Court of Appeal dismisses rape conviction appeal, upholding jury's finding of non-consent despite defendant's claimed honest belief.

APPROVED JUDGMENT

THE COURT OF APPEAL

Neutral Citation: [2025] IECA 240

Record Numbers: 200/2022

222/2022

McCarthy J. Kennedy J. Butler J.

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT/

- AND -

Dion Genockey.

- AND -

Daryl Rooney.

APPELLANTS

JUDGMENT of the Court delivered on the 13th day of November 2025 by Ms. Justice Isobel Kennedy.

1. This is an appeal against conviction. On the 13th of April 2022, the appellants and a co-accused who is not before this Court; Troy Ryan - were convicted of the rape of MD.

Factual Background

2. MD had been in the care of the HSE since she was 12 years of age and had just turned 18 at the time of the within offences.

3. She gave evidence that on the 5th of January 2016, she was driven in Dion Genockey’s car to the Bull Wall in Dollymount, County Dublin, where she was raped by the two appellants and Troy Ryan.

4. Earlier in the day, she had taken the train down from her residential accommodation unit to Dublin to meet a friend. She consumed Xanax tablets during the day and gave evidence that she had an addiction to these tablets. She later went to an internet café on Talbot Street and met another friend there.

5. This friend eventually left the internet café, and the complainant remained there. At some point in the evening, she was approached by a younger teenager who beckoned her into the rear area of the internet café, stating that the appellants and Troy Ryan wanted to talk to her. She initially stated that she did not want to talk to them but eventually she went over. They asked her if she wanted to go for a drive, but she refused as she said she did not trust them. She went back to her seat and continued using the computer, however, she was later approached again and this time reluctantly agreed to go with them, stating that the tablets were now having an effect on her. She left the café and got into the car with the three men. This series of events was captured on CCTV.

6. She recounted that there were four people in the vehicle including herself; Dion Genockey was the driver, she was seated in the rear of the vehicle with one of the men, while another was in the front passenger seat.

7. The complainant did not know where the vehicle was going. She gave evidence that Dion Genockey asked her, “are we going to have any fun?” She said that she had only agreed to go for a drive and did not want to have sex. She gave evidence that they then drove to Bull Island, where the car was parked near a hut-like structure: she did not know where they were. She stated that the two appellants got out of the car, she said she was then raped by each of them in the vehicle, and that the car door could not be opened from the inside.

8. The men got out of the car and then each in turn got into the rear and raped the complainant while the other two remained outside. Troy Ryan first raped her, followed by Dion Genockey and then Daryl Rooney, each using a condom.

9. Her evidence was that she had explicitly told Troy Ryan and Dion Genockey that she did not want to have sex, but that when Daryl Rooney was raping her, she simply knew it was going to happen and was silent.

10. The three men then got back into the car and discussed things such as who had the longest penis and who had the best sex: MD did not partake in this conversation, and she stated that this conversation added to her distress.

11. She gave evidence that Dion Genockey then told her that his friend would take her back into town: a second car then arrived with two men in it, however, MD indicated she did not want to get into the car, as those men had previously assaulted her. The appellants and Troy Ryan drove off regardless, leaving her with these men. She gave evidence that she was then raped and sexually assaulted by the second set of men, and that they also drove off and left her on the beach afterwards.

12. She described walking back down the bridge to Bull Island in a distressed and confused state, not knowing where she was, before calling 999 and asking for assistance. This call was played for the jury at trial. An ambulance and Gardaí arrived at the scene, at which time she gave a brief report of what had happened to Gardaí, who immediately searched the area near the hut and found 5 used condoms. DNA analysis confirmed the presence of the DNA of the two appellants and MD.

13. MD was taken to hospital and later to a Sexual Assault Treatment Unit (“SATU”). She gave various statements to Gardaí over the following days. CCTV was obtained from the internet café, from which Genockey, Rooney and Ryan were identified.

14. Dion Genockey was 17 at the time of the alleged offending and was arrested on the 7th of March 2016. A DNA sample was taken, and he was interviewed by Gardaí on that date in the presence of his father: nothing of evidential value arose in interview.

15. Daryl Rooney was 18 years old at the time of the alleged offending and was arrested on the 26th of April 2016. A DNA sample was taken, and he was interviewed by Gardaí: nothing of evidential value arose.

16. Following receipt of positive DNA results, the appellants and their co-accused were re-arrested. Dion Genockey was interviewed in the presence of his father. The inference provision pursuant to s.19A of the Criminal Justice Act, 1984 (“the 1984 Act”), was invoked. Neither Dion Genockey nor Daryl Rooney mentioned any fact which eventually formed part of the defence, and subsequently, Dion Genockey gave evidence where he contended that the sexual intercourse was consensual and instigated by MD, who, he said, had offered to have sexual intercourse with all three then accused.

17. He gave evidence that MD had approached them in the internet café, had asked to go for a drive, had asked to go to the beach, had offered to have sex with the three men, had produced packets of lubricant in the car, and was “confident and enthusiastic”. He said that afterwards, she put her phone number into his phone. He accepted that he had a phone call with one of the other people in the second car, but he refused to name these people. He stated that MD wanted to stay with the other men, and that they then returned to town without her. He also gave evidence that MD asked to stay with him that night.

Grounds of Appeal

18. The first appellant appeals his conviction on the following ground:- The Learned Trial Judge erred in law and in fact in failing to recharge the jury when requested to do so by Counsel for the Appellant.

19. The second appellant appeals his conviction on the following ground:- The Learned Trial Judge erred in law in refusing to direct the acquittal of the Appellant as sought by Counsel for the Appellant at trial.

Dion Genockey Appeal: Alleged Failure to Recharge the Jury

The Learned Trial Judge erred in law and in fact in failing to recharge the jury when requested to do so by Counsel for the Appellant.

Background

20. S.19A of the 1984 Act provides as follows:-

“(1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused—

a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the offence, or

b) when being charged with the offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it, failed to mention any fact relied on in his or her defence in those proceedings, being a fact which in the circumstances existing at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be, then, the court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure as appear proper; and the failure may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure is material. (2)…”

21. This provision was invoked at the appellant’s second interview with Gardaí of which Detective Garda Keane gave evidence as follows:- “Q. Now, then you told him you're investigating an offence and again you read out the legislation, section 48, Offences Against the Person Act 1861, and section 2 of the 16 Criminal Law (Rape) Act 1981 as amended by section 21 of the Criminal Law 17 (Rape) (Amendment) Act 1990. And I think you told him then that that related to the rape of a female at Bull Island, Dollymount, Dublin 3, on the 5th of January 2016?

A. Correct.

Q. Now, you gave him information then in relation to the caution and in relation to inferences, and you said to him, ‘As you are aware, at the commencement of this interview, you were given the full legal caution. However, I must advise you that pursuant to section 19A of the Criminal Justice Act 1984, as amended by section 30 of the Criminal Justice Act 2007, inferences can be drawn from your failure to refuse or mention particular facts which you later rely on when asked to do so.’ And you said to him then that ‘as this section is invoked it will be read over and it will be explained to you in ordinary language’?

A. Correct.

Q. Now, you did the formal invocation of the inference provision. You said, "I now 30 wish to formally invoke section 19A of the Criminal Justice Act 1984 as inserted by section 30 of the Criminal Justice Act 2007." And you said, ‘You've had a consultation with your solicitor who has been informed that you are to be interviewed under this section also.’ And that's -- you explained all that to him?

A. Correct

Q. Now, what you said to him then was, ‘If you fail to mention any fact you rely on in your defence being a fact which in the circumstances existing at the time clearly called for an explanation from you, the judge or jury may draw such inferences from the failure as appear proper.’ And then you went on to say: ‘The failure may, on the basis of such inferences, be treated as or as capable of amounting to corroboration of any evidence in relation to which the failure is material.’ And then you went on to explain that further, didn't you, Detective Keane?

A. Correct.

Q. And you said: ‘This means that if you know of any fact you intend to rely on in your defence you must tell us now or else inferences can be drawn from your failure or refusal to mention that fact.’ And then you went on to say that the inference may be used to support other evidence but you won't be convicted on the inference on its own. And then I think you now formally read out the section of the Act to him?

A. Correct.

Q. And again I think we're going to spare everyone the reading of that again, but I think, for the record, what you read out to him was section 19A of the Criminal Justice Act 1984 as inserted by section 30 of the Criminal Justice Act 2007, and you read out exactly what you read out in the previous two interviews, and essentially what that was -- you read out section 19A subsection (1) right down through to subsection (9) of that Act?

A. Correct.

Q. And again that was -- you were required to read that to him. Now, I think you said -- you explained it to him then in ordinary language, and you said, ‘I will now explain to you in ordinary language the questions that I wish to ask you.’ You said, ‘Under this section, if you have any fact in your possession about the offence under section 48, Offences Against the Person Act 1861, and section 2 of the Criminal Law (Rape) Act 1981, as amended by section 21 of the Criminal Law (Rape) (Amendment) Act 1990,’ and then you further explained, ‘in that we believe you 29 raped one MD at Bull Island, Dollymount, Dublin 3, on the 5th of 30 January 2016, that now is your time to tell me.’ Isn't that what you said?

A. Correct.

Q. And then you further said, ‘If you fail or refuse to provide such fact or facts, then during court proceedings for an offence which is punishable by a term of imprisonment of more than five years, a judge can take this failure or refusal into account whether a charge should be dismissed or whether you have a case to answer.’ And then I think you went on -- I think that's what you said to him?

A. Correct.

Q. And then you went on to say: ‘A judge and jury can take into account your failure or refusal to answer these questions in deciding if you are guilty of the offence." And then you said, ‘Your failure or refusal can be used to support other evidence being put forward against you, but failure or refusal on its own will not convict you of an offence.’ And then I think you said, "Do you understand?’ And what was the reply?

A. ‘No comment.’

Q. And then the next question was, ‘In ordinary language, this means that if you do not tell me about any fact in your possession relating to the offence,’ and you read out the legislation, ‘relating to the offence in that -- under section 48, Offences Against the Person Act 1861, and section 2 of the Criminal Law (Rape) Act 1981, as amended by section 21 of the Criminal Law (Rape) (Amendment) Act 1990,’ and you went on to say, ‘in that we believe you raped one MD at Bull Island, Dollymount, Dublin 3, on the 5th of January 2016, which you intend to rely on at your trial,’ and I suppose, ‘which you intend to rely on at your trial, a judge or jury can take this into account to see if you have a case to answer or not.’ And he was asked, ‘Do you understand?’ And what was his answer?

A. ‘No comment.’

Q. And then you said to him, ‘If you fail to mention any fact now which you later rely on in your defence a court can draw an inference from this failure, and this inference can support other evidence, but you won't be convicted on the failure to mention the fact on its own. The failure will support other evidence.’ And then you asked him, ‘Do you understand?’ And what did he reply?

A. ‘No comment.’

Q. Now, you went on further to explain, ‘A fact that you rely on at your trial could be something like an alibi or some other thing that you will rely on in your defence, and there is an obligation on you to tell us of any such fact now.’ And then you said, ‘Have you any such fact in your possession?’ And what was his reply?

A. ‘No comment.’

Q. And then you said. Sorry. "If you have a fact in your possession that you intend on relying on in your defence in court, you must inform us now. If you don't inform us, then inferences can be drawn at any future trial, and this inference can be used to support other evidence of your guilt." And you said then, "Do you understand?" And what was the reply?

A. ‘No comment.’

Q. And then basically you said, ‘The notes of this interview have been read over to you. Do you agree the contents are a true account of what occurred during the course of the interview?’ And I think you read back the contents of the interview to him at that stage?

A. That's correct.

Q. And that's something you did with all other -- the other two as well?

A. That's correct.

Q. And what was his reply when you read back the interview?

A. ‘No comment.’

Q. Sorry?

A. ‘No comment.’

Q. ‘No comment’, okay. And I think then you asked him to sign the interview, and I think he refused to sign the interview?

A. That's correct.

Q. And then it was witnessed by Garda Manus Keane, also witnessed by Garda Niall McDonnell. It was dated the 24th of September 2016, and the time was 2.18 pm?

A. Correct”

22. The appellant gave evidence in his own defence, and gave the following evidence under cross-examination:- “Q. And at this stage you have, and you heard the evidence of it, you had what was called the inferences interview?

A. Yes.

Q. And that was where Manus Keane told you about the DNA --

A. Yes. Where he changed the legislation and he said that I had to tell him and I had an option and he pretended I had to tell him and he kept saying that we believe that MD was raped by you. He already believed her so why would I tell him anything?

Q. Okay. Well, can I just ask a question?

A. Go ahead, sorry.

Q. Okay. Now, at that stage you are told that the evidence, and I'm going to try and cut to the chase because it will just simply be quicker, at that stage when you had the opportunity why didn't you say at that stage she seduced us?

A. Because I was under orders from my father to say no comment and tell the jury my story and to not talk to Manus Keane because he already believed MD and he was calling me a rapist in front of my 10-year old brother.

Q. Okay. And why didn't you say it was consensual, she had Optilube?

A. Why would I make his job easier?

Q. Okay. Now, you're saying that you didn't do that because you were under orders from your father?

A. That's correct.

Q. Are you somebody who would always take -- would you -- can I suggest to you that you don't appear like someone who would take orders from anyone, Mr Genocky?

A. Well, I was 17 at the time so my father was my legal guardian. I had no choice to take my father's orders.

Q. Okay. Well, you could take his -- I mean you had a solicitor there, didn't you?

A. Yes. She said that I would be better to address the jury with my evidence and I done that in my last trial and now I'm here again today to do it to this jury.

Q. Okay. But I think, and Mr Devally will correct me, I think it was -- you did give evidence yesterday that you were advised by your solicitor that there might be a consequence of not --

A. Yes. But then after that --

Q. No, just please listen to the question because it is important –

A. Oh yeah, sorry, go on

Q. -- you understand what I am saying. You were advised by your solicitor that there might be a consequence of not mentioning something that you would later rely on?

A. And then after that she said that I should tell the jury and she is not my legal guardian. I have to listen to my father's orders.

Q. But I would suggest to you that you were also advised that if you had something to say –

A. Yes.

Q. -- it was a good idea to say it?

A. Yes. And then after she knew that we were -- she knew my father's orders, then she said, yeah, well it would be good to tell the jury cause it's such a serious allegation that you should tell the jury your truth.

Q. So, are you saying she changed her mind then when you said oh your father

– you didn't, okay?

A. Exactly, yes.

Q. That's what you're saying, okay. Now, what I suppose surprises me is there are all these allegations, were you not dying to tell your story at that stage?”

23. The trial judge sought submissions from counsel on inferences to be drawn from the invocation of s.19A. Counsel for Dion Genockey placed reliance upon a

decision of the Court of Appeal of England and Wales in R v Argent [1996] 2 Cr App R 27, interpreting the equivalent provision, that being s.34 of the Police and Criminal Evidence Act, 1984 – where it was held that the jury should have regard to the subjective characteristics of an accused such as age, health, mental capacity, and legal advice, in determining what was reasonable in the circumstances. It was noted that the English provision uses the words, “fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned”, while the Irish provision uses the words “fact which in the circumstances existing at the time clearly called for an explanation”. In any event, it was submitted that Argent should apply in interpreting the Irish provision, and that a tailored direction should be given in relation to Dion Genockey’s circumstances, including antipathy towards the investigating member of the Gardaí, and that he was 17 years old and in the company of his father who he says instructed him to stay silent. Counsel for the appellant also submitted that the use of the word “obligation” in explaining s.19A to the jury may mislead the jury into thinking that the appellant had somehow breached the law by not providing an explanation.

24. The trial judge charged the jury as follows:-

“JUDGE: Good afternoon, [foreperson] ladies and gentlemen of the jury. Now, at this point I would like to offer you specific guidance on two particular aspects of the evidence. The first concerns what inferences may be drawn from the failure of each three accused persons when detained for questioning in Clontarf Garda Station in September 2016 to mention facts that each now relies upon as part of his defence to the charge that he raped MD at Bull Island on the 5th of January 2016.

…

Before each interview, each accused person was informed that he was not obliged to say anything but that anything he did say would be taken down in writing and may be given in evidence. However, each was then told that section 19A of the Criminal Justice Act 1984 was being invoked which in ordinary language meant that he if didn't mention when questioned something that he later relied on in his defence and which, in the circumstances, did then clearly call for an explanation, that may be held against him in court, in that the jury may take into account that failure or refusal in deciding if he was guilty of that offence.

Each accused person was told that the interviewing guard believed that he had raped MD at Bull Island on the 5th of January 2016 and that if there was any fact that he wished to rely on in his defence to that allegation now is the time to mention it. Each was told that a failure to mention any such fact could be taken into account by a jury in deciding whether he was guilty of that offence, although he could not be convicted of that offence on the basis of any such failure alone. Each was told that there was thus an obligation on him to tell the interviewing guard of any such fact at that time.

Each of the accused answered no comment. Now, in remaining silent each accused person was exercising his right to remain silent, which is protected by both of Constitution of Ireland and Article 6 of the European Convention on Human Rights. Nonetheless section 19A operates so that where, as in this case, the prosecution maintains that each accused is now relying on facts that he did not mention at the requisite time, but which clearly called for an explanation then, if you, as a jury, are satisfied beyond reasonable doubt that that is the case, you may draw an inference against the accused or each such accused subject to the directions that I am about to give you.

The first direction that I must give you is that an inference can only be drawn if you are satisfied beyond any reasonable doubt that it is appropriate to do so. I have already directed you on that standard of proof and of course, I have also I hope, already directed you, and if not I must do so now, that where any two inferences are open to you or you conclude that any two inferences may possibly be drawn from a given set of facts or circumstances, you must draw the inference most favourable to each and every accused person affected by that potential inference or those potential inferences.

Now, the facts relied on by each accused for his defence that the prosecution say you should be satisfied beyond reasonable doubt were not mentioned by each accused person at the time but which clearly called for an explanation by him in the circumstances then existing are these; first that Ms D instigated the sexual encounter between each of the accused and her by stating in the internet cafe that she would do the three of them. Second, that in the car on the way to Dollymount Ms D checked that the accused had condoms. Third, that in the car on the way to Dollymount Ms D said that she had loads of lube or lubricant and waved two sachets of lubricant in her hand.

Fourth, that in the car on Bull Island Ms D asked the three accused persons which one of them wanted to go first. Fifth, that Ms D consented to the sexual intercourse that occurred between her and each of the accused. And, sixth, that Ms D separately asked Mr Genocky and Mr Ryan if she could stay with them for the night. Now, on behalf of Mr Genocky it is submitted that in the circumstances then existing the facts concerned did not call for an explanation from him because those circumstances included the following; first he was only 17 years old and had been ordered by his father, the responsible adult present on his behalf, to make no comment when invited to mention any fact relied on in his defence, advice that he felt he must follow.

Second he felt that he had been treated unfairly by Detective Garda Keane at the time of his initial arrest in March 2016 in that he believed he had been called a rapist in front of his 10-year old brother and had heard Detective Garda Keane express the belief that he had raped Ms D before inviting him to mention any such fact. And indeed he had heard Detective Garda Keane indicate that he was under an obligation in those circumstances to mention any such fact. In those circumstances Mr Genocky indicated in his evidence to you he thought that he should tell his story to a jury and not to Detective Garda Keane.

Now, on behalf of each of the accused persons, that's Mr Genocky, Mr Ryan and Mr Rooney, it is submitted that in considering the circumstances then existing you should take into account their relevant youth. Mr Genocky and Mr Ryan were each then 17 years old and Mr Rooney had just turned 18. For those reasons it is submitted on behalf of each of the accused that the circumstances existing did not call for an explanation at that time. It is for you, as a jury, to consider whether those explanations establish that the facts now relied upon did not then clearly call for an explanation by each of the accused persons.

If you are satisfied beyond reasonable doubt that any such fact did call for explanation but was not mentioned at the requisite time, you must next have regard to when it was first mentioned by the accused. In this case there is no dispute that each of the facts in issue was first mentioned at an earlier trial of the charges in this case which took place in February 21 of 2020. Further, if you are satisfied beyond reasonable doubt that such a fact called for explanation but wasn't mentioned at the requisite time you must next consider what inference or inferences it is appropriate to draw.

The prosecution contends that the inferences you should draw from the failure to mention those facts when interviewed in September of 2016 are these; the first is that this is a case of the late fabrication of a defence. That is that the facts upon which the accused persons now seek to rely were invented by them between the September 2016 interviews, at which they made no comment, and the February 2020 trial. The second is that the accused persons didn't mention those facts because they could not each be sure at that time that the defence of consent would be open to them, nor could they each be sure what the other accused persons would say at interview.

The third is that the accused persons wanted to wait to see what was in the book of evidence that was later served on each of them in December 2017 so that they could tailor their defence to fit with what was in it. I must direct you that in order to draw any such adverse inference you will have to be satisfied beyond reasonable doubt that the prosecution case at the time of the September 2016 interviews clearly called for an explanation and that the only sensible explanation for the accused person's failure to state a fact or facts subsequently relied upon was that he had no answer to that case or none that would stand up to scrutiny.

In other words you must be satisfied that the drawing of such an inference is a fair and proper conclusion beyond any reasonable doubt.

If you are satisfied beyond a reasonable doubt that it is appropriate to draw an inference from the failure to mention any such fact, then you must next consider the effect of that inference. It is open to you to regard it in one of two ways. First, you may consider it as further evidential support for the prosecution case, that is as something you can take into account in assessing the persuasiveness of the evidence of the other evidence adduced by the prosecution.”

25. Counsel for the appellant requisitioned the trial judge, submitting that the trial judge had misdirected the jury, and as succinctly stated in written submissions, argued that the correct question for the jury was whether the person concerned had failed to mention a fact which he could have reasonably been expected to mention, and not whether the facts clearly called for an explanation.

26. The trial judge rejected the requisition, ruling as follows:- “As I understand the argument [counsel for the appellant] submits that this was a misdirection because the relevant issue for the jury under the section is not whether the facts concerned "In the circumstances existing at the time clearly called for an explanation from the relevant accused person" but rather whether the facts concerned were ones that the accused person concerned failed to mention but could have been reasonably expected to mention. I don't mean any disrespect to [counsel for the appellant’s] argument when I say that it seems to me to amount in substance to the suggestion that I should hold that the relevant words in section 19A (1) of the 1984 Act and the equivalent words in section 34 of the UK Criminal Justice and Public Order Act 1994 were intended to mean precisely the same thing, that the UK statute puts the matter better or more clearly and that I should thus charge the jury using language more closely in accordance with the different words of that statute than with the express terms of section 19A. Neither [counsel for the appellant], who sought the redirection, nor [counsel for the respondent], who on behalf of the Director of Public Prosecutions indicated that she would not oppose it, responded to my request that either or both of them suggest a specific form of words to be used in redirecting the jury. While it might be better for me to refrain from any comment on the felicity of the relevant language used in section 19A, I must accept that I am bound to keep faith with the Oireachtas and not to depart from it. That means accepting that a jury direction under section 19A couched in accordance with the language of the section is, I hope, less likely to lead to a misdirection than one that proceeds from the proposition that the words of the section are misleading, that the section is intended to mean something else, that the real meaning of the section is better expressed by the words of the equivalent UK legislation or equivalent words and, sorry, that the jury should in consequence be directed in words more closely equivalent to those words. On behalf of Mr Genocky, for that reason, I cannot accede to that requisition”

Submissions of the Appellant

27. The appellant submits that while a jury must be instructed on whether a fact calls for an explanation, a jury should also be instructed to examine the appellant’s subjective reasons for silence. It is said that the appellant’s personal circumstances as identified by counsel, those being his age, parental instruction and distrust of investigating Gardaí, should be considered as reasons negativing the need for an explanation.

28. It is further submitted that not only should these subjective factors be considered in regard to whether an explanation was required, but also in regard to whether a refusal to speak could be justified even if an explanation was called for. It is argued that a jury should be instructed to first consider whether an explanation was called for, and, if answering that question in the affirmative, to then consider if there are reasons to explain silence despite an explanation being called for. It is said that if the second question is also answered in the affirmative, no adverse inference should then be drawn.

29. It is argued that the language of s.19A of the 1984 Act, allowing for the drawing of “such inferences as appear proper”, does not preclude the jury from drawing inferences consistent with innocence. It is said that the subjective factors referred to above may not have been enough to negative the need for an explanation, but may have been supportive of an inference consistent with innocence. It is said that the trial judge erred in his direction to the jury that only two inferences could be drawn from this silence – either as evidence supportive of the prosecution case, or as corroboration - both of which were consistent with guilt.

Submissions of the Respondent

30. The respondent submits that the judge’s charge to the jury on the s.19A inferences was complete and appropriate and set out all of the requirements as to whether an answer was called for, and whether if an answer were not given, the reason was because such an answer would not stand up to scrutiny. It is submitted that the charge left open the possibility that an answer was not given due to the innocent reasons identified by the appellant.

31. In respect of the appellant’s point on drawing innocent inferences, it is said that the charge was in full compliance with the statute. It is argued that the section is a qualification on the right to silence, and that the purpose of the statute is to allow for negative consequences to follow from an accused person’s silence.

Discussion and Conclusion

32. In requisition, it was argued that the correct question for the jury was whether the person concerned had failed to mention a fact which he could have reasonably been expected to mention, and not whether the facts clearly called for an explanation.

33. Counsel argued that whilst an explanation was called for, the failure to provide such an explanation at the relevant time was due to the circumstances of the appellant, specifically; his age, his distrust of the Garda, and his father’s instruction to say nothing. The error alleged in requisition was that the judge mistakenly suggested that the circumstances existing at the time clearly called for an explanation from the appellant, whereas he should have directed the jury that the facts concerned were ones that the appellant failed to mention but could have been reasonably expected to mention. As can be seen, the argument on appeal is subtly different to that made on requisition.

34. The issue concerns the manner in which the circumstances particular to the appellant ought to be assessed by the jury. In People (DPP) v AMcD [2016] IESC 71, at 104 the following was said: “Although sections 18, 19 and 19A of the 1984 Act are designed to cover different situations, each of these provisions share a commonality in their respective wording which places the underlying failure or refusal in a circumstantial and temporal context. In both section 18 and 19, for a failure or a refusal to come within the section, the account demanded and not given must be one ‘which in the circumstances at the time clearly called for an explanation’…”

35. Mc Kechnie J. considered the English Court of Appeal decision in R v Argent [1997] 2 Cr App R 27, when assessing the meaning of the words ’which in the circumstances at the time clearly called for an explanation’ where Lord Bingham CJ had stated: “[T]he time referred to is the time of questioning, and account must be taken of all the relevant circumstances existing at that time.”

36. It is quite clear from the transcript that the trial judge provided a careful and comprehensive direction to the jury concerning the invocation and impact of s.19 of the 1984 Act, as amended, and counsel for the appellant does not demur from this. The trial judge first highlighted that the right to silence is protected by the Constitution and Art. 6 of the European Convention on Human Rights. He pointed out the facts which this appellant failed to mention but which were relied upon at trial, and he set out the reasons offered which included his age, the animosity towards the Garda, and his father’s instruction.

37. It is important to look to the terms of the statute and in particular as follows: 19A (1) “Where in any proceedings against a person for an arrestable offence evidence is given that the accused –

(a) At any time before he or she was charged with the offence, on being questioned by a member of the Garda Siochana in relation to the offence,….

(b) [ ]

Failed to mention any fact relied on in his or her defence in those proceedings, being a fact which in the circumstances existing at the time clearly called for an explanation from him or her when so questioned….”

38. There can be no doubt but that the jury were instructed to examine the circumstances existing at the time of questioning the appellant. The judge stated that it was submitted on the part of the appellant that “in the circumstances then existing the facts concerned did not call for an explanation from him”, and went on to set out those circumstances pertinent to the appellant, making it quite clear that these were the reasons offered why the appellant had failed or refused to provide an account. Indeed having set out the particular circumstances, the judge then said:- “In those circumstances Mr Genocky indicated in his evidence to you he thought that he should tell his story to a jury and not to Detective Garda Keane.”

39. Thus, making it very clear to the jury that his age, his distrust of the Garda, and his father’s instruction to him were matters to be taken into account in assessing his failure or refusal to give an explanation.

40. The terms of the statute are clear; where evidence is adduced that a person failed to mention a fact subsequently relied upon at trial in his defence, being a fact which in the circumstances existing at the relevant time clearly called for an explanation, then the jury in determining whether an accused is guilty of the offence charged may draw such inferences from the failure as appear proper.

41. While the appellant suggests in written submissions that the judge ought to have directed the jury that the facts were facts which the appellant failed to mention but could have been reasonably expected to mention, this suggestion is drawn from s.34 of the Criminal Justice and Public Order Act 1994 (UK), where the wording is somewhat different from the provisions of s. 19A.

42. Counsel for the appellant on appeal submits that the strongest argument to be made is that the words “in the circumstances as they existed at the time” can properly be interpreted as including asking the question whether it is reasonable for the person in the circumstances in which he or she found himself to fail to mention a particular fact.

43. The trial judge was careful to instruct the jury using the express wording of s.19A and no criticism can be (and indeed is not) made in that respect, the judge’s charge properly reflected the terms of s.19A. However, the argument is advanced that the charge should include a suggestion that the jury should consider any other reasonable hypothesis as to why a question/s was not answered.

44. We are satisfied that the judge comprehensively directed the jury regarding s.19A, he explained the right to silence, reminded the jury that s.19A was invoked and explained the impact of that invocation, he set out the relevant facts relied upon by this appellant, the circumstances pertinent to him, and then advised the jury:

“[i]f you are satisfied beyond reasonable doubt that such a fact called for explanation but wasn’t mentioned at the requisite time you must next consider what inference or inferences it is appropriate to draw.” We do not believe it was necessary for the judge to go any further and instruct the jury that there may be some possible, and even perhaps unarticulated reason for a failure to answer a question.

45. The judge then elaborated on the inferences contended on the part of the respondent and then said: “I must direct you that in order to draw any such adverse inference you will have to be satisfied beyond reasonable doubt that the prosecution case at the time of the September 2016 interviews clearly called for an explanation and that the only sensible explanation for the accused person’s failure to state a fact or facts subsequently relied upon was that he had no answer to that case or none that would stand up to scrutiny. In other words you must be satisfied that the drawing of such an inference is a fair and proper

conclusion beyond any reasonable doubt.”

46. It is readily apparent to this Court that the charge was appropriate, fair and balanced, and permitted the jury to consider that the reason an explanation was not provided by the appellant was that he remained silent due to the particular circumstances identified on his behalf and as stated in his evidence and not because any answer he would give would not withstand scrutiny.

47. Criticism is made in written submission of how the trial judge charged the jury concerning the inferences contended for by the respondent, however, this does not appear to have been canvassed in requisition and not pressed on appeal. In any event, the judge properly addressed the burden and standard of proof and the issue of inferences.

This ground of appeal is rejected.

Daryl Rooney Appeal: Direction Application- Ground of Appeal

The Learned Trial Judge erred in refusing to direct the acquittal of the Appellant as sought by counsel for the Appellant at trial.

Background

48. On the 4th of April 2022, counsel for Daryl Rooney made an application for a directed acquittal which the trial judge refused.

49. In the course of the application, relying on R v Galbraith [1981] 1 WLR 1039 and People (DPP) v M [2015] IECA 65, Counsel relied upon the following extracts from the evidence of Ms. MD:- [Direct examination] “Q. Okay. And, sorry, again [MD], I apologise, you had started to talk about the third person at this stage?

A. Yes. The third person was handed a condom by the second person and at that point I knew it was just going to happen so I didn't really have a choice because I couldn't get out of the car, I was locked in and then it was three against one so it was just basically he got in the car and he put his condom on and put his dick in me, well, for a second, I didn't even get a chance to say no, I was just mute at that time because they were all told at the start in the car that I wasn't having sex with any of them, that I didn't want to but at this stage I was frozen and I just didn't know what to do because I knew it was going to happen but he put -- he put his dick inside me but I, like, pushed myself back a bit so it dropped -- it, like, fell out so he thought his dick was inside me and he was making noises and stuff and I was just really uncomfortable and I think he eventually ejaculated, terms (sic)I think he must have ejaculated, then he ejaculated and he was finished and by the time he was finished obviously the guys -- like, he kissed me on the lips, it was disgusting and by the time of that, the -- the other two lads came back over to get back in the car and it was kind of over then.

[Cross examination]

“Q. And then the driver did the same thing, you have told us about the conversation and everything else, but then at the end of it all he sat up and opened the door and then the third fella came along?

A. Yes, but I had told him I told the second person that I didn't want to have sex with him, the same as the first person, that I didn't want to have sex with him. They all knew I had said no to having sex with them.

Q. [MD], I'm going to deal with that in a minute, okay. I am just dealing with them getting in and out of the car for the moment, all right?

Q. The other thing that seems clear, though, is that you never told him - this is the third one now - you never told him that you were not consenting?

A. I told him previously in the internet cafe and in the car that I was not having sex with any of them.

Q. Yes?

A. I got afraid at this stage; the two of them had already raped me and I felt like giving up.

Q. Yes?

A. So, yes, I did not say anything, but I also did give no consent to having sex with him or anyone else in the car.

Q. All right. But in terms of what you said in the internet cafe, you'd also said that you didn't want to get in the car and go with them, but you changed your mind about that; didn't you?

A. I was coming up on my tablets at that stage.

Q. Yes, but you did change your mind; you voluntarily got in the car?

A. I voluntarily said I'd go on a drive.

Q. All right?

A. I never said I'd go have sex with them, I never said I'd go have fun with them, there was no banter, there was no music playing, there was no such thing of any sort of fun, if anything, it was a silent drive of them asking me am I going to have fun with them, am I going to have sex with them. I had already numerously told them no I did not want to, and they agreed that nothing would happen to me or anything like it, that's why, somehow, when we went -- when they drove off, they mentioned it again and I said no because I had already been raped a couple of weeks before that and I didn't want it to happen again.

Q. After --

A. Of course I got afraid by the third time because, like, how much can I say no?

Q. After this third one had ejaculated, as you say, he kissed you; isn't that right?

A. Yes, on my lips, disgusting.”

50. S.2 of the Criminal Law (Rape) Act, 1981 (“the 1981 act”), provides as follows:- “(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 and 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.”

Submissions of the Appellant

51. It is said that the prosecution had failed to prove mens rea, an essential component of the offence and relies on the first limb of Galbraith, that the respondent has failed to prove all elements of the offence alleged. It is therefore submitted that much of the commentary of Edwards J. as to the primacy of the jury in his judgment in People (DPP) v M [2015] IECA 65 is not directly applicable, as that case was concerned with the second limb of Galbraith.

52. It is said that the prosecution failed to prove that this appellant knew that the complainant did not consent or was reckless as to whether she did or did not consent, and that therefore the first limb of Galbraith was engaged.

53. It is submitted that the complainant told the other two men she was not consenting at the time of the sexual intercourse when Daryl Rooney was not present.

54. It is submitted that the appellant did not use force or threats and says that whilst a failure to offer resistance does not constitute consent, an absence of words or actions indicating an absence of consent is relevant to the appellant’s mens rea. Reliance is placed upon an extract from Prof. O’Malley’s Sexual Offences (2nd ed. 2013), at pg. 303, “a complainant’s failure to indicate non-consent may well be relevant to the defendant’s mens rea”.

55. It is submitted that the test for mens rea is a subjective one based on the appellant’s honest belief, but that, under s.2(2) of the 1981 Act, the presence or absence of grounds for such a belief is relevant. It is, however, said that it is not a requirement for the appellant to have reasonable grounds for his belief, just that the presence or absence of such reasonable grounds can serve as evidence which may convince the jury of whether the belief in consent was honest or not. Reliance is placed upon extracts from the judgment of Charleton J. in People (DPP) v C’OR [2016] 3 IR 322 as to the application of this test. It is submitted that this case is one of the “very rare” cases, as Charleton J. put it in C’OR, where there is a genuine issue arising whereby the woman did not consent, but the man nonetheless believed she was consenting.

56. Finally, the appellant points to the fact that MD initially said she did not want to accompany the men, and then later did so. It is said that this is also relevant to the fact that the words and actions to by the prosecution as evidence of a lack of consent, were at a temporal remove from the alleged rape.

Submissions of the Respondent

57. The respondent submits that the second appellant’s application for a directed acquittal was based entirely on a short extract of MD’s evidence and ignored all the rest of her evidence given over 7 days. It is argued that there was other evidence - given by MD during both direct and cross-examination – based upon which the jury could have properly found that MD did not consent. The respondent specifically draws attention to the interactions at the internet café, as well as her evidence in relation to what happened when Daryl Rooney entered the car.

58. The respondent submits that s.48 of the Criminal Law (Sexual Offences) Act, 2017, amended s.9 of the Criminal Law Rape Amendment Act, 1990, to make it clear that the prosecution does not need to prove that a complainant resisted the efforts of an attacker. Reliance is placed upon s.9(1) and s.9(5).

59. It is noted that Daryl Rooney was present throughout the interactions in the internet café and in the car on the drive to Bull Island, and therefore was present when MD told the three men that she did not want to have sex with any of them. It is also noted that she pulled back from him when he put his penis inside of her. It is argued that, at a minimum, Daryl Rooney was reckless as to consent given all that had occurred – and that he was clearly aware had occurred - prior to him having sexual intercourse with MD. It is said that her not explicitly saying no at the time of intercourse cannot negative this evidence, and that particular part of the evidence must be considered in the context of all the evidence in the case.

60. The respondent also relies on C’OR for the proposition that the definition of rape is not at all dependent on force, despite earlier authorities which focused on this element, and that consent requires “active communication through words or physical gestures”. It is argued that MD consistently rejected sex with all the men, had physically recoiled from Daryl Rooney, and that there was no positive act or communication of consent.

61. The respondent relies upon an extract from Charleton & McDermott’s Criminal Law and Evidence (2nd ed. 2020) to the effect that, while an honest, but incorrect and unreasonable subjective view that a person is consenting is grounds for an acquittal, a jury is not required to believe an obviously false story that an accused person believed consent was present.

62. It is noted that Daryl Rooney did not give evidence as to his state of mind, as was his right, and of course, would not have given evidence at the time of a direction application. It is therefore argued that his mental state can only be assessed by the evidence of what happened on the day, taken in the round. It is said that there was sufficient evidence for the jury to properly conclude that he did not hold an honest belief that consent was present, and that therefore this case fell within the second limb of Galbraith. It is submitted that the assessment of the evidence taken in the round was a matter for the jury, and that therefore, the trial judge was correct in in refusing the application.

Discussion and Conclusion

63. The principles stated in Galbraith are well known and reliance is placed on the first limb of the test being: “(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.”

64. In essence, a judge will direct an acquittal of an alleged offence at the directions stage if the prosecution had failed to meet the necessary evidential burden. In this instance, it is argued that an essential element of the offence of rape was not in evidence before the jury, that being the mental element.

65. In that regard recklessness simply means that an accused is consciously aware of the possibility that a complainant is not consenting, but proceeds nonetheless.

66. There is no doubt on the law that a person accused of rape may claim that he held an honest and genuine belief that a complainant was consenting, but it is also the position that a jury may assess whether such a belief was reasonable in determining whether the person accused actually held that belief. This involves a consideration of all the circumstances.

67. It is now trite to say that submission is not consent, that is well established both in terms of the common law and in statute.

68. It is contended that the respondent failed to prove that Daryl Rooney knew or believed that MD was not consenting and failed to prove that he did not have an honestly held belief that she may have been consenting.

69. One must examine the evidence in this trial where the complainant said that she informed the three men that she did not want sexual intercourse in the internet café and in the car, that she repeated that to the first two persons who engaged in sexual intercourse with her, that when the second person got out of the car, he handed a condom to this appellant who then got into the car and proceeded to have sexual intercourse with her. She had also advised the men on the drive to the location that she did not want sexual intercourse.

70. Whilst s.2(2) of the 1981 Act permits of a defence where an accused holds a genuine belief as to consent, a jury may accept or reject evidence as it sees fit, whether it be prosecution or defence evidence and it follows that a jury on being advised to apply common sense may not simply accept an obviously false story.

71. We are entirely satisfied that there was prima facie evidence before the jury of the mental element of the offence of rape applicable to this appellant. It cannot be ignored that this sexual assault of the complainant did not take place in a vacuum, but in the context of being informed (on her evidence) that she did not want sexual intercourse in the café and in the car, and his two friends then proceeding to engage in intercourse with her.

72. There is also the evidence of MD that she moved back from him when he penetrated her, thus constituting a physical manifestation of the absence of consent, and also her evidence that the vehicle was locked which the jury was entitled to consider. Moreover, her evidence was that events proceeded so quickly concerning this appellant that she “didn’t even get a chance to say no”.

73. Taking the prosecution’s case at its height at the direction stage meant that the judge properly considered the state of the evidence and in particular the evidence of MD as to what she said or did not say and her evidence of her physical reaction.

74. In the circumstances, we are entirely satisfied that the judge did not err in refusing the application for a direction and this ground is rejected.

Decision

75. Accordingly, the appeal against conviction of each appellant is dismissed.