The Court of Appeal has dismissed T.V.’s appeal against his conviction for rape, finding that complaints about the trial judge’s directions on consent, knowledge and recklessness should not be entertained in the circumstances of the case.
The judgment, delivered by Mr Justice Edwards on 8 November 2016, concerns a conviction recorded by a jury in the Central Criminal Court on 18 October 2012. T.V. was sentenced on 26 November 2012 to 11 years’ imprisonment, with the final three years suspended on conditions. The Court of Appeal said this judgment dealt only with the conviction appeal; the appeal against sentence was not determined.
The complainant’s evidence was that she woke in her bed to find T.V. having intercourse with her. She said she had not consented and had been asleep. T.V.’s account in Garda interviews was that she woke, agreed he could lie beside her, and later engaged willingly in sex. He did not give evidence at trial. The jury also heard evidence that DNA from semen on the complainant’s bedclothes matched T.V.’s, and that a doctor found genital redness and bruising. The judgment said those findings were consistent both with the complainant’s account and with consensual sex.
On appeal, T.V. argued that the trial judge had failed to explain properly that an honest belief in consent could matter even if unreasonable, and had inadequately explained recklessness. The prosecution argued that the defence at trial had relied on one account: that the sex was consensual. It had not advanced a separate claim that T.V. mistakenly believed the complainant was consenting, and no requisitions had been made about the charge at trial.
The Court of Appeal said the absence of requisitions was not an absolute bar to an appeal point, but could indicate that the issue had not been viewed as significant during the trial. It found there could have been tactical or strategic reasons for not seeking a different direction, given the defence’s account of actual consent. No evidence was provided explaining the failure to raise requisitions, and the court concluded that the essential justice of the case did not require it to consider the complaints.
The court also commented on the merits. It said the judge had accurately recited the statutory definition of rape and the relevant provisions on belief in consent. The direction on recklessness was “very far from ideal” in precision, but, in the circumstances, created no risk of injustice and did not make the trial unsatisfactory or the conviction unsafe. The court dismissed the conviction appeal.