DPP v Creighton

JurisdictionIreland
JudgeFinlay C.J.
Judgment Date01 January 1994
Neutral Citation1995 WJSC-CCA 2131
Docket Number[C.C.A. No. 27 of 1991]
CourtCourt of Criminal Appeal
Date01 January 1994

1995 WJSC-CCA 2131

COURT OF CRIMINAL APPEAL

FINLAY C.J.

O'HANLON J.

GEOGHEGAN J.

27/91
DPP v. CREIGHTON
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLICPROSECUTIONS
.v.
GERARD CREIGHTON
Applicant

Citations:

DPP V GAFFEY UNREP CCA 10.5.91 1991/11/2720

DPP V F UNREP CCA 27.5.93 1993/7/1830

DPP V ROCK UNREP CCA 29.7.93 1993/11/3470

R V TAYLOR (1985) 80 CAR 327

R V HAUGHIAN & PEARSON (1985) 80 CAR 334

SEXUAL OFFENCES (AMDT) ACT 1976 (UK)

CRIMINAL LAW (RAPE) ACT 1981 S2

CRIMINAL LAW (RAPE) ACT 1981 S2(2)

Synopsis:

CRIMINAL LAW

Trial

Indictment - Rape - Jury - Judge's charge - Sufficiency - Complainant - Sexual intercourse - Lack of consent - Direct conflict of evidence - Whether any necessity for trial judge to charge jury in regard to grounds for accused's belief - Criminal Law (Rape) Act, 1981, s. 2 - (27/91 - Court of Criminal Appeal - 20/12/93) - [1994] 2 I.R. 570.

|The People v. Creighton|

1

JUDGMENT OF THE COURT delivered the 20th day of December1993by Finlay C.J.

2

This is an application for leave to appeal against a conviction for rape entered against the Applicant on the 5th day of February 1991 after a trial had in the Dublin Circuit Court by Morairty CCJ. sitting with a jury. The Applicant was on that occasion convicted of both rape and buggery against the same female person, the offence having been alleged to have occurred on the 9th day of August 1989. The application for leave to appeal against conviction is confined to the conviction in respect of rape, though an application for leave to appeal has also been brought in respect of sentenceconcerning the conviction for buggery.

3

The application for leave to appeal was in fact served after the conviction but then withdrawn but was reinstated pursuant to an order of this Court dated the 10th day of June 1991.

4

What was described by Counsel on the hearing of this appeal as the one main point in the appeal was as follows. It was asserted that the learned trial judge in the course of his charge to the jury failed specifically to bring to their notice the necessity in order to establish the crime of rape for the prosecution to prove to the satisfaction of the jury beyond all reasonable doubt not only that the Complainant did not consent to the sexual intercourse which admittedly occurred but also the issue as to whether even if she did not so consent the accused believed that she was consenting, delineating on the evidence the reasonable grounds for such a belief to which the jury were obliged to have regard. No requisition to that effect was madeat the trial but it was asserted that the necessity for such a charge, first was identified by this Court in the case of The D.P.P. .v. James Gaffey in which judgment was delivered on the 10th May 1991 subsequent to the hearing of this case and more fully developed in the decisions of this Court in The D.P.P. .v. F. delivered on the 27th May 1993, and The D.P.P. .v. James Rock delivered on the 29th July 1993.

5

The Court is satisfied that having regard to the interests of justice it should fully consider the point now taken as the main point in this appeal notwithstanding the complete absence of any requisition to the learned trial judge after the conclusion of his charge for any additional directions to the jury on this topic.

6

In the course of the judgment of this Court in The D.P.P. .v.F. the following passage occurs:

"Obviously not every charge of rape involves a real issue as to whether the accused knew that the woman concerned did not consent, orwasreckless as to whether she did or did not consent, for in many instances where sexual intercourse with a woman who did not consent to it is clearly established, the only issue before the jury will be the identity of the accused. In cases, however, where knowledge by the accused of the fact that the woman concerned was not consenting to a proved sexual intercourse or recklessness on his part as to whether she was or not, arises as something which the prosecution must establish the provisions of sub-section 2 of Section 2 of come into operation."

7

The debate upon the hearing of this appeal and the issue which the Court is satisfied falls to be decided in this appeal is precisely the question as to whether on the facts as proved in this case including the evidence of the accused and a statement accepted by him as being correct and proved as part of the evidence on the part of the prosecution, it can be said that the question as to whether or not the accused could or might have believed that the Complainant was consenting to the intercourse which undoubtedly took place or was reckless as to whether she was or was not consenting arose as areal issue.

8

The Court is satisfied that a consideration of the evidence in this case and of the charge which without objection as to its factual correctness was given by the learned trial judge to the jury makes it abundantly clear that this was as far as the charge of rape was concerned a classic case of a direct confrontation of an account of an...

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4 cases
  • DPP v Michael McDonagh
    • Ireland
    • Supreme Court
    • 11 July 1996
    ...to be applied only when an issue of mistaken belief arose in a trial. The People (Director of Public Prosecutions) v. CreightonIR [1994] 2 I.R. 570, The People (Director of Public Prosecutions) v. Gaffey (Unreported, Court of Criminal Appeal, 10 May, 1991), R. v. HaughianUNK (1985) 80 Cr. A......
  • The People (Director of Public Prosecutions) v C. O'R
    • Ireland
    • Supreme Court
    • 11 November 2016
    ...jury in this commonly occurring kind of rape trial it is unnecessary to refer to the mistaken belief issue; The People (DPP) v Creighton [1994] 2 IR 570. What the judge instructs the jury as to the law has to depend on what issue is actually raised at the trial. In The People (DPP) v Mc Don......
  • DPP v T.v
    • Ireland
    • Court of Appeal (Ireland)
    • 8 November 2016
    ...Prosecutions) v. F. (unreported, Court of Criminal Appeal, 27th May 1993); The People (Director of Public Prosecutions) v. Creighton [1994] 2 I.R. 570; The People (Director of Public Prosecutions) v. McDonagh [1996] 1 I.R. 565; R v Fotheringham (1989) 88 Cr App. Rep 206 and Director of Publ......
  • DPP v M.A.
    • Ireland
    • Court of Appeal (Ireland)
    • 22 December 2020
    ...kind of rape trial it is unnecessary to refer to the mistaken belief issue; The People (Director of Public Prosecutions) v. Creighton [1994] 2 I.R. 570. What the judge instructs the jury as to the law has to depend on what issue is actually raised at the trial. … [52] The 1981 Act as amende......

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