Judge in McGregor case tells jury not to speculate

The jury in the legal action taken by Nikita Hand against mixed martial arts fighter Conor McGregor and another man has been told they must look at all the evidence and should not speculate.

Ms Hand alleges she was raped by Mr McGregor and his friend James Lawrence in a Dublin hotel room in December 2018.

The men deny the allegations and say they had consensual sex with Ms Hand.

Mr Justice Alexander Owens is continuing his charge to the jury. He reminded them that he had made observations about alcohol yesterday.

He said Ms Hand's evidence was that she had been drinking and taking cocaine.

If you assumed she had been up since 7am on the morning of the 8th of December, he said she had been up for 33 hours on the trot and had a long period of time with no substantial food.

He said she drank in the hair salon, then at the Christmas party, then in a pub and back to the salon. She also drank in Mr McGregor’s car and in the hotel room.

The logical conclusion he said was that she had a lot to drink. Witness Danielle Kealey was also out partying for the same length of time. Mr McGregor and Mr Lawrence had also been out the judge said.

Mr Justice Owens said the defence case was that CCTV footage showing Ms Hand was inconsistent with her allegation that she had been raped earlier.

The judge told the jury to look at the video footage and use their common knowledge to come to their conclusion.

He said they should assess the condition of Ms Hand and Mr Lawrence after Mr McGregor and Ms Kealey left the hotel.

He asked were they so "befuddled by drink" that it took them a long time to realise that pushing buttons in the lift would not get them back up to the penthouse.

He said they should look at all the evidence and see which bits they accept and which bits they reject.

Evidence which initially is not persuasive, he said, may be more persuasive when looked at in the context of other evidence.

The judge said they should consider if a witness had an axe to grind or was holding something back.

He urged them to be careful about the evidence of Ms Kealey and of Mr McGregor’s security guard, Denis Dazari.

He said Ms Kealey’s evidence about what happened was "minimal" and Mr Dazari only saw people clothed in the room.

He said the jury could not speculate about what the witnesses might have said if they were more forthcoming or if they were "put on the rack in the tower of London."

He said evidence such as CCTV footage, or telephone records were more reliable because such pieces of evidence had no axe to grind.

He told them to make their own assessment of the sobriety of Mr Lawrence and Nikita Hand and evaluate it – was it flirting, romance or drunkenness or maybe a bit of both.

He said they were concerned not only with truth and lies but with credibility in the sense of reliability. Sometimes you can’t rely on evidence because it is lies, or people misremember or put a construction on things, he said.

Mr Justice Owens said the defence case was that Ms Hand had to explain what had happened to her boyfriend, that she invented a story that she had been raped and committed to it and that her bruises were not caused by non-consensual sex.

He said Ms Hand claimed she was "in bits" when she disclosed what happened, that she didn’t want to take the matter any further because of her fear of what would happen and that was why she deleted phone messages.

He said she also claimed she didn’t want to hurt her boyfriend by telling the truth. It also may have been embarrassing for her to admit she went off with Mr McGregor the judge said, adding "the two things may be there in it."

The judge warned the jury that comments by witnesses inviting people to comment on the believability of other witnesses were not evidence. Statements by lawyers were not evidence, nor what people had said before the trial.

The judge said details of what a complainant said to others immediately after the alleged assault could be used as a tool in assessing the consistency of a witness but did not mean the things said at that stage actually happened.

He said they had to assess Nikita Hand’s evidence in the witness box because that was all she remembered.

He told them there was a vast difference between what was said by a person who was in distress and possibly drunk and what was said by a person who went into a garda station with all their wits about them and gave a considered statement to a trained statement taker.

He said if you go to bed drunk there is a danger you won’t remember some detail when you wake up – and even before you go to bed there may be some confusion.

He urged them to assess if what Ms Hand said about the core event to others was consistent with her evidence now and to assess how they viewed what she had said in relation to peripheral matters. Did that indicate fabrication or was there an innocent explanation, he asked.

He asked if the fabrications to her friend and to her boyfriend were to explain away "a day on the tear with Conor McGregor" or was it "all a jumble as a result of hitting the bottle."

He said they were entitled to take into account distress in the immediate aftermath of the alleged assault, but the further away the distress was from the event, the less likely it related to the event itself.

The judge also warned the jury not to speculate, saying speculation could turn an "Inspector Poirot into an Inspector Clouseau… who was an incompetent".

Verdict, damages

Mr Justice Owens said the verdict of the jury must be one on which any nine or more of them agreed. This also meant that if the jury found Mr McGregor or Mr Lawrence had raped Ms Hand, any juror who disagreed on those findings should not go on to decide on damages.

The judge told them that if they found Ms Hand had been raped, then she was entitled to substantial and not nominal damages.

Rape was a very serious matter and rapes were devastating for victims who had to live with them for the rest of their lives he said.

He said this also applied if they concluded that Mr Lawrence had taken advantage of an incapacitated person by having sex, and it was irrelevant if she wasn’t aware of it at the time.

Mr Justice Owens said damages were awarded not only to take account of a victim’s pain and suffering but also to acknowledge the wrong to that person, the anxiety that person had suffered and their right not to be sexually abused.

He said rape affected a person’s dignity, self-worth and reputation and the longer a matter was dragged out with no vindication the more damages should be awarded.

He said aggravating damages should be awarded if there were aggravating features beyond the normal – for example, a level of violence, a breach of trust, or the attitude of the perpetrator after the event including a refusal to apologise or an attack on the character of the victim.

He said if they found Mr McGregor set out to concoct a lurid and degrading pornographic fantasy about Ms Hand, that would merit aggravated damages if they got to that stage.

Punitive or exemplary damages were a different level he told them and would mark a particular disapproval by the jury of the defendant’s conduct in all the circumstances.

If for example there was an attack on a victim’s character by claiming she was a gold-digger or that there was a shakedown or if they considered witnesses in the case got together to concoct a story they could consider awarding punitive damages.

He said any award of damages must be just and proportionate and they must have a sound basis for awarding punitive damages.

He warned them not to be "flaithiúil" or "stingy". They should keep a sense of proportion and fairness and should not consider whether Mr McGregor could afford to pay and Mr Lawrence could not.

He said there were no guidelines in cases such as this but he told them that in personal injury cases where someone had suffered quadriplegia, the maximum award for general damages would be €550,000.

In the most serious libel actions, he said the Supreme Court had ruled that general damages should not exceed €300,000.

He urged them not to go overboard if they came to the point of awarding punitive damages. They should not get carried away and they should forget about what courts in the USA might do.

He said they should try to obey his instructions as much as possible as there was always the prospect of an appeal. "Appeals don’t help litigants," he said, "they only enrich the legal profession," and he asked them to do their best.

Consent

Yesterday, while beginning his charge, Judge Owens said the jury must answer: "Does the evidence prove she was assaulted by Mr McGregor in the penthouse of the Beacon?

"Does the evidence prove she was assaulted by Mr Lawrence?

"Those are the beginning middle and end of the case and everything rotates around those two questions.

"She alleges she was raped, they say no and say it was consensual."

He said the jury must decide if is Ms Hand's account that she was raped by Mr McGregor is more likely than not to represent the objective truth and says he uses that word rather than truth or lies. If not you proceed no further," he said.

The first question on the issue paper presents the simple answer of yes or no, he said, adding that proof is on the balance of probabilities in a civil action.

He added that "something is proved on the balance of probabilities when you decide on the evidence it is more likely to have happened than not".

He said it really boils down to who you believe. "It is a matter of truth or lies. One side or the other in this case is telling lies, that is my view for what it is worth," he said.

Judge Owens said consensual sexual activity is where both sides are in free and voluntary engagement.
"Submission is not consent - it is not necessary to prove a person resisted, tried to run away or raise the alarm," he said, adding that a person can freeze.

The judge said people may have consensual sex while intoxicated, but it is different when someone is so intoxicated they cannot exercise free and voluntary will, and may simply be so out of it they have no clear idea as to what they are about.

However, drunken consent can still be consent, he said, adding that the jury would have to examine all the evidence in relation to all of this including the CCTV footage of Mr Lawrence and Ms Hand.

The judge also told the jury: "You should be cautious about what you think about what someone who is a victim of sexual assault should have done, it does not follow they will complain to the person about what happened, they may respond to that event in ways that may seem irrational. That is just my observation."

Judge Owens said wearing certain clothes on Instagram is not an invitation.

He said: "Of course men might be attracted to woman but if they want to take it further it requires consent.

"The fact that a woman engages in risky activity like drinking or taking drugs does not mean they are up for sex.

"While excessive alcohol can lead to disinhibition you cannot engage in a presumption that the women who engage in this behaviour are promiscuous.

"You look for sound evidential basis and not lazy assumptions or victim blaming."

He said the jury could conclude that excessive alcohol affects good judgement and affects memory and that it can lead to patchy and fragmented memory of the night before. These are all matters you have experience of and do not require medical expertise, the judge said.