Court of Criminal Appeal dismisses appeal against rape and theft convictions due to safe and secure evidence.

THE COURT OF CRIMINAL APPEAL

[CCA No. 165/2008]

Hardiman J.

Budd J.

McMahon J.

BETWEEN

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

WILLIAM (OTHERWISE BILLY) KEOGH

APPLICANT

JUDGMENT of the Court of Criminal Appeal delivered by Mr. Justice Declan Budd on the 16th day of July 2009

This application for leave to appeal against conviction comes before this Court as the first of two applications in this case. The second is a sequel

which follows on from the first leg of the case if the Court upholds the conviction. The second leg is the DPP's application under s. 2 of the Criminal

Justice Act 1993, for a review of sentence on the grounds of undue leniency.

Background Facts

(i) The applicant was arraigned and entered a plea of not guilty before the Central Criminal Court on the 4th February, 2008, on the

following two counts:

Count 1: Rape of the complainant, V.T., at room 302 in the Tower Hotel, The Mall, Waterford on the 26th May, 2006,

contrary to s. 48 of the Offences Against the Person Act 1861, and s. 2 of the Criminal Law (Rape) Act 1981, as

amended.

Count 2: That he stole €1,200 cash from the complainant at the same location, on the same date, contrary to s. 4 of the

Criminal Justice (Theft and Fraud Offences) Act 2001.

(ii) The complainant in this case is a native of Croatia and was aged 24 at the time of the offence in May 2006. She had come to

Ireland some ten days or so before the date of the offence to work voluntarily as an escort or prostitute. On the date of the offence the

complainant had booked into a hotel in Waterford, where she could be contacted by telephone by an escort agency based in Cork.

The accused herein contacted the agency and was directed to the hotel room where the complainant was.

(iii) Evidence at the trial of the applicant began on the 4th February, 2008, and continued on the 5th, 6th and concluded on the 7th

February, 2008.

(iv) On the date of the alleged offences, the Croatian woman had booked into the Tower Hotel in Waterford for the purpose of meeting

men with whom she would have sexual relations for payment. Previous to meeting with the applicant, the complainant had met with a

number of customers one after another in her hotel room. These customers were sent there by an agency calling itself ‘Red Velvet’. It

was common case that the applicant went by arrangement to meet the complainant at the Tower Hotel in Waterford, having been

directed there by a Caroline Deady, who was working as a receptionist for ‘Red Velvet’ at the time. It was also mutually agreed that

both the complainant and the accused were present in the room in the Tower Hotel for the purpose of having a sexual relationship in

exchange for money. In fact the parties agreed to a figure of €150 for sexual intercourse, with a condom being worn. The evidence of

the complainant was that she engaged in sexual intercourse with clients on the strict condition that the man would always wear a

condom and that there would be no kissing or other intimate physical contact apart from the sexual intercourse. Thus, it was common

case that sexual intercourse was initially undertaken with consent of both parties and that it had been agreed that the client, the

accused, would wear a condom. At this stage the versions of the complainant and the applicant begin to diverge.

(v) The complainant alleged in her evidence that the applicant asked her to remove the condom and when she refused, he became

aggressive and grabbed her by the throat and then removed the condom and continued to have intercourse with her. Her evidence was

that the sexual intercourse had begun as agreed, but during the course thereof, the accused became rough and put his hands around

her neck area. He began to kiss her and he demanded that she would remove the condom which he was wearing. She refused and

repeatedly said ‘no’. The accused then removed the condom himself and, contrary to the specific term of the agreement about the

condom, proceeded to have sexual intercourse until ejaculation without the protection of the condom. During intercourse, when the

complainant was repeatedly saying ‘no’ to his request, the accused threatened to throw her out of the hotel window from the room

which was on the third floor. After the intercourse, she said, as he was leaving he said to her that he was a garda and that she, the

complainant, was ‘fucked now’.

(vi) The applicant stated subsequently in interviews with the gardaí, leading to three statements which were before the jury, that during

intercourse a re-negotiation took place, whereby it was agreed that he would pay her an additional €100 or €200 for sex without a

condom. He stated that intercourse was vigorous, but denied absolutely that he used force or that she did not consent. On completing

intercourse he said that he gave her an additional €100 and an argument ensued during which she demanded more money and

became angry. He left without paying any more money than the initial €150. He denied stealing any money from her.

(vii) The complainant’s evidence was that the accused had his hands around her neck and throat and was threatening to kill her.

Medical evidence was adduced to the effect that there was superficial bruising on her right jaw, also bruising on her lower right jaw; and

linear bruising centrally under her chin; as well as superficial bruising of her right shoulder; and also linear bruising of her left lower

cheek. Following medical examination, subsequently the complainant was treated with both the morning after pill and medication to

deal with the possibility of infection.

(viii) Evidence was adduced that the complainant telephoned Caroline Deady at the Red Velvet Agency and told her that she had been

raped and that money had been stolen from her. When Garda Sharon Dempsey arrived in the hotel room, she said that she saw the

complainant in the room in a state of upset. She accompanied the complainant to hospital where Dr. Mary J. O'Gorman examined the

complainant. Dr. O’Gorman gave evidence of finding superficial bruising on the complainant's jaw, face and shoulder. There were no

injuries to the genital or any other area of the body other than as described by Dr. O’Gorman.

(ix) On the 8th February, 2008, the learned trial judge concluded charging the jury and they retired to consider their verdict at 14.43. Having not

reached a verdict on either of the two counts at 17.14 the learned trial judge instructed them that they could reach a majority verdict on either or both

counts. At 18.35 the jury returned a verdict of not guilty on Count 2 (Theft). They ceased deliberations at that stage and retired for the night. The

following morning on the 9th February, 2008, the jury continued their deliberations and returned a verdict of guilty on Count 1 (Rape) by a majority of

ten to two.

Grounds of Appeal

Seven grounds of appeal were filed.

1. The first ground was that the verdict of the jury was perverse in finding the accused not guilty of theft, but guilty of rape in the circumstances of the

case. It is well settled law that a variety of different verdicts on different counts does not constitute a ground of appeal. Hardiman J. refuted the

unsubstantiated proposition by pointing out that there was no logical inconsistency in having doubts about the accusation of theft but at the same

time being convinced about the veracity of the core allegation of rape. In this case the jury were clearly directed by the trial judge that each count

must be considered separately and manifestly the jury took cognisance of this direction and did seem to have acted in accordance with it. In view of

the nature of the transaction taking place in the hotel room, it is perhaps not surprising that the jury may not have been convinced about the

evidence of a brazen theft as set out in Count 2, but were convinced beyond reasonable doubt of the change from consensual intercourse, by the

unilateral removal of the condom by the accused, despite the repeated refusals by the complainant. The jury heard also about the evidence of various

marks and bruises found on the complainant by Dr. O'Gorman, which evidence about marks and bruises was also confirmed by Garda Sharon

Dempsey as having been seen by her. Furthermore the jury were then entitled to have regard to the evidence of Garda Dempsey in respect of her

observations as to the upset of the complainant in the hotel room at about 7.40 pm and it is to be noted that there was no objection to her evidence

when it was being given as to V.T. being extremely upset, crying and shaking and with marks to her neck on both sides, nor was any challenge

made to her description of the complainant’s state of distress in the course of or by way of cross examination. (See transcript, book 2, p. 26)

Professor Dermot Walsh in Criminal Procedure at p. 1194 para. 22–53 wrote:

“The court will have to be satisfied that no reasonable jury or court, as the case may be, could have reached the decision

in question on the basis of the evidence before it. In other words the verdict would have to be perverse.”

In fact the acquittal on the theft count can support the submission that this was a finely balanced and carefully considered case.

2 & 3. The second ground of appeal was that the learned trial judge erred in fact and in law by failing to exercise his discretion to warn the jury in

relation to the absence of corroboration in the case. A corroboration warning is no longer essential and indeed my note and recollection is to the

effect that counsel for the applicant did not press either this point or ground three, about one or two hands on her neck, as there was no mark on her

neck.

4. The fourth ground was that the learned trial judge erred in fact and law by failing to put the accused’s case to the jury and by inviting them to read

the memos of the interviews themselves. The accused and the complainant were in the hotel room and the complainant gave her evidence of what

had transpired. The accused, as was his entitlement, did not give evidence and his version of events came before the jury by way of the memos of

the interviews which he had with members of the gardaí. The first interview was at 9.13 am on the 6th June, 2006 at Waterford garda station. In the

course of interview after caution by Detective Garda Mulligan and in the presence of Detective Sergeant Dave Walsh, the accused said that he had

paid €150 in three fifty euro notes; he had then given the complainant €100 after bargaining about €200. He also said that he had rung Caroline

Deady back and had told her that he had given the girl €100 extra. In the second interview at 12.56 on the 6th June, 2006, in the presence of

Detective Garda Noel Curry and Garda Paul Burns, he said that he had been ten or twelve times before with a girl without a condom. He said that it

was last Friday that he took off the condom. In his third interview at 15.28 on the 6th June, 2006, in the presence of Detective Garda Mulligan and

Detective Sergeant Dave Walsh, four stills from a CCTV were shown and he agreed that it was him in the pictures. These interview notes were read

to the jury on the second day of the trial. The jury had the memos of the interviews and the judge invited them to read these. The learned trial judge

reminded the jury in detail of the contents of the cross examination of the complainant by counsel for the defence and this was reiterated at the

request of the jury. The interviews had already been read out in court. Thus the accused's case was put fairly and adequately to the jury with an

invitation to read the statements themselves and to examine them for consistency and veracity and also inconsistencies.

5. Paragraph 5 contains a complaint of unfairness in circumstances where it is alleged that the prosecution refused, during the course of the trial and

prior to the evidence of Dr. Mary J. O'Gorman, to indicate to the defence whether photographs taken of the complainant at Waterford Regional

Hospital would be adduced in evidence. In fact the photographs were taken by Garda Sharon Dempsey and the Polaroid camera used was of such

quality that the photographs in exhibit 20, which were produced and put in evidence, showed no visible marks on the complainant’s head or neck

area. However, both Dr. O’Gorman and Garda Dempsey gave evidence of marks which had been clearly noted by Dr. O’Gorman and these were also

described by Garda Dempsey. Thus, both Dr. O’Gorman and Garda Dempsey in evidence described the various marks and bruises found on the

complainant.

6. In the course of describing the appearance of the complainant when she, Garda Dempsey, arrived in the hotel room, Garda Dempsey said that the

complainant’s upset was “genuine”. Counsel for the accused submitted that this was inappropriate “opinion evidence” adduced from an inexpert

witness. There was a retort from counsel for the Director contending that the garda had sufficient expertise to give such opinion evidence. However,

this Court took the view that this was an unreal conflict and was making a mountain out of a molehill in that Garda Sharon Dempsey was in reality

merely giving a description of the appearance and demeanour and visible upset of the complainant at the time in the hotel room. It is to be noted that

there was no objection to Garda Dempsey's evidence about the upset appearance of the complainant at the time when this evidence was given nor

was any challenge made to her evidence by way of cross examination on this aspect.

7. It was suggested that the learned trial judge erred in fact and law by failing to discharge the jury after a prosecution witness, Caroline Deady,

referred in her evidence to text messages, allegedly from January 2006, which suggested to the jury that there had been a previous incident between

the accused and prostitutes. This evidence was elicited by defence counsel (see transcript day 2, pp. 17 to 19). The defence application to

discharge the jury is to be found on p. 19 onwards and the issue was properly dealt with by the learned trial judge in refusing to discharge the jury.

Conclusion

1. All aspects of the trial relevant to this application were conducted properly, fairly, and in accordance with the law by the learned trial

judge.

2. There was abundant credible evidence from the victim that she had been raped by the accused when he had unilaterally and in

breach of agreement removed the condom and then had “unprotected intercourse” without her consent. There was the independent

evidence that she had been subjected to physical force from the evidence of Dr. O'Gorman who described various marks and bruises

and this evidence was supported by the evidence of Garda Dempsey in respect of marks and bruises.

3. The jury clearly considered each count in the indictment separately and as directed by the learned trial judge, and they came to a

separate verdict on each of the two counts which was their entitlement.

Accordingly the conviction was safe and secure on the evidence and the application for leave to appeal against conviction must be refused.