DPP v O'Brien

CourtCourt of Appeal (Ireland)
JudgeMs. Justice Isobel Kennedy
Judgment Date11 November 2022
Neutral Citation[2022] IECA 306
Docket NumberRecord Number: 114/2021
The People at the Suit of the Director of Public Prosecutions
Liam O'Brien

[2022] IECA 306

Edwards J.

McCarthy J.

Kennedy J.

Record Number: 114/2021


JUDGMENT of the Court delivered on the 11th day of November 2022 by Ms. Justice Isobel Kennedy.


This is an appeal against conviction. On the 23rd April 2021, the appellant was convicted of rape contrary to s. 48 of the Offences Against the Person Act, 1861 and s. 2 of the Criminal Law (Rape) Act, 1981, as amended by s. 21 of the Criminal Law (Rape) (Amendment) Act, 1990. He stood trial with a co-accused who was charged with rape and attempted s. 4 rape. The appellant's co-accused was acquitted of the rape offence by direction of the trial judge and of attempted s. 4 rape by the jury.


Two grounds of appeal are relied on, namely, 1. that the trial judge erred in refusing to direct an acquittal and, 2. that the jury's verdict was perverse in all the circumstances.

Background Circumstances

On the evening of the 27th October 2016, the complainant agreed to meet a relative of the appellant, whom she knew. At approximately 5pm, she met with group of people including the appellant and his co-accused.


Later in the evening, it appears that most of the group headed home and the complainant remained with the appellant's relative, the appellant and the co-accused. It seems that the appellant's relative also went home and she ended up in a secluded area with the appellant and his co-accused. It appears that the two men decided to go to this area, known as “The Sheds.” When there, she gave the appellant her mobile phone to play music.


She stated that the appellant and his co-accused were talking amongst themselves, and, at the same time, the co-accused grabbed her hand and pulled her in on top of him. She recalled moving away and that the co-accused said that he would stop, to come back, not to go anywhere, that he would not do it anymore. However, the co-accused recommenced touching her. She moved back towards the co-accused and he put his hand down her pants and began touching her vagina.


The complainant then gave evidence that the appellant smiled, and said that he wanted to join in. She said that, at this point, the appellant reached out towards her and she “nodded no, I don't want to” but that he replied that she was “no fun” and proceeded to put his hand in her pants.


Thereafter, the complainant gave evidence that she was in between the appellant and his co-accused and that they both lowered their pants. She stated that the appellant bent her over and put his penis inside her vagina and at the same time, his co-accused attempted to put his penis inside her mouth. The complainant recalled that the appellant said that he was going to ejaculate in her. She said that he pulled up his pants and that before he left the area, he threw her mobile phone against a wall. This was picked up by his co-accused who handed it over to her.


After this incident, the complainant re-joined her friends, at which point, she began crying. She walked home and once in her bedroom, she messaged one of her friends about the incident on Facebook messenger. She told one friend who told her mother and then the complainant's parents were called. This resulted in the complaint being made to An Garda Síochána and the complainant's examination at a Sexual Assault Treatment Unit.

The Direction Application

At trial, defence counsel applied for a direction on the basis that there was no evidence upon which a jury properly charged could find that the complainant did not consent to the sexual acts in question.


The appellant submits that the actus reus of the offence of rape has two elements; 1. there must be penetration of the vagina by the penis and 2. this must be done without the consent of the complainant. It is accepted that the first part of the actus reus is made out in the instant case, however, the appellant says that the respondent failed to prove the absence of consent. This element must be differentiated from the mens rea for the offence, namely, that the accused person knew that the complainant was not consenting or was reckless to this fact. Therefore, it is argued that while physical manifestations of the absence of consent may lend themselves towards establishing the mens rea, they do not demonstrate the actus reus of an absence of consent.


It is the appellant's position that the complainant's evidence of moving away, of nodding “no”, or of feeling humiliated are insufficient to establish the absence of consent and that in order to prove that element of the offence, the complainant ought to have given evidence confirming that she was not consenting.


The appellant acknowledges that there are circumstances in which this is an unnecessary proof such as where a complainant is incapacitated or where there is deception or use of physical force. In such cases, this element of the actus reus can be inferred from the circumstances. It is argued in the present case that there was no evidence of the absence of consent and therefore, the judge erred in failing to direct the jury to return a verdict of not guilty.


The respondent argues that there was ample evidence upon which the jury could base a finding that the complainant at the time of the commission of the offence, did not consent to sexual intercourse with the appellant. Reliance is placed on the following excerpt from Prof. O'Malley's text on Sexual Offences (2nd ed) at para 3–03.

“Although the giving or withholding of consent is essentially a mental process, the absence of consent is part of the actus reus of rape. In proving this element of the offence, the question is whether the complainant actually, or subjectively, consented. Outward manifestations of consent or its absence will naturally be considered for this purpose but the key question is always whether or not she did consent. This is a point which Canadian courts in particular have stressed in recent years. Historically, a woman was not regarded as a victim of rape unless intercourse took place “forcibly and against her will” and this probably explains why, even in more recent times, textbooks tended to state that consent could be vitiated only by force, fear or fraud. Granted, any these factors will ordinarily be inconsistent with consent, but this is far from saying that their absence must necessarily imply the presence of genuine consent. It would be equally misleading to suggest that the presence or absence of consent is always easy to determine. Theoretically, the question is a simple one—did the complainant consent? but two difficulties remain, one practical and one legal. The practical difficulty is that long after the alleged rape occurred, a jury must place itself in the position of the complainant and try to decide, in light of all the evidence, whether she did consent.”


Further reliance is placed on the dicta of Charleton J in the case of The People (DPP) v CO'R [2016] IESC 64 wherein he stated that:-

“Consent is the active communication through words or physical gestures that the woman agrees with or actively seeks sexual intercourse. In the normal sphere of relations between men and women, consent does not simply exist in the mind of the woman; if there is desire for sexual intercourse then that is communicated. Because insensibility, be it caused by sleep or an intoxicated or drugged state, cannot be any expression of consent, it follows that there should be communication through the senses that intercourse is to be allowed.”


It is submitted that the dicta of Charleton J together with the commentary of Prof. O'Malley indicate that the presence or absence of consent is to be assessed by reference to “all of the evidence” of “active communication through words or physical gestures that the woman agrees (or does not agree) with or actively seeks (or does not seek) sexual intercourse.”


The respondent references the complainant's evidence that she “moved away” and submits that this constitutes compelling evidence of active communication, by way of physical gesture, that she did not agree with or actively seek sexual activity of any nature with either of the co-accused or the appellant.


It is submitted that there was evidence of the absence of consent in that the complainant stated: “Liam reached out to put his hand down my pants as well and I nodded no, I don't want to and he says that I'm no fun and proceeds to put his hand in my pants.”


Moreover, it is said that the complainant's evidence that the appellant said that she was “no fun” and that he threw her phone against a wall in the aftermath of the sexual acts in question indicates a recognition on the part of the appellant that the interaction was not consensual.


Further, the respondent submits that in assessing the totality of the evidence, the jury were entitled to consider the complainant's account of her emotions in the aftermath of the sexual acts in question. The jury heard evidence of shock, humiliation and disbelief on the part of the complainant, which, it is submitted, also lend themselves to establishing a lack of consent.


It is the respondent's position that no particular form of words is required to establish a lack of consent and that this is something that counsel for the appellant acknowledged in his application for a direction, as follows:

“She has not stated in evidence that she did not consent to Liam O'Brien having intercourse with her. Now, there may be many cases in which that would be an unnecessary proof on the part of the prosecution.”


In response to the appellant's submission that there are no surrounding circumstances in the instant case which would have enabled the jury to infer a lack of consent on the part of the complainant, the respondent points to the complainant's age and...

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