The appeal of the High Court decision that Conor McGregor assaulted Nikita Hand has begun before the Court of Appeal sitting at the Four Courts, Dublin.
New evidence that made part of the appeal, namely the statement of neighbours of Hand at the time who said that they witnessed an assault on Ms. Hand allegedly by her former partner on the night she said McGregor attacked her, was withdrawn.
The remaining aspect of the appeal were heard by the three member judicial panel led by Ms. Justice Kennedy. There are four in all, with an appeal in respect of McGregor’s co-accused, James Lawerence in relation to costs awarded against him, to be held subsequently and is expected to last half a day.
Defence counsel for McGregor, Remy Farrell SC, opened his arguments by raising issues with the way that prosecution evidence regarding McGregor’s use of his right to silence with respect to a Garda interview which took place in December 2018, after the incident at the Beacon Hotel.
Mr. Farrell, in his submissions, took issue with the “manner” in which the trial Judge, Mr. Justice Alexander Owens, dealt with objections related to the admission of evidence, as distinct from the judges charges to the jury.
Referring to day 6 of the trial, Farrell made reference to when his client had taken the stand during the trial, where he was asked what he had said to Gardaí in Dundrum Garda station such as “what did you do”, and if he had told the Gardaí “everything”.
On this occasion, McGregor said that the unfolding situation regarding the then allegations of rape was the “most scary thing” he had “ever gone through” and that he had wanted to get the “best advice” and “dial it all in”.
Farrell argued that the answers to this question had been “paraphrased” by the prosecution and that the jury had been led to believe that his client was referring to answering all the questions of the Gardaí, when it was “clear” that he was referring to seeking advice from his solicitors.
He argued that these answers had been subject to “remarkable paraphrasing” of the exchange and “remarkable conflation” and that a “whole lot rolled into a ball” to suggest that McGregor was saying “I told the Garda everything”, when he had brought a prepared statement to the station and replied “no comment” to the live questioning.
He argued that the jury could have drawn “an adverse inference” from this and that the line of questioning should not have been made admissible, although the sitting judges today expressed a view that the “no comment” aspect may have been introduced in order to explain to the jury how the written statement submitted to Gardaí had come about.
Farrell argued that an effort had been made “to lead the evidence” with respect to what he called a “controversial area” where the prosecution had just decided to “pop the question” regarding his client having exercised his right to silence.
Farrell also drew attention to the usage of the term “assault” on the trial issue sheet, arguing that this term did not clearly set out whether it was the view of the jury that an assault that was specifically sexual in nature had taken place, making an argument about the definition of the word “battery”.
He said that there was, “No such thing as distinct tort of sexual assault” in law. He said that there is a “clear distinctions between battery and sexual assault” and that these are“distinctions that may not have been canvassed” during the trial.
Justice Kennedy interjected to sat that the relevant matters “says it’s assault by rape” and that sexual assault is legally understood to mean “unwelcome touching of another person” and “intentional non-consensual contact”, questioning how this would not have been clear in the context of the trial.
Representative of Nikita Hand make counter arguments.
Appearing for Nikita Hand, Ray Boland SC conceded that there had been a“breakdown in communications” with fellow SC for Ms. Hand, John Gordon regarding the issue of cross-examination of McGregor regarding the “no comment” issue.
Mr. Boland conceded that although this issue had been communicated to him but the representative of McGregor, he had neglected to flag this adequately with Mr. Gordon who made the case on behalf of Ms. Hand during the hearing last year.
However, Boland argued that if the issue of the mention of the “no comment” answers had been so contentious, that the defence could have requested that the jury be dismissed mid-trial.
Justice Kennedy noted that, as the trial progressed, the mention of the “no comment” answers had cropped up several times.
Boland argued that in circumstances where Mcregor had presented himself as wanting to be “as cooperative as possible” with Gardaî, that this became relevant and that the line of questioning was “not hugely probative of anything” and that the trial judge had “repeatedly warned jury that McGregor was “perfectly entitled” to exercise his right to silence, and that no negative aspersions could be drawn from this.
Mr. Farrell’s argument that the jury had been led to believe that his client was willing to “dial in” everything with the Gardaí, when it is McGregor’s case that he was referring to wanting to air everything with his representatives, Boland said that McGregor would have had an opportunity to made this distinction while on the stand.
He argued that it was normal procedure for a defence team to use their client’s having answered every question put to them by the Gardaí as “a great virtue” of their cooperation, but that McGregor’s level of cooperation had only been “middling”.
With regard to the word “assault” on the issue paper Boland argued that the word had been chosen by Justice Owens after a “collaborative process” the representatives of Ms. Hand, Mr. McGregor, and his co-accused James Lawerence.
He said that Mr. Farrell had flagged his dissatisfaction with the use of the word “assault”, but when Justice Owens had disagreed saying, “No, assault is the word”, Farell had replied, “Alright, so be it.”
He said that it “couldn’t have been clearer” what the intent of the word was in the context of the trial and that “It’s a nonsense” and “an insult to the intelligence of the jury that they didn’t know what the case was about.”
Mr. Farrell said that a week before the trial an email had been sent to the team of Ms. Hand outlining the defence’s reservations to the including of the “no comment” answers issue in evidence, to which Mr. Boland answered that this could have been the case, but he did not remember seeing this correspondence.
The hearing is to resume tomorrow morning at the Four Courts.
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