JudgeMurray, J.
Judgment Date31 July 2001
Neutral Citation2001 WJSC-CCA 1610
Date31 July 2001
CourtCourt of Criminal Appeal
Docket Number[C.C.A. No. 156 of 1999]

2001 WJSC-CCA 1610

Record No: 156/99





Sexual offences - Appeal - Rape - Evidence - Mens rea - Meaning of consent - Whether applicant received fair trial - Judge's charge - Whether statements voluntary and admissible - Whether corroboration warning necessary - Whether mens rea of offence properly explained to jury - Criminal Law (Rape) Act, 1981 section 2 - Criminal Law (Rape) (Amendment) Act, 1990 section 7 - Criminal Law Amendment Act, 1885 (156/1999 - Court of Criminal Appeal - 31/7/01) - [2001] 3 IR 345


The applicant had been convicted of rape and sought leave to appeal against conviction. The applicant set forth a number of grounds of appeal. It was contended that the statements of the accused whilst in custody were not made in accordance with the principles of constitutional fairness. In addition it was argued that the trial judge had failed to adequately charge the jury in relation to the facts of the case and in particular to certain conflicts of evidence. Furthermore it was said that the trial judge had erred in law in refusing to warn the jury on the need for corroboration. Mr. Justice Murray, delivering judgment, held that the trial judge had correctly admitted the statements of the accused. The fact that conflicts may have arisen in evidence did not require the trial judge to direct the jury to accept one version over another. The trial judge had directed the jury correctly with regard to the mens rea of the offence. In addition the trial judge had acted correctly and within his discretion not to give a warning with regard to corroboration. Leave to appeal was refused.






BARROW 1868 11 COX CC 191


DPP V REED 1993 2 IR 186





31st day of July, 2001, by Murray, J.

Murray, J.

This is an application for leave to appeal against conviction. The Applicant was arraigned before Mr Justice Carney and a jury at the Central Criminal Court on the 19th April, 1999 on a charge of rape contrary to section 2 of the Criminal Law (Rape) Act, 1981. He was thereupon tried for the offence and found guilty by the jury and sentenced to imprisonment for four years, suspended unconditionally on he paying compensation in the sum of £7,000 to the injured party. The Particulars of offence set out in the indictment were that J.C. (C in the title hereof), "a male person, on the 5th January, 1997 at ..., in the city of Dublin had sexual intercourse with [A], a woman, who at the time of the intercourse did not consent to it or at the time knew that she did not consent to the intercourse or was reckless as to whether she did or not consent to it."


The grounds as relied upon by the Applicant at the hearing of the application were as follows:


(1) The trial judge erred in law and in fact in holding that the statements of the accused tendered in evidence by the prosecution were made in accordance with the principles of constitutional fairness.


(2) The learned trial judge failed to charge or adequately charge the jury in relation to the facts of the case and in particular failed to charge them correctly in relation to the conflict between the evidence given by the complainant in evidence in chief and the admissions made in cross-examination.


(3) The learned trial judge erred in law and in fact in refusing to withdraw the prosecution case from the jury at the close of the prosecution case.


(4) The learned trial judge failed to address the jury properly or at all in relation to the means rea of the offence as regards the issue of impersonation.


(5) The learned trial judge erred in law in the exercise of his discretion when he refused to warn the jury on the need for corroboration and in failing to hear the arguments of Counsel on this question.


Before addressing the grounds of appeal as argued at the hearing of the application for leave to appeal, it may be useful to outline certain facts of the case, much of which are not in contention.


On the evening of the 4th January, 1997, the eve of the date of the offence of which the Accused was convicted, Ms A, hereinafter referred to as the complainant, joined about five or so friends in a Dublin pub for the purpose of celebrating the birthday of one of those friends a Mr K. She went there with her boyfriend Mr H. The group left the pub sometime after midnight and walked to Mr K's house to continue the festivities arriving there at approximately 1.00a.m This had been planned and the complainant and her boyfriend Mr H. had made arrangements to stay in the house that night sharing the same bedroom.


The Applicant J.C. had been invited to the party. He had been working late that evening and had not gone to the pub. He had known K. for a long time. He was married but separated and was at the time back living with his mother in the house next door to K's. He knew that it was intended that the party would continue in K's house and it was his intention to go to it if it was still going on when he got home to his mothers house. This he did. He brought with him a 1 litre bottle of vodka from which he had taken one drink after work. He arrived at the party in the small hours of the morning. It is not necessary to examine in detail the precise time of arrival of the applicant at the party or that of the subsequent events since nothing material turned on these times which in any event are not very clear. What is relevant is the sequence of events. The party was described in the evidence as being good fun, chat, music and people were drinking. The complainant herself did not herself take alcoholic drink when she returned to K's house. The Applicant, J.C. was drinking his own vodka. Sometime between 3.00a.m and 4.00a.m the complainant decided to go to bed and went up to the bedroom that she had arranged to stay in. Her boyfriend Mr H. went up with her. They had sexual intercourse and subsequently spend considerable period chatting to one another until she decided that she would go to sleep as she had to be at work that day at midday. Mr H. then went back downstairs and rejoined the party.


In the meantime, the Applicant, J.C., had according to his evidence drunk the best part of the litre bottle of vodka. In his evidence at the trial the Applicant, J.C. said that as he was getting low on cigarettes he decided to pop upstairs and see if K's sisters had any. From having lived next door to the K household for many years he was familiar with the layout of the house. He knocked on K's sisters bedroom door but received no reply. At that point, accordingly to his evidence at the trial, "the door across was open so I said I would go in and lay my head down on the pillow for a few minutes and get a little bit of rest. I got onto the bed, lay on the bed and there was a girl - [the complainant] in the bed." At this point it may be relevant to note that neither the complainant nor the Applicant J.C. had met one another prior to that evening.


One of the issues of fact at the trial concerned what happened from the moment when J.C. entered the bedroom in which the complainant was in bed. According to the evidence given at the trial by the Applicant, J.C., when he laid down to have a rest he put his hand on the shoulder of the complainant, they began to snuggle and they had consensual sexual intercourse. The complainant for her part gave evidence that she was asleep and woke up to find someone having sexual intercourse with her which for a second she thought might be her boyfriend and then suddenly realised that he was not. In cross examination it was put to her that her boyfriend had made a statement to the gardaí based on an account which she had given to him shortly after this event. That statement was to the effect that the complainant had seen the bedroom door opening. She thought it was her boyfriend coming in and turned towards the wall. She felt somebody lifting the duvet and getting into the bed beside her. She felt him removing her pyjama bottoms and started to having sexual intercourse. It was not suggested on this basis that she knew who it was and consented to sexual intercourse with the Applicant, J.C. She acknowledged that generally an account given shortly after the event is more likely to be accurate than one given a considerable time later. Apart from the issue as to whether the complainant had consented to sexual intercourse with the Applicant J.C. an issue arose concerning a conflict of evidence as to whether she was awake when the Applicant entered the room or woke up at a point when she found a person having sexual intercourse with her. A number of the grounds of appeal relate to this issue.


Subsequently in the house there was a row, particularly between the complainant's boyfriend and the Applicant arising from what had occurred. Subsequent to this a complaint was made to the gardaí who commenced their investigations. In the meantime the Applicant had returned to his mother's home next door at about 8.00am. He was not able to go to sleep because of the events which had happened, the whole matter having caused a "hive of activity" in his mind. He did manage just one hour's sleep before the gardaí arrived to interview him in the early afternoon. He was arrested and taken to a garda station. He subsequently made statements initially denying that he had any sexual intercourse with the complainant. Finally he made a statement admitting to having sexual intercourse with the complainant. In that statement he stated that the complainant had responded...

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