JudgeMr Justice Edwards
Judgment Date19 October 2020
Neutral Citation[2020] IECA 283
CourtCourt of Appeal (Ireland)
Docket NumberRecord No: 190/2019
Date19 October 2020

[2020] IECA 283

Edwards J.

Kennedy J.

Donnelly J.

Record No: 190/2019


JUDGMENT of the Court delivered by Mr Justice Edwards on 19 th of October, 2020.

On the 6 th of March 2019, the appellant was convicted before the Central Criminal Court sitting in Cork of a single count of rape contrary to common law and as provided for in 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, which offence was said to have been committed on the 10 th of May 2016.


On the 23 rd of July 2019, the appellant was sentenced to seven years' imprisonment to date from the 6 th of March 2019, being the date on which the appellant went into custody. The appellant has now appealed against both his conviction and sentence.

Background to the matter

The complainant in this case is S.P., and at the material time she was a 21-year-old woman from a town in the southwest of Ireland. On the date of the incident giving rise to the charge in the indictment, namely the 10 th of May 2016, the complainant was staying with a young man that she had become friendly with, namely, A.Q., and his mother, L.Q., at their home located about half an hour's drive away from her own home in another town in an adjacent county. She had not known this young man for very long. They had been talking on Facebook and on the phone in previous weeks and had just begun going out as boyfriend and girlfriend. S.P. had stayed with A.Q. and his mother on one previous occasion, i.e., approximately a week previously on the night of the 4 th/5 th of May 2016.


On the evening of the 9 th of May 2016, A.Q., accompanied by the appellant P.O'D., with whom he was friendly at this time, travelled by bus from his hometown to the town in the adjacent county in which S.P. lived. There they met up with S.P. and a female friend of hers, H.G., outside a Spar shop. As the two young men were of the belief that one of them had lost a €50 note since getting off the bus, some time was spent by the group retracing their steps in the hope of finding it. They were, however, unsuccessful. At one point the young men returned to a Supervalue that they had previously entered to see if the banknote had been dropped there, and while they were doing this S.P. and H.G. went to an Aldi and purchased a bottle of vodka.


When satisfied that continued searching was futile, the four of them then went down to where there was a bridge over a river running through the town, and they began to share the bottle of vodka. H.G. and P. O'D. had kissed while they were drinking there. After some time, it began to rain and the group moved from the vicinity of the bridge to a train station, and continued their drinking under the shelters for waiting passengers. As that was happening S.P. texted another male friend, H.C., and asked him if he could drive the group in his car to the town in the adjacent county in which A.Q. lived. He agreed to do so and collected the group.


When they arrived in the town in question, H.C stopped in the first instance at a “Carry Out” off-licence. A.Q., and P. O'D. then got out of the car and went into the off-licence and purchased some more drink. H.C. then drove the group to A.Q.'s home and dropped them there. He did not go in.


On arrival at A.Q.'s home, the group found the house to be initially unoccupied. After about a half an hour the mother, L.Q., and A.Q.'s younger brother J.Q. arrived home. The mother was initially annoyed to find the group there, particularly as P.O'D., in respect of whom she had some (unspecified) issue, was amongst them. However, after some time she stated to S.P. and H.G. that they could stay, and she joined them for a drink and, in S.P.'s words, “we were taking pictures and stuff.”


Later in the evening, H.G. and J.Q. discovered that they knew each other from Snapchat and appeared to be getting on well. However, P.O'D. seemingly became jealous of this in the circumstances where he and H.G. had been kissing earlier that day when the group was drinking at the bridge. After some time L.Q. departed to go to bed. There was sleeping accommodation in three rooms upstairs, namely L.Q.'s bedroom, J.Q.'s bedroom and a small box-room, which A.Q. used as his bedroom. L.Q. went to bed in her own room, while H.G. and J.Q. retired to spend the night in J.Q.'s bedroom. Similarly, S.P. and A.Q. retired to A.Q.'s box-room bedroom. A.Q.'s intention was that the appellant, P.O'D, would stay downstairs and sleep on the couch in the living room. To that end A.Q. threw blankets and a pillow down the stairs to P.O'D.


The evidence of S.P. at the trial was that the appellant had seemingly become angry on learning that H.G. and J.Q. had retired to J.Q.'s room to spend the night together. He was said to be “ mad over that” and as bedding was being thrown down to him, he shouted up the stairs to A.Q., “tell your brother he's a gas man for taking my girl”. A.Q. then told him not to be shouting or he would have to leave the house.


A.Q. then joined S.P. in the box-room bedroom and they went to sleep in the same bed, having agreed that they should not yet have sexual relations as it was too early in their relationship. The bed was up against a wall, and S.P. went to sleep on the inside against the wall, while A.Q. went to sleep beside her on the outside. S.P. gave evidence that before settling down she had taken two medically prescribed sleeping tablets, namely Xanax. As she went to sleep she could hear “banging and stuff downstairs”.


After some hours S.P. woke up. He evidence was:

“A. … I woke up, kind of my eyes were still closed but I was waking up and there was pain between my legs so I thought it was just me and A in the bedroom, so when I was – I was after telling A the night before that I didn't want to sleep with him because I was only after getting to know him, so when I felt pain in my legs I said A, I told you I didn't want to so when I opened up my eyes and he was lying beside me and his eyes were closed, he was asleep. So, I looked down and then I looked up and P.O'D. was beside me and I got a fright, I slapped him in the face because, like, he was pulling –

Q. What was he – what was he doing to you –

A. He was pulling up his pants.”


S.P. went on to say that she had felt his penis in her private part, by which, she later clarified, she meant her vagina. She said, “my eyes were still closed when I first felt him put his penis inside me and he had done that twice until I opened my eyes and as soon as I opened my eyes he had stopped”.


S.P. further testified that on waking up she had found her own pyjama pants were pulled down, as was her underwear, and the bra strap on her top had been pulled to the side. She was pulling up her pants when she perceived the presence of P.O'D. She said that after she had slapped P.O'D. he was standing up on the bed next to the wall and he said, “what's wrong with you. I didn't do anything”. There was evidence that at this point S.P. started shaking and slapping A.Q., who was asleep to her right in the bed, in order to wake him up and she was so vigorous in doing so that he actually fell off the bed on to the floor. The evidence was that S.P. was distressed and crying. A.Q. gave evidence that he awoke to find S.P. crying and slapping his face in an effort to rouse him, that “ he” (i.e. P.O'D.) was standing on his bedroom floor, and that S.P. had hysterically told him that “ he was after sticking it in her twice”. A.Q.'s evidence was that he then confronted P.O'D. who initially denied it but then said, “ yes, I did do it”. A.Q. testified that in response to this account, “I think I threw him, I threw him down the stairs, yes.”


There was further evidence that the commotion coming from the box-room bedroom had been such that it had woken up L.Q. leading her to call out, “It's only quarter to 8 in the morning, what's going on at this hour of the morning?”. At this point S.P. ran into L.Q.'s room and jumped into L.Q.'s bed and took up a fetal position. The two women then had a conversation. L.Q. then started shouting for P.O'D. to get out of the house. Seemingly, P.O'D. had not yet been thrown down the stairs at this point but was in the course of being confronted on the landing by A.Q.


S.P., who could hear their exchanges, testified, “he was walking over and back and, like, over and back the landing and he was – I was shouting at him, like, and he was saying I didn't do nothing and walking over and back the landing and things like that. He was mainly saying it to [A.Q.] that he didn't do anything.”


The evidence was that S.P. then went to the bathroom as she thought she was bleeding, and while in the bathroom she became physically sick. A.Q. entered the bathroom to see if she was ok and then left again and stood on the landing over by his mother's bedroom door. S.P. gave the following account in her evidence as to what happened next:

“A. And he was at his mother's bedroom door and I was still inside in the bathroom, I was crying and leaning over the toilet and P. O'D came in behind me.

Q. Yes?

A. I jumped up and I kind of moved back from him, like, to the side of the toilet and I moved back and he was telling me to stop crying and, like, I was angry because after what he done he was telling me to stop crying. So, I said to him do you know what you done to me, like, why are you lying, like, you know, because he was after being swearing that I [sic] didn't do nothing to me and I know what happened to me and I said to him you know what you done to me, why are you lying and he said: “Yes, all right, okay, can we not just forget about it?”.


The evidence was that A.Q. then shouted at P. O'D, ...

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