled her tights the rest of the way down and removed more of his own clothes. The complainant asked him what was he doing, pleaded with him to stop and told him to ‘fuck off’. She told they jury that despite her shouting and hitting him he was ‘smirking through most of it, kind of joking that I wanted him to do what he was doing.’ She said that he said a few times that he was ‘just having the buzz’. She told the jury that the appellant tried to put his penis into her vagina and ‘was trying to use his hand. At one point I did think his penis did go in a bit but that may have been his hand, I don't know.’ According to the complainant he failed to penetrate her vagina with his penis as he did not have an erection so he attempted to have anal sex with her. Again, he failed as he did not have an erection. She alleged that he then tried to put his penis and testicles in her mouth but her mouth was closed. She screamed and bit his penis, kicked him in the face and ran out of the room.

8

She recalled that afterwards, she was shouting when one of the appellant's housemates came out of his room and took her to the bathroom. Another housemate was also present and one of them gave her a cigarette. She was taken to the living room and one housemate made tea. She stayed and sat beside the appellant on the couch because she ‘ presumed either the police or a taxi was coming.’ She left because she ‘got a little bit scared’ after a roommate of the appellant, who she thought had believed her, appeared to her to become less sympathetic. She got the appellant's address and left.

9

One of the roommates who attended to the complainant testified that B.F. appeared quite drunk and aggressive. P, a female roommate of the appellant who remained in her room while the commotion was ongoing and did not attend to the complainant, testified that she had heard the complainant screaming in a frightened manner.

10

S, the complainant's sister, told the jury that the complainant arrived at her house at around 9 p.m. that evening. She was crying profusely. The complainant and R left at around 10 p.m and went to a Garda station and made statements. Under cross examination, R gave the following evidence:

‘Q. … Just going back to what A.C. told you when you met her at [S]'s the next day, she had indicated that he didn't do anything because he couldn't get a hard on?

A. Well, that was my terminology like.

Q. Yes. You mean in terms of he couldn't get an erection?

A. Exactly.

Q. Yes. But she said that she thought he couldn't get a hard on because of all the drink?

A. Yes. I mean that's not part of the conversation that, like, really I mean she was it wasn't like sorry

Q. I'm just reading from your statement here.

A. Yes, yes.

Q. Just in terms of what was said to you?

A. Yes, exactly. No, I understand that.

Q. Yes. ‘She said that he sat on her face and that was when she got really upset. She said that this was when she bit him on his balls. She then kicked him in the face and that was when she escaped she told me’?

A. Yes.

Q. That sounds very, very graphic?

A. Yes.

Q. Yes. And it was definitely that she bit him on his balls not on his penis or anything else?

A. Yes.

Q. All right. And that she did that in the context of him being over her face?

A. Yes.

Q. All right. I think she described that [B.F.] kept saying, this was later, that he was only having the buzz and that he didn't seem to have a clue mentally about what he had done; is that right?

A. Yes.’

11

The appellant was later arrested and was interviewed a number of times while in detention. He denied emphatically that he attempted to rape or otherwise sexually assaulting the complainant. He admitted being in the bed with her in the bedroom of his accommodation in Palmerstown but contended that he had been fully clothed at all times, that he had been asleep beside the complainant, and that he remembered waking up and ‘hugging’ into her as she slept, following which ‘[s]he just went beserk. She started kicking and pushing me. She legged it out of the room then.’ His response to her account when it was put to him was that it was ‘all lies’. The contents of the interviews with the appellant were placed in evidence by the prosecution.

The Grounds of Appeal
12

The appellant appeals against his conviction on the following three grounds:

(i.) The trial judge erred in law and in fact in failing to grant a direction on the attempted rape count;

(ii.) The trial judge erred in law and in fact in charging the jury on the relevance of the evidence of fresh complaint adduced by the prosecution;

(iii.) The verdict of the jury finding the appellant guilty of attempted rape was perverse, inconsistent with the verdicts delivered on the other counts, against the evidence and the weight of the evidence.

13

At the opening of the oral hearing on this appeal the Court was informed by counsel for the appellant that ground no (ii.) was no longer being relied upon.

Ground No (i.) – The...

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2 cases
  • DPP v Fitzgerald
    • Ireland
    • Court of Appeal (Ireland)
    • 28 Julio 2017
    ...the weight of the evidence. 122 As we recently pointed out in our judgment in The People (Director of Public Prosecutions) v. B.F. [2017] IECA 219, a perverse verdict of conviction is one in which there was no, or no sufficient, evidence capable of supporting the verdict returned. 123 In ci......
  • DPP v Flaherty
    • Ireland
    • Court of Appeal (Ireland)
    • 31 Julio 2019
    ... ... Traditionally, appellate courts have taken the view that they should intervene only if the outcome was one that no reasonable jury could properly have reached ... 38 The matter was considered recently by this Court in the case of DPP v. BF [2017] IECA 2019 ... There, the Court, in a judgment delivered by Edwards J, referred with approval to principles outlined in the case of R v. Dhillon [2010] 2 Cr. App. R 1 : ‘(i) The test for determining whether a conviction can stand is whether the verdict is safe; (ii) ... ...

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