The People (Director of Public Prosecutions) v C. O'R

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton
• Judgment Date: 11 November 2016
• Neutral Citation: [2016] IESC 64
• Court: Supreme Court
• Docket Number: [S.C. No. 22 of 2015],Bill number: CC 72 of 2010 Supreme Court appeal number: 22 of 2015 Court of Appeal record number: 2012 CA 297 [2016] IESC
• Date: 11 November 2016

Between

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

Prosecutor/Respondent

- and -

C O'R (Rape)

Accused/Appellant

[2016] IESC 64

Charleton J.

Denham CJ.

O'Donnell J.

McKechnie J.

Clarke J.

Laffoy J.

Dunne J.

Charleton J.

Bill number: CC 72 of 2010

Supreme Court appeal number: 22 of 2015

Court of Appeal record number: 2012 CA 297

[2016] IESC

An Chuirt Uachtarach

The Supreme Court

Conviction – Rape – Mental element – Appellant seeking to appeal against conviction– Whether the trial judge properly elucidated the mental element of rape

Facts: The appellant, on 4th July 2012, was convicted by verdict of a jury of raping his mother at an address in Dublin on the night of 2nd March 2008, or in the early hours of the following day. White J, who had presided over the trial in the Central Criminal Court, sentenced him on 1st October 2012 to 15 years imprisonment, but with the last 2 years and 6 months thereof suspended. He appealed his conviction to the Court of Appeal on grounds related to the insufficiency of evidence, the non-disclosure of his mother’s medical records and the inadequacy of the judge’s legal direction to the jury on the elements of the crime of rape. By judgment of Ryan P, Birmingham J and Edwards J dated 27th March 2015 the appeal was dismissed. The accused then sought leave to appeal to the Supreme Court under Article 34.5.3º of the Constitution. In that application, he claimed that the trial judge had not properly elucidated the mental element of rape in a context where prosecution and defence counsel had taken radically different approaches in explaining this element in their respective closing speeches to the jury. Thus, it was asserted, an unfortunate precedent in the charging of juries on this most grave crime would be left to be repeated, causing inevitable confusion and unsound verdicts. Hence, in granting leave to appeal, two issues set out in the determination were proposed by the Court, namely: 1) Does the mental element of rape excuse a situation where on unreasonable and irrational grounds a man genuinely believes that a woman has consented to sexual intercourse, whereas in fact she has not so consented; 2) Within the definition of rape, is there a requirement in law for a man to ascertain prior to sexual intercourse that the woman is a) capable of consenting to the sexual intercourse, and b) that as a matter of fact she does so consent. These were not sought to be altered, refined or substituted with other issues by either counsel for the appellant or by counsel for the respondent, the DPP, at the case management hearing of 8th March 2016. At another hearing before a full panel of the Supreme Court on 12th May 2016, an application was made for legal aid to have further counsel argue the case for the appellant. Again, on that occasion, no application was made in relation to the issues set out in the determination. On the appeal, however, counsel for the appellant directed argument almost exclusively to the trial judge’s charge to the jury. Counsel for the DPP fully addressed the issues set by the Court and argued that, based on those submissions, the trial judge’s charge had been in conformity with a proper interpretation of the law of rape.

Held by Charleton J that the Rape Act of 1981 defines the external circumstances of the offence and also states what the mind of the perpetrator must be in order to justify a conviction. Some guidance for future cases was given in this judgment as to how judges should define and explain this crime for the benefit of juries. Charleton J held that while written submissions on behalf of the appellant and on the part of the DPP addressed the mental element in rape, the submissions for the appellant on this appeal focused narrowly on an alleged defect in the judge’s charge to the jury; this, in turn, was sought to be related to rhetorical flourishes in argument by prosecution counsel. Charleton J held that a proper consideration of the mental element in rape demonstrates that the trial judge mistakenly stated the defence case in terms of law too widely, but in favour of the appellant. Charleton J held that no error was identified against the appellant.

Charleton J held that the appeal should be dismissed.

Appeal dismissed.

Judgment of Mr Justice Peter Charleton , delivered on Friday, November 11th 2016

1 This appeal concerns the proper explanation to be given by a trial judge to a jury on the mental element in rape. By a determination of this Court of 19th January 2016 the following questions have been allowed to be argued under Article 34.3.3o of the Constitution from the dismissal of the accused's appeal against his conviction for rape in the Court of Appeal:

1. Does the mental element of rape excuse a situation where on unreasonable and irrational grounds a man genuinely believes that a woman has consented to sexual intercourse, whereas in fact she has not so consented?

2. Within the definition of rape, is there a requirement in law for a man to ascertain prior to sexual intercourse that: the woman is a) capable of consenting to the sexual intercourse; and b) that as a matter of fact she does so consent.

2 On July 4th 2012 the appellant C O'R, who is called the accused on this appeal, was convicted by verdict of a jury of raping his mother at an address in Dublin on the night of March 2nd 2008, or in the early hours of the following day. White J, who had presided over the trial in the Central Criminal Court, sentenced him on 1st October 2012 to 15 years imprisonment, but with the last 2 years and 6 months thereof suspended. He appealed his conviction to the Court of Appeal on grounds related to the insufficiency of evidence, the non-disclosure of his mother's medical records and, finally, the inadequacy of the judge's legal direction to the jury on the elements of the crime of rape. By judgment of Ryan P, Birmingham J and Edwards J dated 27th March 2015 the appeal was dismissed. The accused then sought leave to appeal to this Court under Article 34.5.3o of the Constitution. In that application, he in particular claimed in that the trial judge had not properly elucidated the mental element of rape in a context where prosecution and defence counsel had taken radically different approaches in explaining this element in their respective closing speeches to the jury. Thus, it was asserted, an unfortunate precedent in the charging of juries on this most grave crime would be left to be repeated, causing inevitable confusion and unsound verdicts. Hence, in granting leave to appeal the two issues set out in the determination were proposed by the Court. These were not sought to be altered, refined or substituted with other issues by either counsel for the accused or by counsel for the Director of Public Prosecutions at the case management hearing of March 8th 2016. At another hearing before a full panel of the Supreme Court on May 12th 2016, an application was made for legal aid to have further counsel argue the case for the accused. Again, on that occasion, no application was made in relation to the issues set out in the determination. On the appeal, however, counsel for the accused directed argument almost exclusively to the trial judge's charge to the jury. Counsel for the Director of Public Prosecutions, on the other hand, fully addressed the issues set by the Court and argued that, based on those submissions, the trial judge's charge had been in conformity with a proper interpretation of the law of rape.

Limits of an appeal where leave is granted

3 The Supreme Court operates appeals under a new dispensation since Articles 34.5.3o and Articles 34.5.4o of the Constitution have changed its function. Helpfully, the scope of the Court's jurisdiction has been set out in Practice Direction, SC 16, issued by the Chief Justice on 29th October 2014. This had been in force, at the time of arguing this appeal, for over 18 months. The effect of the direction of the Supreme Court issued under s. 7(7) of the Courts (Supplemental Provisions) Act 1961, as inserted by para. (a)(iv) of s. 44 of the Court of Appeal Act 2014 is to transform any notice of appeal on which this Court gives leave into the grounds upon which leave has been given under Article 34.5.3o. Paragraph 17 of this practice direction specifies:

Where leave to appeal is granted by the court, that part of the notice of appeal containing the grounds on which leave was granted (and excluding any grounds of appeal on which leave to appeal was refused) will stand as the notice of appeal and the grounds of appeal are limited to those on which leave has been granted. The appellant must, within 28 days of the grant by the court of leave to appeal, file notice that he or she wishes to proceed with the appeal (Form No. 3). Alternatively, the appellant must file written notice of intention to withdraw or abandon the appeal.

4 In light of the way in which the argument developed at the oral hearing of this appeal it is important to clarify the constitutional and legal structure of appeals to this Court under the measures adopted subsequent to the 33rd Amendment to the Constitution and the establishment thereunder of the Court of Appeal. This sets the foundation for that practice direction. Whether the appeal to this Court is an appeal directly from the High Court, allowed in exceptional circumstances under Article 34.5.4o or, as here, an appeal under Article 34.5.3o from a judgment of the Court of Appeal, there is a minimum constitutional threshold which must be met. This requires that the decision sought to be appealed either involves a matter of general public importance or, in the alternative, that it is necessary in the interests of justice that there be an appeal to this Court.

5 The Court of Appeal Act, 2014 amended the law to allow for the establishment of that court and...