The ulster rugby trial

[sid waddell]

Reference was also made to prosecution witness Dara Florence who believed she had walked in on a threesome and was invited to stay.

Mr Kelly said: "She walked into the room where, if the prosecution are correct, a rape was taking place times two.

"She was invited to join in. She said 'no' and Jackson said 'are you sure?'.

"To join in a rape?

"Ask yourself this, if (the complainant), as she tells you, was not consenting and Dara had said 'yes I'd love to', picture what would the scene be – those on the left not consenting, those on the right consenting."

He continued: "Is it really the Crown's case that half the bed would have been consenting and half not?"

Either Mr. Kelly is labouring under the misapprehension that if a man believes he's not committing a rape, it can't be rape. Which for a QC, would be staggering.

Or, more likely, he's just saying things that he knows full well are absolute rot.

Did David not say above that if the jury believes Jackson and co thought they had consent, then it's not rape. Essentially the woman could refuse or withdraw consent, but if the accused could demonstrate they believed they had consent, they would be acquitted?

That presupposes that they know the intricacies of the legal definition of rape.

Them believing they weren't committing a rape and them not reasonably believing she had consented are not mutually exclusive

Somebody can think they had consent but not have had reasonable belief that they had.

That's the whole point.

And I think there's a very good chance that men who have had 20 drinks or more are in that zone.

[gallsman]

Reference was also made to prosecution witness Dara Florence who believed she had walked in on a threesome and was invited to stay.

Mr Kelly said: "She walked into the room where, if the prosecution are correct, a rape was taking place times two.

"She was invited to join in. She said 'no' and Jackson said 'are you sure?'.

"To join in a rape?

"Ask yourself this, if (the complainant), as she tells you, was not consenting and Dara had said 'yes I'd love to', picture what would the scene be – those on the left not consenting, those on the right consenting."

He continued: "Is it really the Crown's case that half the bed would have been consenting and half not?"

Either Mr. Kelly is labouring under the misapprehension that if a man believes he's not committing a rape, it can't be rape. Which for a QC, would be staggering.

Or, more likely, he's just saying things that he knows full well are absolute rot.

Did David not say above that if the jury believes Jackson and co thought they had consent, then it's not rape. Essentially the woman could refuse or withdraw consent, but if the accused could demonstrate they believed they had consent, they would be acquitted?

That presupposes that they know the intricacies of the legal definition of rape.

Them believing they weren't committing a rape and them not reasonably believing she had consented are not mutually exclusive

Somebody can think they had consent but not have had reasonable belief that they had.

That's the whole point.

And I think there's a very good chance that men who have had 20 drinks or more are in that zone.

You've misunderstood me - that's precisely my point.

[David McKeown]

To be convicted of rape the prosecution must prove all three of the following beyond a reasonable doubt.

1. That there was penetration by a penis. (PJ disputes there was, SO accepts there was)

2. The penetration was not consensual (both defendants dispute it wasn't consensual.)

3.  The defendant did not reasonably believe the penetration was consensual. (Both defendants make clear they believed it was.)

Dealing only with point 3 that is going to be very difficult for the prosecution to prove. The jury will have a difficult job putting themselves in the defendants shoes in this regard. The fact they were drunk will have little bearing. If anything it helps the defendants. They have pointed to the asking of Dana Florence to join in and the tenor of their messages the next day as evidence that they believed the sex was consensual. From what I have read that doesn't seem to have been massively disputed. So assuming it's accepted the defendants did have a belief then The jury have to decide was that belie reasonable considering all the evidence in the case from both sides including but not limited to evidence about the girl going to the house, going back upstairs. Stirring at PJ all night. Saying no. The comment about at least use a condom, the lack of a struggle or cry for help, the version the defendants give etc. The jury will have to take that all into account. Only if they are satisifed beyond a reasonable doubt that the belief was one that no reasonable person in the position of the defendants could and I stress could have arrived at can they convict. I haven't read anything that gets me over that high threshold. Either because it hasn't been reported/didn't exist or because I have missed it.

Interestingly although I wasn't there I've spoken to thre lawyers who saw Brendan Kelly's closing and everyone of them thought it was excellent. Given how long it lasted I doubt we have the fuller flavour of it based on what's been posted here.

[sid waddell]

Reference was also made to prosecution witness Dara Florence who believed she had walked in on a threesome and was invited to stay.

Mr Kelly said: "She walked into the room where, if the prosecution are correct, a rape was taking place times two.

"She was invited to join in. She said 'no' and Jackson said 'are you sure?'.

"To join in a rape?

"Ask yourself this, if (the complainant), as she tells you, was not consenting and Dara had said 'yes I'd love to', picture what would the scene be – those on the left not consenting, those on the right consenting."

He continued: "Is it really the Crown's case that half the bed would have been consenting and half not?"

Either Mr. Kelly is labouring under the misapprehension that if a man believes he's not committing a rape, it can't be rape. Which for a QC, would be staggering.

Or, more likely, he's just saying things that he knows full well are absolute rot.

Did David not say above that if the jury believes Jackson and co thought they had consent, then it's not rape. Essentially the woman could refuse or withdraw consent, but if the accused could demonstrate they believed they had consent, they would be acquitted?

That presupposes that they know the intricacies of the legal definition of rape.

Them believing they weren't committing a rape and them not reasonably believing she had consented are not mutually exclusive

Somebody can think they had consent but not have had reasonable belief that they had.

That's the whole point.

And I think there's a very good chance that men who have had 20 drinks or more are in that zone.

You've misunderstood me - that's precisely my point.

I didn't misunderstand you - you misunderstood me in thinking that I was disagreeing with you. I wasn't.

[seafoid]

One of Kelly's lines was very interesting.

"What did these two violent rapists do when she walked in? They invited her to join in. Dara Florence is absolutely central to this case."

Rose of Tralee escort territory . Such chivalry.
She saw Jacko in the top shaggers position which Jackson denies.
And if they had  20 drinks how off was their judgement ?

[StGallsGAA]

Reference was also made to prosecution witness Dara Florence who believed she had walked in on a threesome and was invited to stay.

Mr Kelly said: "She walked into the room where, if the prosecution are correct, a rape was taking place times two.

"She was invited to join in. She said 'no' and Jackson said 'are you sure?'.

"To join in a rape?

"Ask yourself this, if (the complainant), as she tells you, was not consenting and Dara had said 'yes I'd love to', picture what would the scene be – those on the left not consenting, those on the right consenting."

He continued: "Is it really the Crown's case that half the bed would have been consenting and half not?"

Either Mr. Kelly is labouring under the misapprehension that if a man believes he's not committing a rape, it can't be rape. Which for a QC, would be staggering.

Or, more likely, he's just saying things that he knows full well are absolute rot.

Pretty smart from Mr Kelly I think you'll agree.  PJ and SO are nailed on to be found not guilty by my reckoning.  Any bookies out there offering odds?

[whitegoodman]

To be convicted of rape the prosecution must prove all three of the following beyond a reasonable doubt.

1. That there was penetration by a penis. (PJ disputes there was, SO accepts there was)

2. The penetration was not consensual (both defendants dispute it wasn't consensual.)

3.  The defendant did not reasonably believe the penetration was consensual. (Both defendants make clear they believed it was.)

Dealing only with point 3 that is going to be very difficult for the prosecution to prove. The jury will have a difficult job putting themselves in the defendants shoes in this regard. The fact they were drunk will have little bearing. If anything it helps the defendants. They have pointed to the asking of Dana Florence to join in and the tenor of their messages the next day as evidence that they believed the sex was consensual. From what I have read that doesn't seem to have been massively disputed. So assuming it's accepted the defendants did have a belief then The jury have to decide was that belie reasonable considering all the evidence in the case from both sides including but not limited to evidence about the girl going to the house, going back upstairs. Stirring at PJ all night. Saying no. The comment about at least use a condom, the lack of a struggle or cry for help, the version the defendants give etc. The jury will have to take that all into account. Only if they are satisifed beyond a reasonable doubt that the belief was one that no reasonable person in the position of the defendants could and I stress could have arrived at can they convict. I haven't read anything that gets me over that high threshold. Either because it hasn't been reported/didn't exist or because I have missed it.

Interestingly although I wasn't there I've spoken to thre lawyers who saw Brendan Kelly's closing and everyone of them thought it was excellent. Given how long it lasted I doubt we have the fuller flavour of it based on what's been posted here.

I would agree with a lot of this.  The prosecution case seems to be based on the boys being drunk, the WhatsApp messages, a girl crying in a taxi and conflicting stories.  If I was on the jury I would be questioning whether I have yet seen an ounce of actual evidence of the alleged crime.

[seafoid]

To be convicted of rape the prosecution must prove all three of the following beyond a reasonable doubt.

1. That there was penetration by a penis. (PJ disputes there was, SO accepts there was)

2. The penetration was not consensual (both defendants dispute it wasn't consensual.)

3.  The defendant did not reasonably believe the penetration was consensual. (Both defendants make clear they believed it was.)

Dealing only with point 3 that is going to be very difficult for the prosecution to prove. The jury will have a difficult job putting themselves in the defendants shoes in this regard. The fact they were drunk will have little bearing. If anything it helps the defendants. They have pointed to the asking of Dana Florence to join in and the tenor of their messages the next day as evidence that they believed the sex was consensual. From what I have read that doesn't seem to have been massively disputed. So assuming it's accepted the defendants did have a belief then The jury have to decide was that belie reasonable considering all the evidence in the case from both sides including but not limited to evidence about the girl going to the house, going back upstairs. Stirring at PJ all night. Saying no. The comment about at least use a condom, the lack of a struggle or cry for help, the version the defendants give etc. The jury will have to take that all into account. Only if they are satisifed beyond a reasonable doubt that the belief was one that no reasonable person in the position of the defendants could and I stress could have arrived at can they convict. I haven't read anything that gets me over that high threshold. Either because it hasn't been reported/didn't exist or because I have missed it.

Interestingly although I wasn't there I've spoken to thre lawyers who saw Brendan Kelly's closing and everyone of them thought it was excellent. Given how long it lasted I doubt we have the fuller flavour of it based on what's been posted here.

I would agree with a lot of this.  The prosecution case seems to be based on the boys being drunk, the WhatsApp messages, a girl crying in a taxi and conflicting stories.  If I was on the jury I would be questioning whether I have yet seen an ounce of actual evidence of the alleged crime.

3.  The defendant did not reasonably believe the penetration was consensual. (Both defendants make clear they believed it was.) 

After 23 drinks they wouldn't be trusted to drive. How reliable is anyone's judement when pissed as a fart?

[whitegoodman]

Is that your basis for conviction??

[Syferus]

Is that your basis for conviction??

The woman who was raped saying she was raped goes a long way towards indicating what happened. What tells you she is lying?

[whitegoodman]

Is that your basis for conviction??

The woman who was raped saying she was raped goes a long way towards indicating what happened. What tells you she is lying?

I don't know who is lying but there are gaps on both sides and it's up to the prosecution to prove the case and imo that hasn't happened.  Hasn't been close in fact.

[Syferus]

Is that your basis for conviction??

The woman who was raped saying she was raped goes a long way towards indicating what happened. What tells you she is lying?

A woman saying she was raped isn't enough to convict someone of rape. Being unable to prove she is lying still isn't.

It ain't all the evidence ladeen.

[seafoid]

Is that your basis for conviction??

A very unconvincing defence would be.

[sid waddell]

Is that your basis for conviction??

The woman who was raped saying she was raped goes a long way towards indicating what happened. What tells you she is lying?

A woman saying she was raped isn't enough to convict someone of rape. Being unable to prove she is lying still isn't.

I would venture that in most rape cases, there are no independent witnesses to the crime - that's the nature of such a crime.

So, how on earth do rapes ever get convicted, one wonders?

But they do - 58% of UK rape trials in the last five years have resulted in a conviction.

I'd bet my last euro that if these cases were discussed here, there would be a large cohort of people who would be demanding an acquittal in most of them.

[whitegoodman]

It's not up to the defence to prove their innocence, it's up to the prosecution to prove their guilt.  Basing this on a shaky defence instead of bulletproof evidence isn't nearly enough imo.