The Court of Appeal has dismissed an appeal against the conviction of Jose Lacerna Pena for rape, finding that the trial judge’s directions to the jury were fair and did not make the conviction unsafe.
Pena was convicted on 13 December 2019 of one count of rape under section 4 of the Criminal Law (Rape) (Amendment) Act 1990. He received a six-year sentence on 3 April 2020. The appeal concerned the conviction only.
The case arose from an incident in Dublin city centre in the early hours of 26 September 2017. The complainant told the trial that Pena forced his penis into her mouth. She said she did not consent. Two men who came upon the scene described her as distressed and trying to get away; they intervened. The judgment also records CCTV footage showing the pair in the area and evidence that both appeared affected by alcohol.
Pena’s appeal focused on the judge’s charge to the jury. His counsel argued that the judge had wrongly introduced incapacity to consent due to intoxication, although the prosecution’s case was that the complainant had not actually consented. The defence said it had not had a proper opportunity to address incapacity and that the jury should have been told explicitly that a person can consent while intoxicated. It also argued that the judge had put the defence case in unfairly loaded terms by describing the suggestion that the complainant was embarrassed as an allegation that she was making it up.
The Court of Appeal said actual lack of consent and incapacity to consent are not mutually exclusive legal routes. But it agreed that incapacity was not the prosecution’s case at trial. Looking at the charge as a whole, the court concluded that the jury had been asked to decide whether the complainant actually consented, not whether she lacked capacity. The court said it would have been preferable for the judge to tell the jury expressly that capacity was not in issue.
The court rejected the argument that the directions on intoxication required a further explanation. It said the judge had explained the law and related it to the evidence, including the complainant’s account and the CCTV. The court found no unfairness to the defence, including on the cross-examination and closing speech. It also held that the challenged description of the defence suggestion reflected the cross-examination and that the charge, considered as a whole, was fair and balanced.
The appeal against conviction was dismissed. The Court of Appeal’s decision concerned the conviction appeal; the judgment does not state that it reconsidered or changed the sentence.