1. This appeal concerns the proper explanation to be given by a trial judge to a jury on the mental element in rape. By a determination of this Court of 19th January 2016 the following questions have been allowed to be argued under Article 34.3.3º of the Constitution from the dismissal of the accused’s appeal against his conviction for rape in the Court of Appeal:
1. Does the mental element of rape excuse a situation where on unreasonable and irrational grounds a man genuinely believes that a woman has consented to sexual intercourse, whereas in fact she has not so consented?
2. Within the definition of rape, is there a requirement in law for a man to ascertain prior to sexual intercourse that: the woman is a) capable of consenting to the sexual intercourse; and b) that as a matter of fact she does so consent.
2. On July 4th 2012 the appellant C O’R, who is called the accused on this appeal, was convicted by verdict of a jury of raping his mother at an address in Dublin on the night of March 2nd 2008, or in the early hours of the following day. White J, who had presided over the trial in the Central Criminal Court, sentenced him on 1st October 2012 to 15 years imprisonment, but with the last 2 years and 6 months thereof suspended. He appealed his conviction to the Court of Appeal on grounds related to the insufficiency of evidence, the non-disclosure of his mother’s medical records and, finally, the inadequacy of the judge’s legal direction to the jury on the elements of the crime of rape. By judgment of Ryan P, Birmingham J and Edwards J dated 27th March 2015 the appeal was dismissed. The accused then sought leave to appeal to this Court under Article 34.5.3º of the Constitution. In that application, he in particular claimed in that the trial judge had not properly elucidated the mental element of rape in a context where prosecution and defence counsel had taken radically different approaches in explaining this element in their respective closing speeches to the jury. Thus, it was asserted, an unfortunate precedent in the charging of juries on this most grave crime would be left to be repeated, causing inevitable confusion and unsound verdicts. Hence, in granting leave to appeal the two issues set out in the determination were proposed by the Court. These were not sought to be altered, refined or substituted with other issues by either counsel for the accused or by counsel for the Director of Public Prosecutions at the case management hearing of March 8th 2016. At another hearing before a full panel of the Supreme Court on May 12th 2016, an application was made for legal aid to have further counsel argue the case for the accused. Again, on that occasion, no application was made in relation to the issues set out in the determination. On the appeal, however, counsel for the accused directed argument almost exclusively to the trial judge’s charge to the jury. Counsel for the Director of Public Prosecutions, on the other hand, fully addressed the issues set by the Court and argued that, based on those submissions, the trial judge’s charge had been in conformity with a proper interpretation of the law of rape.
Limits of an appeal where leave is granted
3. The Supreme Court operates appeals under a new dispensation since Articles 34.5.3º and Articles 34.5.4º of the Constitution have changed its function. Helpfully, the scope of the Court’s jurisdiction has been set out in Practice Direction, SC 16, issued by the Chief Justice on 29th October 2014. This had been in force, at the time of arguing this appeal, for over 18 months. The effect of the direction of the Supreme Court issued under s. 7(7) of the Courts (Supplemental Provisions) Act 1961, as inserted by para. (a)(iv) of s. 44 of the Court of Appeal Act 2014 is to transform any notice of appeal on which this Court gives leave into the grounds upon which leave has been given under Article 34.5.3º. Paragraph 17 of this practice direction specifies:
Where leave to appeal is granted by the court, that part of the notice of appeal containing the grounds on which leave was granted (and excluding any grounds of appeal on which leave to appeal was refused) will stand as the notice of appeal and the grounds of appeal are limited to those on which leave has been granted. The appellant must, within 28 days of the grant by the court of leave to appeal, file notice that he or she wishes to proceed with the appeal (Form No. 3). Alternatively, the appellant must file written notice of intention to withdraw or abandon the appeal.
4. In light of the way in which the argument developed at the oral hearing of this appeal it is important to clarify the constitutional and legal structure of appeals to this Court under the measures adopted subsequent to the 33rd Amendment to the Constitution and the establishment thereunder of the Court of Appeal. This sets the foundation for that practice direction. Whether the appeal to this Court is an appeal directly from the High Court, allowed in exceptional circumstances under Article 34.5.4º or, as here, an appeal under Article 34.5.3º from a judgment of the Court of Appeal, there is a minimum constitutional threshold which must be met. This requires that the decision sought to be appealed either involves a matter of general public importance or, in the alternative, that it is necessary in the interests of justice that there be an appeal to this Court.
5. The Court of Appeal Act, 2014 amended the law to allow for the establishment of that court and provided for consequential matters relating to the conduct of appeals generally in the light of the changed structure of the Superior Courts which thereby arose. Amongst the measures adopted was an amendment of s.7 of the Courts (Supplemental Provisions) Act, 1961, through s.44 of the Act of 2014, which added a new subs. (10)(5) thereto. This now provides that certain applications to this Court might be determined “otherwise than with an oral hearing”. These include an application for leave to appeal to the Supreme Court. Furthermore, a new subs. (14) was introduced which provides that leave to appeal is to be granted by way of a certificate of this Court “specifying the ground or grounds on which such appeal may be brought”. In addition a new subs. (15) requires this Court to state the reasons for its determination on an application for leave to appeal although the subsection concerned permits that such reasons may be stated “briefly and in general terms”. It follows that the only grounds on which an appeal “may be brought” are the grounds specified in the determination in which this Court certifies that the constitutional threshold is met.
6. After the coming into force of the Act of 2014, new rules of court were adopted through SI No. 485 of 2014 which amended the Rules of the Superior Courts to provide for the new appellate regime. Those rules substituted a new Order 58 dealing with appeals to this Court and replaced the previous order. The new O.58, r.15 requires that an application for leave to appeal to this Court must be on the prescribed form and must, in particular, specify the basis on which the constitutional threshold is said to be met and the grounds which are to be relied on in the event that leave to appeal is granted. The new O.58, r.19(2) requires that the certificate granting leave to appeal shall, in accordance with sub-rule (a) “specify the grounds on which leave is given”. It is also important to note that the new rule 21(1)(a) specifies in clear terms that “the grounds of appeal are limited to those on which leave has been granted” and that, in accordance with sub-rule (b), only that part of the notice of appeal on which leave was granted shall stand thus excluding any grounds of appeal on which leave to appeal was refused. Finally, the practice of appeals now requires that, under r.21(c), an appellant must lodge a notice of intention to proceed. It is clear that the intent of the last mentioned measure is to afford an appellant the opportunity not to proceed with an appeal if the relevant appellant is not prepared so to do because the grant of leave does not meet their purpose. Obviously, if leave to appeal is simply refused nothing further arises. Likewise if leave to appeal is granted on all grounds put forward then the appellant is entitled to pursue all such grounds. Where, however, the Court determines that leave should be granted on some, but not all, of the grounds proffered, the appellant is given the opportunity to consider whether, in the light of the limitation on the grounds on which leave to appeal is granted, the appellant wishes to proceed with the appeal.
7. It is clear, therefore, that a common end is pursued as between the relevant provisions of the Constitution, the Act of 2014 and the new Rules. The Constitution requires that the issues raised by the appeal meet the constitutional threshold. It follows that the appeal should be confined to the issues which meet that threshold. In like vein, the Act of 2014 requires this Court to specify the grounds on which it is said that the constitutional threshold has been met. Thereafter, the legislation and the rules and the practice direction clearly confine the appeal to those grounds. It seems clear, therefore, that the new constitutional, statutory and rules regime which applies necessarily confines the grounds which may be argued on a substantive appeal to this Court to those grounds which have been specified in the determination of this Court which certifies that leave to appeal is granted.
8. It should, however, be emphasised that it would be inappropriate to always adopt an overly rigid or semantic approach to the scope of an appeal before this Court. It must be recalled that the application for leave to appeal will be considered on a limited basis having regard to the notice of application for leave, the observations contained in any respondent’s notice filed and the documents, such as the judgments of lower courts, which are also required to be filed in order to enable the Court to consider the application. On the application for leave the Court is only concerned with whether the constitutional threshold has been met and the grounds in respect of which leave to appeal should, therefore, be granted. This exercise is not concerned with the merits of the appeal itself subject only to the fact that the Court may refuse leave to appeal where the grounds put forward do not suggest an arguable or stateable basis for the appeal at all.
9. It follows that there may be a legitimate refinement of the precise argument put forward on appeal provided that it can fairly and properly be said that the argument comes within the general ambit of the grounds on which leave to appeal was granted. However, in that context it must be emphasised that the rules of court and the statutory practice direction issued by the Chief Justice under the authority thereby conferred by the Act of 2014 make clear that, after an appellant has filed a notice of intention to proceed and the appeal is, therefore, progressing before this Court, the appeal will be listed before a judge for case management purposes. That is what happened here; save that in this case there was both a case management hearing and another hearing which was expressly confined by counsel for the accused to legal aid. Any question concerning the proper extent of the arguments which can properly be placed before the Court on the substantive appeal should be raised in the context of that case management process. Such issues should not be left to the oral hearing of the appeal unless the case management judge specifically defers such a question to the hearing of the appeal itself. Indeed, it should be noted that a number of determinations issued by this Court under the new regime have expressly referred to the capacity of the case management judge to refine the issues in the light of the position adopted by the parties in the context of case management. It should also be noted that this Court had to consider, in McEnery v. Commissioner of An Garda Síochána IESC 26, the question of whether arguments put forward in the written submissions filed by the respondent in that case were properly before the Court in the light of the process which had been followed at the leave to appeal stage.
10. It is important that there be clarity about these matters. Firstly, it is clear that the case management judge, irrespective of whether there is an express provision contained in the determination granting leave or not, retains an entitlement to permit any refinement of the grounds on which leave has been granted to be pursued. That is enabled provided that it can fairly be said that the argument sought to be put forward is truly a refinement and comes within the general scope of the grounds and issues which were deemed by the Court to have met the constitutional threshold. Further, it remains open to the Court at any stage to grant further leave to argue additional grounds which go beyond the grounds in respect of which leave was originally granted or any reasonable refinement thereof as determined by a case management judge. However, in order for the Court to be satisfied to permit additional grounds to be relied on in that way it is necessary first that the Court be satisfied that those additional grounds themselves meet the constitutional threshold. It could not ever be permissible for a party to seek to raise additional grounds which do not meet the constitutional threshold and in respect of which leave would not, therefore, have originally been given. This kind of backdoor procedure of seeking to have those grounds added to the appeal after leave had been successfully obtained on some other grounds would be outside the constitutional and statutory structure. Secondly, the Court will have to have regard to the timing of any such application. It will almost invariably be the case that an application to add new grounds after leave has originally been given will take place outside the time within which an application for leave should be brought. The Court will need to be satisfied that it is appropriate and in accordance with the interests of justice to permit an extension of the grounds in the light of the time at which the relevant application is made.
11. It must, however, be emphasised that, where it is sought to raise grounds either at an oral hearing or through written submissions which do not come within the grounds expressly specified in the determination certifying leave to appeal, it becomes incumbent on the party wishing to raise those grounds to place the issue fairly before the case management judge for the purposes either of persuading the case management judge that the grounds sought to be relied on can properly be regarded as a refinement of the grounds on which leave has been granted or for the purposes of allowing the case management judge to take appropriate steps to ascertain whether this Court, whether in the form of the original panel which granted leave or in such other formation as may be considered appropriate, is prepared in all the circumstances to grant a further and additional leave and thus an extension of the grounds. It should be emphasised that in the absence of either or both of those measures being put in place it is not appropriate to seek to argue grounds which do not strictly come within the ambit of the grounds in respect of which leave to appeal has been granted.
12. It is thus of the utmost importance that any issues concerning the appropriate scope of the appeal that may remain after leave is granted on particular grounds or related to particular issues or questions should be clarified well in advance of the oral hearing. Where there is any doubt, such issues must be raised before the case management judge in the interests both of clarity and of conformity with the law.
13. It is also necessary to mention one additional principle. The most common basis on which it is asserted that the constitutional threshold for leave to appeal is met is a contention that the judgment sought to be appealed against raises an issue of general public importance. The satisfying of that aspect of the constitutional threshold necessarily requires the Court to identify the issue or issues which may be said to meet that requirement. Of course, that issue must have a practical relevance to the potential outcome of the appeal in the case under consideration. Issues are not considered in the abstract but rather with a view to determining whether the resolution of the issue one way or the other may impact on the proper result of the appeal. Issues are, therefore, a means to an end. They are a means of identifying that the constitutional threshold may or may not be met. But the Act of 2014 and the rules quite properly speak of “grounds” rather than “issues” precisely because it is the impact of the issue on the case in question which may provide a ground for appeal. It is important, therefore, to keep in mind the distinction between the issue of law of general public importance which may give rise to a decision that the constitutional threshold has been met and the grounds of appeal which may suggest that the resolution of that issue in a particular way may lead to the appeal being successful. It does have to be acknowledged that, in this transitional phase in which all parties, including the Court itself, are becoming familiar with new procedures, that distinction may not always have been fully and properly recognised. Nonetheless it forms an important part of the new constitutional appellate regime and requires to be kept in mind for the future.
14. There was a very real issue in this case as to whether the principal focus of the argument put forward on behalf of the accused was properly before the Court at all. That argument concerned a question as to whether, in light of the conduct of the trial and in particular certain comments made by prosecuting counsel in closing the case to the jury, the charge of the trial judge to the jury was adequate. If that issue arose squarely within the two matters identified by the Court in its determination granting leave then no great difficulty might have arisen. However, as will become clear in the course of this judgment, it cannot fairly be said that the issue thus sought to be argued falls within even a refined version of the questions on which leave to appeal was granted. The first question was as to the extent to which, as a matter of law, an unreasonable or irrational but honestly held belief in consent can be a defence to rape. In reality there was no material difference between the parties on that question and its resolution could not, therefore, have affected the result of the appeal one way or the other. As events unfolded that issue did not, in reality, provide any grounds for appeal as such. Furthermore, the second issue identified did not truly arise in the context of the facts of this case or the evidence or argument presented at the trial. Again its resolution could not affect the result of the appeal.
15. It follows that the argument sought to be relied on by counsel for the accused was materially different from the basis on which leave had been granted. No question concerning that problem had been raised by the parties during the case management process. For the reasons identified earlier in this judgment the proper course of action to have adopted would have been to raise any perceived difficulties at that stage and to have had same resolved one way or the other prior to the oral hearing. That is particularly so in the context of this case where grounds along the lines of those advanced at the oral hearing were actually set out in the notice of application for leave to appeal but were not included in the grounds in respect of which leave to appeal was granted.
16. Against that background it is necessary to consider whether it is appropriate, in all the circumstances, for the Court to consider the grounds actually advanced. It must first be accepted, as already noted, that the Court has been engaged in a transitional phase between its former jurisdiction and the jurisdiction now conferred on the Court after the establishment of the Court of Appeal. There have, in that very context, been circumstances where the Court has, in the interests of justice, been prepared to be less strict about the full application of the new regime because all parties, including the Court itself, are required to gain familiarity with the new procedures. It is true to say that, while the new regime has been in place for some 18 months or so, it is only in recent times that a significant number of substantive appeals from the Court of Appeal have actually come to hearing. In those circumstances it appears that it would be appropriate to afford some degree of latitude in the circumstances of this particular case. However, it should be emphasised that, in the light of this judgment, it should be clear to all parties as to what the appropriate parameters of the grounds which may be argued on appeal are and as the course of action which requires to be adopted, in advance of the oral hearing and in the process before the case management judge, to bring about any required clarity in the scope of the issues which are properly before the Court. Any latitude which might reasonably have been afforded to date can no longer be expected to be applied. Full compliance with the regime examined and identified in this judgment can reasonably be required henceforth.
17. In addition, it might be said that there was, perhaps, insufficient information in the papers leading to the determination in this case as to the manner in which the issues identified as being appropriate for appeal from the Court of Appeal might have an impact in the actual circumstances of these proceedings. That too is a matter which leans in favour of giving some small degree of additional latitude. It is important to emphasise that litigants in the future should not expect to be permitted to raise at the hearing of an appeal, any ground which is not either a ground expressly specified in the determination granting leave, a refinement of such a ground which has been approved by the case management judge or an additional or new ground in respect of which leave is, before the oral hearing, granted by the Court. Notwithstanding that and in the particular circumstances identified in respect of this appeal, the ground concerning the charge of the trial judge advanced by counsel in oral argument should be considered on its merits in the context of the first question on which leave to appeal was granted, namely that concerned with the mental element in the crime of rape. Some additional remarks will be offered as a potential guide to trial judges dealing with this most serious crime.
18. Since the judge’s directions to a jury in a criminal trial are partly a matter of form, to be repeated in every case, for example the burden and standard of proof, and partly tailored to address the specific building blocks of the prosecution and defence cases in individual trials, some consideration of the evidence in this trial is required. Helpfully, the long form of indictment was used in this trial. When a jury retires to consider its verdict, after hearing the directions of the trial judge, they bring an issue paper which reproduces the indictment with them on to which they write their verdict. This particular indictment recited the statement of offence as being rape contrary to s. 48 of the Offences Against the Person Act 1861 and s. 2 of the Criminal Law (Rape) Act 1981 as amended by s. 2 of the Criminal Law (Rape) (Amendment) Act 1990. The particulars of offence stated that:
[The accused], a male person, did between the hours of 10.00pm on the 2nd day of March 2008 and 2.00pm on the 3rd of March 2008 at [a Dublin address] have sexual intercourse with [the victim] a woman, who did not consent to it and at the time [the accused] knew that [the victim] did not consent to the intercourse or was reckless as to whether she did or did not consent.
19. No criminal trial is an exercise in the hypothetical. The prosecution present their case on the basis of evidence, the building blocks of which are contended to demonstrate proof of the accused’s guilt beyond reasonable doubt. Some will be contested, some not. It should quickly become apparent from the questions asked by defence counsel, on the instructions as to the facts by the accused, as to what the points of divergence are. As often happens, the unfolding of this case began with an uncontested narrative. The accused called to see his mother on a day that is widely celebrated as Mothers Day. She had previously been to a celebratory meal with other relatives. As between him and the victim, it was commonly agreed that some strong drink was taken. The defence contended that the victim had already drunk a lot and that the effect of her medication for depression and other ailments had an unpredictable effect on both her behaviour and her recollection. She was an elderly woman and her mobility was reduced because of knee and hip problems. It was not contested that she had gotten out of bed to answer his ring on the doorbell. So much for what was not contested. Then the accounts diverge markedly. The defence contention was that she greeted the accused as if he were her late husband, involving a passionate kiss and invoking his name. This was denied by the victim. It was agreed that some music was played on CD, some tracks of Joe Dolan and his band, and that there was some dancing. This was ballroom dancing according to the victim and physical erotic movement according to the accused. He claimed that this escalated into foreplay which resulted in them both lying on the ground. This the victim denied. She said that after the ballroom dancing there was perhaps a momentary lack of consciousness brought about perhaps by a fall, or perhaps it was simply a failure in recollection, and that she found herself on the floor with the accused having sexual intercourse with her. This was not consensual, according to the victim, and in any event she told him to “leave me alone” repeatedly. Instead of desisting, he completed the act to ejaculation. According to the accused, it was only considerably later when the victim was on the floor after a consensual act that he offered to help her up to be politely and kindly told that she did not need help and that he should leave.
20. While the detail is repugnant, a real sense is thereby gained as to the issues engaged from the evidence at the trial. He said that there was the consumption of “Morgan Spice” by them both and that “there was drinking and chatting and talking about the day and anything and everything, and rubbish.” Then a CD was put on and “we eventually started dancing like, and talking, standing up … we were there a few hours.” The accused alleged that there “was kissing going on” and said of his mother that “when she has a few drinks on her…she’ll tell you she loves you and, you know, stuff like that.” Editing down unnecessary narrative, in testimony the accused said:
This was going on, like, for a while … This dancing and kissing and talking and then like really what happened - eventually just got more and more intense … [w]e were touching each other in the sense like she’d her arms around me and I’d me arms around her, and yeah I was touching her, I was … touching her body, you know… mainly on her breasts, and kissing her and she was kissing me.…it was all like together, you know, it was just happening there all together… We just got down there, but this went on for a while and then we were kissing and the kissing became, like, I suppose, more intense, and like serious, I suppose, and then we got down on the floor and sex -intercourse - occurred … We were touching each other, you know, it was like … two people having sex, that’s the only way I can kind of put it … I believe she wanted sex. We were having sex and that’s what was happening. There was no indication of [lack of consent] at all; she was as much a part of it as I was…There was nothing said like [“Leave me alone”]… [After that] I got up, and I was saying to her like, “Come and I’ll help you up of the floor”, and she was trying to get up, and she got up onto her knees and she had her like her forearms were on the sofa, and it was kind of - it was kind of a funny moment, I suppose, at that time, because we were both, we were both laughing at the time about this, but I was trying to get up, and she wasn’t getting up. And then she lay back down again, I took a cushion off the sofa and put it under her head, and then I sat back down, she was saying … “Leave me, I’ll get up in a bit.” And then I went and sat back down on the chair, and she sort of turned on her side and, like, she was on the floor there, lying on her side … [a]nd she was kind of nodding off … I sat down in the chair and I kind of started smoking and finishing me drink, and then I was saying to her then, “Are you going to get up?” Do you know what I mean? And that’s the only time she was kind of saying, “No, leave me.”
21. In cross-examination, prosecution counsel put it to the accused that the embracing and words of endearment as if he were her late husband were a “complete fabrication”. It was also put that the suggestion of erotic kissing was him “making it up”. It was also put that there was no question of this event being like two people having ordinary consensual relations. The prosecution also asked as to how the victim got down on the floor, given her physical problems, and suggested that the accused’s failure to provide an explanation for how this happened was “because it doesn’t suit your story”. The issue raised by the accused that he “believed she wanted to have sex with you” was challenged by the prosecution, to which the accused in effect repeated that “there was two people having sex”. He was asked how he could believe this? He was challenged over his claim that words to the effect of “Leave me alone” were said by the victim much later and not in the context of trying to get him to stop raping her.
22. The victim’s account was challenged by counsel for the defence and this involved the referencing of a statement and evidence given by her at a previous trial; a line of questioning that was at times complex and difficult to understand. She said that she was chatting with her son and that there was ballroom dancing, which was apparently a lifetime interest of hers. Her testimony in chief was that she would not “normally get on to the floor because I know if I get on to the floor I can’t get back up off it.” She said:
He was on top of me. I think I sort of blacked out for a few minutes because when I realised what was happening I kept saying, “leave me alone, leave me alone”. … I’m a bit mixed up about how I got on to the floor. Now, I thought maybe when I sat on the armchair, on the recliner chair that I could have just slipped off but I don’t remember getting off the chair.
She said that she realised “he was inside me” and said “leave me alone, leave me alone” but the temporary loss of either memory or consciousness was perhaps the point on which the belief of the accused in consent to intercourse was based. She also indicated that she told the accused that she “wanted him out of the house”, but that was after the intercourse had stopped. The cross-examination of the victim focused markedly on the amount of drink the victim had taken and issues as to whether she had “memory problems”. While the events had happened four years before, she said in answer to a suggestion that perhaps she did not remember the full extent of the encounter: “I never said I had memory problems.” She also said “I don’t take blackouts”, though there was a reference in her statement to the gardaí which perhaps suggested this:
The next thing I remember I was lying on the floor, I was on the floor in front of the fire place. I think I must have blacked out when it started or when I was on the floor.
Implicit in this line of cross-examination was the suggestion that perhaps the reality of the encounter might have been such that the accused might have genuinely believed that she was consenting to the intercourse.
23. While it is a matter for the jury to assess whether that evidence amounted to sufficient proof of the crime to convict, the manner in which the facts resolved themselves into a contest on particular issues emerges from the last passages of the cross-examination by counsel for the defence:
Question: I want to suggest to you first of all that [the accused’s] instructions are that the only time you were saying “Leave me alone” was at that point when he was actually trying to help you get up off the ground, that’s the only time you actually said “leave me alone” ?
Answer: That I didn’t say it while he was inside me, but I just lay there and let my own son do that to me?
Answer: Well, I tell you something you’d want to be either very drunk or very mad to let your son have sexual intercourse with you … It makes no difference whether I was drunk or not. My son had no right to do that. I wasn’t drunk but whether I was or not he had no right to do that. …
Question: And I’m instructed that not only did you not say “Leave me alone”, he didn’t say “You let me do it before or just now”. I want to suggest to you you’re wrong about that in other words, but that conversation didn’t take place at all?
Answer: That conversation didn’t take place, I made it up?
Question: Well, I’m not making any specific allegations to you -
Answer: Excuse me, what -
Question: I’m just saying that you’re wrong?
Answer: What conversation didn’t take place?
Question: When you say that you said to leave you alone, when you said in other words “Leave me alone”?
Question: And he said back, “You let me do it” - I’ll just get the exact words … “a minute ago”?
Answer: A minute ago, yes.
Question: And I’m suggesting to you that you’re wrong about both of these allegations?
Answer: I’m not wrong about both of these.
Question: Okay. Now I want to suggest to you that he was actually trying to help you up off the ground afterwards, off the floor afterwards and that he was clearly -
Answer: Knowing what he was after doing to me, I didn’t want him to touch me.
Question: Well, I want to suggest to you that it was good-humoured at that stage and that -
Answer: It wasn’t good-humoured at that stage … When I realised what happened to me it wasn’t good-humoured at all … I was very upset.
Question: And I want to suggest to you that you both, you certainly and he, felt that because of the amount of drink that had been consumed it was better for you to stay lying down there at the time being?
Answer: That had nothing to do with it … If someone’s after sexually assaulting you, you don’t want them to come near you.
24. On this evidence, the jury could properly have decided that the victim had made it plain in her evidence that she gave no physical signals indicating a desire for sexual intercourse and that when she realised sexual intercourse was taking place she asked for immediate withdrawal and that this was refused. The case made by the accused was of consensual heavy petting followed by consensual intercourse with some good-humoured conversation in the aftermath, whereupon he was eventually told that it was time for him to leave. The defence case was made that because of a blackout, and because of the consumption of drink and drugs, the signals given by the victim may not have been in accordance with her testimony and may have been such that accused believed that there was consent to sexual intercourse. What is plain is that all of the factual circumstances were resolved by the jury’s verdict. Necessarily, that decision must be interpreted as dismissing the case made by the accused.
25. In the closing speeches of prosecution and defence counsel the issue of a mistaken belief in consent was addressed. The approach was factually based, certainly, though the language was coloured rhetorically at times. Counsel to the prosecution stated:
The accused might … through his counsel suggest to you that even if [the victim] didn’t consent, if [the accused] thought she was consenting or reasonably thought she was consenting, well, then that’s an excuse in law, really. If he himself thought she was consenting, [the judge] will give you directions about that, ladies and gentlemen. It comes down to reasonableness, and all I’ll suggest - all I’ll say to you on that is how on earth possibly could the accused have thought that his own mother wanted to have sex with them. When pressed about it, his answer this morning was, “Didn’t really think about it”, the woman he was dancing with being his mother. It was just a woman. It could have been anyone, he never thought that she was his mother. So if he wasn’t even conscious of the fact that the person he was going to have sexual intercourse [with] was his mother, it’s difficult to see how he could have - his thoughts obviously weren’t on whether or not his mother was consenting. So therefore how can it be said that he had some reasonable belief that his mother, that he thought his mother was consenting when he wasn’t even giving himself any thought to the fact that the person was his mother. It just doesn’t make sense, I suggest to you, ladies and gentlemen. And the reality is that for whatever reason, best known to himself, in the particular circumstances, [The accused] saw an opportunity, whatever his motivation, I’m not going to speculate, I’m not going to ask you to speculate, but whatever his motivation, he saw an opportunity to have sex with this woman, who happened to be his mother. Perhaps it is found in his own indifference to who she was, whether as mother or any woman. And proceeded to - and raped her and that’s the reality of the matter, ladies and gentlemen.
26. In the closing speech for the defence, alternative facts were posited as potential defences: that there might be a doubt about whether the accused believed there was consent; that there might be a doubt about whether there was consent. The former was put as being a potential way out to the jury, whereby they might simultaneously believe the victim but consider that there was doubt about the state of mind of the accused. Defence counsel stated:
But ultimately the test is whether or not he honestly believed his mother was consenting. And that’s again something which [the judge] will direct you on and anything I say is entirely subject to what [the judge] has to say. But that’s my respectful submission. So, so that means that if you are returning a verdict of not guilty of rape in this case, it does not mean that you are finding that you’re making any kind of value judgement or saying, you know, he had reasonable grounds for believing she was are consenting. It is merely a finding that the prosecution has not proved beyond reasonable doubt that [the accused] honestly believed she was consenting. … For example, some of you may come to a conclusion based on all of the evidence, but also taking into account his own evidence in the witness box, you have come to the conclusion, say, “Look, I believe him, he is probably telling the truth.” Even leaving aside his evidence, you could come to that conclusion. Now if that … is how you feel, having considered the evidence in this case … it’s hard to see how you can move away from that with a clear conscience. But it is also, if you have that position, it’s the type of position where I’ve no doubt you will get into an argument with others with a different point of view. But there is a middle ground … which is that there is a reasonable possibility that the accused in this case honestly believed that [his mother] was consenting. And you don’t even have to go into the question of reasonable possibility, small but reasonable possibility that at the time she was actually consenting. You don’t have to go that far. Obviously, if you accept that as a reasonable possibility, that is also an acquittal. Now I’m asking you to decide this case on that more straightforward … option …
27. On this appeal, much has been made in argument of what is in effect a divergence of rhetoric: defence counsel tenuously clutching at a contention that the accused may have believed his mother consented to sexual intercourse with him. Counsel for the accused emphasised honest belief over the presence of a reasonable basis for belief whereas counsel for the prosecution emphasised the lack of any foundation of reasonable grounds to support any such belief as genuinely held. These were not divergences of law but arguments as to the appropriate approach to the same evidence. Whereas much has been made of an argument that, in the context of this speech by counsel for the prosecution, the trial judge ought to have specifically identified and corrected an error of law, the trial judge correctly and firmly distanced himself from both sides when he came to address the jury. White J stated:
I’m here to adjudicate on any legal issue that might arise in the course of the trial. But perhaps [the] most important function I have from your point of view is that I’m here to give you directions on law. And I have the total responsibility for the law and you must take the law as I give it to you as being the law of the land. You have heard both [from counsel for the prosecution and counsel for the defence who said] that if they say anything about the law than they are subject to correction by me, and you may ask yourselves, “Well, why has the judge the responsibility for the law?” and the answer is very simple. There has to be regularity and there has to be certitude as regards the law, and you can readily appreciate how absurd it would be if [counsel for the prosecution] was to tell you the law was one thing, [counsel for the defence] was to tell you it was another and I was to tell you that it was yet again something different from what you had been told by [either counsel for the defence counsel for the prosecution]. You could see how absurd that would be and how the system would break down in chaos if the position was that perhaps 6 of you could take the law from [defence counsel], another 6 of you take it from [counsel for the prosecution] and none of you take it from me … That is why the buck stops on my desk, so to speak. I have no input into deciding the facts of the case; I don’t have any fact-finding mission or fact-finding role. That is for you.
28. White J proceeded to warn the jury that it was dangerous to convict on the uncorroborated evidence of the victim in this case and thus told them that there was no corroboration of the account given. He addressed the elements of the crime of rape:
[T]he accused man is charged with rape. And rape has been defined by our Oireachtas back in 1981 in the Criminal Law (Rape) Act 1981 … in the following terms: “A man commits rape if (a) he has sexual intercourse with a woman who, at the time of the intercourse, does not consent to it, and (b) at the time he knows that she does not consent to the intercourse or as reckless as to whether she does or does not consent.” So, if you take that definition of rape, the first matter is that the State must prove that an act of sexual intercourse takes place between a man and a woman. And by sexual intercourse, the reference is to vaginal intercourse. So, the first thing the State must establish if they are to secure a conviction in a case is that the act of sexual intercourse occurred between the man and the woman. Thereafter they must prove that at the time that act occurred the woman was not consenting to the act of intercourse or that the accused man was reckless as to whether she did not consent. They must prove that an act of intercourse took place that the woman wasn’t consenting and that the man knew she wasn’t consenting or was reckless as to whether she consented or not. And so, as I say, the State have to prove in this first instance the act, secondly the lack of consent on the part of the woman, and thirdly, the state of mind of the accused man, namely that he knew that she wasn’t consenting or alternatively that he was reckless as to whether she was consenting or not. The Act goes further to provide, ladies and gentlemen, that if at a trial for a rape offence, the jury has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard in conjunction with other relevant matters in considering whether or not he so believed. In this case, the case is made that the accused man believed that the woman was consenting. So you must look and see whether or not there is present or absent reasonable grounds for such a belief. And they are matters that you have to have regard to [in] considering the overall picture, the entire picture. Was there a reason why the man might believe that she was consenting or was there an absence of any grounds for such a belief? So that, ladies and gentlemen, is the definition of rape and the ingredients, if I might describe them as that, that must be established by the prosecution. You could, ladies and gentlemen, come to the conclusion that the State had established that an act of intercourse took place. You could come to the conclusion that Mrs [accused’s mother] was not consenting to that act. But you could also come to the conclusion that the accused man believed that she might be consenting to the act, and in those circumstances, the appropriate verdict is one of not guilty.
29. On this appeal it was suggested by counsel for the accused that this direction was a misstatement of the law against the accused. In particular, it has been argued that in referring to the issue of consent, the trial judge should have gone on and specifically addressed what counsel for the prosecution had said and told the jury in terms that it was wrong. There may be occasions where that might be prudent. The normal course is to make it clear that whatever counsel for either the defence or the prosecution have said as to what the law is must not to be taken into account: the law is that it is only the trial judge that the jury are to heed as to the law. That is what White J said. The charge is complained of as incorrect and insufficient. That is not so. This was an adequate but somewhat thin direction. It would not be regarded as a specimen direction as to the elements of the crime of rape. Even still, at the actual trial it was not regarded by counsel for the defence as being in any way a mis-instruction to the jury. While that is not decisive, it assists in the resolution of issues on appeal as to how those who had conducted the trial regarded the judge’s instructions to the jury. No attempt was made to seek any correction. Instead, it was stated by counsel for the defence in requisition that it was the “the appropriate formulation”. Specifically, it was said “I’m not actually quibbling with the language [the Court] actually used in relation to the issue of the belief”. Instead, the requisition by counsel for the accused was for the reiteration that the accused need merely genuinely believe in consent specifically in the context of the speech by the prosecution. But the trial judge had made it plain to the jury that no legal reference in the speeches of either counsel for the defence or for the prosecution could bind the jury and that they were to take directions of law solely from what he said to them.
30. Insofar as a misstatement of law might be identified in the judge’s charge, in fact it was one in favour of the defence. This requires to be corrected. This was White J’s mistaken reference that a belief by the accused that a woman “might be consenting” rendered non-consensual sexual intercourse somehow not a crime. A woman has a constitutional right to her bodily integrity. As a matter of law, there must be a lack of consent by the woman and for sexual intercourse to nonetheless be excused in those circumstances, the accused must honestly believe that the woman was actually consenting, not merely that she might be.
Elements of the crime of rape
31. Rape has its origins in the common law and, as such, an elucidation of the state of the law in 1922 will be of assistance in the present case. Article 50.1 of the Constitution provides for the continuing of such laws as are consistent therewith as of 1937 “in full force and effect until the same … shall have been repealed or amended by enactment of the Oireachtas.” The crime of rape, as opposed to underage sexual intercourse, had not then been altered from the form it was in 1922. A reliable guide in this respect is the 26th edition of Archbold’s Pleading, Evidence and Practice in Criminal Cases (London, 1922, Roome and Ross editors). This volume at 1016 describes the crime of rape thus:
Rape is the unlawful carnal knowledge of a woman by force and against her will. I East, P. C. 434. It was anciently a felony at common law, and after being made a misdemeanor by 3 Edw. 1, c. 13, it was again made felony by 13 Edw. 1, st. 1, c. 34, and punishable with death without benefit of clergy by 18 Eliz.c.7 (rep.) and see 1 Hale 627 et seq.
32. That volume also records that the Offences Against the Person Act 1861 at s. 48 made rape punishable by “penal servitude for life”. The penalty had once been death, which was later changed to castration and then to various periods of imprisonment; see Russell on Crime (12th edition, Cecil Turner editor, London, 1964) at 706-7. That penalty is now life imprisonment as a possible maximum punishment. Section 63 of Act of 1861 also reiterated the existing law that proof of ejaculation of semen was not required to be proved, the element of sexual intercourse being complete on penetration to any degree. The form of indictment used in 1922, in contrast to the modern form in use in this prosecution, then gave the statement of offence as simply “rape”, while the particulars of offence read:
A. B., on the - day of -, in the county of -, had carnal knowledge of C. D., without her consent.
33. It is to be noted that AB was implicitly a man, who then had to be at least 14 years to be a principal in the first degree while, most importantly, the mental element of the crime was left to be explained by the judge to the jury. The external elements of rape remain the same. As Russell on Crime puts the matter at 708, there “must be penetratio, or res in re, in order to constitute “sexual intercourse” … [but] a very slight penetration is sufficient”. This continues to be the law. Penetration to any degree without consent constitutes sexual intercourse; The People (AG) v Dermody  IR 307. As was conceded properly by counsel for the defence in this case, penetration which continues where consent is withdrawn, even if previously given, fulfils the definition of the external elements of rape. That was always how the law has been understood; for a more modern example see Kaitamaki v R  AC 147.
34. Archbold was, and remains, a statement of the law for practicing lawyers. Its focus is on the elements that need to be proved in order to make up the elements of the crime. As expressed in modern language, these are sexual intercourse by a man on a woman where the woman does not consent. As to consent, that edition of 1922 states at 1019:
It must be proven that the rape was committed on C. D. by force and without her consent. See R. v. Bradley, 74 J. P. 247; 4 Cr. App. R. 225. If, however, she yielded through fear of death or through duress, it is rape. 1 Hawk. C. 41, s. 6; R v Jones, 4 L. T. (O. S.) 154: cf. R. v Hallett, 9 C. & P. 748: R. v. Rudland, 4 F. & F. 495. If the connection took place when she was in a state of insensibility from liquor, having been made drunk by the prisoner (though the liquor was given only for the purpose of exciting her), it is a rape. R. v. Camplin, 1 Den. 89; 1 C. & K. 746; 1 Cox, 220. So, also, if a man gets into bed with a woman while she is asleep, and he knows she is asleep, and he has connection with her while in that state, he is guilty of rape. R. v. Mayers, 12 Cox, 311: R. v. Young, 14 Cox, 114, Lush, J. It is no excuse that the woman consented at first, if the offence was afterwards committed by force or against her will; nor is it any excuse that she consented after the fact. 1 Hawk. C. 41, s. 7.
35. The border between rape and sexual intercourse is consent. Consistently, the law has held that there can be no consent where a woman is not in a condition to give consent. This can be due to sleep, insensibility, handicap or fraud as to the nature of the act. As Russell on Crime puts the matter at 709:
If a man has connection with a woman who is in a state of insensibility, knowing her to be in such a state, he is guilty of rape, as the offence of rape is ravishing a woman where she did not consent, and not ravishing her against her will.
Thus, consent must be given by the woman before sexual intercourse. Sexual intercourse and absence of consent to sexual intercourse are the two external elements of this offence.
36. Whereas older authorities tended to concentrate on whether force had been used, the definition of rape is not at all dependent on force. Lack of consent constitutes rape. Consent is the active communication through words or physical gestures that the woman agrees with or actively seeks sexual intercourse. In the normal sphere of relations between men and women, consent does not simply exist in the mind of the woman: if there is desire for sexual intercourse then that is communicated. Because insensibility, be it caused by sleep or an intoxicated or drugged state, cannot be any expression of consent, it follows that there should be communication from the woman through the senses that intercourse is to be allowed. In s. 9 of the Criminal Law (Rape) (Amendment) Act 1990, a clear distance is placed between any older authorities such as Hale or Blackstone, which emphasised the use of force, and the current state of the law. This provides:
It is hereby declared that in relation to an offence that consists of or includes the doing of an act to a person without the consent of that person any failure or omission by that person to offer resistance to the act does not of itself constitute consent to the act.
37. Thus while force may feature in evidence in some cases, and while marks or other trauma consistent with forced sexual intercourse may be important in some prosecutions, there is no necessity to prove force. There will be cases where there will be no physical trauma marks. As stated by the Court of Criminal Appeal in The People (DPP) v C  3 IR 345 at 360:
Consent means voluntary agreement or acquiescence to sexual intercourse by a person of the age of consent with the requisite mental capacity. Knowledge or understanding of the facts material to the act consented to is necessary for the consent to be voluntary or constitute acquiescence.
Hence, as in that case, where a woman consents to have sexual intercourse with a particular person, A, but another person, B, knows that consent is not directed towards him, B, but that the victim is consenting to A, that is not consent and that knowledge makes the actions of B the crime of rape.
38. As amended by the Act of 1990, the Criminal Law (Rape) Act 1981 at s.2 now codifies the definition of rape by providing that:
(1) A man commits rape if -
(a) he has sexual intercourse with a woman who at the time of the intercourse does not consent to it, and
(b) at that time he knows that she does not consent to the intercourse or he is reckless as to whether she does or does not consent to it
and references to rape in this Act or in any other enactment shall be construed accordingly.
(2) It is hereby declared that if at a trial for a rape offence the jury has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed.
39. There should be no difficulty with this definition. Rape within marriage is a crime and some authorities indicate that this was always so; see Russell on Crime at 708. The removal of the reference to “unlawful” sexual intercourse, which was part of the Act of 1981 before amendment, simply clarifies that aspect of the law. The reference to consent “at the time of the intercourse” preserves the rule that consent must be there both for penetration and throughout sexual intercourse. Sexual intercourse is, as the White J told the jury in this case, the penetration of the vagina by the penis. Of course, in contemporary speech other forms of violation may loosely be called rape but these are proscribed by other specific statutory offences carrying their own definitions. Where difficulties arise is in the choice of the form of direction which a trial judge should give to the jury on the law. Many appeals are brought on the grounds of the inadequacy of a trial judge’s charge to the jury as to the elements of the offence. Exceptionally few of these would ever meet the threshold of Article 34.5.3º of the Constitution for an appeal to this Court after consideration by the Court of Appeal. In The People (DPP) v Gaffey (Court of Criminal Appeal, unreported, 10 May 1991) the Court of Criminal Appeal indicated that it was desirable that an explanation of the elements of the offence of rape might usefully contain:
a good, commonsense paraphrase of those words, drawing the attention of the jury to the factors which they should consider in determining the issue as to whether it was established beyond a reasonable doubt that the man did not believe that the woman was consenting to the sexual intercourse.
40. It is to be emphasised that in the vast majority of cases no specific issue as to any belief aspect of the mental element in rape arises. Proof of that mental element of the accused knowing that the woman is not consenting or being reckless as to whether she is or is not consenting is a matter to be inferred from all of the relevant circumstances. There might also be an admission. The circumstances are very rare indeed where a genuine issue could arise that even though the woman did not consent, the man nonetheless believed that she was consenting. One such case where that issue was squarely raised was in the English case of R v Morgan AC 182 which concerned circumstances where a husband suggested to three of his friends that they should force themselves on his wife under the false pretext that she was ‘kinky’ and would only feign protest. When they did so, the wife made her lack of consent plain. Having been convicted of rape by a jury, the three men argued on appeal that they had honestly believed that consent was present. The majority of the House of Lords upheld the conviction on the basis that no jury properly instructed could have come to the conclusion that there existed any honest belief in consent. Nonetheless, the court determined that, as a principle of law, an honest though unreasonable belief in consent will mean that the mental element of rape is not proven. In due course, as detailed above, this was followed by a statutory amendment in that jurisdiction.
41. In the ordinary course of prosecutions, rape cases tend to follow a predictable pattern. The woman says that she was raped and indicates the circumstances whereby she did not consent. The man denies this and puts forward a version of events telling of a sexually charged encounter participated in willingly by both sides. The task of the jury is to assess if the external elements of the offence have been proved beyond all reasonable doubt and whether, on the resolution of those facts in favour of the prosecution, a fact may be found beyond reasonable doubt that the accused knew of the lack of consent or was reckless as to whether the woman was or was not consenting. In those circumstances, the appropriate direction by the trial judge does not need to go beyond the presentation to the jury of the elements of the offence. As set out by Finlay CJ in the Court of Criminal Appeal in The People (DPP) v F (Unreported, 27 May 1993), the elements of the offence may be elucidated as follows:
(1) that the accused had … sexual intercourse with a woman who at the time of the intercourse did not in fact consent to it, and
(2) that at that time the accused knew that she did not consent, or
(3) that at that time the accused was reckless as to whether she did or did not consent.
It is unnecessary in those cases to embark on the issue of mistaken belief as it simply does not arise. Nor can anyone credibly plead alternative facts: that there was a consensual sexual encounter but if there was not then that the accused nonetheless believed that the woman consented. This would not be a pleading point; any such approach would utterly lack credibility.
42. When it comes to a trial judge framing a charge to the jury in this commonly occurring kind of rape trial it is unnecessary to refer to the mistaken belief issue; The People (DPP) v Creighton  2 IR 570. What the judge instructs the jury as to the law has to depend on what issue is actually raised at the trial. In The People (DPP) v Mc Donagh  1 IR 565, the three accused were convicted of the brutal gang rape of a young woman. They alleged not only that the victim had consented to this sexual violence but that she had offered to have sexual intercourse with the group of which they were part for a money payment. A question was raised for the Supreme Court by the Court of Criminal Appeal under s. 29 of the Courts of Justice Act 1924 as to whether when “the fact of sexual intercourse is admitted” but the defence of consent is raised would it be “necessary that the trial judge refer to and explain to the jury the provisions of s.2 sub-s.2 of the” Act of 1981. That question was answered in the negative. In the Court of Criminal Appeal an argument by the accused was dismissed that this was a “case in which the jury had to consider whether a man believed that a woman was consenting” as “no such case was made.” Correctly characterising any such issue as “a question of fact” and “not a question of belief”, Costello P for the Supreme Court stated at 578:
Counsel for the appellants have been unable to point to any part of the transcript which suggests that an issue of mistaken belief arose for determination by the jury. The prosecutrix had been vigorously cross-examined by counsel for each of the appellants who put their clients' version of events repeatedly to her, namely that she had quite explicitly agreed to sexual intercourse with them and their four companions for money. The written statements made by each of the appellants to the Gardaí were put in evidence in each of which it was categorically stated that the appellants had intercourse with her because she agreed to it on payment of £30 by all concerned. In support of the version of events advanced by the appellants an uncle of one of the accused was called to give evidence to the effect that the prosecutrix had had sexual intercourse with him a short time previously and that he had paid her £5. If the jury concluded that, as a matter of fact, the complainant had not consented to intercourse in return for the payment of money as alleged by the appellants then there was on the facts of the case no basis on which it could conclude that the accused had believed that she had consented to intercourse.
43. As previously noted, after a certain point in the narrative of this case, there was a stark divergence in the facts asserted by the victim and those proffered by the accused. It seems clear that the victim was uncertain as to certain elements of the sequence of events, particularly those between the dancing and her ending up on the floor. The victim has attributed this to what may have been a temporary blackout or a possible knock to the head, and such uncertainty is understandable in the circumstances. However, this lack of certainty gives rise to the possibility that the accused’s version of events, wherein he inferred that his mother was consenting to sexual intercourse, could in these exceptional circumstances have made the issue of an honest but unreasonable belief in consent relevant. This makes the answer to the first question set out in the determination enabling leave to appeal to this Court relevant to the nature of the charge to the jury on the definition of rape by White J.
44. Various models from statutory regimes in other countries have been adumbrated on both sides regarding how the crime of rape might be legally framed. All of these have a central characteristic in defining rape on the basis of the lack of consent by the woman. Some models encompass as external elements various different forms of sexual relations. That is not relevant here because rape is clearly defined by the Act of 1981 as amended by the Act of 1990 as only involving sexual intercourse between a male accused and a woman. In terms of the mental element, approaches differ. In New Zealand, s. 128(2) of the Crimes Act 1961 defines rape as the accused having “a sexual connection … by penetration” where the accused does that “without believing on reasonable grounds that [the victim] consents to the connection.” In the neighbouring jurisdiction after the Morgan case, meaning England and Wales and also by special order Northern Ireland, s.1 of the Sexual Offences Act 2003 has now adopted a similar model, referencing the accused as A and the victim as B. The crime is broadly defined as to its external elements as encompassing a range of sexual violence, referred to as “prohibited conduct” to which B does not consent, with the mental element being that “A does not reasonably believe that B consents.” Section 1 of that legislation also requires that whether a belief is reasonable “is to be determined having regard to all of the circumstances, including any steps A has taken to ascertain whether B consents.” Section 75 also limits the circumstances under which a defence of reasonable belief may be left by the judge to the jury. It is required that such a defence must be based on “sufficient evidence”. In the Canadian Criminal Code, sexual violence is a category within the broad definition of assault. In chapter 46, a marginal note indicates that the issue of belief in consent should only be left to the jury by the judge “if satisfied that there is sufficient evidence” but the judge is also required to instruct the jury that when considering if the accused “believed that the complainant consented” that they should “consider the presence or absence of reasonable grounds for that belief.” In South Australia, s. 48 of the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Bill 2007 defines the mental element in terms of the accused knowing or being “recklessly indifferent to the fact that the other person does not so consent or has so withdrawn consent (as the case may be).”
45. In this country, the model chosen in the Act of 1981, as amended, clearly adopts not what a reasonable man believed as to the presence of consent, but rather what the individual accused actually believed. The mental element of rape requires the accused to know that the woman does not consent to intercourse or for him to be reckless as to whether she does or does not consent. Recklessness is the taking of a serious and unjustified risk. That does not mean that a reasonable man would be aware that a woman may not be consenting; ascribing to the accused what a reasonable or ordinary person would have percieved. Rather, recklessness is advertent. As Hardiman J put it in The People (DPP) v Cagney and McGrath 2 IR 111 at 126: “an accused in Ireland must have foreseen the risk that his conduct would bring about the relevant result, but have elected to proceed with his conduct nonetheless.” This has been the position since the decision in The People (DPP) v Murray  IR 360. In cases of rape, recklessness means that the possibility that a woman was not consenting actually occurred in the mind of the accused. Where an accused decides to proceed with or continue with intercourse in spite of adverting to that risk; that is recklessness. Alternatively, it may be claimed by the accused at trial that the man genuinely believed that the victim was consenting, even where the basis for such a belief is totally unreasonable. The resolution to any such claim must depend, in the first instance, on the jury deciding what facts they accept beyond reasonable doubt. The absence of consent to sexual intercourse is an objective fact. The accused’s view as to the existence, or non-existence, of this fact is subjective. An honest, though unreasonable, mistake that the woman was consenting is a defence to rape. Any such alleged belief in consent must be genuinely held. Self-deceit is not a defence. Certainly, while the test of belief is subjective, even still, individual states of mind are based on how the underlying facts are resolved. To analogise, it might be useful to imagine a claim of right made in good faith in a theft charge, which again is subjective and entirely dependant on the state of mind of the accused. Were an accused in such circumstances to assert that he had an entitlement to cash a cheque which he had forged by making pretence of being the person to whom it is made out, that would not be a credible defence because the facts in question make it clear that good faith or honest belief were not present. Belief in a set of facts is generally only validly grounded on circumstances which themselves have a foundation in reality and it is for the jury in a given case to determine whether a claim of honest though unreasonable belief in consent was held by the accused.
46. The Act of 1981 as amended draws a distinction between knowledge and belief. It is unnecessary to explain ordinary words to a jury. An accused man is guilty of rape if he has sexual intercourse with a woman who is not consenting and he knows that she is not consenting. That category constitutes the vast majority of cases and unless the evidence suggests a belief detached from the facts necessarily proven by the prosecution to establish lack of consent, no issue of the accused having a separate belief in consent is raised; The People (DPP) v Mc Donagh  1 IR 565. Recklessness as to the woman not consenting requires that the accused advert to the lack of consent of the woman and for him to proceed nonetheless. Because of the particular formulation of the trial judge, some brief further consideration needs to be given to this aspect of the mental element. The trial judge told the jury that if “the accused man believed that [the woman] might be consenting … the appropriate verdict is one of not guilty.” This was perhaps a slip of the tongue but an unfortunate one against victims of crime.
47. Recklessness is the taking of a serious and unjustified risk. The crime of rape is about the right of a woman to be protected against a gross violation of her mental and physical integrity. Those rights are protected by the Constitution as part of the collection of rights which the State guarantees to respect and, specifically by making rape an offence, to defend and vindicate as far as practicable. No one is entitled under our law to justify any deprivation of the constitutional rights of another person on the basis that they might have been consenting. For any accused person to take any such risk would be unjustifiable. To violate a woman on any such premise as that she might be consenting to intercourse is outside the legal order as defined by the Act of 1981. If an accused is aware of the possibility that a woman may not be consenting, any conscious disregard of this advertence to that possibility means that for him to proceed is for him to act recklessly; and thus criminally.
48. Thus, it is clear from this discussion of the mental element in rape that, if anything, the trial judge inadvertently broadened the defence available to the accused beyond what the law has proscribed. That was a mistake in favour of the accused. No error in favour of the prosecution has been identified.
49. From the point of view of future directions to be given by trial judges, it is important to state that such directions must necessarily depend on the particular elements of the prosecution case and the defence case as these are presented in any given criminal trial. The jury in every case should, first of all, carefully consider all of the facts, whether offered by the prosecution or by the defence. Questions put by counsel are not evidence; but the responses of witnesses are. The jury should begin by deciding which facts they accept beyond reasonable doubt and which facts they reject. Rape is the crime of sexual intercourse by a man with a woman where the woman does not consent. If the jury decide that the prosecution have not proven facts showing that the woman did not consent, then the charge of rape is not made out. If sexual intercourse and lack of consent is proven, then the jury should consider the mental element, in other words what was the accused’s state of mind at the time. Inferences can be drawn from the facts which the jury accept as proven in relation to the absence of consent, and in particular the circumstances proven in relation to that issue, but only such inferences as may be found beyond a reasonable doubt. The mental element of the crime of rape is that the man knew that the woman was not consenting to sexual intercourse or that he was reckless as to whether she did or did not consent. Where, as in very many cases, the issue is joined between opposing accounts as to what was said by the woman alleging rape and what was done by her and what the accused says in contradiction of that, the ordinary direction for a jury is that based on The People (DPP) v F. This is:
… that the accused had sexual intercourse with a woman who at the time of the intercourse did not in fact consent to it, and that at that time the accused knew that she did not consent, or, alternatively that at that time the accused was reckless as to whether she did or did not consent.
50. As to the element that the accused knew that the woman was not consenting, it is enough to explain that knowledge is an ordinary word: that the accused knew that the woman was not consenting is a fair explanation. Recklessness means the accused man was aware that there was a risk that the woman was not consenting but nonetheless proceeded. If it is proven that he was aware that there was a real risk that the woman was not consenting but he proceeded to have, or continue, intercourse with her in spite of this, then recklessness is established.
51. Where, however, the accused claims to have mistakenly believed that a woman was consenting, then the jury should examine all of the facts which may support or which may undermine that claimed belief. They should consider all of the circumstances and focus on whether there are, or are not, any reasonable grounds for that belief. As s. 2(2) of the Criminal Law (Rape) Act 1981 states: “the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed.” That means that where the accused believed genuinely, albeit unreasonably, that the woman was consenting, on this statutory definition he must, even though she did not consent, be acquitted. It needs also to be stated by trial judges, however, that no jury is under any obligation to believe an obviously false story. A jury is entitled to accept or reject any prosecution or defence evidence. In these cases, every jury is entrusted, using shrewdness and commonsense, to judge what the accused claims as to his mistaken belief against their view of what an ordinary or reasonable man would have realised in the circumstances. This defence requires genuine belief.
52. The crime of rape is a terrible violation of a woman’s physical and mental integrity. The Rape Act of 1981 defines the external circumstances of the offence and also states what the mind of the perpetrator must be in order to justify a conviction. Some guidance for future cases is given in this judgment as to how judges should define and explain this crime for the benefit of juries.
53. While written submissions on behalf of the accused and on the part of the Director of Public Prosecutions addressed the mental element in rape, the submissions for the accused on this appeal focused narrowly on an alleged defect in the judge’s charge to the jury. This, in turn, was sought to be related to rhetorical flourishes in argument by prosecution counsel. A proper consideration of the mental element in rape demonstrates that the trial judge mistakenly stated the defence case in terms of law too widely, but in favour of the accused. No error is identified against the accused and the appeal should be dismissed.