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Sasko Lazarov/
Court of Appeal

Man has rape conviction quashed over trial judge's comments to jury on right to silence

The case was before the Court of Appeal today.

A MAN WHO was jailed for the rape of a woman described as his “best friend” has had his conviction quashed by the Court of Appeal over the trial judge’s comments to the jury on the right to silence during interviews with gardaí.

The man (28), who cannot be named in order to protect the identity of the woman who accused him, was charged with a single count of rape relating to 7 November 2018, to which he had pleaded not guilty.

He was convicted by a jury in November 2021 and was sentenced to seven years with the final three and a half years suspended by Ms Justice Deirdre Murphy in May 2022.

He subsequently appealed the conviction. 

The Central Criminal Court was told at his sentencing hearing that the man continued to maintain he was unaware that the woman did not consent to having sex with him before they stopped. 

At the Court of Appeal today, Court President Mr Justice George Birmingham said the appellant had argued that he was unfairly criticised for not saying he held a belief that the complainant was consenting to intercourse prior to giving evidence at trial.

The issue surfaced at the trial when counsel for the State re-examined the complainant and asked her whether she had ever heard of the matters that were put to her in cross-examination before, to which she said she had not.

The trial judge sanctioned a line of questioning of the appellant as to why he had not previously advanced the explanation, later given at trial, that he believed consent had been given.

Though the prosecution did not act specifically on that line of questioning, the defence maintained that a series of general questions achieved the same result by asking the appellant when was the first time he told anyone he believed consent had been given. 

The appellant then raised issues around the judge’s charge to the jury, in which she referred to the origins of the right to silence and how some accused answer certain questions but do not answer others during interviews with gardaí.

The appellant submitted that this was a “thinly-veiled invitation to the jury to consider whether they wished to disbelieve the appellant’s claimed belief that the complainant was consenting to sexual intercourse”, said Mr Justice Birmingham. 

The judge’s observations then triggered an unsuccessful application by the defence to have the jury discharged.

The judge did, however, re-charge the jury though counsel for the defence said any re-charge “could only make matters worse and described it as the equivalent of sticking a ‘band-aid over a very seriously gushing wound’”, said Mr Justice Birmingham. 

Mr Justice Birmingham said the appellant submitted that the combined effects of the issues around the belief of consent “was such as to render the trial unfair”. 

“Judges are entitled to comment on the evidence. That entitlement is not an unlimited one,” said Mr Justice Birmingham. 

“In general, a judge should not comment on the fact that an accused person, when arrested and detained, relied on his right to silence and declined to answer some or all questions being put to him,” said Mr Justice Birmingham. 

He said in her ruling on the matter, the judge contended that the remarks being criticised were “general remarks”.

Mr Justice Birmingham said that, at the trial, defence counsel said it was a “direction he had never heard given to a jury”.

“No member of this court has come across such a charge,” said Mr Justice Birmingham.

He said that this was “not at all determinative of the matter” as there could be many cases where remarks of this nature would not be controversial. However, he said the court could not lose sight of the context in which the remarks were made.

“This was a case where, apparently on legal advice, the appellant did not answer questions relating to the night in question,” said Mr Justice Birmingham. 

Mr Justice Birmingham said the appellant’s position was “a somewhat unusual one, accepting that the complainant had not consented to intercourse but asserting no crime had been committed because the appellant believed that the complainant was consenting”. 

Mr Justice Birmingham said that the trial judge’s comments “must have led the jurors to the view that the appellant was given an opportunity at an early stage to put forward his defence – he did not take the opportunity – and perhaps ask why it was not taken if it was a genuine belief which had been ever present”. 

“It seems to us that the remarks did, in the circumstances of this case, impact on the appellant’s right to silence,” said Mr Justice Birmingham. 

Mr Justice Birmingham said the stage of the trial at which the remarks were made meant the defence was denied an opportunity to respond and that the judge’s remarks were not capable of being dealt with by way of any re-charge. 

In allowing the appeal and quashing the conviction, Mr Justice Birmingham said the “force and clarity” of the re-charge was “not, in fact, capable of retrieving the situation”.

“In those circumstances, we feel obliged to quash the conviction,” said Mr Justice Birmingham who then adjourned the matter to 16 February to hear submissions on the matter of any re-trial. 

Sentence hearing

During the sentence hearing, a garda told Eilis Brennan SC, prosecuting, that the woman had been out socialising and contacted the man, inviting him to join her. 

They had been best friends since the age of 13, said the Garda, and the man was regarded by the woman’s parents as a son. 

After leaving a pub after midnight, the man went home with the woman and was making food for them both when the woman went to her bedroom and lay on the bed. She fell asleep but said she woke when the man was having sex with her.

She said she reacted by saying to him: “No, I don’t want that.” 

The court was told that the man stopped and they both fell asleep. The next day, the man acted “completely normal” and no one said anything, said the garda. However, some days later, the woman told a friend what had happened. On 8 December 2018, the woman made a statement to gardaí.

Questioned by gardaí and in evidence, the man accepted the woman had not consented to sex but he claimed not to have known this at the time. 

The man’s counsel, Michael O’Higgins SC, said that prior to the case, the man had been of good character and was a person of good standing in his community.

It was a “sad case that had disastrous consequences for all those involved,” said O’Higgins.

The man had stopped immediately when asked, said O’Higgins. He was “deeply saddened at the grief that he has visited upon his former friend” and was “so, so sorry” that his actions had broken his relationship with the woman. 

In a statement read to the court, the woman, aged 21 at the time, described the man as having been her confidant, best friend and “like a brother” to her. 

“He was my safe place, he was my protector,” she said in her statement. 

The woman said that prior to the incident, she had been a confident, outgoing person but since then had become “cagey” of other people. 

“One person’s awful actions has me questioning all actions,” she said.

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Paul Neilan and Isabel Hayes.