DPP v M.C.

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 10 May 2018
• Neutral Citation: [2018] IECA 137
• Docket Number: [1/2017]
• Court: Court of Appeal (Ireland)
• Date: 10 May 2018

[2018] IECA 137

THE COURT OF APPEAL

Birmingham J.

Birmingham J.

Mahon J.

Edwards J.

[1/2017]

The People at the Suit of the Director of Public Prosecutions

Respondent

V

M.C.

Appellant

Conviction – Rape – Recklessness – Appellant seeking to appeal against conviction – Whether the evidence was not sufficient to enable a jury to conclude beyond reasonable doubt that the appellant knew that the complainant was not consenting or that he was reckless as to whether she was or was not consenting

Facts: The appellant, on 3rd October 2016, appeared in the Central Criminal Court charged with two offences, one count of rape, and one count of assault causing harm. When the matter was listed for trial the appellant pleaded guilty to the count of assault causing harm but not guilty to the count of rape. Following a seven-day trial he was convicted on 13th October 2017 in respect of the rape count. Subsequently, he was sentenced to seven years imprisonment in respect of the rape offence, and to a concurrent term of two years imprisonment in respect of the assault count, the final two years of the sentence was suspended. He appealed to the Court of Appeal against conviction, arguing that the judge erred in failing to accede to an application for a direction, as there had been an application on the basis that the evidence was not such that the jury could be satisfied beyond reasonable doubt that the sexual intercourse, which it was agreed had taken place, was non-consensual. Alternatively, even if it was established that the complainant was not consenting, it was argued that the evidence was not sufficient to enable a jury to conclude beyond reasonable doubt that the appellant knew that his wife, the complainant, was not consenting or that he was reckless as to whether she was or was not consenting. Other grounds related to the judge's charge and in particular related to how he dealt with the issue of recklessness and also with s. 9 of the Criminal Law (Rape) (Amendment) Act 1990, the section which provides that a failure or omission to offer resistance does not of itself constitute consent.

Held by the Court that even if the treatment of the issue of recklessness could be categorised as suboptimal in a situation where the Court did not believe there had been a positive misstatement, it was not prepared to uphold that ground of appeal. The Court did not feel that the judge's charge failed to put the issues in the case before the jury. Unusual as the case was in some respects, the Court had little doubt but that the jury must have been fully aware of what the issues in the case were and the jury was in a position to resolve those issues. In those circumstances the Court was not prepared to uphold any ground of appeal.

The Court held that it would dismiss the appeal.

Appeal dismissed.

JUDGMENT of the Court delivered on the 10th day of May, 2018 by Mr. Justice Birmingham

1 On 3rd October 2016, the appellant appeared in the Central Criminal Court charged with two offences, one count of rape, and one count of assault causing harm. Both offences were alleged to have occurred on the same occasion at the home of the appellant and complainant in a rural location in the midlands on 8th January 2015. The appellant and complainant were husband and wife. On 3rd October 2016 when the matter was listed for trial the appellant pleaded guilty to the count of assault causing harm but not guilty to the count of rape. Following a seven-day trial he was convicted on 13th October 2017 in respect of the rape count. Subsequently, he was sentenced to seven years imprisonment in respect of the rape offence, and to a concurrent term of two years imprisonment in respect of the assault count, the final two years of the sentence was suspended. He has now appealed against conviction. The appellant argues that the judge erred in failing to accede to an application for a direction, as there had been an application on the basis that the evidence was not such that the jury could be satisfied beyond reasonable doubt that the sexual intercourse, which it was agreed had taken place, was non-consensual. Alternatively, even if it was established that the complainant was not consenting, it is argued that the evidence was not sufficient to enable a jury to conclude beyond reasonable doubt that the accused knew that his wife, the complainant, was not consenting or that he was reckless as to whether she was or was not consenting. Other grounds relate to the judge's charge and in particular relate to how he dealt with the issue of recklessness and also with s. 9 of the Criminal Law (Rape) (Amendment) Act 1990, the section which provides that a failure or omission to offer resistance does not of itself constitute consent.

2 The case, it must be said, has some unusual features. First of all, this is a case of alleged marital rape. Secondly, there was the fact that both complainant and appellant had backgrounds in different small Christian fundamentalist communities or sects. This is mentioned as it may have influenced their approach to answering questions, more particularly so in the complainant's case when giving evidence at trial but also, though perhaps to a lesser extent, the appellant when answering questions in the course of Garda interviews.

3 The prosecution has observed in the course of written submissions that the complainant was an unusually quiet and withdrawn witness, commenting that this posed a difficulty for the prosecution. They suggest, however, that it made her evidence in relation to the rape and assault on her, and her knowledge of the fact that her husband knew she was not consenting after he had assaulted and terrorised her, all the more compelling and overwhelming. Her evidence, they say, was eloquent in its understatedness.

4 The complainant was a somewhat reluctant witness. In March 2015 she provided a further statement to investigating Gardaí, saying:

'I previously made a statement to Garda J.P. O'Brien in relation to assault on me by my husband, M.C. I no longer wish to pursue this matter and I do not want it investigated. I am not under any duress or stress to withdraw this complaint. I feel M. would benefit from psychiatric help and I would like to give him a chance to so do.'

Prompted by this statement, the defence contended that Ms. A.C. was not a compellable witness where there had been a plea to the assault count and there remained before the Court a single count of rape. The defence submitted that rape was a sexual offence, and that in the case of sexual offences that a spouse is compellable only when the offence is directed at a child. Despite the prosecution challenging this interpretation, the judge agreed with the defence submissions and proceeded to explain to the witness in the absence of the jury that there was no pressure on her either way to give evidence. The judge made clear to her that she was not compellable and that she did not have to give evidence in the case. It was, he told her, as simple as that. The issue of compellability has not, for understandable reasons, been raised before us and so we are not called on to adjudicate on whether the judge's ruling was correct but our failure to address the issue further should not be seen as an indication that we necessarily agree with the approach of the trial judge. The matter remains an argument for another day. In a conversation with the local rape crisis centre, the complainant had told them that she was not proceeding with the case and said that it was not her intention to send her husband to jail. Her reluctance or equivocation about proceeding with the case is mentioned as it may provide a context for the evidence that she subsequently gave at trial.

5 Before dealing with the individual grounds of appeal, it is necessary to say something about the background to the case and the evidence that was given at trial. In doing so, it has to be immediately acknowledged that this is a case, where to an unusual extent, both sides are in a position to point to particular answers to particular questions and to draw considerable comfort from them. Correspondingly, the task of providing an overview or summary of the case is more difficult than usual.

Background

6 The complainant and appellant married in 1994. They have three children, two boys and a girl, their youngest. The eldest boy was away at college at the time of the events in controversy. The family live in a remote rural location in the midlands. They experienced difficulties in their marriage for some time and had attended marriage counselling. The complainant saw the appellant as controlling. She instanced this by stating that she was restricted from driving the car, as the appellant felt that her driving style did not achieve optimum fuel consumption. The appellant worked in a mine, as an underground technician. There was an expectation that the mine would soon close and this increased the level of stress in the household.

7 The trial was concerned with events that occurred on the 8th / 9th January 2014. On the 8th, the appellant returned from work around 5/5.30pm. She gave evidence that the appellant had previously told her that he didn't want any material gifts for Christmas, he only wanted massages. After dinner, the appellant was lying on a reclining chair with his eyes closed, and the complainant proceeded to massage his feet. According to the complainant her husband said 'I want kisses and I want rubs.' N., their youngest child, aged approximately ten at the time was present. The complainant was knitting at the time and stated to the appellant 'N is right here, like it's not really appropriate'. At one stage the appellant was holding his hand out so that the complainant would hold his hand, causing the complainant to comment, '[b]egging is not attractive.' There had been some discussion about watching a romantic comedy box-set and the...