Google search for ‘rape kit accuracy’ should not have been presented to jury, court told

Google searches for ‘rape kit accuracy’ made by a man after an allegation of rape was made against him were of “limited relevance” and should not have been presented to the jury at his trial, the Court of Appeal was told on Thursday.

The 29-year-old man had pleaded not guilty to one count of rape against a 17-year-old female at an address in Midleton, Co Cork, in August 2017.

A jury, however, convicted him of the offence following a trial in September 2020 at the Central Criminal Court in Cork.

He was sentenced to 10 years’ imprisonment with the final three suspended by Mr Justice Alexander Owens.

The man later appealed his conviction on the grounds that Mr Justice Owens erred “in law and in fact in refusing the appellant’s application to rule Google searches made by the applicant on his telephone as inadmissible in evidence”.

It was further claimed that the trial judge had erred by “frequently and excessively intervening during the examination and cross-examination of the appellant, and thereby disrupted and prejudiced the appellant’s evidence to such an extent so as to render the trial unfair”.

At the Court of Appeal on Thursday, Siobhan Lankford SC, for the appellant, said other Google searches made by her client after he was told a complaint of rape had been made to gardai against him included ‘rape kit accuracy’, ‘is drunk sex considered rape’, and ‘girl rape drunk’.

But she said the searches were his attempts to seek legal advice and had “limited relevance”.

“It was information he was looking for after the allegations were made,” Ms Lankford continued.

Counsel then asked: “What the jury to make of that as a search?”

“The nature of the words used is such as to possibly raise in the mind of the jury a prejudice against my client,” she said, adding that allowing the search terms to go before the jury had only served to paint her client “in a bad light”.

Ms Lankford also told the three-judge court that the “excessive” number of times her client was asked a direct question by the judge meant that in effect there had been “two prosecutors” at the trial.

“I was asking questions [of the appellant] and the trial judge was asking questions. That was the way trial flowed,” counsel explained.

At one stage she said she was forced to raise an objection, on the grounds that the judge appeared to “putting words into my client’s mouth” with one of his questions.

“When you are taking your client through their evidence, it would probably be better if you were allowed to do so without interruption,” Ms Lankford added.

Ray Boland SC, for the DPP, said that juries in rape trials had to undergo “some form of mind reading”.

“Did the complainant consent? If the complainant did not consent, was the accused aware of the lack of consent. Did the accused act recklessly regarding the issue of consent?” he asked.

While counsel acknowledged the Google searches were of limited relevance, he said they provided an indication of the appellant’s “state of mind” without prejudicing the trial.

Regarding the issue of judicial interventions, Mr Boland remarked that judges differed in style. “Some sit like a sphinx and don’t interrupt at all,” he said.

But he acknowledged that the number of interruptions in the appellant’s trial had been “greater than you would normally come across”.

Mr Boland also pointed out to the court that juries were “robust” and asked whether they were to be considered “infirm in the face of judicial intervention”.

He said the trial was not “a case put off the rails by judicial intervention” and the “result should not be overturned”.

If there had been an issue with the judge’s interventions, the judge should have been informed at the time, he added.

Judgment has been reserved.