DPP v E.D.

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Mahon
Judgment Date20 Jun 2018
Neutral Citation[2018] IECA 185
Docket NumberRecord No. 25/2017

[2018] IECA 185

THE COURT OF APPEAL

Mahon J.

Birmingham P.

Mahon J.

Edwards J.

Record No. 25/2017

BETWEEN/
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
- AND -
E.D.
APPELLANT

Conviction – Rape – Consent – Appellant seeking to appeal against conviction – Whether the trial judge failed to re-charge the jury when requisitioned by counsel to re-direct the jury on the issues of recklessness and consent

Facts: The appellant appealed to the Court of Appeal against his conviction by a jury at the Central Criminal Court on the 30th November 2016 of one count of rape contrary to s. 48 of the Offences Against the Person Act 1861 and s. 2 of the Criminal Law (Rape) Act 1981 on the grounds that the trial judge failed to re-charge the jury during the course of his charge when requisitioned by counsel to re-direct the jury on the issues of: (i) recklessness and ruling against an application by counsel on behalf of the appellant in that regard; and (ii) consent and in particular the specific issue of vitiation of consent which was raised by counsel on behalf of the appellant and upon which the prosecution was founded.

Held by the Court that the trial judge dealt sufficiently with the issue of recklessness in his charge to the jury to the extent that it was appropriate to do so having regard to the evidence heard by the jury in this case. The Court rejected the submission that there was any inadequacy in what was stated by the trial judge to the jury on the issue of consent. The Court was satisfied that the trial was fair and that the verdict reached was one which was reasonably open to it to return on the evidence presented in the course of the trial.

The Court held that the appeal against conviction should be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 20th day of June 2018 by Mr. Justice Mahon
1

This judgment relates to the appellant's appeal against his conviction by a jury at the Central Criminal Court on the 30th November 2016 of one count 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) Act 1990. The appellant has also appealed against his sentence of ten years imprisonment to date from the 3rd May 2016, imposed on the 30th January 2017. This judgment relates to conviction only.

2

The appellant is originally from South Africa and came to Ireland when he was eleven years old. He was twenty four years old at the date of his conviction. The complainant, MT, alleged that on the evening of the 23rd July 2014 the appellant broke into her apartment while she was in bed. MT was alerted to the presence of the appellant in her apartment by her daughter, DT, who had never before met the appellant. The appellant was known to the complainant, had been in the complainant's apartment on a previous occasion and had had consensual sexual intercourse previously. It is alleged that the complainant was forcefully brought downstairs to an outside area of her apartment block while being assaulted, and was subjected to sexual intercourse with the appellant against her will. The fact that sexual intercourse took place was not disputed. The appellant maintained that it was consensual.

3

The appellant was originally charged with burglary in addition to the rape offence and was tried in respect of both. The jury acquitted him in relation to the burglary charge

4

The following grounds of appeal are maintained on behalf of the appellant, in relation to his conviction:-

(i) the learned trial judge failed to re-charge the jury during the course of his charge when requisitioned by counsel to re-direct the jury on the issue of recklessness and ruling against an application by counsel on behalf of the appellant in that regard, and

(ii) the learned trial judge failed to re-charge the jury during the course of his charge when requisitioned by counsel to re-direct the jury on the issue of consent and in particular the specific issue of vitiation of consent which was raised by counsel on behalf of the appellant and upon which the prosecution was founded.

5

In the course of his charge to the jury, the learned trial judge said:-

'In this case, the fact of sexual intercourse is not in dispute. It must also be proved that the woman did not consent to the sexual intercourse. Now, if you decide that the prosecution has not proved beyond all reasonable doubt that the complainant did not consent then the charge of rape is not made out. If sexual intercourse and lack of consent is proven then you must - then you should consider the mental element, in other words what was the accused's state of mind at the time? The mental element of the crime of rape is that the man knew that the woman was not consenting to sexual intercourse or that he was reckless as to whether she did or did not consent.

Recklessness means the accused man was aware that there was a risk that the woman was not consenting, but nonetheless proceeded. If it is proven that he was aware that there was a real risk that the woman was not consenting, but that he proceeded to have or continue intercourse with her in spite of this, then recklessness is established.

Recklessness only arises where the accused claims to have mistakenly believed that a woman was consenting. In this case no such claim has been made by the accused. Instead you have starkly diverging accounts of what occurred, neither of which allow any room for the possibility of mistaken belief. The prosecution case is to the effect that the complainant, at all times, made plain the fact that she was not consenting to sexual intercourse with the accused. The accused's version of events is very different. The accused alleges that before they left the apartment he had a conversation with the complainant in which he said M, let's do it now and she said I can't, my daughter is here, next time. He then says he invited her downstairs and she came with him. He says that the complainant took his hand and followed her down - followed him downstairs. He says that she wanted to have sex close to the door but he told her no and suggested going further away from the door. He says that when they went around the corner she started bending over straight away and said 'give it to me quick'. He says he asked her to move further in case the complainant's daughter would see them. He alleges that she then bent over and they had consensual sexual intercourse which she enjoyed.

Now, that is the version of events and, as I say to you, if you accept his version of events you must of course acquit. If you accept his version of events could reasonably be true you must acquit. Even if you reject that version of events you must still be satisfied that the prosecution has proved its case beyond all reasonable doubt. The - now, I have said to you that the accused has not claimed that there was mistaken - mistaken as to consent in this case. The facts are for you to decide. If you are of the view that the fact - evidence in this case is to be interpreted on the basis that recklessness is a live issue that is entirely a matter for you. That is merely my comment on the facts, which may or may not be of assistance to you. But it seems to me that on the starkly divergent accounts which you have heard reckless (recklessness) is not an issue in this case, but you're entitled to disagree with me because the facts are for you.'

6

Following the conclusion of the charge to the jury, Ms. Biggs S.C., on behalf of the appellant, raised certain requisitions with the learned trial judge. These related, inter alia, to the learned trial judge's references in the course of his charge to the jury to consent and recklessness. Following a brief exchange between the learned trial judge and Ms. Biggs, the relevant requisition was explained in the following terms:-

'JUDGE: The prosecution case is that she did not consent. Her evidence is that she did not consent and made plain the fact that she was not consenting and it's a matter for the jury to decide whether they accept that or not.

MS BIGGS: Yes, Judge, I accept the Court's ruling ultimately but in relation to the issue of recklessness which, as I think for completeness sake, that the Court would make it clear that it is absolutely subjective and in terms of the accused's state of mind and while the Court does very clearly comply in every way with the COR direction, because it is said once I wonder would the Court also make it clear that he must have adverted - it must be a conscious advertence for the purposes of recklessness to be involved.

JUDGE: Well, as I...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT