Monday 17 December 2018

Additional blood on Jackson's sheets and 'middle class' tweet - Reporting restrictions on Belfast rape trial lifted

Paddy Jackson
Paddy Jackson

Eimear Cotter and Nicola Anderson

A JUDGE has lifted reporting restrictions on the trial of two Ireland rugby players acquitted of rape.

Jurors were unaware that there were photographs of additional blood on the sheets of Paddy Jackson’s bed, with the rugby player’s barrister saying he had “no intention of saying where this blood came from”.

Also kept from the jury was the fact a short pornographic video featuring a ‘spit-roast’ was sent by Rory Harrison to Stuart Olding the day after the events of that night.

Mr Olding’s lawyer, Frank O’Donoghue QC, had also sought to have the jury discharged just two days before they retired to consider the verdict after a comment by Alliance leader Naomi Long MLA on Twitter.

In her comment, Ms Long referenced Mr O’Donoghue’s closing speech to the jury, where he wondered why the complainant didn’t scream.

“Why didn’t she scream? – the house was occupied”, he said. “There were a lot of middle-class girls downstairs – they weren’t going to tolerate a rape or anything like that.”

Stuart Olding (left) looks on as his solicitor Paul Dougan (centre) speaks to the media outside Belfast Crown Court after the verdict on Wednesday. Photo: PA
Stuart Olding (left) looks on as his solicitor Paul Dougan (centre) speaks to the media outside Belfast Crown Court after the verdict on Wednesday. Photo: PA

Ms Long tweeted: “I genuinely have no words for how atrocious this statement is. Middle class girls? What? Because “working class girls” wouldn’t care/don’t matter/think rape is normal? What is the implication of that comment even meant to be? Appalling on every level.”

However, Judge Patricia Smyth refused the application to discharge the jury, saying they had been warned repeatedly not to read anything about the trial in the press or on social media. She said she believed the jurors were capable of following instructions, and there was no reason to believe they had any knowledge of the tweet.

Ms Long, who has nearly 30,000 followers on Twitter, was told to remove the tweet.

“With a heavy heart”, Paddy Jackson's barrister Brendan Kelly QC had also asked the judge to discharge the jury, after he claimed her “tone” was more sympathetic when outlining the complainant’s evidence in the judge’s charge.

Mr Kelly argued that when describing the complainant’s account there was a “face, tone and sympathy” which was not present when dealing with the defendants’ cases.

Mr Kelly told the judge that when dealing with Jackson’s evidence it was at “a pace and with an apparent lack of sympathy” in comparison with the woman’s evidence.

Mr O’Donoghue also weighed in, respectfully telling the judge, there was “a difficulty in intonation” and she “sometimes nodded her head” when outlining the complainant’s evidence.

Judge Smyth, in perhaps the only time in the nine week trial that she was visibly annoyed, totally rejected the criticism, saying she was being “scrupulously careful” and was “studiously anxious” to ensure that all the points that needed to be made were made.

Two weeks ago, Paddy Jackson (26) and Stuart Olding (25) were acquitted of raping a then 19-year-old student during a party in his house in June 2016. Mr Jackson was also cleared of sexually assaulting the same women.

The men had always maintained the sexual activity was consensual.

Their friends Blane McIlroy (26) was cleared of exposure and Rory Harrison (25) was found not guilty of perverting the course of justice and withholding information. They too had always denied the charges.

An application came before Judge Smyth this afternoon to lift reporting restrictions, and it was granted.

The purpose of reporting restrictions is to prevent a jury being prejudiced by material heard in its absence. Such restrictions usually end after a jury has delivered its verdict and been discharged.

The jurors were unaware of several other matters which emerged in legal argument while they were not present in the courtroom.

With the defence calling an independent medical examiner, Dr Janet Hall, there was a real risk that a video of an internal examination of the young woman’s intimate area would be shown in open court.

Dr Philip Lavery of the Rowan clinic - a sexual assault referral centre at the Antrim Area Hospital examined the young woman and ascertained a 1cm bleeding laceration in her vaginal wall. He was able to discount the possibility she was having her period because he did not see any menstrual blood coming from the uterus and had used swabs to ascertain the blood was coming from the cut.

However, it emerged that because of the poor quality of the video, Dr Hall was unable to be certain about this conclusion.

The risk of such a sensitive video being shown in court was eventually quashed after the medics met at the Rowan clinic to view the video there.

Stuart Olding’s lawyer, Frank O’Donoghue QC, was successful in having the forensic evidence regarding his client somewhat played down. Samples of Mr Olding’s semen were found by forensic scientists on the crotch area of the young woman’s white jeans.

A charge of vaginal rape against Mr Olding was dropped before Christmas and he was charged, and subsequently acquitted, of one count of oral rape. Mr O’Donoghue argued that if the jury was told where the semen had been found on the woman’s jeans, it might create an “unfair suspicion” in the minds of jurors.

Judge Smyth agreed and the jury was merely told the semen had been found on the jeans – but were not told exactly where.

During the third week of the trial, a legal disagreement ensued on the photographs being shown of the house.

The prosecution was asked to remove three photographs of Mr Jackson's bedroom from the evidence.

Mr Hedworth told the judge they were “sympathetic of the concerns of the defence” regarding the showing of blood-staining on the bed.

“We’d submit, if one knows where to look, that one might be able to discern slight marks on the relevant areas,” he conceded.

However, he argued it was important for the jury to see what the bedroom looked like on the night in question.

It became clear that blood relating to the woman in this trial had been discovered on Mr Jackson’s duvet cover. However, there was other, non-related blood also present on his sheets.

Mr Kelly said; “there was no evidence the blood is the blood of this complainant and that’s where we all decided to tread with care.”

This other blood was “capable of causing real prejudice to the entire trial,” said Mr Kelly, adding: “I have no intention of saying where this blood came from because it is probative of this trial” and it would distract the jury.

In the end, an unusual solution was proffered by Judge Smyth who said: “Airbrushing – that’s the answer.”

Meanwhile, while the jury was out, the judge made a ruling on an application made on behalf of Rory Harrison and Stuart Olding to exclude the contents of a video clip sent by Mr Harrison the day after the events at Mr Jackson’s house. The short video or ‘gif’ showed a woman having penetrative sex while giving oral sex to another man.

Judge Smyth said the defence had argued that sending and receipt of this evidence would have an adverse effect and was inadmissible because it was irrelevant or prejudicial and could “indicate bad character” on the part of the accused.

She said that to some extent, the resolution of this required a “moral judgement” and conceded it was pornographic and depicted consensual sex between three people. The issue of whether legal adult pornography is evidence of bad character “may attract a wide divergence of public opinion, depending on age bracket or gender,” she said.

The prosecution submitted the video was relevant because it showed a discussion had taken place between the men about the previous night and argued it confirmed the accused had an opportunity to concoct a false narrative. They submitted the video was relevant to Harrison’s knowledge and state of mind when drafting his witness statement.

The judge accepted the content was potentially relevant for the reasons set out by the prosecution but said the absence of a caption or text message along with the video meant a question mark hung over its probative value.

However, she concluded that any doubt should be resolved in favour of the accused and so the content of the video was not revealed to the jury.

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