Markey, R. v

Factual and Procedural Background

The Appellant was convicted following a jury trial at Downpatrick Crown Court of one count of rape contrary to Article 5(1) of the Sexual Offences (Northern Ireland) Order 2008. The conviction followed a retrial after the first trial was aborted. The Appellant was sentenced to a determinate custodial sentence of seven years, split equally between custody and probation. The complainant, an adult female, had met the Appellant through a dating website. They had communicated and agreed to stay overnight at a hotel on a specified date, with the complainant making it clear that she would not engage in sexual intercourse before then. Prior to that, the Appellant visited the complainant’s home where they consumed alcohol and shared a bed, with the complainant reiterating that no sexual intercourse would occur. The complainant fell asleep and later woke to find the Appellant penetrating her despite her protests. The Appellant left shortly after, sending a text apologizing and expressing confusion over the incident. The Appellant contended that the sexual activity was consensual.

The Appellant made a renewed application for leave to appeal against conviction following refusal by the Single Judge. The Court of Appeal dismissed the application and provided detailed reasons in this judgment.

Legal Issues Presented

1. Whether there was a material and procedural failure when the jury received a document containing the Appellant’s prior internet search history from his mobile phone.
2. Whether the trial judge erred in refusing to discharge the jury after the discovery of the internet search history evidence.
3. Whether the trial judge’s approach to not discharging the jury before hearing the full defence application was contrary to fairness and the Appellant’s Article 6 ECHR rights.
4. Whether the trial judge erred in refusing to exclude the internet search history evidence.
5. Whether the trial judge improperly permitted the prosecution to cross-examine the Appellant on his previous sexual history.

Arguments of the Parties

Appellant's Arguments

• The Appellant argued that there was a procedural failure because the jury received a document containing his prior internet search history related to a pornography website, which should not have been admitted.
• The Appellant contended that the trial judge should have discharged the jury upon discovery of this evidence being provided to them.
• The Appellant asserted that the trial judge’s refusal to discharge the jury before hearing the full defence application violated fairness and his rights under Article 6 of the European Convention on Human Rights.
• The Appellant claimed the trial judge erred in refusing to exclude the internet search history evidence.
• The Appellant argued that the prosecution’s cross-examination on his previous sexual history, including his use of the dating website and relationships formed through it, constituted improper bad character evidence.

Respondent's Arguments

• The Respondent maintained that the document containing the internet search history was part of agreed facts admitted during the first trial without objection and was admissible under section 10(3) of the Criminal Justice Act 1967 for the retrial.
• The Respondent argued that the trial judge properly removed the document from the jury and heard full submissions before concluding the evidence was admissible and did not warrant discharging the jury.
• The Respondent contended that the internet search history was relevant evidence of the Appellant’s state of mind and motive, and not bad character evidence.
• The Respondent submitted that the cross-examination regarding the Appellant’s use of the dating website was relevant to his motivation and not an improper inquiry into bad character or misconduct.
• The Respondent highlighted that no objections were raised at the first trial regarding these admissions and that the defence had not withdrawn the admissions prior to the retrial.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court carefully examined the procedural history and the nature of the evidence admitted. It noted that the document containing the Appellant’s mobile phone report, including internet search history, had been admitted by agreement during the first trial without objection and was part of the formal admissions. The defence did not withdraw these admissions prior to the retrial, and the same document was provided again to the retrial jury.

The trial judge took appropriate procedural steps by removing the document from the jury upon the issue being raised and hearing full submissions on admissibility. The judge concluded the evidence was admissible as relevant to the Appellant’s state of mind and motive under Article 3 of the Criminal Justice (Northern Ireland) Order 2004. The Court agreed with this conclusion and further held that even if the evidence was bad character evidence, it would have been admissible under Article 6(1)(d) of the same Order as relevant to an important matter in issue.

Regarding the cross-examination on the Appellant’s use of the dating website and prior relationships, the Court found this line of questioning was aimed at exploring the Appellant’s motivation and not to introduce bad character evidence or suggest misconduct. The Court emphasized that no applications to cross-examine on sexual history were made, and no improper inferences were permitted by the judge, who reminded the jury not to draw conclusions solely based on the Appellant’s use of the dating site.

The Court applied the principles from R v Pollock, focusing on whether the verdict was unsafe. It rejected the appeal grounds as untenable and found no significant sense of unease about the correctness of the verdict.

Holding and Implications

The Court DISMISSED the Appellant’s renewed application for leave to appeal against conviction.

The direct effect is that the conviction and sentence stand as determined by the trial court. No new precedent was established by this decision, and the ruling confirms the admissibility of agreed facts including internet search history evidence and the scope of cross-examination regarding motivation without constituting improper bad character evidence under the relevant statutory framework.