Sunday 23 September 2018

Jury in rape trial told to decide between consent and submission

Judge tells jury sexual allegations can arouse a great deal of emotion and they must guard against prejudice or sympathy, writes Ashleigh McDonald

Blane McIlroy, Stuart Olding, Paddy Jackson and Rory Harrison
Blane McIlroy, Stuart Olding, Paddy Jackson and Rory Harrison

Ashleigh McDonald

In the coming days, Ireland international rugby players Paddy Jackson and Stuart Olding will learn if a jury has cleared or convicted them of rape.

Now in its closing stages, the trial at Belfast Crown Court will enter its ninth week tomorrow.

When Judge Patricia Smyth finishes her charge to the jury on either tomorrow or Tuesday, they will then be sent out to deliberate and return verdicts on a total of six charges.

The judge started her charge to the eight men and three women of the jury last Friday. Before sending them home for the weekend, she told them to ignore press reports and comments about the case on social media, particularly Twitter.

Telling the jury these reports and comments "will not assist you to reach a verdict based on the evidence", Judge Smyth said: "What matters is the evidence you have heard. You are the only people who are going to understand what the law is that you must take into account."

Mr Jackson (26) and his Ireland and Ulster rugby teammate Stuart Olding (25) have both been accused of raping a woman in the bedroom of Mr Jackson's south Belfast home, while Mr Jackson faces a further charge of sexually assaulting the then 19-year-old student.

The woman claims she was raped from behind by Mr Jackson, while being forced to perform oral sex on Mr Olding. She also claims a third man, 25-year-old Blane McIlroy, entered the bedroom, naked and with his penis in his hand, demanding sex. Mr McIlroy has been charged with exposure.

All three men have denied the charges levelled against them, while a fourth defendant - Rory Harrison (25) - denies withholding information and perverting the course of justice in the aftermath of the incident.

Consent

The trial has centred on what happened in the early hours of Tuesday June 28, 2016. Eight young people arrived back at Mr Jackson's home for a party, following a night out in the VIP section of Ollie's nightclub in Belfast.

In her charge, Judge Smyth told the jury that consent was at the centre of the case. While the woman claimed what happened to her in the bedroom was not consensual, the men have alleged that not only was any sexual activity consensual, but it was mainly instigated by her.

The judge said: "A woman consents if she agrees by choice, and has the freedom and capacity to make that choice.

"When you are considering the issue of consent, it is important to draw distinction between consent and submission. Consent in some situations may be given enthusiastically, whereas in others it is given with reluctance, but nonetheless it is still consent.

"Where, however, a woman is so overcome with fear that she lacks any capacity to consent or to resist, that woman does not consent but is submitting to what takes place."

Pointing out that allegations of a sexual nature "can arouse a great deal of emotion", Judge Smyth urged the jury to "guard against prejudice or sympathy" and instead "judge this case on the evidence you have heard, and nothing else".

The judge said that while they may have an opinion about how someone who was raped, or who makes an allegation of rape, may behave, it was "impossible to predict how a person will react in the following days".

Likewise, she said it would also be impossible to determine how someone who is being raped reacts to what is happening, commenting: "Some people resist, some may freeze, others do not resist because of the circumstances." She added that there was "no classic reaction" to being raped.

Judge Smyth spoke about how different witnesses react when giving evidence. She said: "You must not assume because she showed distress or emotion, that it must be true", adding that a person's demeanour or behaviour in court or with police "is not necessarily a clue to the truth of the witness's account".

The judge asked the jury to come to "common sense conclusions" and warned: "Do not speculate on evidence that mightn't have been heard, or witnesses that mightn't have been called". Asking the jury to set aside any views they may have on "young people who drink to excess" or sexual offences, Judge Smyth said: "The morals of any person involved in this trial are completely irrelevant."

Judge Smyth also addressed the text and WhatsApp messages referred to during the trial, and said: "You may think some of the texts were offensive, or crude, or even derogatory. It is important that you understand that even if a man holds a derogatory attitude of a woman, that is not equivalent to the intention of having non-consensual sex."

In addition, the judge asked the jury to consider words, phrases and emoji symbols used in text messages, and the context in which they were sent, adding "this applies to all of the young people involved in this case, including [the complainant] and her friends".

The judge also told the jury: "If you are firmly convinced a defendant is guilty, then you must find him guilty.

"If, on the other hand, you think there is a real possibility he is not guilty, then you must give him the benefit of the doubt and find him not guilty. If you are not sure one way or the other, then you must find him not guilty.

"You must be sure of his guilt before you find him guilty."

Arguments

When the trial resumes tomorrow, the judge will set out the key points of both the Crown and the defence's arguments, and will address them on the relevant law surrounding the charges.

Throughout the two-month trial, the court has heard evidence from the 21-year-old complainant, all four defendants and numerous other witnesses - including a woman who walked in on the alleged incident in the bedroom and who said she believed she saw a threesome, and a taxi driver who took the "sobbing" complainant home in a taxi with Mr Harrison.

Others who gave evidence included a doctor who examined the woman in the aftermath of the incident and who recorded a 1cm tear in her vaginal wall, as well as friends of the complainant who noted her distress and urged her to contact the police.

Crown prosecutor Toby Hedworth QC has already made his closing submission to the jury, as has Brendan Kelly QC, representing Mr Jackson.

In the final days of the trial last week, barristers for Mr Olding, Mr Harrison and Mr McIlroy addressed the jury on behalf of their clients.

First to his feet was Frank O'Donoghoe QC, who said his client, Stuart Olding, was "undoubtedly" telling the truth - "warts and all".

Pointing out that the crux of the case against Mr Olding was consent, Mr O'Donoghoe told the jury there was absolutely no forensic evidence to support the woman's claim of forced oral rape.

Urging the jury to consider "very, very carefully indeed" the complainant's credibility, Mr O'Donoghoe said: "Don't judge the book by the cover. Don't assume that because an account appears plausible, it must therefore be true."

The barrister reminded the jury that, when she was asked while giving evidence how Mr Olding's penis came to be in her mouth, the complainant replied: "I'm not entirely sure to be honest." Pointing out she "has no real memory of the central allegation of being forced to perform oral sex at the time", Mr O'Donoghoe told the jury there was a difference between "memory and an assumption".

Mr Olding's barrister said that, when the woman gave her interview, there were more than a dozen questions - "no matter how uncomfortable" - that police should have asked her. These questions, according to Mr O'Donoghoe, should have included: "At what point did Stuart apply pressure to her head?" and "why did she open her mouth?"

Other questions police should have asked, said Mr O'Donoghoe, include: "Why didn't she scream?" Telling the jury there were "middle-class girls downstairs - they were not going to tolerate a rape or anything else", the barrister asked: "Why did she not scream the house down?"

Saying the whole process of being arrested and interviewed about rape was a "rude awakening" for a young man who had never been in trouble with police, Mr O'Donoghoe said that Mr Olding was subjected to intrusive forensic examinations - none of which provided a forensic link to back up claims made by the woman.

Raising the text and WhatsApp messages exchanged with friends in the hours after the incident, Mr O'Donoghoe accepted his client "started to act the big lad to brag to his friends on social media, using language I'm sure he's not proud of", but said this was not an indication he had engaged in non-consensual activity.

Reasonable doubt

Next to address the jury was Arthur Harvey QC, who represents Blane McIlroy.

Last week the jury was asked to consider whether or not the four men on trial were "liars or legends".

However, Mr Harvey said this was not the case as "that does not answer the primary function you are here to fulfil... and that is to determine whether or not Mr McIlroy and his co-defendants are guilty beyond reasonable doubt of the charges that they face".

Mr Harvey said Mr McIlroy's "life changed, and it changed irrevocably" 20 months ago when his client walked into a police station and gave an account of what had happened. In his version of events, when he walked into the bedroom, he struck up a conversation with Mr Jackson and the woman before she engaged in sexual activity with him.

Regarding what he called "indiscrepancies" in the complainant's account - which the defence barrister attributed to alcohol consumption - Mr Harvey posed the question: "What had she to gain from telling an untruth?"

Mr Harvey said her reaction was one of being mortified of the consequences of having her image uploaded on to social media, as she feared the woman at the door had taken a picture of the scene in the bedroom.

The QC also asked whether or not it was possible that Mr McIlroy "deliberately lied to his parents and deliberately manufactured an account he would then deliver to the police over the course of 12 interviews".

He also asked the jury: "What rational, reasonable, sensible, intelligent individual would present themselves in a police station to give an account, before he knew what any of the allegations were, specifically against him?"

Evidence

The fourth and final barrister to address the jury was Gavan Duffy QC, for Mr Harrison.

Claiming the Crown had failed to provide evidence which could secure a conviction against his client, Mr Duffy asked the jury to consider Mr Harrison's good character.

Branding the woman's rape claims as a "false allegation", Mr Duffy rejected the Crown's case that Mr Harrison was part of cover-up.

The barrister said: "Rory Harrison is not a weasel, Rory Harrison is not a criminal. Rory Harrison is a decent man and Rory Harrison should not be here, but he is."

Telling the jury Mr Harrison has "consistently denied" the two charges levelled against him, Mr Duffy said that both during police interviews and while giving evidence in the trial, his client answered all questions in "an honest, straightforward and candid manner".

Mr Duffy also asked them to consider what the complainant said about Mr Harrison, both to police and while giving evidence in court. In her evidence, the woman said she believed Mr Harrison's actions in the early hours of June 28 were "quite genuine". She also told the court "he was trying to console me but I don't think he was aware what happened".

This claim, Mr Duffy suggested, actually supported Mr Harrison's account, with the barrister rejecting claims his client was a "weasel".

In his statement to police, Mr Harrison said the woman was "upset" and "quiet" as they left the house and got a taxi together - to which Mr Duffy said: "If Rory Harrison was trying to cover something up, why would be tell police she was upset?"

Pointing out that when Mr Harrison made his statement, police were already aware of the woman's allegations and the people involved, Mr Duffy asked: "What information was it that they say he had that he should have come forward with?"

Telling the jury that Mr Harrison has told the truth and "should not be" in the dock, Mr Duffy said the case centred on a "false allegation". He added: "This is someone who has done something they regret and, as a consequence of that, wheels have been put in motion which have been impossible to halt - and here we are."

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