The Court of Appeal has dismissed C.Q.’s appeal against a rape conviction, finding no material error in the jury directions and no improper pressure on the jury to reach a verdict.
The appeal concerned a conviction entered by a jury at the Central Criminal Court sitting in Cork on 30 September 2020. C.Q. was sentenced to eight years’ imprisonment, with the final 18 months suspended on terms. The appeal related to the conviction only.
The prosecution case was that the complainant was asleep when C.Q. penetrated her. C.Q.’s account was that she was awake and participating in sexual activity, which he said did not involve vaginal penetration. An eyewitness testified that she saw a man on top of a woman in the complainant’s bedroom, but the Court of Appeal said that evidence did not significantly advance either account.
C.Q. argued that the trial judge should have explained the legal meaning of recklessness to the jury. He also challenged remarks made during jury deliberations, including that failure to reach a verdict could mean a new trial.
The appeal court said recklessness requires advertence to the risk that a complainant is not consenting, followed by proceeding despite that risk. It concluded that recklessness was not a material issue on the evidence at this trial. The central question was whether the complainant was asleep or awake and participating. If the jury accepted that she was asleep, the question was whether C.Q. knew she was asleep; if they accepted his account of interaction, the prosecution would not have proved she was asleep beyond reasonable doubt.
The court said the trial judge’s statement that drunkenly having sex with a sleeping woman constitutes recklessness was too definite: the word “may” should have been included. But it found the jury had been told to decide whether the prosecution proved every element, and concluded the wording did not warrant allowing the appeal. The court also found the judge’s comments about a possible retrial did not improperly influence the jury, which was told that the verdict remained its decision and was not subject to a time limit.
The appeal was dismissed.