DPP v M.Q.
| Jurisdiction | Ireland |
| Judge | Ms. Isobel Justice Kennedy |
| Judgment Date | 19 July 2021 |
| Neutral Citation | [2021] IECA 202 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 287/18 |
[2021] IECA 202
Birmingham P.
McCarthy J.
Kennedy J.
Record Number: 287/18
THE COURT OF APPEAL
Conviction – Rape – Perversity – Appellant seeking to appeal against conviction – Whether the decision of the jury was perverse
Facts: The appellant, on the 19th July 2018, was found guilty of a 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) (Amendment) Act 1990. The appellant appealed to the Court of Appeal against conviction. The appellant put forward the following grounds of appeal as outlined in his notice of appeal: (1) the judge erred in law in ruling that text messages between the appellant, the complainant and a third party were admissible; (2) the decision of the jury was perverse having regard to their failure to reach a verdict on the first count on the indictment; and (3) the trial judge's charge was inadequate and rendered insufficient assistance to the jury.
Held by the Court that it was not persuaded that the judge erred in admitting certain of the text messages as background evidence relevant and necessary to enable the jury to fully understand the relationship between the parties. The Court was entirely satisfied that the appellant had not met the required threshold to quash the verdict on the basis of perversity. The Court was entirely satisfied that the trial judge's charge was a balanced and thoughtful charge which addressed the legal principles and properly summarised the salient evidence.
The Court held that the appeal against conviction would be dismissed.
Appeal dismissed.
JUDGMENT of the Court delivered (electronically) on the 19 th day of July 2021 by Ms. Isobel Justice Kennedy.
. This is an appeal against conviction. On the 19 th July 2018 the appellant was found guilty of a 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) (Amendment) Act 1990.
. In order to preserve the complainant's anonymity we have not referred to a witness by her actual initials, but as AB.
. The appellant was charged with two counts of rape alleged to have occurred in the early hours of the 2 nd of August 2015 at a location in a campervan. The events leading up to the alleged offences are said to be that as an employee of the appellant, the complainant travelled with him for the weekend from Friday 31 st July to Sunday 2 nd August to work with him in the selling of toys and other items at fairs or events around the country. She had become involved in this employment through her friend, AB and it was the practice that when attending fairs overnight the complainant and AB would sleep in a tent and the appellant would sleep in the campervan. However on the weekend in question AB was not present and the complainant stayed in the campervan with the appellant as there was nowhere to erect a tent and it was agreed that they would sleep in the campervan.
. Over the course of the weekend text messages were exchanged between the appellant and AB and AB and the complainant. These messages include comments of a sexual nature made by the appellant. The complainant gave evidence that on the night of the 1 st August 2015 the appellant asked the complainant for sexual intercourse, which the complainant refused and the appellant subsequently pinned her down and raped her. This forms the subject matter of Count 1.
. The complainant described waking up in the early hours of the 2 nd August 2015 to find the appellant touching her, he then proceeded to get on top of her and rape her. This forms the subject matter of Count 2.
. Later on in the day the complainant outlined her allegations by text to AB and that evening the complainant contacted the gardaí and attended the Sexual Assault Treatment Unit. The appellant was subsequently arrested and interviewed.
. The trial commenced in July 2018 and the jury returned a verdict of guilty in respect of Count 2. A disagreement was recorded in respect of Count 1 and a nolle prosequi was subsequently entered in respect of this count.
. The appellant puts forward the following grounds of appeal as outlined in his notice of appeal:-
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(1) That the learned judge erred in law in ruling that text messages between the appellant, the complainant and a third party, [AB], were admissible.
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(2) That the decision of the jury was perverse having regard to their failure to reach a verdict on the first count on the indictment.
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(3) The learned trial judge's charge was inadequate and rendered insufficient assistance to the jury.
. On the second day of the trial, counsel for the appellant made an application to exclude evidence which the prosecution sought to introduce in respect of mobile phone communications between the complainant, the witness AB and the appellant.
. Over the course of the weekend there were messages exchanged between the complainant and AB and between AB and the appellant. The first tranche of messages took place on the evening of the 31 st July 2015 into the early morning of 1 st August 2015. Further messages took place between the complainant and AB on the morning of the 2 nd August and this involved a discussion of the appellant's behaviour towards the complainant.
. On the evening of the 31 st July there were messages between the appellant and AB regarding the complainant. The text conversation refers to the complainant in a sexual manner. We do not intend to refer to the content of the messages save to say that the messages from the appellant referenced a desire for sexual contact with the complainant and he raised questions regarding her sexual preferences.
. In parallel to this conversation is the conversation between AB and the complainant which references the messages being sent between AB and the appellant and comments in respect of those messages.
. As regards the messages of the 31 st July, counsel for the appellant argued that the admission of the messages between the complainant and AB offended the rule against hearsay as the appellant was not a party to the conversation.
. It was further argued that the messages between AB and the appellant were not relevant to the charges before the Court. These messages were neither part of the res gestae, nor relevant background, and the jury could comprehend the events in issue without regard to such conversations
. In allowing the messages to be admitted, the trial judge held that they did not form part of the res gestae but they were admissible as background evidence that showed the dynamic between the parties.
. In relation to the principles governing background evidence the appellant submits that a trial judge must be vigilant to ensure that the admission of background evidence is really necessary for the determination of the issues in the case. In that regard, it is said that the trial judge erred in law in admitting the text messages in this case. They did not constitute “a continuum of events.” The real issue in this case was whether or not the appellant believed that the complainant was consenting to the sexual intercourse that occurred on the 2 nd August, and in that regard, it is difficult to credibly sustain the argument that third-party texts the previous day met the threshold.
. The appellant contended that the text messages on 31 st July were part of a “wind-up” or banter and did not form part of the background to the offences before the Court. Nothing untoward happened the night that the text messages were exchanged and they were not a necessary part of the background and they were unfairly prejudicial to his case.
. In relation to the background evidence argument, the respondent submits that the trial judge conducted a careful analysis of the principles relating to background evidence and he applied The People (DPP) v. McNeill [2011] 2 IR 669 in determining that the evidence was relevant and necessary. The messages were closely linked to the alleged offences and they showed the dynamic of the parties.
. It is of course acknowledged by Mr Bowman SC for the appellant as it was at trial that there can be no objection to messages sent by the appellant to the complainant or to AB. The issue resides with messages between the complainant and AB as it is said that the content of such constitutes hearsay and is therefore inadmissible.
. The impugned messages under this heading commenced on the 31 st July 2015 at 18.24 (which message was from AB to the complainant) and continued into the early hours of the 1 st August 2015, approximately 17 minutes after midnight.
. The argument advanced at trial on the part of the appellant was that such messages did not form part of the res gestae being at a remove in time and did not constitute background evidence.
. The trial judge ruled that the messages did not come within the res gestae but did constitute background evidence.
. The circumstances of the text communications are succinctly expressed by the trial judge:-
“It's sought to have the material introduced on the basis that the three-parties, that's to say the complainant, [AB] and [the appellant] were engaged in a tripartite communication during this period. It was conducted within a confined space in the caravan. There's a suggestion in [the complainant's] statement that she was aware to some degree of what [the appellant] was communicating to [AB], [AB] was communicating to her about what [the appellant] was seeking, she was communicating to [AB] in relation to those...
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