About this case:

• Citation:
  [2018] NICC 20
• Judgment:
  External link
• Court:
  Crown Court
• Judge:
  Judge Patricia Smyth

Emphasising that the myriad of conclusions were for the jury to reach rather than the prosecution, Her Honour Judge Patricia Smyth commented that she could not conclude that the finances of either of the applicants had irrevocably changed in circumstances where they did not submit to the court evidence pertaining to their current financial situations.

Application for costs

Pursuant to section 3 of the Costs in Criminal Cases Act (Northern Ireland) 1968, Mr Jackson sought the recovery of all costs incurred as a consequence of the trial and Mr Olding sought the costs incurred up to 19th February 2018 when he was granted legal aid.

It was submitted on behalf of the applicants that Judge Smyth should take into account the personal and financial consequences of the trial upon each of them including the damage to their reputations, the termination of their contracts by the Irish Rugby Football Union, the fact that they were obliged to accept offers of employment overseas, and that they lost the opportunity to play rugby for Ulster or Ireland.

The applicants relied on affidavits lodged with the Court which “did not deal with the terms upon which the contracts of employment were subsequently terminated or the current financial situations of either applicant”.

In those circumstances, Judge Smyth commented that there was “simply no evidence” for the court to “conclude that the financial circumstances of either Mr Jackson or Mr Olding have been irrevocably changed as a consequence of the prosecution for rape and that this is a relevant factor to take into account in determining the applications”.

In her judgment, Judge Smyth answered a number of questions considering, inter alia, The People (at the suit of the Director of Public Prosecutions) v Anthony Kelly, [2008] 3 IR 202 and The People (at the suit of The Director of Public Prosecutions) v Bourke Waste Removal Ltd and others [2013] 2 IR 94:

Was the prosecution justified in taking the case through, it being founded on apparently credible evidence?

Counsel for Mr Jackson submitted that a proper investigation would have revealed the complainant’s unreliability – and this was supported in that a Makanjuola warning was given to the jury that they should “be cautious before relying on the evidence of a witness if he or she has been shown to be unreliable or in a more extreme case, if the witness is shown to have lied or there is some other reason to urge caution”.

Rejecting this submission, Judge Smyth said that this failed to take account of the context in which the warning was given – it was explained to the jury that a person who has been raped will have suffered trauma, and trauma may affect that person’s ability to take in, register and recall the event – possibly explaining inconsistencies. Another possible reason for inconsistencies was that the complainant may have lied or deliberately made a false allegation, and that if the jury concluded that this was the case, then certain consequences would follow. As such, Judge Smyth said it was entirely for the jury to decide upon the significance of any inconsistencies in the complainant’s evidence.

Judge Smyth also rejected the submission that the decisions not to adduce the complainant’s evidence in chief through an “achieving best evidence” interview, and not to provide a statement of evidence, led to unnecessary complication and delay.

On the subject of delay, Judge Smyth rejected the argument that the 13-month delay in deciding to charge the applicants was another reason for the level of Mr Jackson’s costs, and noted that, conversely, Mr Olding criticised the prosecution for taking a “premature” decision to charge him. Judge Smyth said no explanation had been offered as to why this would have increased Mr Jackson’s costs, and said that there was no evidence to suggest that the prosecution was either dilatory or premature in making decisions in this case or that the public profile of any of the applicants influenced the decision-making process.

Judge Smyth was also satisfied that the decision to try all four defendants on the same indictment was properly made, that there was no doubt that he cases were so intertwined that they could not properly be tried separately, and that this issue had been considered when Mr Jackson had made an application to sever Mr McIlroy from the indictment.

Finally, Judge Smyth accepted that the inappropriate behaviour of some on social media, some incidents which required specific case management, and the illness of jurors, had the effect of an increased financial burden on Mr Jackson in particular – these issues cannot be laid at the door of the prosecution and often arise in a serious criminal trial.

Counsel for Mr Olding “made no bones about his submission that the prosecution was at fault in the bringing of the prosecution against Mr Olding”. Firstly, Judge Smyth rejected the submission that the police should have carried out a third “achieving best evidence” interview with the complainant to clarify inconsistencies – in this regard she said that the impact of trauma on memory meant that a further interview may not have assisted the investigation, and may have given rise to accusations of coaching.

Secondly, Judge Smyth rejected the submission that the failure to send the complainant’s top and pants for forensic testing at an earlier stage as a “glaring and obvious omission”. Judge Smyth said that there was a clear rationale for the decisions taken, and the prosecution responded promptly when the matter was raised.

Thirdly, Judge Smyth was satisfied that regardless of the difference in wording the evidential test for prosecution (reasonable prospect of conviction) and the Galbraith test (no case to answer), she could not accept the logic of the submission that there may be sufficient evidence upon which a jury could convict and yet the test for prosecution, based on the same evidence, was not met.

Finally, Judge Smyth rejected the submission that the decision to prosecute Mr Olding was based on a flawed understanding of the facts of the case.

Did anything within the investigation by the police give rise, of itself, to the existence of a serious inherent doubt as to the guilt of the accused?

Both applicants submitted that Dara Florence’s assessment that what she witnessed was consensual “created a serious inherent doubt as to the guilt of the accused”.

Judge Smyth said this required careful consideration. She said that the issue for the jury was whether the prosecution proved beyond reasonable doubt that the complainant was not consenting, and that the defendant did not reasonably believe that she was consenting – two entirely different concepts. Judge Smyth said it was possible the jury concluded that the complainant did not consent but there was reasonable belief that she was consenting – and that without knowing the basis for the jury’s verdict it was not possible to draw any conclusion regarding their view of the evidence.

Judge Smyth added that “Ms Florence observed the scene for a very short time and whilst she did not think she was witnessing a rape, she did not see anything which positively indicated consent either” – which gave rise to a consideration of the myths and assumptions that arise in cases involving sexual offences – i.e. that there is no there is no classic response, “some people freeze, some people resist and some people do not resist because of the circumstances”.

Stating that it was for the jury to decide the question of consent, not the prosecution, Judge Smyth rejected the applicant’s submission under this heading.

What answer had the accused given to the charge when presented with an opportunity to answer it?

Judge Smyth accepted that both applicants answered a large number of police questions, agreed voluntarily to provide samples and maintained their innocence throughout, but said that the evidence of Dara Florence was key to both prosecution and defence – in this regard, the refusal to answer questions based upon this evidence in later interviews, whilst based on legal advice, was unhelpful to the complex police investigations and was a relevant factor in the application for defence costs.

What was the conduct of the accused in the context of the charge that was brought, specifically in terms of who was he associating with, and on what ostensible basis?

Judge Smyth said that the failure of the applicants to explain the distasteful text messages (e.g. “top shagger”, “spit roasting”, and the responses therein), tended to draw suspicion notwithstanding their expressions of remorse and the fact that they were ultimately found not guilty.

Conclusion

Stating that the evidence bore the characteristics of a Rubik’s cube, “capable of bearing myriad conclusions”, Judge Smyth said that conclusions were for the jury to reach, not the prosecution. Considering all the relevant factors, Judge Smuth dismissed the applications.

• by Seosamh Gráinséir for Irish Legal News