Hegarty, R. v

Factual and Procedural Background

This opinion concerns an application for leave to appeal against conviction for five counts relating to serious sexual assaults occurring in April 2019. The applicant was convicted by a jury after a nine-day trial in November 2020, acquitted on one count, and sentenced in May 2021 to an extended custodial sentence of 20 years with a 5-year extension. The applicant also has a pending appeal against sentence.

The offending took place during the evening of 6 April 2019 and early hours of 7 April 2019. The complainant, referred to as M, had met the applicant previously and agreed to meet him at his flat. After consuming alcohol and returning from an off licence, M passed out after taking a sip of her drink. She later awoke with a rope around her neck and injuries including marks on her face and neck.

M was found lying on a bank near traffic lights in a distressed state with injuries and blood on her hands. She reported to police that she had been assaulted and raped, and was treated at a hospital where medical evidence confirmed multiple injuries consistent with a very aggressive sexual and physical assault. The applicant denied non-consensual activity, describing the sexual activity as "rough sex."

The applicant had a previous conviction for rape and sexual assault from 2010 and was subject to a Sexual Offences Prevention Order (SOPO) prohibiting him from developing a relationship with a female without disclosing his convictions.

Legal Issues Presented

1. Whether the prosecution opening was unfairly prejudicial and whether the judge erred by refusing to discharge the jury.
2. Whether the judge erred in admitting bad character evidence relating to the applicant’s previous convictions.
3. Whether the jury’s acquittal on one count was logically inconsistent with the guilty verdicts on other counts, rendering the convictions unsafe.
4. Whether the prosecution closing speech contained emotive language and references to matters not supported by evidence, affecting the fairness of the trial.
5. Whether the judge’s directions to the jury were sufficiently robust and balanced, particularly in relation to the complainant’s inconsistent and deceptive evidence.

Arguments of the Parties

Appellant's Arguments

• The prosecution opening was emotive and prejudicial, especially due to the presentation of photographs of the complainant’s injuries, warranting discharge of the jury.
• The admission of bad character evidence from a previous conviction, nine years old, was unfairly prejudicial and not sufficiently probative.
• The acquittal on the count of administering a stupefying substance was inconsistent with the guilty verdicts on rape and attempted choking, making the verdicts unsafe.
• The prosecution’s closing speech used emotive language and referred to matters unsupported by evidence.
• The judge’s charge to the jury failed to adequately address the complainant’s inconsistencies and deceptive evidence, lacking balance.

Appellee's Arguments

• The prosecution opening was fair and appropriate given the serious nature of the charges; the photographs were properly admitted and did not prejudice the jury.
• The bad character evidence was properly admitted under statutory provisions as it was relevant to propensity and the similarities between the offences.
• The acquittal on the stupefying substance count was not inconsistent with the other verdicts because the jury could find lack of consent based on physical injuries without proof of drugging.
• The prosecution closing speech, viewed as a whole, was fair and did not overstep proper bounds.
• The judge’s charge was comprehensive, balanced, and adequately addressed inconsistencies in the complainant’s evidence, providing clear directions to the jury.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Pollock [2004] NICA 34	Test for safety of verdict on appeal: whether verdict is unsafe without retrying the case or speculating on jury influence.	Guided the court’s assessment of the safety of the conviction based on trial evidence and the absence of fresh evidence.
R v Bank [1916] 2 KB 621	Prosecution counsel’s obligation to avoid emotive language that prejudices the accused.	Referenced in evaluating the prosecution opening and closing speeches for fairness.
R v Solloway [2019] EWCA Crim 454	Limits on prosecutorial language to avoid prejudice.	Supported the conclusion that prosecution opening was not overly emotive.
R v Edwards [2005] EWCA Crim 1113	Procedure for admitting bad character evidence and the importance of jury directions.	Informed the court’s approval of the judge’s approach to admitting bad character evidence.
R v Hanson [2005] EWCA Crim 824	Factors in admitting bad character evidence including similarity, gravity, age, and risk of bolstering a weak case.	Applied to assess the probative value versus prejudicial effect of the prior conviction evidence.
R v Benabbou [2012] EWCA Crim 1256	Limits on admission of previous convictions where similarities are limited.	Distinguished from the present case where sufficient similarities were found.
R v Nabi [2015] NICA 11	Admissibility of similar fact evidence depends on relevance and balance of probative value against prejudice.	Supported the court’s analysis of bad character evidence.
DPP v P [1991] 2 AC 447	Clarified that "striking similarity" is not required for admitting similar fact evidence.	Reinforced the judge’s discretion in admitting bad character evidence.
R v Stone (1955) and R v Durante [1972] 56 Cr App R 708	Burden on appellant to prove jury verdicts are repugnant or inconsistent to overturn convictions.	Guided the court’s rejection of the argument that verdicts were inconsistent.
R v Fanning [2016] EWCA Crim 550	Reaffirmed the high threshold for successful appeals based on inconsistent verdicts.	Supported the court’s conclusion that the verdicts were not logically inconsistent.
R v Dhillon [2011] 2 Cr App R 10	Difficulty in successfully challenging inconsistent verdicts.	Referenced to emphasize the burden on the appellant.
R v J [2012] NICA 39; R v H [2016] NICA 41; R v Murphy [2021] NICA 16	Local authority following English approach on inconsistent verdicts.	Confirmed the approach to inconsistent verdict challenges in Northern Ireland.
R v Ramdhanie [2005] UKPC 47	Limits on prosecutorial closing speeches to avoid unfair prejudice.	Distinguished on facts; court found no overstepping in prosecution closing speech here.
R v Amado-Taylor [2000] EWCA Crim 25	Trial judge's duty to ensure a fair trial and provide a proper judicial review of facts in summing-up.	Supported the court’s view that the trial judge’s charge was comprehensive and fair.

Court's Reasoning and Analysis

The court examined each ground of appeal against established legal principles and the trial record.

Regarding the prosecution opening, the court found the judge correctly assessed that the opening was not overly emotive and that the photographs were properly admitted and did not prejudice the jury. The judge’s instructions to the jury to treat the opening as a guide and not evidence further mitigated any potential prejudice.

On bad character evidence, the court reviewed the statutory framework and relevant case law. It agreed with the trial judge’s decision to admit the applicant’s previous convictions on the basis of significant similarities: both complainants were unconscious during the assaults and had clothing removed without their knowledge. The court found the nine-year gap did not preclude admission, given the nature of the offences. The judge’s detailed directions to the jury on this evidence were also upheld.

Concerning the alleged inconsistent verdicts, the court applied the heavy burden on the appellant to prove inconsistency. It concluded that the acquittal on administering a stupefying substance was not logically inconsistent with guilty verdicts on other counts, as the jury could find non-consent based on physical assault without drugging. Medical evidence supported this conclusion.

In relation to the prosecution closing speech, the court found that although a phrase used was not ideal, the overall speech was fair and proportionate to the evidence. The judge’s charge clarified that the jury alone was to decide on the facts, including the cause of injuries.

Finally, on the judge’s charge, the court noted the absence of any requisition by the appellant at trial and found the summing-up to be balanced, comprehensive, and adequately addressing inconsistencies in the complainant’s evidence with appropriate cautions.

Overall, the court found no errors in the trial judge’s management of the case or in the jury’s verdicts, and no grounds to deem the convictions unsafe.

Holding and Implications

The court REFUSED LEAVE TO APPEAL against conviction and dismissed the application.

The direct effect is that the applicant’s convictions and sentence stand as determined at trial and sentencing. No new legal precedent was established by this decision.