A Meath man jailed for raping a woman he met on the online dating app Badoo has lost an appeal against his conviction.
Martin Sherlock (31) and the woman, a foreign national, had arranged to meet but she told him they could not have sex without a condom. She started to feel uncomfortable during other sexual activity and said Sherlock did not stop when she said “no”. Later, she realised he had ejaculated inside her.
Sherlock, of Athlumney Wood, Navan, Co Meath had pleaded not guilty to raping the woman at her Dublin home on August 14, 2015. He pleaded guilty to stealing her mobile phone.
His defence was that sex had been consensual. He admitting hearing some “nos” but after some stopping and starting, thought she was happy to go forward.
A Central Criminal Court jury found him guilty following a four-day trial and he was sentenced to five years imprisonment by Mr Justice Patrick McCarthy on July 2, 2018. The Central Criminal Court was told that Sherlock had no previous convictions, had lost his job and his wedding plans were cancelled.
He lost an appeal against his conviction on Wednesday with the Court of Appeal holding that there was no mandatory requirement in Ireland for judges to warn juries about a person’s pervious “good character”.
Sherlock had given evidence in his own defence. His lawyers argued that a “good character” warning should be given to juries in all cases where an accused is of good character or has no previous convictions.
However, President of the Court of Appeal Mr Justice George Birmingham said there was no empirical evidence to suggest that a person with no previous convictions is more likely to tell the truth.
Mr Justice Birmingham said a defendant could always argue that a person of previous good character does not have the “propensity to offend in the manner alleged” or that a person of previous good character had “enhanced credibility”.
For example, if someone of impeccable previous character, a pillar of the community, was charged with shoplifting, and the defence was that they had forgotten to pay, one could imagine the defence would “beat the drum about how unlikely it was” that they would engage in deliberate shoplifting, Mr Justice Birmingham said.
In those circumstances, the judge would have to put those arguments in favour of the defence before the jury. But it would happen without “elevating” the issue to the status of a mandatory “warning”.
Mr Justice Birmingham said it didn’t arise on the facts of this case. Sherlock had admitted lying to the victim about his non-availability at a particular time. More relevantly, he stole her mobile phone which was “hardly the act” of a good character.
For many years in England and Wales, Mr Justice Birmingham said a trial judge had no obligation to give a direction to a jury in relation to good character. But from 1989 onwards, there was a change, and what had once been a matter for discretion evolved to become a mandatory requirement.
“However well-intentioned the development may have been, it cannot be said to have worked entirely smoothly. Difficult questions have arisen as to who is and who is not a person of good character.”
An accused may not have previous convictions, but there may be information to suggest regarding him as a person of good character would involve a “departure from reality”. In other cases, recorded convictions may not be of major significance, may go back a long time or be “stale”. Further difficulties have arisen for co-defendants where one is of good character and one is not.
Mr Justice Birmingham said the history outlined in a 2015 England and Wales case was “not a clear or happy one”.
He said it was likely that similar difficulties would arise if a requirement for a mandatory warning was adopted in Ireland.
Mr Justice Birmingham said it would not be appropriate to “set Irish law on a new course”. Sherlock’s lawyers were unable to point to any authority to suggest the giving of a “good character” warning was mandatory in Ireland.
Accordingly, Mr Justice Birmingham, who sat with Ms Justice Isobel Kennedy and Ms Justice Aileen Donnelly, dismissed the appeal.