DPP v T.v

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 08 November 2016
• Neutral Citation: [2016] IECA 320
• Court: Court of Appeal (Ireland)
• Docket Number: Record No. CCA 336/2012
• Date: 08 November 2016

The People at the Suit of the Director of Public Prosecutions

Respondent

V

T.V.

Appellant

[2016] IECA 320

Record No. CCA 336/2012

THE COURT OF APPEAL

Conviction – Rape – Error in law – Appellant seeking to appeal against conviction – Whether trial judge erred in law and in fact when charging the jury in relation to the issue of mens rea

Facts: The appellant was convicted by a jury in the Central Criminal Court on the 18th of October, 2012, on 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. On the 26th of November, 2012, the appellant was sentenced to eleven years imprisonment, with the last three years thereof suspended upon conditions. The appellant appealed to the Court of Appeal against his conviction on the following grounds: (a) the trial judge erred in law and in fact when charging the jury in relation to the issue of mens rea and in particular failed to charge the jury properly or at all in relation to the issue of the appellant's knowledge as to whether or not the complainant was consenting; (b) the trial judge erred in law and in fact when charging the jury in relation to the issue of mens rea and in particular failed to charge the jury properly or at all in relation to the meaning of recklessness; (c) the trial judge erred in law and in fact and failed to charge the jury properly or at all in relation to the actual facts and circumstances relevant to the issue of knowledge, recklessness and mens rea.

Held by Edwards J that, having applied the principles set out in The People (DPP) v Cronin (No. 2) [2006] 4 IR 329, the appeal should be dismissed. The Court was satisfied that in the circumstances of the case it was not necessary for the trial judge to go further than he did in explaining s. 2(2) of the 1981 Act, as a single narrative was being relied upon by the defence, namely that the complainant had consented. The Court noted the contentions of the respondent, the DPP, concerning the trial judge’s charge in relation to recklessness. While the Court was prepared to accept that there was no actual misstatement of the law, and that what was stated was not inconsistent with a correct understanding of recklessness, Edwards J held it to be very far from ideal particularly in terms of its failure to state with precision all of the components of the established definition of recklessness. Nevertheless, despite the sub-optimal formulation employed, the Court was satisfied that it created no risk of injustice in the particular circumstances of the case, and that it did not render the trial unsatisfactory or the conviction unsafe. Ultimately, the Court found itself in agreement with the respondent that the trial judge’s charge was adequate in terms of the matters which the jury were going to have to consider having regard to the run of the case. In those circumstances the Court was satisfied that neither subjective mistaken belief, nor recklessness, was in fact a significant issue in the case.

Edwards J held that the appeal would therefore be dismissed.

Appeal dismissed.

Judgment of the Court delivered 8th day of November 2016 by Mr. Justice Edwards .

Introduction

1 In this case the appellant appeals, in the first instance, against his conviction by a jury in the Central Criminal Court on the 18th of October, 2012, on 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 (the Act of 1981) as amended by s. 21 of the Criminal Law (Rape)(Amendment) Act, 1990.

2 On the 26th of November, 2012, the appellant was sentenced to eleven years imprisonment, with the last three years thereof suspended upon conditions. In the event that he is unsuccessful in his appeal against his conviction, the appellant also appeals against the severity of his sentence. However, this judgment deals only with his appeal against his conviction.

The Grounds of Appeal

3 The appellant relies upon three grounds of appeal:

‘(a) The learned trial judge erred in law and in fact when charging the jury in relation to the issue of mens rea and in particular failed to charge the jury properly or at all in relation to the issue of the appellant's knowledge as to whether or not the complainant was consenting.

(b) The learned trial judge erred in law and in fact when charging the jury in relation to the issue of mens rea and in particular failed to charge the jury properly or at all in relation to the meaning of recklessness.

(c) The learned trial judge erred in law and in fact and failed to charge the jury properly or at all in relation to the actual facts and circumstances relevant to the issue of knowledge, recklessness and mens rea.’

The Evidence before the Jury

4 The complainant in the case was Ms A.O'C. On the evening of Friday the 18th of December 2009 the complainant, a young woman in her twenties, who was living with two other girls in a three bedroom duplex apartment in a suburb of Cork, had been celebrating with some friends in advance of her birthday. She and her friends had initially had dinner in the apartment, following which they had visited a number of bars in Cork city. Having left the Bodega bar at approximately 2.15am to 2.30 am on the morning of the 19th of December, 2009 the group travelled back to the apartment in two separate vehicles, one of which was a taxi and the other of which was a private car driven by a member of the group who, as designated driver, had not been drinking. The complainant was in the first vehicle to leave, which was the taxi, and she was accompanied by three other girls. The remainder travelled in the other vehicle, one of whom was J.F who was also living in the apartment with A.O'C., and who had the only key to the apartment.

5 When the taxi arrived at the apartment, the complainant and her companions, not having a key themselves, were required to await the arrival of the second vehicle, before they could gain admittance. As they were waiting another taxi arrived and two men got out. The complainant engaged them in conversation and suggested to them that as she and her friends would be staying up for a while to drink, they were welcome to call over. The two men then went into their own house across the road from the apartment.

6 J.F., duly arrived at about 3.15am and admitted the complainant and the rest of the party to the apartment. Shortly afterwards the complainant telephoned a male work colleague, S. McG., and also invited him to call over, which he later did. After this phonecall the complainant was pouring drinks in her kitchen when the two men she had met earlier arrived into the apartment, and they had bags with them containing some cans of beer. They were Hungarian. One had a tight haircut and was very quiet. The other was more talkative, had dark hair and spoke good English. The talkative one was the appellant.

7 S.McG arrived at around 3.35am. Shortly after this two girlfriends of the complainant, L. O'S., and C.F., who were staying overnight, but who had to get up early next morning, indicated that they were going to retire. They went upstairs and went to bed on mattresses laid out on the upstairs landing.

8 The complainant stayed up drinking in the kitchen with J.F., another girlfriend L.B., S.McG., and the two Hungarian men, and music was playing. At one point the appellant came over and placed his hands on the complainant's hips. He said he was a dancer in Hungary and that she didn't know how to dance. The appellant tried to move the complainant's hips, but the complainant felt uncomfortable and removed his hands and walked away from him. J.F., who had witnessed what occurred, told the jury that the appellant had been dancing with the complainant in ‘a sexy manner’ and that the complainant walked away from him abruptly.

9 At approx 5.00am J.F. went upstairs to bed. The complainant followed her and chatted with her trying, unsuccessfully, to persuade her to come back downstairs. The complainant then went downstairs herself and met S.McG and returned to the kitchen with him. The only other persons downstairs at that stage were the appellant who was also in the kitchen, and L.B., who was on the telephone in the sitting room. The quieter Hungarian man had gone home a short time earlier. The complainant concluded that the night was over and went back upstairs. At this point it was estimated to be 5.30am/5.45am.

10 The complainant acknowledged consuming an estimated ten drinks in the period between having dinner at 8.30pm/9.00pm on the evening before, and retiring to bed at 5.30am/5.45am.

11 Having gone upstairs to go to bed the complainant undressed, save for her underwear, and put on a nightdress. She then got into bed and went to sleep. The next thing she recalled was waking up due to a stabbing pain in her vaginal area. She opened her eyes and found a man's body on top of her. It was the appellant and he was putting his penis in and out of her vagina, and breathing heavily. The complainant's evidence was that she had not physically resisted because she felt completely paralysed and that she could not move or breathe. She had her nightdress on but it was pushed up, and her underwear had been removed. She recalled pain, and focussing completely on trying to close her legs which she eventually succeeded in doing. After the appellant had stopped, the complainant then lay there for a few minutes.

12 The next thing the complainant recalled was hearing some rustling at the end of the bed. She then got up, turned on the light and told the appellant to leave the house. There was blood visible on the bedsheets and the appellant asked the complainant if she was having her period. The complainant responded ‘No. Get out of my house’. The appellant then asked the complainant if she had been a virgin, and the complainant just repeated ‘Get...