The Court of Appeal has dismissed E.R.’s appeal against his conviction for rape, rejecting arguments that the trial judge should have given the jury further directions about mistaken belief in consent and the significance of a car chase.
The judgment, delivered by Mr Justice McCarthy on 28 January 2022, dealt with the conviction appeal only. E.R. had been convicted by a jury at the Central Criminal Court on 4 April 2019 after an eight-day trial. He received a six-year prison sentence with two years of post-release supervision, but the sentence was not under review in this judgment.
The prosecution case was that E.R. raped the complainant in the early hours of 21 March 2015. E.R.’s defence at trial was that the intercourse was consensual. The Court of Appeal said the live issues for the jury were whether the complainant consented and whether E.R. knew she did not consent or was reckless as to whether she did. A separate argument about recklessness being inadvertent was abandoned on appeal.
The appeal focused on two grounds. E.R. argued that, after the prosecutor told the jury there could be “no room for mistake”, the trial judge should have clarified that he could honestly, though unreasonably, have believed the complainant consented. The appeal court said the judge’s charge had explained that defence comprehensively and that the jury could understand each side’s case. It upheld the refusal to make a further direction about the prosecutor’s submission.
The second ground concerned the judge’s treatment of the car chase. The complainant’s evidence was that E.R. drove away from a Garda patrol car and later took her to a location where intercourse occurred, despite her asking to be brought home. The defence argued that the chase helped explain E.R.’s apologies in messages sent after the incident. The prosecution relied on the chase and the complainant’s reaction to it as relevant to whether she would have been amenable to consensual sex.
The Court of Appeal said the jury had the messages and had been given extensive references to E.R.’s account in Garda interviews, including his explanation that the apologies related to the driving. The defence position was therefore clear, and the trial judge was not required to say more. The court rejected both grounds pursued on appeal and dismissed the appeal.