Nicola Anderson at rugby rape trial: 'Draw a distinction between consent and submission,' jury told
AFTER a lengthy delay in the morning for “technical reasons”, at last it was the turn of Judge Patricia Smyth to address the jury – but only on points of law.
“As far as the facts are concerned, they are for you to decide,” she told them.
Print-outs of her address were made available to jury, legal teams and even the media, distributed in business-like fashion by the court clerk, neatly stapled and still warm from the photocopier.
The judge’s words were carefully balanced as she explained each of the six counts on the indictment, what the prosecution has to prove and what the law means in respect of each.
Regarding count one, of rape, relating only to Paddy Jackson, Judge Smyth said that if the jury was sure that he did intentionally penetrate the alleged victim, it must go on and consider the second element of rape and they must ask themselves whether they were sure the woman did not consent.
“Consent has a particular legal meaning,” she pointed out. “A woman consents if she agrees by choice and has the freedom and capacity to make that choice.”
The young woman had told the jury she did not consent. Mr Jackson told them that not only did she consent to sexual activity, but that she had instigated it.
Then the judge warned them that when considering the issue of consent, it is important “to draw a distinction between consent and submission”.
“Consent in some situations may be given enthusiastically, whereas in others it is given with reluctance – but nevertheless it is still consent,” she said.
“Where, however, a woman is so overcome by fear that she lacks any capacity either to give consent or to resist, that woman does not consent but is submitting to what takes place.”
And she said the prosecution does not have to prove that a woman resisted physically or that she said she did not consent.
Here, Judge Smyth advised the jury to apply their “combined good sense, experience and knowledge of human behaviour and modern behaviour to all the relevant facts”.
Deep in concentration, the courtroom listened.
The entire three days on which the trial had sat this week had required concentration.
On Wednesday, Frank O’Donoghue QC, for Stuart Olding, gave an extensive analysis of the evidence relating to his client, listing more than 20 questions he said he would like to have asked the young woman at the centre of this trial.
“Why was she unable to resist, why did she not say ‘no’?” he asked.
“Why did she open her mouth – why didn’t she keep her mouth closed? Why didn’t she scream – the house was occupied. There were a lot of middle-class girls downstairs – they weren’t going to tolerate a rape or anything like that.”
Just days after Ireland’s euphoric Grand Slam win at Twickenham, the presence of the two Ireland internationals in the dock, by way of contrast, was even starker than usual.
Eight weeks in, an extreme form of general weariness had set in.
Mr O’Donoghue claimed the authorities had let down his client Mr Olding, whom, he claimed, should not have been on trial in the first place. He added they had failed to investigate the evidence against him in a proper way.
The complaint at the heart of the case had been “devoid of detail” – and that inconsistencies in the alleged victim’s account were not down to “trauma” but “wild exaggeration” and “downright false allegation”.
He said the woman’s evidence was of “hopeless quality”, adding that “the investigation, testing and evaluation of this complaint was at best poor – at worst virtually non-existent”.
Olding, he said, had told the truth throughout, “warts and all”.
He described his client as a “reliable historian” – despite the level of alcohol he had consumed that night. This had entailed eight cans of Carlsberg, four pints of Guinness, two gin and tonics, five vodka lemonades and three shots.
He said Olding had “acted the big lad, bragging to his mates on social media”, adding the sportsman was “not proud” of the messages, but that they were on “what he thought to be the privacy of his own phone” and that they had “rebounded and been used against him”.
Arthur Harvey, for Blane McIlroy, meanwhile, had claimed he had “not got his lines wrong” and his client had not, as the prosecution had claimed, given the account that had been delegated to Stuart Olding in a conspiracy.
In closing their case, the prosecution had asked “lads or legends, you decide”, he said. But that’s not the question they need to answer, he pointed out.
“They may be either, neither or both.”
The final word for the four defendants went to Rory Harrison’s lawyer, Gavan Duffy. His client had given evidence to the court in an “honest, straightforward and candid manner”, he said.
Mr Harrison was no weasel who had used “weasel words” to comfort the complainant, he claimed, describing him instead as kind and honest.
In reference to a character witness who had described how Mr Harrison had helped her with her suitcase onto a bus, Mr Duffy said, “You might ask: ‘So what? What does it matter?’” But it had mattered to the woman, he said – and it should matter to the jury, he claimed because it gave “a great insight into his character”.