Rapist tries to have conviction quashed a second time due to judge’s ‘slip of the tongue’

Natasha Reid

Reporter:

Natasha Reid

Rapist tries to have conviction quashed a second time due to judge’s ‘slip of the tongue’

A Limerick man has appealed his rape conviction, arguing that the trial judge’s inadvertent use of the word ‘guilt’ rather than ‘innocence’ should result in it being quashed.

Alan Hanley went on trial for the same offence three times, with the first jury failing to reach a verdict, the second convicting him, before an appeal led to a third trial, where he was again convicted.

His Central Criminal Court trials heard that Hanley, of no fixed abode, had attacked his former partner in her home after she answered her door to him.

The violent attack ended when Hanley went upstairs to turn off a smoke alarm that activated when he began burning the rug on which he had raped his victim.

She then ran out onto the street semi-naked and in a very distressed condition. This was captured on CCTV and seen by passers by.

Hanley had admitted assaulting the woman causing her harm at her home in Limerick city on the night of May 4/5 2012. However, he pleaded not (NOT) guilty to three counts of rape on the same occasion.

The third jury returned a verdict of guilty on one of the rape counts but failed to agree verdicts on the other two. Mr Justice Alex Owens jailed him for 12 years.

The 39-year-old today appealed his conviction to the Court of Appeal on two main grounds.

His barrister, Seamus Clarke SC, submitted that the trial judge had erred in refusing to warn the jury that evidence of a complainant’s distress amounted to weak corroboration, where it was alleged that there were serious and significant credibility concerns in respect of the complainant.

He also said that, in explaining the standard of proof and presumption of innocence to the jury, the judge had inadvertently erred.

The judge had told the jurors that, if there were two views reasonably open on any piece of evidence, “you’re obliged to go with the view which is consistent with the guilt of the accused”.

The law states the opposite. The defence raised the issue with the judge, who agreed to clarify the matter with the jury.

However, Mr Clarke said that the judge’s attempt to correct his previous error only confused matters further.

“It just got a little muddled,” he said.

He pointed out that, this time, both he and the State suggested a simpler clarification.

“The judge, on a third recharge, went into more of a dialogue,” complained Mr Clarke. “There was a fear at that point that a fourth attempt might be more of the same.”

“A slip of the tongue,” appeal judge Mr Justice Patrick McCarthy noted. “You say that when he revisited it, it did not rectify it?”

Mr Clarke confirmed that this was his submission.

Paul Murray SC responded on behalf of the Director of Public Prosecutions.

He noted that the trial judge had been very succinct in his first charge and agreed that his use of the word ‘guilt’, rather than ‘innocence’ had been inadvertent.

“I think Mr Clarke and I would have preferred if he had simply gone back and said: ‘Look, I said ‘guilt’ instead of ‘innocence’. But he didn’t do that,” he noted.

However, he added, the judge did not say anything legally or factually incorrect the second or third time around.

“It might not have been quite as simplistic as it was originally or as simplistic as we were hoping for,” he agreed. “Perhaps, he said it with more elaboration than we might have thought desirable. But, he said it correctly.”

He also agreed that, when the judge suggested going back over it for a fourth time, both sides said there was no need.

Court President Justice George Birmingham (presiding), along with Justice McCarthy and Justice Aileen Donnelly, reserved judgment.