DPP v M.A.

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 22 December 2020
• Neutral Citation: [2020] IECA 367
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 161/2019

The People (At the Suit of the Director of Public Prosecutions)

Respondent

and

M. A.

Appellant

[2020] IECA 367

Edwards J.

McCarthy J.

Kennedy J.

Record No: 161/2019

THE COURT OF APPEAL

Conviction – Rape – Perverse verdict – Appellant seeking to appeal against conviction – Whether the verdict of the jury was contrary to the weight of the evidence and was perverse

Facts: The appellant, on the 13th of May, 2019, came before the Circuit Criminal Court charged with 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, and one count of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990. The appellant pleaded not guilty to all charges. On the 24th of May 2019, the jury returned an 11-1 verdict of guilty in respect of the count of rape, and a ‘disagreement’ in respect of the count of sexual assault. The respondent, the Director of Public Prosecutions, subsequently entered a nolle prosequi in respect of the sexual assault charge. On the 11th of July 2019, the appellant was sentenced to 8 years’ imprisonment, the final 18 months of which were suspended conditionally. The appellant appealed to the Court of Appeal against his conviction on the basis that: (i) the trial judge erred in law in her rulings and/or in her directions; (ii) without prejudice to the generality of the foregoing, the trial judge permitted evidence which should not have been permitted, in particular evidence of recent complaint; and (iii) the verdict of the jury was contrary to the weight of the evidence and was perverse.

Held by the Court that no error had been established in terms of how the trial judge resolved the admissibility contest, and that she was correct to overrule the defence objection and admit the evidence. The Court was satisfied that what was said by the trial judge was said out of fairness to the accused and that it was clear that the trial judge was not telling the jury how to resolve the dispute concerning what were the terms of the respective complaints, nor was she assuming a disputed fact. In the Court’s assessment the trial judge’s charge with respect to the issue of consent was impeccable. The Court held that the transcript did not support the suggestion that the verdict was perverse; there was clear evidence on foot of which the jury might have acted to find the appellant guilty.

The Court held that in circumstances where it had not seen fit to uphold any of the appellant’s grounds of appeal, his appeal against conviction would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 22nd of December, 2020 by Mr Justice Edwards

Introduction

1 On the 13th of May, 2019, the appellant came before the Circuit Criminal Court charged with one count of rape contrary to section 48 of the Offences Against the Person Act, 1861, and section 2 of the Criminal Law (Rape) Act, 1981; and one count of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act, 1990. Both counts were alleged to have occurred on the 29th of October 2015, at Dollymount Beach, Clontarf, Dublin. The appellant pleaded not guilty to all charges.

2 On the 24th of May 2019, following a deliberation period of seven hours and three minutes, the jury returned an 11–1 verdict of guilty in respect of the count of rape, and a ‘disagreement’ in respect of the count of sexual assault. The DPP subsequently entered a nolle prosequi in respect of the sexual assault charge.

3 On the 11th of July 2019, the appellant was sentenced to 8 years' imprisonment, the final 18 months of which were suspended conditionally.

4 The appellant now appeals against his conviction.

Background to the Matter

5 The court heard evidence from the complainant “C”, who detailed how she had met the appellant “A” by way of an online dating service, namely “ connectingsingles.com”. After messaging via the website, they began messaging on the messaging service “ WhatsApp”, and subsequently agreed to meet in person. They did so in ‘Brown's Barn’ in Citywest and had coffee. The parties again met twice for coffee over the following two weeks, and in late August 2015, spent a night together at the ‘Parkwest Aspect’ hotel, where they engaged in consensual sexual intercourse. The parties later met again in Naas, where C picked up the appellant in her car. At A's suggestion, C drove to Brittas Bay, where they engaged in protected consensual sexual intercourse in the C's car.

6 Subsequent to that (C was unsure as to precisely when), A travelled to America and stayed there for some time, informing C that his grandfather had died. A and C then stopped messaging, for the most part, for several weeks. On A's return (C thought it was possibly in the run up to the October Bank holiday) he resumed contact with C, and the parties agreed to meet again. C expressed that she felt a degree of reservation as she was wary of the intentions of A, believing that she had been “ played” by him previously.

7 C agreed initially to meet up with A on the 27th of October but cancelled as she had left her keys at the house of a friend and had to retrieve them. She stated that A was not happy about this, but the pair agreed to meet instead the following day.

8 On the 28th of October 2015, C drove her car to a car park near the coast at Clontarf, where she met with A. After a short walk together along the beach, C got in to A's car, and the pair travelled to Bull Island beach, at Dollymount. There A and C kissed each other in the front seat of the car. Eventually A suggested that the back-seat area would be more comfortable. The two parties then moved into the back seat of the car where they resumed kissing. A then began to put his hand under C's top and opened her bra, but this was objected to by C, who said “ no”, and directed his hand away. C's evidence was that “ he listened – he just, sort of, he got up off me, and just said let's get back into the front seat then”. Upon doing so, A then indicated that he needed to buy groceries from Tesco and invited C to join him. She did so, following which A dropped her back to her car and she drove home.

9 After the pair had gone their separate ways, they continued to communicate over text messages that evening and the following day, before agreeing to meet again on the 29th of October 2015. It is not necessary having regard to the issues raised on this appeal to refer to the text messages in extenso. However, some reference should be made to them as they provide context and were relied on in that regard by both sides. The defence maintained that they provide support for A's defence of perceived consent, while the prosecution maintained that it could be inferred from them that A well knew that C did not want to have sex with him, or at very least was reckless as whether C was or was not consenting.

10 During exchanges early on the morning of the 29th of October C can be found thanking A for “ last night” and maintaining that she had had “ fun”. In response A asserts that he “ I didn't do anything, ha ha. I swear”. He then thanks C for “ an amazing time” and for being “ amazing company”. At a certain point, he makes the request:

07:58:38 A: “So, I can text you any time?”

07:58: — C: “Yeah.”

07:59:00 A: “Thank you being so kind”

07:59:15 C: “How is that kind? Your [opinion] of me is too high.”

07:59:48 A: “Cos it's yeah today, ha.”

07:59:59 A: “Not like yesterday.”

08:00:00 C: “What?”

08:00:21 A: “NO, NO …I DON'T WANT IT.”

08:00:26 A: “Ha ha.”

[Emoji from A]”.

11 C, when giving evidence at the trial, was asked about those exchanges:

“Q. Did you know what he was referring to when he said, “NO, NO …I DON'T WANT IT.”?

A. Because I said no in the car. He made reference to it in Tesco's as well. He asked me if I wanted anything, and I said no. He said: “It's all ‘no’ tonight.”

12 The text messages continued:

“08:00:53 A: “Last night, it was all was all about NO…”

08:01:14 A “I said thanks cos today start with yeah.”

08:01:23 C: “Ah, right.”

08:01:40 A: “You're a bit slow this morning. Ha ha.”

08:01:55 C: “Ha ha, thanks.”

08:02:17 A: “Cos you're tired and it's my fault, ha ha.”

08:02:40 C: “I never said it was your fault.”

08:04:44 A: “I'm just taking the blame.”

08:04:59 C: “No meed,” … “need.”

08:05:07 C: “Not today anyway, lol,”

08:07:16 A: “I would any day for you.””.

13 Later during the afternoon of the same date, further messages were exchanged between the parties, with C suggesting that she would prefer not to go out that evening and to have an early night. The following exchanges then ensued:

16:40:00 C: “Well have fun tomorrow anyway” + Smiley face emoji

16:42:00 A: “Really”

16:42:35 C: “You don't think so? My manager just texting asking will I be in tomorrow. Would it be bad to write back with, “Haha, haha, hahs?”

16:—:—A: “Ha ha, dead right”

16:—:—C: “You not think we'll have fun tomorrow

17:00:12 C: “I just said no. I should have the whole week off. It is not on the page I requested it off with, but she lost it so, didn't know.”

17:00:15 A: “I don't know, babe, unless you cut NO out”.

17:00:—C: “Hopeless”

17:00:23 C: “Haha”

17:00:35 C: “I only said no to sex.””.

14 C confirmed in evidence at the trial that she understood the reference to cutting out “No” to be a reference to the fact that she had said “ no” the night before. She said that in responding with “ hopeless” and “ haha”:

“I suppose I was putting it as something stupid. I didn't pay as much attention to it as I should have it. And I was rolling my eyes to it I think and, “Men, you know”, just he wanted to have sex and I said “No” and I was just thinking, you know, it didn't matter. I didn't take it as serious as I should have taken it.”

15 C was further asked what she had meant by saying “ I only said no to sex.” She replied:

“I...