DPP v Jose Lacerna Pena

• Jurisdiction: Ireland
• Judge: Kennedy J.
• Judgment Date: 01 February 2022
• Neutral Citation: [2022] IECA 15
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 72/2020

Between/

The Director of Public Prosecutions

Respondent

and

Jose Lacerna Pena

Appellant

[2022] IECA 15

Edwards J.

McCarthy J.

Kennedy J.

Record Number: 72/2020

THE COURT OF APPEAL

Conviction – Rape – Consent – Appellant seeking to appeal against conviction – Whether the trial judge erred in law in failing to adequately charge the jury in respect of the issues of consent and intoxication as they applied to the circumstances of the case

Facts: The appellant, Mr Pena, on the 13th December 2019, was convicted of a single count of rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990. A sentence of six years was imposed on the 3rd April 2020. The appellant appealed to the Court of Appeal against conviction on the grounds that: (1) the trial judge erred in law in failing to adequately charge the jury in respect of the issues of consent and intoxication as they applied to the circumstances of the case; and (2) the trial judge erred in law in charging the jury, in particular failing to put forward the appellant’s case and, in doing so, made remarks which were unfairly prejudicial to the appellant and the appellant’s defence.

Held by the Court that the judge did not raise the issue of capacity for the jury as an issue and, consequently, there was no necessity for him to elaborate on the alternate routes to verdict. The Court found that the judge specifically gave assistance to the jury as to the interplay between consent and intoxication in the context of the complainant. The Court concluded that the charge was both fair and balanced.

The Court dismissed the appeal against conviction.

Appeal dismissed.

JUDGMENT of the Court delivered (electronically) on the 1st day of February 2022 by Kennedy J.

1 . This is an appeal against conviction. On the 13 ^th December 2019, the appellant was convicted of a single count of rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990. A sentence of six years was imposed on the 3 ^rd April 2020.

Background

2 . The conviction relates to an event which occurred in the early hours of the 26 ^th September 2017 in Dublin City Centre. The complainant had been out in a nightclub on the evening of the 25 ^th September with some friends, whose company she left in order to meet other friends in town. She had had some alcohol taken. She was observed on CCTV at various locations in the area of Grafton Street and Wicklow Street, and appeared a little unsteady or stumbling in the footage. The appellant was seen in the same area, walking in the direction of the complainant. He went over to join her. The complainant stated that a person came up to her speaking what she thought was Spanish and she, with limited Spanish, had a conversation with him. She does not remember for how long they were talking. The appellant was observed on CCTV footage, linking the complainant's arm, while the complainant's arm was seen around the appellant's back.

3 . The complainant remembered the appellant kissing her and being placed against a wall. She recalled the appellant putting the palm of his hand on the back of her head and putting her head down towards his lower body. She reported that he shoved his penis into her mouth. She said that when she realised this, her head came back up, and that he forced her head down again and placed his penis into her mouth. She stated that he had his hand on her head and forced it down towards his penis. She reported gagging at this stage, and said she could not catch her breath because his penis hit the back of her throat and was causing her to choke. The appellant did not appear to be wearing a condom and did not ejaculate. The complainant said she did not consent to his putting his penis into her mouth.

4 . In the course of this, two young men came upon the scene. They reported seeing a girl who was very upset, and one said he saw the appellant's penis in the complainant's mouth, that she was distressed, and trying to scream. The other man said he could see the man's penis protruding from his fly, that the girl was crouched over and that the man had his hands on her, and she again appeared to be in distress and trying to get away. They intervened, and some pushing and shoving ensued.

5 . The girl ran a short distance away and members of the Gardaí came upon her, having observed her crying. Her friends, having been contacted by one of the young men using her phone, joined soon after. The appellant stayed in the area, and when the Gardaí had established what had happened, he was arrested and interviewed by the Gardaí. Over the course of the interviews, he indicated that he could not remember what had happened and simply did not believe that he would behave in that manner. He expressed some sorrow and sympathy for the complainant. After having viewed the CCTV footage, he said that he believed that what he was viewing was consensual. He later said that he knew that what happened should not have happened. The complainant made a formal statement to the Gardaí. When she went home, she also texted one of her friends, and this message was given in evidence before the jury.

6 . The investigating Garda noted that the appellant appeared to be drunk on the night, and could be observed stumbling on the CCTV footage. He was seen by a Doctor in the Garda Station, who indicated that he was fit for interview. He was interviewed three times in total. He engaged with the interviewers and answered all questions that were put to him, alternating between denying that the incident had happened and saying that he did not remember.

7 . The appellant's original Notice of Appeal, dated the 7 ^th April 2020, contained an appeal of his conviction and sentence. A second Notice of Appeal dated the 14 ^th January 2021 was filed appealing the conviction only and setting out seven additional grounds of appeal. The appellant is proceeding with an appeal against conviction on just two of these grounds.

Grounds of appeal

8 . Whilst the appellant has filed seven grounds of appeal, he is proceeding solely on grounds one and three, both of which pertain to the judge's charge and are as follows:

• 1. “The learned trial judge erred in law in failing to adequately charge the jury in respect of the issues of consent and intoxication as they applied to the circumstances of this case”; and,

• 2. “The trial judge erred in law in charging the jury, in particular failing to put forward the appellant's case and, in doing so, made remarks which were unfairly prejudicial to the appellant and the appellant's defence.”

Ground 1: The judge's charge to the jury in respect of the issues of consent and intoxication

9 . The first issue concerns that of actual consent and the capacity to consent. Ms. Lawlor SC, on behalf of the appellant, contends that the prosecution's case at trial was that there was no actual consent given by the complainant to the sexual activity. It is contended that the trial judge expressly left the issue of capacity to consent to the jury which resulted in an unsafe verdict for the following reasons:

• (A) The “two routes” argument: by law, it is not available to the prosecution to raise both the issues of actual consent and capacity to consent simultaneously. Moreover, the prosecution did not actually raise incapacity to consent as a possible route to conviction.

• (B) As capacity was not raised by the prosecution at trial, it was inappropriate for this to be addressed in the charge.

• (C) Raising of capacity to consent during the charge prejudiced the appellant in that no opportunity was given to the defence to address the issue in cross-examination and/or in closing address.

• (D) The manner in which the jury were actually charged on capacity to consent was insufficient in that:

  • (i) it was not explained that one can be intoxicated and still nevertheless consent; and,

  • (ii) it was not explained that a finding of incapacity to consent was a separate route to a verdict of guilty than a finding of no actual consent.

The evidence

10 . The relevant portions of the trial in relation to this ground of appeal concern the defence submission on the issue of capacity on day 3 (prior to speeches and charge), the prosecution and defence closing on the issue of consent, the judge's charge in relation to consent, and the defence requisition in respect thereof.

11 . On day 3, defence counsel contended that both capacity to consent and actual consent cannot be raised simultaneously by the prosecution. Counsel for the prosecution disagreed with this submission. The trial judge indicated that:

“So, in terms of the issue of consent, I will simply — I simply propose to direct the jury in accordance with the law in relation to consent and if you have requisitions about that afterwards –-”

12 . In the course of his closing address, prosecution counsel mentioned the capacity to consent in the context of the absence of actual consent:

“The prosecution must prove that she was not consenting. She said she wasn't consenting. In fact people can be incapable of consenting as a result of alcohol. If somebody was so drunk they can be incapable of consenting. But her evidence of a lack of consent is supported in this case. So, she says that she was not consenting and there is no positive evidence that she was consenting.

So, a proposition was put to her by counsel and, as I said to you, counsel — counsel's questions are not evidence, a proposition was put to her that she was consenting, you may recall this, and she said no. That is the evidence, she was — there is evidence that she was not consenting. Now, if you accept it or reject it, that's a matter for you, but there was evidence that she was not consenting. There is no positive evidence in this case that she was consenting, none. So, a question was put, that question was not agreed with and there is no positive evidence of consent.”

13 . In the course of...