Drunken consent is still consent, regret has no bearing: QC
A DEFENCE barrister in the rape case of two Ulster rugby players told the jury a trial is “not a court of morals”.
Brendan Kelly QC, representing Paddy Jackson (26), told the jury of eight men and three women that in deciding the verdicts in the high-profile case, which is in its seventh week, they must not be “distracted by the fact we all have daughters and we are all fathers”.
Jackson and his team-mate Stuart Olding are charged with raping the same woman at a party in June 2016.
Both deny the charges, and Jackson denies a further charge of sexual assault.
In summing up, Mr Kelly told the court the case for the prosecution was “critically flawed” by inconsistency and “untruth”.
He issued a warning to the jury: “It is a not a court of morals. Nor will you try this case on any emotion or sympathy. We may all have daughters. We may all be fathers. This is not what this case is about.
“Try this, void of emotion and void of sympathy. Why? Because your oath was to try it on the evidence.”
Two other men on trial on charges connected to the alleged assault on June 28, 2016, Blane McIlroy (26) and Rory Harrison (25), have also pleaded not guilty.
Mr Kelly told the jury: “You need to be convinced. Convinced of a man’s guilt before you can convict. If you are sure, no hesitation, your duty — to convict. If you are less than sure, your duty — to acquit. It is as stark as that.”
Among a number of elements challenged by the defence, Mr Kelly dismissed the prosecution’s explanation of the woman’s need to take the morning after pill in the hours after the alleged attack, claiming instead she was in “lie mode” and intent on running with the lie of “the classic rape victim” for fear rumours of her engaging in group sex would get out.
“If we are right that she has chosen to edit the account so as to persuade her mates and derail the rumour she is in lie mode,” he said.
“Without being disrespectful, she is in lie mode, she’s got to have the morning after pill.
“That morning when the dawn is, ‘My God this could be on social media, I have to run the lie of the classic rape victim. If this gets out because I did this with someone who’s known, I am ruined’.”
The barrister reminded the jury that consent was at the heart of the case — and would be key for them when considering the “grave” charges against the defendants.
“A drunken consent is still consent,” said Mr Kelly. “Regret has no bearing on consent. Bear that in mind when you try these counts.”
Mr Kelly also reminded the jury there was no forensic evidence to support the woman’s claim she had been raped by Jackson.
In his account to police on June 30, 2016, the sportsman said he had not penetrated the woman with his penis — something that could have been easily discredited if DNA was found, the lawyer said.
“If there had been some forensics, which we all know there are not, that would be a reckless act of his,” said Mr Kelly. “He went in, never before in a police station, at 8.30pm at night, and gave an account that could have been blown out of the water.”
The lawyer also questioned the complainant’s recollection of being “frozen” during the attack.
“There was not a threat, not a raised hand,” Mr Kelly told the court.
At the height of her evidence on this aspect, the barrister said, the woman claimed there had been “pushing onto the bed”.
“What was it she was genuinely in fear of if she had decided to leave that room?” he asked. “What does ‘frozen’ mean?”
He said the Crown team were helped by the word “frozen” because it “happens frequently in these cases”.
He also asked: “How frozen are you if you perform oral sex on a male to the point of ejaculation. It takes movement?”
Mr Kelly is expected to complete his closing submission today.
Dismissing the jury for the day, Judge Patricia Smyth reminded them to keep their minds open.
The judge said: “We still have some way to go before hearing everything there is to be said.”
The case continues.