Court of Appeal: Man jailed for sexually assaulting a woman in his parents’ house loses appeal against his conviction

Court of Appeal
Court of Appeal

A 31-year-old man who was convicted of sexually assaulting a woman he met on dating app Tinder, but acquitted of rape and making threats to kill, has lost an appeal against his conviction.

The man complained, inter alia, that the verdicts returned by the jury after a three-week trial were inconsistent with each other. Finding that the trial was fair and the verdict was safe, Mr Justice George Birmingham dismissed all grounds of appeal.


In the Central Criminal Court in 2017, Paul Flaherty stood trial for the offences of rape, oral rape, making threats to kill, and sexual assault. Mr Flaherty had met the complainant on Tinder, and the assault took place at the home he shared with his parents. Mr Flaherty was convicted of sexual assault and sentenced to five years’ imprisonment.

The jury returned verdicts of not guilty in respect of the charges for oral rape and threats to kill; however, there was disagreement in respect of the charge of rape. At Mr Flaherty’s sentencing hearing, the DPP said it would not seek a retrial on the charge of rape.

Court of Appeal

Appealing against his conviction, Mr Flaherty complained that:

  1. The trial judge erred as a matter of law in refusing to stay the proceedings and/or grant a direction of not guilty on the application of the defence at the conclusion of the prosecution evidence;
  2. Having refused to accede to the application the subject matter of ground (i), the trial judge erred in law in refusing to discharge the jury on the application; and 
  3. The verdict was perverse, or in the alternative, the verdicts were inconsistent with each other or bad for uncertainty.

Mr Justice Birmingham said the grounds could be further condensed to the following:

  1. That the trial judge should have acceded to an application under the jurisdiction identified in DPP v POC [2006] 3 IR 238. This was the substantive contention under this heading, but in the alternative, it is said there should have been a directed verdict of not guilty on R v Galbraith [1981] 1 WLR 1039 grounds; and
  2. That the verdicts of the jury were inconsistent with each other. It is said this is a cause of particular concern in a situation where the sexual assault count on the indictment was not particularised. The effect of this, it is argued, is that one cannot know with any precision or with any certainty of what Mr Flaherty was convicted.

The POC application

Counsel for Mr Flaherty relied on four matters to support its POC application:

  1. The delay in investigating the complaint;
  2. The failure to follow up on Mr Flaherty’s contention that while he had put his hands on the complainant’s neck or throat, that this was done at her behest and at her instigation;
  3. The striking similarities between the initial account given to gardaí by the complainant and a formal statement of complaint furnished at a later stage; and
  4. The unavailability of Dr Gouri Columb.

Mr Justice Birmingham explained that the delay in the complaint was based on the fact that gardaí were aware of the rape allegations on 31 August 2015, but that Mr Flaherty was not arrested and interviewed until 26 September 2015. Mr Justice Birmingham said there was nothing unusual or disquieting about the circumstances of being interviewed about events that occurred less than a month earlier, especially when considering sex abuse cases which involve recollecting events years or decades earlier.

Considering the second issue, Mr Justice Birmingham was also satisfied that the issue of the complainant having been in a relationship where force or violence was used on her was a matter for the jury to adjudicate on. On the third issue, Mr Justice Birmingham said the consistency of the complainant’s accounts were remarkable, but he was not convinced that this could be described as learning by rote.

Considering all of the issues, Mr Justice Birmingham said the trial judge was correct to consider that stopping the trial on foot of a POC application would be an exceptional step and that what had been put before him fell short of what was required to justify such a step. Considering the four issues, individually or cumulatively, came nowhere close to what was required to contemplate stopping the trial.

Verdict inconsistency

Mr Justice Birmingham explained that two points were made in this regard:

  1. That there was a fundamental and irreconcilable inconsistency in the verdicts returned;
  2. That since the sexual assault was not particularised, one cannot be sure of what Mr Flaherty was convicted.

Mr Justice Birmingham said it was far from unusual for there to be different outcomes in respect of several counts on an indictment, and that there were a number of factors that might have led the jury to distinguish between the sexual assault count on which a conviction was recorded and other counts. He said that the fact that there were different outcomes did not establish, or even suggest, that members of the jury were confused, misunderstood their role, or approached the case on a fundamentally wrong basis.

As to the failure to particularise the details of the sexual assault, Mr Justice Birmingham said that the judge had explained that the offence of sexual assault had a common law history and used to be known as indecent assault, and said that “circumstances of indecency were what a normal person would consider to be indecent, and that, obviously, the touching of another’s genitalia or their private parts without their consent comes within the definition of the offence”. Overall, Mr Justice Birmingham was satisfied that the count of sexual assault was properly left to the jury and the verdict on it was properly received.

  • by Seosamh Gráinséir for Irish Legal News

© Irish Legal News Ltd 2019

Other judgments by Mr Justice George Birmingham

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