DPP v Michael McDonagh

• Jurisdiction: Ireland
• Judgment Date: 11 July 1996
• Date: 11 July 1996
• Docket Number: [S.C. Nos. 54 & 55 of 1996]
• Court: Supreme Court

The People (Director of Public Prosecutions) v. Michael McDonagh

The People (at the suit of the Director of Public Prosecutions)

and

Michael McDonagh and Oliver McDonagh

[S.C. Nos. 54 & 55 of 1996]

Supreme Court

Criminal law - Rape - Judge's charge to the jury - Whether direction as to mistaken belief should be given in every rape trial in which the fact of sexual intercourse was admitted and the defence of consent was raised - Whether issue of mistaken belief had arisen - Criminal Law (Rape) Act 1981 (No. 10), s. 2.

Section 2 of the Criminal Law (Rape) Act, 1981, provides:—

"(1) A man commits rape if -

• (a) he has unlawful sexual intercourse with a woman who at the time of intercourse does not consent to it, and

• (b) at that time he knows that she does not consent to the intercourse or he is reckless as to whether she does or does not consent to it,

• and references to rape in this Act and any other enactment shall be construed accordingly.

(2) It is hereby declared that if at a trial for a rape offence the jury has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed."

At the trial of the appellants for the crime of rape they contended that the complainant had consented to sexual intercourse in return for the payment of money. The appellants were convicted.

The appellants applied to the Court of Criminal Appeal for leave to appeal arguing that the trial judge had inadequately charged the jury by not reading to them and instructing them on sub-s. 2 of s. 2 of the Criminal Law (Rape) Act, 1981. The Court of Criminal Appeal refused leave to appeal. Subsequently, the appellants applied for a certificate pursuant to s. 29 of the Courts of Justice Act, 1924, to the effect that the refusal of the Court of Criminal Appeal involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal be taken to the Supreme Court.

The Court of Criminal Appeal granted the certificate and framed the point of law in the following terms:—

"In any rape trial in which the fact of sexual intercourse is admitted and in which the defence of consent is raised is it necessary that the trial judge should refer to and explain to the jury the provisions of s. 2, sub-s. 2 of the Criminal Law (Rape) Act, 1981, and in the particular circumstances of this case was such a direction requisite?"

Held by the Supreme Court (Hamilton C.J., Costello P., Denham, Barrington and Murphy JJ.), in answering the point of law certified in the negative, 1, that sub-s. 1 of s. 2 of the Criminal Law (Rape) Act, 1981, codified the law relating to both the actus reus and the mens rea required in the crime of rape while sub-s. 2 dealt with the case in which an accused might have held a belief which, if the jury accepted that it was so held, would negative the mens rea specified in sub-section 1.

Per curiam: When construing a statutory provision a court should have regard to any aspect of the enactment's legislative history (including the legislative history of a corresponding enactment of the United Kingdom Parliament) which may be of assistance, there being no rigid exclusionary rule which states that the court may only regard the legislative history when construing an ambiguous section.

Bourke v. Attorney General [1972] I.R. 36 and United States v. American Trucking Associations (1939) 310 U.S. 534 approved.

2. That s. 2, sub-s. 2 of the Act of 1981 contained principles to be applied only when an issue of mistaken belief arose in a trial.

The People (Director of Public Prosecutions) v. Creighton [1994] 2 I.R. 570, The People (Director of Public Prosecutions) v. Gaffey (Unreported, Court of Criminal Appeal, 10th May, 1991), R v. Haughian (1985) 80 Cr. App. R. 334 and R. v. Taylor (1980) 80 Cr. App. R. 327 followed.

3. That, accordingly, it was not necessary for the trial judge to refer to and explain to the jury the provisions of s. 2, sub-s. 2 of the Act of 1981 in every rape trial in which the fact of sexual intercourse was admitted and in which the defence that the complainant consented to intercourse was raised.

Per curiam: Where recklessness as to whether the complainant consented or not was an issue it might be necessary to refer to the principles codified in sub-section 2.

4. That the defence had been that the complainant had explicitly consented to sexual intercourse, and if the jury had concluded that she had not so consented, there was no basis on the facts for a finding that the appellants could have believed that she had consented to sexual intercourse.

5. That, accordingly, since there was no issue of mistaken belief in the instant case, a direction regarding s. 2, sub-s. 2 of the Act of 1981 had not been requisite.

Cases mentioned in this report:—

Bourke v. Attorney General [1972] I.R. 36; (1970) 107 I.L.T.R. 33.

The Director of Public Prosecutions v. Morgan [1976] A.C. 182; [1975] 2 W.L.R. 922; [1975] 2 All E.R. 347; 139 J.P. 476; (1975) 61 Cr. App. R. 136.

The People (Director of Public Prosecutions) v. Creighton [1994] 2 I.R. 570; [1994] 1 I.L.R.M. 551.

The People (Director of Public Prosecutions) v. Davis [1993] 2 I.R. 1; [1993] I.L.R.M. 407.

The People (Director of Public Prosecutions) v. F. (Unreported, Court of Criminal Appeal, 27th May, 1993).

The People (Director of Public Prosecutions) v. Gaffey (Unreported, Court of Criminal Appeal, 10th May, 1991).

The People (Director of Public Prosecutions) v. Rock (Unreported, Court of Criminal Appeal, 29th July, 1993).

R. v. Bashir (1982) 77 Cr. App. R. 59.

R. v. Haughian (1985) 80 Cr. App. R. 334.

R. v. Taylor (1985) 80 Cr. App. R. 327.

United States v. American Trucking Associations (1939) 310 U.S. 534.

Certificate pursuant to s. 29 of the Courts of Justice Act, 1924.

The facts have been summarised in the headnote and are fully set out in the judgment of Costello P., infra.

The appellants were convicted on the 16th April, 1991, of rape. The Court of Criminal Appeal refused the application for leave to appeal on the 31st July, 1992.

On the 14th March, 1995, application was made on behalf of the appellants to the Director of Public Prosecutions for a certificate pursuant to s. 29 of the Courts of Justice Act, 1924. This application was refused on the 31st May, 1995. The appellants subsequently applied to the Court of Criminal Appeal (O'Flaherty, Keane and Budd JJ.) for a certificate under s. 29 of the Act of 1924 and this was granted by order dated the 1st February, 1996.

Following the filing of notices of appeal on the 22nd February, 1996, the matter was heard by the Supreme Court (Hamilton C.J., Costello P., Denham, Barrington and Murphy JJ.) on the 6th June, 1996.

Cur. adv. vult.

Hamilton C.J.

I agree with the judgment about to be delivered by Costello P.

Costello P.

Introduction

The appellants, Michael McDonagh and Oliver McDonagh, were tried, along with a third accused Kevin McCarthy, with the rape of a 20 year old woman on the night of the 2nd August, 1990, in the town of Portlaoise. All three were convicted on the 16th April, 1991. If the complainant's version of the events was true the crime was a particularly brutal and heinous one, constituting a gang-rape of the complainant by six men. The appellants, however, denied the complainant's version and, in written statements made to the gardaí and by means of questions put in cross-examination to the complainant by their counsel, claimed that not only had the complainant consented to intercourse but had in fact offered to have intercourse with all six men in return for payment of £30. The jury obviously accepted the complainant's version and convicted all three...