The Court of Appeal has quashed A.H.’s rape conviction, finding that the trial judge’s interventions during his evidence were likely to make the trial unfair and render the verdict unsafe. The court said it would hear submissions on a retrial; the judgment does not record a decision on whether one will take place.
A jury at the Central Criminal Court, sitting in Cork, convicted A.H. on 21 September 2020. He appealed on four grounds, including that the trial judge intervened too often during his examination and cross-examination. The other grounds concerned Google searches on his phone, the jury’s identification of the defence case on consent, and the refusal of a direction in the case.
The appeal judgment recounts competing accounts of events in August 2017. The complainant said she woke to find A.H. penetrating her while she was asleep. A.H.’s account was that the sex was consensual. These were accounts presented at trial, not new findings by the appeal court.
The court said judges may intervene to clarify evidence, address unfair or confusing questions, or ensure a witness can answer adequately. But interventions must be made with care, and a judge must not enter the arena as a defender or prosecutor. The court cautioned that simply counting questions does not establish unfairness; their purpose and nature matter.
The judges reviewed exchanges in which the trial judge repeatedly questioned A.H. about whether he considered the complainant too drunk to have sex and what he meant when he told Gardaí she was drunk but could walk and speak. They also cited questions during his direct evidence about when he learned of the allegation.
The court accepted that many interventions were intended to clarify evidence, and said some were justified, including where the appellant could not readily be heard. It also said the trial judge had acted with the best of motives. However, some questions went to factual issues and were the kind a skilled prosecutor might ask. Taken together with their frequency and duration, the interventions risked giving the impression that the judge was cross-examining the appellant.
The appeal was allowed on that basis. The court quashed the conviction and said it would hear submissions on a retrial. The judgment does not state the outcome of the remaining appeal grounds.