Court of Criminal Appeal refused certificate for Supreme Court appeal on racial prejudice grounds in rape conviction.

COURT OF CRIMINAL APPEAL

No. 15/07

Fennelly J.

Gilligan J.

Hanna J.

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

-V-

EMANUEL ASHIBOUGWU

APPLICANT

JUDGMENT of the Court delivered on the 27th day of July 2007, by FENNELLY J.

This judgment concerns an application made on behalf of the applicant, following the rejection of his application for leave to appeal,

for a certificate pursuant to section 29 of the Courts of Justice Act, 1924 enabling him to appeal to the Supreme Court.

The applicant was convicted by a jury in the Central Criminal Court on a charge of rape on the 27th December, 2004, in the city of

Limerick. The trial commenced on the 20th November, 2006 and a majority verdict of guilty was delivered on the 24th November,

2006. The applicant was sentenced to nine years imprisonment.

On 9th July 2007, this Court heard the application’s application for leave to appeal against that conviction. It dismissed the

application.

The case made for the applicant at that hearing was that the case for an acquittal was so strong that the only basis upon which the

jury could have convicted was racial prejudice. The applicant is a young black man originally Nigeria. He has lived in Ireland for a

number of years.

As the Court explained in its ex tempore judgment of 9th July, the applicant agreed that sexual intercourse took place between

himself and the complainant, but said that it was consensual. The Court regarded it as absolutely fundamental that it was not

contended on behalf of the applicant, that there was not a case fit to go to the jury. No application was made to the trial judge to

withdraw the case from the jury. The Court, as it explained, could not see any ground for setting aside the verdict of the jury, at

least in the absence of some independent ground or reason.

The argument on behalf of the applicant was that the case for an acquittal was so strong that the only basis upon which the jury

could have convicted was racial prejudice. The Court accepted that it was axiomatic and fundamental to our law and to our

constitution that every human person is entitled to be treated equally before the law and that racial equality is fundamental to our

law. The Court continued:

“It follows that, of course, if there had been the slightest suggestion of racial prejudice in the jury, the jury composition,

the behaviour of an individual juror, revelation of the opinions of an individual juror, the court would have had to take

action. The action would have depended on the circumstances of the case but it could have included the discharge of

the jury. It might have included a strong and clear direction to the jury on the danger of prejudice on the grounds of

race. ”

The Court observed, however, that there was nothing at all in the case to justify the suspicion that the jury was prejudiced on racial

grounds. It noted that at no point in the trial was any suggestion made to the trial judge that there was any problem about race. Nor

was any submission made to him that he should direct the jury in any particular way. It observed that, had an application had been

made and had the judge refused, that might have been a different case.

The Court concluded by emphasising that any racial prejudice which was disclosed to exist in any way in the trial would very likely be

a ground for setting aside a conviction, if it was properly established. There was nothing of that sort present in the case. On that

ground, the court refused the application for leave to appeal.

Counsel for the applicant now submits that the decision of this Court of 9th July involves the following point of law of exceptional

public importance:

"(a) In cases where there is an inter racial element, such as an ethnic minority defendant which minority is not

represented on the jury, should the court while emphasising to the jury in the charge the obligation to reach a verdict

solely on the evidence stress particularly by way of a warning the need in such cases to be mindful of possible prejudice

and deliberate with care accordingly?

(b) Should any such warning or direction be discretionary or mandatory and should the form of such warning or direction

be left to the court?"

By virtue of section 29, subsection (1) of the Act of 1924 as amended by section 22 of the Criminal Justice Act, 2006, no appeal lies

to the Supreme Court from a decision of this Court, except in accordance with a certificate granted under that section. Subsection

(2) provides:

"(2) A person the subject of an appeal or other matter determined by the Court of Criminal Appeal may appeal the

decision of that Court to the Supreme Court if that Court or the Attorney General in any case or, if he or she is the

prosecuting authority in the matter, the Director of Public Prosecutions certifies that the decision involves a point of law

of exceptional public importance and that it is desirable in the public interest that the person should take an appeal to the

Supreme Court."

In the present case, the Court accepts that the manner in which a trial judge should address any real risk of racial bias, whether by

direction to the jury or otherwise, might well give rise to a point of law of exceptional importance. However, the decision of the court

on the application for leave to appeal, must involve the suggested point. In the present case, for the reasons already given in its

judgment of 9th July, this Court is satisfied that its decision did not involve the points proposed. The suggested points relate to

warnings that might be given by a trial court, but the submission is made purely on the basis that the applicant is black. There was no

suggestion whatever, at any stage of the trial, that there was a risk of racial bias on the part of the jury. It does not seem to have

occurred to anyone to suggest that there was any such bias. In these circumstances, the Court does not believe there is any ground

for the certificate sought and it will refuse it.