The Criminal Courts of Justice
A LIMERICK farmer has failed in his efforts to have his conviction for rape overturned at the Court of Appeal after arguing that the trial judge did not properly charge the jury regarding his attack on his ex-girlfriend.
The trial heard that farmer Eamon Roche had texted the victim hours after he raped her in a car he was driving, saying: “Sorry for being a bollocks."
The 31-year-old, who has an address at Ballymorrough, Templegantine had pleaded not guilty to committing a single count of rape against the mother-of-one on March 21, 2015.
However, he was convicted by a jury in April 2019 at the Central Criminal Court and sentenced to six years’ imprisonment by Mr Justice Paul McDermott. That court was told the victim, aged 22 at the time of the attack, wished for Roche's name to be published.
Roche appealed the conviction, claiming Mr Justice McDermott failed to advise the jury properly of the possibility that the defendant had been "reckless" in his conduct.
It was further claimed that the judge failed to explain the importance the defence were placing on a ‘driving episode’ which took place prior to the rape and the text messages between the defendant and complainant hours afterwards.
The defence submitted that Roche had been apologising for speeding away from a garda checkpoint because the car he had been driving at the time did not have any tax, insurance, or up-to-date NCT, and not for anything else.
In a judgement, delivered this Friday, Ms Justice Patrick McCarthy outlined the background to the rape.
"On a number of occasions, the appellant [Roche] would offer or accept requests to drive from his home to collect the complainant from her home and take her to meet a friend. He would also collect her afterwards and take her home; the round trip was a considerable distance. This journey was made on four occasions and the first was in February 2015. They had consensual sex on two occasions – the first and third of those four in all. The latter occurred at the same place as that where the rape occurred," he said.
On the fourth occasion, on March 20, 2015, the complainant had asked for a lift to visit her friend and was collected by Roche at around 7.45pm. Upon arrival, he went to kiss her but she pulled away and he sent a text afterwards saying, "sorry for kissing you, I feel bad now".
Later in the night, she texted Roche asking him to collect her. He arrived around midnight and waited for her to leave a bar. After collecting her and on the way home, Roche saw a garda car.
Gardaí tried to stop Roche but he drove on to avoid them, explaining to the woman that he was driving without insurance and that he had road traffic offence convictions.
Gardaí gave chase but abandoned it due to the dangerous driving of Roche. "The complainant was not sure how long the appellant’s 'crazy' driving to evade the gardaí lasted but she said that it 'felt like a lifetime and she was going to die,'" said Mr Justice McCarthy.
After evading the gardaí, Roche changed cars and proceeded to drive the woman to her home but went past it (her home) and onto a location where they previously had consensual sex. There, he raped her in the car after she tried to get out, pushed him away and repeatedly told him she wanted to go home.
Roche's defence was that the sexual intercourse was consensual. The complainant, however attend the Sexual Assault Treatment Unit where two injuries were recorded - one to her right hip and the second to her left leg.
At trial, Roche maintained that subsequent apologetic texts referred to wider events of the night, regarding the attempt to kiss the complainant and the car chase. The prosecution maintained that they amounted to the admission of the rape.
Michael Bowman SC, for Roche, told the Court of Appeal that although Mr Justice McDermott’s charge to the jury had been “immaculate, as far as it went”, it should have gone further and that there were “other matters to consider, such as recklessness”. Counsel also said that the defence and prosecution’s case had been “polar opposites” in terms of consent.
Mr Bowman argued that there was room for a “middle-ground”, within which the concept of an “honest mistake” existed and this had not been addressed by the trial judge.
In response, Anne Rowland SC, for the Director of Public Prosecutions, said not only had Mr Justice McDermott charged the jury properly “he went further than he needed to in the circumstances of this case”.
She submitted there was "no error" by the trial judge.
Today, Mr Justice McCarthy agreed, saying that the jury were properly charged by the trial judge, who had "no need to go further".
He added: "Extensive reference was made by the judge to what was said by the appellant to the gardaí in interview. Frequently, judges refer only briefly to the substance of interviews since the jurors have them in writing. Here, however, the judge went through the substance of what was said in some detail in a number of respects referring to the responses of the appellant when asked about the texts.
"The appellant’s stance about the meaning and intent of the texts was abundantly clear to the jury," he said.
Mr Justice McCarthy said that "repeated and extensive references" were made by the trial judge in his charge to the jury regarding the texts and Roche’s explanation.
"There was no need for the judge to go further. We therefore reject this ground of appeal," said Mr Justice McCarthy.
Regarding the possibility of whether or not Roche had "recklessly" formed the opinion that his victim had given consent to sexual intercourse not being explained to the jury, Mr Justice McCarthy said the court also rejected that argument.
"We think that the judge was right to reject the requisition and that the absence of such a reference is not open to criticism," said Mr Justice McCarthy.
"The issues here could not have been more obvious to the jury on the plain terms of the charge, especially on the issue of mens rea [guilty mind] and subjective belief whether reasonably held or not; each side’s case was plain to be seen from what the judge said. The topic was dealt with comprehensively in every possible respect. Whether to say anything or not will fall to the discretion of the judge," he said.
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