The Court of Appeal has dismissed “in its entirety” the appeal of Conor McGregor of a High Court finding from last November that he raped former hairdresser, Nikita Hand, in a Dublin Hotel on the 9th of December 2018.
The lengthy judgement, read out on behalf of the 3 judge panel by Mr. Justice Brian O’Moore, detailed the courts displeasure at the sudden and “somewhat mysterious” withdrawal of a substantive element of the grounds of appeal on the first day of the hearing “without notice to the court”.
This was in reference to an affidavit sworn by two former neighbours of Ms. Hand who said that hours after she said she was raped by Mr. McGregor, they saw her being assaulted by her then partner, Stephen Redmond, from a bedroom window across the road from where the woman was living at the time.
This evidence was withdrawn on the first day of the trial. It was accompanied by a report by a Prof. Kane who had been tasked with examining bruising on Ms. Hand’s body, which lawyers for McGregor had claimed was caused by the assault, Samantha O’Reilly and Steven Cummins, had claimed to have witnessed.
Remy Farrell SC for McGregor told the court that the report by Prof. Kane was to corroborate that accounts given by the two witnesses, however the court today said that the bedrooms being to the rear of the house represented a “body blow” to his evidence, and that a professor’s report could not “alter the orientation of the house”.
The court said it did not wish to “speculate” on why the decision was made to “scuttle” the more public aspect of the evidence which had drawn much “attention” and was designed to present the testimony of Ms. Hand to the High Court jury as “materially incomplete and misleading.”
A referral has been made to the DPP in respect of these statements as possible perjury.
An affidavit on behalf of Hand had dismissed these claims as “lies” saying that the bedrooms in the front of the home the couple lived in were “kids’s rooms” and that the other bedrooms were facing the opposite way.
The Court of Appeal expressed dissatisfaction that the evidence had been withdrawn saying that it must have been “stress tested” by McGregor’s legal team, on whom the panel of judges expressed the court’s wish to cast no aspersions.
McGregor claimed that on the day Hand was raped, he had engaged in “fully consentual, athletic, enthusiastic sex” with her.
After a 12 member jury at the High Court found in favour of Ms. Hand, she was awarded approximately 250k in damages.
The court noted that the case was one of the “most hard fought trials in recent years” and that “the jury believed her,”.
They said that the behaviour of the defendants “deserves to be marked with the displeasure of the court.”
Use of the word “assault” on the trial issue paper
With regard to the issue of the jury being asked on the trial issue paper of Conor McGregor has “assaulted” Ms. Hand, which his legal team cited as a ground of appeal, the Court of Appeal said that during the High Court hearings, Mr. Justice Andrew Owens had made it abundantly clear to the jury that the issue at hand was one of sexual assault.
They said that “clear direction from the trial judge” had clarified this, and that it was unreasonable to infer that the jury had not been fully aware of what they were being asked to decide on.
The court noted that the trial judge’s charges to the jury had lasted from 4pm on day 9 of the hearings to 3pm on day 11, and that the term ‘assault’ had been clearly defined as “any intentional non-consensual contact” and “framed in such a brutally clear way” as to avoid any possibility of doubt.
Mr. McGregor’s “no comment” answers at Garda interview
Another issue entered as grounds for appeal was the cross-examination of Mr. McGregor regarding his “no comment” answers questions put to him by Gardaí at Dundrum Station in the aftermath of the assault of Ms. Hand.
Mr.Farrell argued that negative inference would have been drawn from this and the jury could have taken these answers as an indication of guilt when there is a clear legal entitlement to answer “no comment” when cautioned by a member of An Garda Síochána.
The Court of Appeal found that Justice Owens had clearly instructed the jury that this was “not evidence”, saying McGregor was “perfectly entitled to do that” and “you can’t draw any adverse inference from that”.
The jury were also charged by Justice Owens that they were,“Not entitled to use the ‘no comment’ as any type of evidence which supports Ms Hand’s account.”
The court also noted that during the trial when the “no comment” issue arose, no discharge of the jury was sought by the defence, although this did not preclude entering the same as a ground of appeal, it said.
The court said that the difference between Justice Owens charging the jury to “disregard” the “no comment” issue and telling them it was “not evidence” was “gossamer thin”, and that the “real risk of an unfair trial had not been met.”
Issue regarding witness report
Another ground of appeal entered by Mr. McGregor’s lawyers was the evidence of a witness for Ms. Hand, Dr. Ann Leader.
During the hearings Dr. Leader, psychiatrist, referred to a report she had compiled in respect of Ms. Hand while being cross examined.
At the time Mr. Farrell, for Mr. McGregor, objected saying that the defence was entitled to a copy of the document as it was being relied upon by the witness to give an account of past events.
This arose in circumstances where a witness is required to seek the permission of the court to refer to any personal notes when under cross examination, however the defence were unsatisfied that a report was being relied upon.
At the time of this request by the defence, Justice Owens remarked, “In all my years I’ve never heard that submission being made,” although he retired over lunch to give the matter due consideration.
Issues with charges of trial judge
Lawyers for McGregor also said that Justice Owens had failed to properly charge the jury before sending them off to deliberate on the case, however the Court of Appeal said it found “nothing” in this that could be justified.
With all grounds of appeal in respect of Mr. McGregor dismissed, the court awarded costs to Ms. Hand.
Appeal of co-accused, James Lawrence
Mr. McGregor’s co-accused, James Lawrence had been sued for rape by Ms. Hand after he made a Garda statement claiming that on the day she said she was raped by Mr. McGregor, he had engaged in consensual sex with her twice.
Ms. Hand claimed that she had no recollection of these interactions, and the High Court jury subsequently found that Lawrence had not assaulted her.
Mr. Lawrence’s appeal was lodged in circumstances where he had been unsuccessfully sued, and was therefore seeking to overturn the order as to costs which were awarded against him by the High Court.
The Court of Appeal found that although Lawrence’s defence had been successful, it was known that his substantial legal costs had been paid in full by McGregor.
The costs, which amount to “several hundred thousand euros” could therefore not be awarded to him as it has not been established that he owes the money to his co-accused, and therefore to give him the costs would amount to a “windfall” and would be “neither fair nor appropriate”.
The court also noted that, should the money be awarded and returned to McGregor, this would amount to Ms. Hand being forced to “pay money to the man who raped her,”.
The court commented that this would also effectively “wipe out” the damages awarded to Ms. Hand, and that “the purpose of awarding costs was to “make whole a party who has been wrongly sued.”
Ms. Hand was awarded costs in respect of her defence of Mr. McGregor’s appeal.