THE JUDGE IN the civil case against Mixed Martial Arts fighter Conor McGregor has told the jury that they must work with the evidence they have and can’t speculate on what a witness might have said “if they were put on the rack in the Tower of London”.
Nikita Hand (Ní Laimhín) alleges that McGregor “sexually assaulted her, and in effect, raped her” in a hotel penthouse in Dublin on 9 December 2018, and that a second defendant, James Lawrence, of Rafter’s Road, Drimnagh, “did likewise”, Mr Justice Alexander Owens told the jury on the first day of the civil trial.
The allegations in the action, which were brought against McGregor in 2021, are fully denied.
The evidence in the case concluded last week, with both sides finishing their closing arguments in court yesterday.
Mr Justice Owens began his charge to the jury of eight women and four men in court yesterday afternoon.
Continuing his charge this morning, the judge said it was the jury’s role as fact-finders to look at all the evidence and decide what they accept and reject.
“All of the evidence means all of the evidence,” he said, adding that a weak case can become a strong case when all evidence is looked at, or vice versa.
He said the jury can decide if a witness “has an axe to grind” or if they held something back.
Referring to the evidence heard during the trial, the judge said McGregor’s driver said he only saw clothed people in the penthouse “if he is to be believed” and that Danielle Kealey’s evidence is “minimal”.
The judge said the jury can take a view on whether they believe a witness was forthcoming.
He said the jury must “stick with what they have, for what it’s worth”, adding that they “can’t go speculating” on what a witness might have said “if they were put on the rack in the Tower of London”.
The judge said the evidence should also include things like the CCTV footage and the text messages.
He urged the jury to look at the CCTV “very carefully in this case”- but said the jury can’t look at the footage from the perspective of what counsel have said about it.
“You are the judges in relation to it, you are not bound by what counsel say about it,” he said.
The judge also said that witnesses are “notoriously inaccurate” when they talk about time and said it is “really quite useless” to ask a witness about time “because you’re really only getting estimates”.
He said there was good evidence in relation to the timings shown on the CCTV, such as the time McGregor arrived at the salon and collected Hand and Kealey, the time the car arrived at the Beacon Hotel, what happened in the lift at the hotel, and the time when McGregor and Kealey left the hotel.
Mr Justice Owens told the jury it is “obvious” that Hand’s evidence that she went to her phone and sent a text to her boyfriend in the bedroom after the alleged assault can’t be correct, because CCTV showed that this text was sent in the car park of the hotel.
He asked the jury to consider if this was “just a lie” or something that Hand got confused about and tried to figure out later.
He said the jury could assess the CCTV as to the group’s sobriety and whether Hand was flirting with Lawrence during that time, or whether she was drunk and what his reaction was to that.
“Flirting, romance, drunkenness: what was it? Maybe a bit of both?”
He reminded the jury that Hand’s evidence is that her next memory after being in the hotel was her waking up in a taxi with a driver demanding that she pay, and that she didn’t know where she was.
The judge said it is “obvious” that she was texting her boyfriend at the time before going to a friend’s house.
He reminded the jury of the recording of “at least part” of a conversation with her former partner when she got home.
He said the jury can “consider that carefully” and that the defence’s case is that she was lying to her former partner to leave him under the impression that she was raped, but that Hand’s evidence is that she didn’t want to produce any information which would lead to her then-partner “or anybody else starting an investigation in relation to the association of Mr McGregor”.
He reminded the jury that what they are concerned with is not only truth and lies, but credibility in the sense of liability.
He said that sometimes a jury can’t rely on evidence because something said may be a lie or because it may be misremembered.
The judge also referred to cases involving allegations of sexual misconduct where a person makes a disclosure to another person based on the doctrine of recent complaint.
A person to whom an early complaint was made could give evidence that the complaint was made and what the alleged victim said because the reaction was considered reliable. He said it is an old thing from the law many centuries ago.
“The reality of course is that most people who are raped are not raped by men who jumped out of the bushes. They are raped by members of their families and friends,” he said, adding that they may not immediately make a disclosure and may have to “get themselves together” before they do.
He said there are all sorts of reasons why a victim might not complain or make a disclosure to a third party immediately, such as feelings of embarrassment, shame or for reasons that have no particular logic because of the circumstances.
He said the source of the information is always the alleged victim.
The judge said that in relation to what Hand told the court, the jury is “confined to considering her evidence in the witness box because that is all she remembers”, and not what she said to other people.
“Her case is what she can remember. If she can’t remember those sorts of things, because she may have said them to something else, that does not become evidence,” he said.
He added that the jury can’t look at what she said to others as independent evidence, but that they can look at it as a tool in assessing Hand’s consistency.
Mr Justice Owens told the jury that they must assess whether Hand gave fabricated accounts to her former partner and her salon manager which were first thought up in the Beacon Hotel or in the taxi, as the defence suggested, or whether her account comes from what she actually endured, “or is it all jumble as a result of hitting the bottle”.
He said the jury are entitled to take distress in the immediate aftermath of an event into account. He said the defence’s case is that there was no distress shown in the lift.
However, the judge said there was obviously distress in the ambulance on the morning of 10 December 2018, “part of that appears to have been because she was suffering from discomfort because the tampon was giving her pain and she couldn’t sit in the ambulance”.
He told the jury that they should not speculate. ”If you attempt an Inspector Poirot in relation to it, you’re more likely to end up as an Inspector Clouseau,” he said.
Mr Justice Owens also told the jury that the verdict in the case must be one on which nine or more jurors are in agreement.
He likewise said that if the jury find that McGregor or Lawrence assaulted Hand, only those nine or more jurors may participate in discussions on damages.
Mr Justice Owens also instructed the jury on what damages they are entitled to award in the case if they find in favour of Hand.
He told the jury that if they conclude that Hand was assaulted by McGregor, she is entitled to more than nominal damages.
He said that a person who has been raped is entitled to substantial damages because the assault “is a very serious matter” and that instances of rape “are devastating for victims who have to live with them to the rest of their lives”.
He said that this also applies if the jury conclude that Lawrence assaulted Hand. “Taking advantage of someone who is intoxicated is a very serious matter,” the judge said, adding that it “doesn’t matter if they don’t remember it”.
He said that aggravating features “beyond the norm” would include the level of violence used, the breach of trust and the attitude of the perpetrator after the event.
The judge also said that aggravating damages are compensatory and take into account the reason why a wrong was committed and the conduct of the wrongdoer after the event, such as a refusal to apologise.
He also said exemplary damages may come into play if the jury disapproves of a defendant’s conduct in a case.
The judge said that if the jury does decide to award exemplary damages, they must be clear on the reason why they are doing so.
He said they are entitled to award exemplary damages “if you think witnesses got together to concoct a story” – but that exemplary damages may only be awarded if the jury has a good reason founded on evidence.
He said it is important not to double count in relation to general and aggravated damages, and to list out the considerations that they are taking into account in coming to an award, if they find in favour of Hand.
He told the jury that they are not going to be interrogated by any court on their decision, “but you should assume the Court of Appeal are in the room listening to you, so you must have a good reason for it”.
He added that the overall figure for damages should be proportionate.
“Don’t get carried away. It must be proper and just compensation which takes into account appropriate compensation without punishing the defendant,” he said.
Mr Justice Owens also began taking the jury through a summary of the evidence heard in the case this afternoon. The summary will continue tomorrow.
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