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LAWYERS FOR CONOR McGregor have withdrawn their application to introduce new evidence as part of his appeal against a civil jury finding that he raped a woman in a Dublin hotel in 2018.
In November last year, McGregor was deemed liable for sexually assaulting Nikita Hand in the Beacon Hotel on 9 December 2018 following a three-week civil trial at the High Court, with the jury in the case awarding Hand over €248,000 in damages.
McGregor, who had denied the allegations, subsequently appealed the jury’s decision and is seeking a re-trial of the civil case against him.
As part of his appeal, he had sought to introduce new evidence from a couple, Samantha O’Reilly and Steven Cummins, who were neighbours of Nikita Hand at the time of the incident.
O’Reilly swore an affidavit claiming to have witnessed, from her own home, Hand being pushed and possibly kicked by her then-partner hours after she returned home from the hotel where a civil jury found she was raped by McGregor.
O’Reilly also swore that while she did not actually see Hand being kicked on the ground, by the body movement of her then-partner, she believes he kicked Hand after he pushed her.
Lawyers for Hand previously told the court that she had sworn an affidavit describing the claims by O’Reilly as “lies”.
At the Court of Appeal this morning, Mark Mulholland KC, for McGregor, told the court that they had received further submissions yesterday, and upon further reflection, had “taken a decision that we cannot sustain that ground of appeal”.
He told the court that they wanted to withdraw the evidence on the basis that there was no legal basis to bring in other evidence to support the claims made by O’Reilly.
They had been seeking to introduce evidence from the former state pathologist for Northern Ireland, Professor Jack Crane, who they had asked to review material from the trial.
He said Crane’s application was intended to corroborate the account of O’Reilly.
He said that after taking instructions from his client, “we therefore respectfully seek to withdraw that ground of appeal”.
Ms Justice Isobel Kennedy asked: “What has changed?”
Mulholland said they had looked to introduce both applications in tandem, with one being a corroboration of the other. He said that in the absence of Crane’s evidence, there is no corroboration for O’Reilly’s evidence and therefore no sustainable ground for appeal.
“I’m still failing to see how Professor Crane’s evidence had such an impact on the potential evidence of Ms O’Reilly and Mr Cummins that we find ourselves in the position we’re in,” the judge said.
John Gordon SC, for Hand, called the withdrawal “shocking”.
“To dress up the withdrawal of this application based on a response in relation to the application to produce forensic evidence is frankly not appropriate,” he said.
Gordon said he was “informed of this on the way here ten minutes ago” by Remy Farrell SC, for McGregor. “That is totally unacceptable.”
He said Hand had been “put through the wringer again” and said she had called the claims by O’Reilly and Cummins lies. “That has now been conceded.”
He said the sworn affidavits from the new witnesses had called Hand a liar and made serious allegations against her then-partner, “and now they waltz in here and think that they can walk away from this in a sentence”.
He asked the court to proceed with cross examination of the witnesses, and said he then wanted to refer the matter for perjury proceedings to the DPP, as well as subornation of perjury by McGregor.
Mr Justice Brian O’Moore said: “I have to say, when I say I’m bemused, that’s a kind way to describe my position on the action that is being taken.”
Ms Justice Kennedy agreed with him. The judges then rose briefly to consider the new development.
Upon returning to court, Ms Justice Kennedy said the application to withdraw the motions had been made “at the last minute” and acknowledged Gordon’s objection to the late withdrawal.
“We are quite satisfied that there is no point in forcing the appellant to bring forward a motion which the appellant has no interest in proceeding with,” she said.
“We will permit the withdrawal of both motions.”
Gordon asked that an apology be made to Hand. “An apology would be a start,” he said.
Mulholland said that was something they could do through McGregor’s solicitor, Michael Staines, in due course “if appropriate”.
Hand was in court with her partner and some members of her family. McGregor was not present.
The appeal then proceeded without the new claims. Remy Farrell, for McGregor, outlined the grounds for appeal before the court, including how McGregor was cross-examined during the trial.
He referred to Hand’s lawyers questioning McGregor over his ‘no comment’ answers given to questions posed to him in a Garda interview, which he said was his right to do.
He said there was a “remarkable conflation” between what he said in these interviews and what was put to him in the witness box during the trial.
He told the court that the questions put to him by Hand’s lawyers were “inviting the jury to draw an inference that when somebody invokes their right to silence, there is no smoke without fire and all the rest of it”.
He said that at no point was it actually put to McGregor during his cross-examination “that he had been untruthful in terms of the answer that was given”.
He said the purpose of the cross examination was identified by the trial judge, but it was never followed through and the jury was left with a “bizarre proposition”, and left “to think whether Mr McGregor misled them”.
Farrell also cited the issue paper that was presented to the jury, which asked whether McGregor assaulted Hand. He said it was a “real oddity” of the case that rather than identifying battery as a cause of action, “they identify assault, which is manifestly not the appropriate cause of action”.
“We criticise the fact that the issue paper does not say sexual assault and leaves open the possibility” that some of the jurors did not think they were being asked about sexual assault, he said.
Ray Boland SC, for Hand, said this was “a nonsense” and “an insult to the intelligence of the jury that they didn’t know what the case was about”.
He told the court that the wording in the issue paper was agreed upon by all parties and that it “couldn’t have been clearer” both in the trial judge’s charge to the jury and from the evidence heard in the case ”that what we’re dealing with is assault by rape”.
Boland also said that the trial judge made it “abundantly clear” to the jury that they could not draw any “adverse inference” to McGregor answering no comment in a Garda interview.
He said this point was “hammered home again and again” by the judge, adding: “I say that no injustice was done in relation to that aspect of the case.”
He said there was no question that McGregor could incriminate himself because these were not criminal matters.
He submitted that McGregor had told the trial that he wanted to be as cooperative as possible, and that therefore, “it was in that situation that the no comment answers became relevant,” adding that it was “relevant and therefore admissible evidence”.
The appeal proceedings will continue tomorrow.
During the civil trial last November, Hand told the court that McGregor raped her in the penthouse of the hotel and “wouldn’t take no for an answer” when she told him that she did not want to have sex with him.
The court heard evidence of Hand’s extensive bruising, including from a paramedic who treated her the morning after the assault and from a doctor at the Rotunda Hospital Sexual Assault Treatment Unit which she attended. Hand alleged that the bruising was caused by McGregor.
McGregor denied all of the allegations against him, telling the court that he and Hand had “fully consensual” sex.
The jury found that McGregor’s friend James Lawrence, of Rafter’s Road in Drimnagh, did not sexually assault Hand.
He had alleged that he had consensual sex with Hand twice in the Beacon Hotel on 9 December 2018. Hand told the court that she had no memory of this and described it as “a made-up story”.
Lawrence has also lodged an appeal in the case, which will be heard tomorrow.
It is understood to be related to the High Court’s decision not to award him his costs in the case.
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