DPP v Flaherty

• Jurisdiction: Ireland
• Judge: Birmingham P.
• Judgment Date: 31 July 2019
• Neutral Citation: [2019] IECA 224
• Docket Number: [89/18]
• Court: Court of Appeal (Ireland)
• Date: 31 July 2019

[2019] IECA 224

THE COURT OF APPEAL

Birmingham P.

Birmingham P.

McCarthy J.

Kennedy J.

[89/18]

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

PAUL FLAHERTY

APPELLANT

Conviction – Sexual assault – Unsafe verdict – Appellant seeking to appeal against conviction – Whether the verdict was unsafe

Facts: The appellant, Mr Flaherty, between 21st November 2017 and 12th December 2017, stood trial in the Central Criminal Court charged with offences of rape, s. 4 rape (oral rape), making threats to kill, and sexual assault. Following a three-week trial, he was convicted of the offence of sexual assault. Subsequently, on 9th March 2018, he was sentenced to a term of five years imprisonment, to date from 7th March 2018. He appealed to the Court of Appeal against his conviction on the grounds that: (i) the trial Judge should have acceded to an application under the jurisdiction identified in DPP v POC [2006] 3 IR 238; and (ii) the verdicts of the jury were inconsistent with each other.

Held by the Court that it had not been persuaded to uphold any of the grounds raised in written or oral submissions. The Court had not been persuaded that the trial was unfair or unsatisfactory or that the verdict was unsafe.

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

Appeal dismissed.

JUDGMENT of the Court delivered on the 31st day of July 2019 by Birmingham P.

1 Between 21st November 2017 and 12th December 2017, the appellant stood trial in the Central Criminal Court charged with offences of rape, s. 4 rape (oral rape), making threats to kill, and sexual assault. Following a three-week trial, he was convicted of the offence of sexual assault. Subsequently, on 9th March 2018, he was sentenced to a term of five years imprisonment, to date from 7th March 2018. He has now appealed against both his conviction and the sentence imposed; this judgment deals with the conviction aspect only. For completeness, it should be pointed out that the jury returned verdicts of not guilty in relation to the s. 4 rape count and the threat to kill count with there being a disagreement in respect of the rape count. It emerged at the March 2018 sentencing hearing that the DPP was not seeking a retrial on the count in respect of which a disagreement was recorded.

2 Extremely lengthy submissions were prepared on behalf of the appellant, among the very longest, if not, in fact, the longest, that the Court has encountered to date. At the original appeal hearing, the Court was somewhat critical of the length of the submissions and the multiplicity and overlapping nature of the grounds advanced. In a situation where one member of the Court was feeling unwell, the appeal hearing on that day did not proceed after the lunch break and the hearing of the appeal was adjourned from 4th April 2019 to 16th May 2019. As it happens, and with the benefit of hindsight, it seems unlikely that the case could ever have concluded on 4th April 2019, given that on the resumed hearing, it was possible to finish the appeal only by sitting on well outside usual Court hours. The appellant availed of the opportunity provided by the fact that the appeal was being adjourned to produce submissions which were more concise and much more focused. In passing, it may be noted that the revised submissions suggest that this Court regarded the original submissions as ‘obtuse’. The Court said nothing of the sort; rather, the Court's comment was that the original submissions were overly verbose and might be regarded as prolix. By reference to those modified submissions, it can be said that there are three substantial grounds in issue, these being:

(i) That the trial Judge erred as a matter of law in refusing to stay the proceedings and/or grant a direction of not guilty on the application of the defence at the conclusion of the prosecution evidence;

(ii) having refused to accede to the application the subject matter of ground (i), the trial Judge erred in law in refusing to discharge the jury on the application; and

(iii) the verdict was perverse, or in the alternative, the verdicts were inconsistent with each other or a bad for uncertainty.

3 By reference to the written and oral submissions, it can be said that the grounds can be further condensed as follows:

(i) That the trial Judge should have acceded to an application under the jurisdiction identified in DPP v. POC [2006] 3 IR 238. This was the substantive contention under this heading, but in the alternative, it is said there should have been a directed verdict of not guilty on R v. Galbraith [1981] 1 WLR 1039 grounds; and

(ii) That the verdicts of the jury were inconsistent with each other. It is said this is a cause of particular concern in a situation where the sexual assault count on the indictment was not particularised. The effect of this, it is argued, is that one cannot know with any precision or with any certainty of what Mr. Flaherty was convicted.

4 In order to put the grounds of appeal in context, it is useful to set out the background to the extent that it is largely non-controversial and then refer to the respective contentions of the parties in relation to the matters which were keenly in controversy. The trial was concerned with events that occurred on Sunday 30th August 2015, into the early hours of Monday 31st August 2015.

5 The complainant was born in June 1989 and the appellant was born on 2nd October 1987. The complainant had been married, but was separated. Thereafter, she was involved in a relationship with her landlord that had recently ended by the time of the events with which the trial was concerned. The complainant and appellant came into contact with each other through an online dating application known as “Tinder”. They were in contact through Tinder and then exchanged telephone numbers. There was communication by phone over a week or slightly more than that.

6 At that stage, they decided to meet for a date, which was arranged for 30th August 2015. They met at the Spire in O'Connell Street, Dublin, with the intention of acquiring tickets for the All Ireland Football Semi-Final between Dublin and Mayo which was taking place that afternoon. Tickets were expensive and not easy to come by and they spent the afternoon and early evening drinking in a number of public houses around the Croke Park and Dublin central area. They walked back into the City Centre, had a drink in the Parnell Mooney public house, and went to another licensed premises where partook in some dancing. They also spent some time in Burger King where the appellant consumed a burger. The appellant then hailed a taxi after the pair had kissed briefly on the roadside. The appellant physically picked up the complainant and put her into the back seat. They went by taxi to the appellant's family home at Kiltipper Avenue in Tallaght. The house in question belonged to his parents. There, they sat in the kitchen drinking tea for a time. Around 00.30am on the morning of 31st August 2015, they went to his bedroom and to bed. Thereafter, what occurred is hotly in controversy. The complainant alleges that the appellant forced himself on her, that she was raped, orally raped, had her jeans and clothing forcibly removed from her, and was threatened that she would be killed. The appellant says that what occurred was consensual, he says the complainant was a willing participant in everything that occurred, indeed, that she was taking the initiative.

7 As a point of reference, it is convenient to set out the contentions of the parties as to what occurred in the bedroom. This account of the prosecution case is taken from the complainant's direct evidence and the language used reflects same. She said that they went up to the bedroom. She said that she took off her shoes and that he, having gone to the bathroom, said ‘come on, we'll go to bed’. She stated that other than removing her shoes and jacket, she was fully clothed. He asked her what time she had to get up at and she said ‘about 7am’. He said ‘we'll have seven hours sleep’. She got comfortable on the mattress. He put his arms around her. She commented that he kept going on about her jeans and said ‘take off your jeans’. The complainant had told the jury that she was wearing black skinny jeans and a black top at the time. She noted that he just kept going on about the jeans and he then started kissing her frantically, ‘milling into me’. She remembered kissing him back. He started pulling at her jeans and trying to pull them down and she was saying stop. On the complainant's account, he got on top of her two legs. He put his hands around her neck and started strangling her. She said ‘please stop it, Paul, please, you're hurting me’. She kept saying ‘please will you stop, you're hurting me’. When she asked him to stop, he said ‘shut up, bitch, I'm going to kill you’. He kept saying ‘I'm going to kill you, do you understand me, I'm going to kill you’. He stood up and started trying to take off her jeans. He pulled at her jeans, pulling really hard, grabbing everything, underwear and socks. At one point, he turned on the light. He stood up on the mattress and tried to put his penis in her mouth. She was sobbing at this stage and he ‘rammed’ his penis into her mouth. At one point, he left the bedroom and went into the bathroom. She covered herself with the sheet or something, but he came back and ‘reefed it off’. He got on top of her, put his hand over her mouth and started to ‘ram’ his penis inside her. She does not know how long it lasted, but he was unable to maintain an erection. He commented ‘you're not going to ruin my life. I'm going to tell everyone you wanted it and there's cameras in this room so everyone knows you wanted it’. At one point, he put a pillow over her face. While he was unable to maintain an erection, he said that he had taken Viagra. At one stage, he...