Conor McGregor’s appeal against a High Court civil jury finding in favour of Nikita Hand, who alleged he raped her in a Dublin hotel, started with a dramatic withdrawal of ‘fresh evidence’ which the mixed martial arts fighter had argued supported his denial of her claims.
Submissions in Mr McGregor’s appeal concluded at the Court of Appeal on Tuesday.
The three judge court comprises Ms Justice Isobel Kennedy, Mr Justice Brian O’Moore and Mr Justice Michael MacGrath. They will hear submissions on Wednesday in a linked appeal by James Lawrence, whom the jury found did not assault Ms Hand in Dublin’s Beacon Hotel, against a refusal to award him his costs against her. After this it is expected judgment on both appeals will be reserved to a later date.
Mr McGregor has appealed a civil jury’s finding last November that he assaulted Ms Hand in the Beacon Hotel, Sanydford, Dublin, on December 9th, 2018. Ms Hand was awarded €250,000 damages and got her legal costs against Mr McGregor.
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Ms Hand, a 36-year-old mother of one, told the jury Mr McGregor raped her after she and a friend went with him and his friend Mr Lawrence to the hotel. She said she told Mr McGregor she did not want to have intercourse with him but he “would not take no for an answer”.
She was wearing a tampon at the time and would not have sex during her period, she said.
Mr McGregor denied rape and said he and Ms Hand had “fully consensual” and “vigorous”, “sex. He said he was shocked when later shown photos of bruising on Ms Hand, that he had not caused them and there was no tampon.
[ ‘I know what happened in that room’: the full story of the Conor McGregor caseOpens in new window ]
Ms Hand denied a separate claim by Mr Lawrence that she had consensual sex with him after Mr McGregor left the hotel. She said they did not have sex.
When charging the jury, Mr Justice Owens told them, if a person proves they were subject by another person to non-consensual sexual activity, that is the tort [a civil wrong causing harm or loss leading to legal liability] of assault.
The jury found Mr McGregor had assaulted Ms Hand. They found Mr Lawrence (35), of Rafter’s Road, Drimnagh, had not assaulted Ms Hand.
Mr McGregor claimed fresh evidence came into his possession after the case which provided a “plausible” explanation for bruising on Ms Hand’s body.
The material involved sworn claims by Samantha O’Reilly, a former neighbour of Ms Hand in Driminagh, that, from a bedroom in her home, she observed a physical row between Ms Hand and her then partner, Stephen Redmond, at their home within hours of the encounter between Ms Hand and Mr McGregor in the hotel.
In a responding affidavit, Ms Hand described the claims by Ms O’Reilly, and claims by Ms O’Reilly’s partner Steven Cummins that he heard screaming from Ms Hand’s home on the night of December 9/10th, 2018, as “lies”. She said Mr Redmond never assaulted her at any time in their relationship.
On Tuesday, Mark Mulholland KC, for Mr McGregor, applied to have the fresh evidence withdrawn, saying he was doing so in light of case law and reservations expressed by the court which indicated that other evidence his side wanted to adduce from a former Northern Ireland State Pathologist, Prof Jack Crane, was inadmissible.
The evidence of Prof Crane was considered necessary to corroborate the evidence of Ms O’Reilly and Mr Cummins, counsel said.
John Gordon SC, for Ms Hand, said he was “shocked” at the withdrawal application which he only became aware of on his way to court. Ms Hand had been “put through the wringer yet again”, she had answered the claims by saying they were “lies” and that was now conceded, he said.
There might be an issue about referring matters to the Director of Public Prosecutions for consideration of perjury proceedings, he added.
Ms Justice Isobel Kennedy remarked the case law referred to by Mr Mulholland was not new. Mr Justice Brian O’Moore said that, to say he was “bemused” by the withdrawal application, was “a kind way” of describing his view.
Mr McGregor’s side were told they could withdraw their applications to adduce evidence of Ms O’Reilly, Mr Cummins and Prof Crane, as well as a related ground of appeal, meaning Ms O’Reilly and Mr Cummins, who were in court, did not require to be cross-examined about their claims and Ms Hand did not face cross-examination about her response.
Opening the appeal, Mr Farrell described as of “totemic importance” a ground of appeal alleging errors of law in how Mr Gordon and the trial judge approached Mr McGregor’s “no comment” responses, made when interviewed by gardaí after giving them a statement in response to Ms Hand’s claim of rape.
Questions from Mr Gordon suggesting the no comment responses were at odds with Mr McGregor saying he co-operated fully with gardaí, involved an effort to go behind the privilege against self-incrimination, counsel submitted.
Ms Hand’s side, rather than get the trial judge’s permission to put certain questions, instead decided to “take a punt”, counsel submitted.
The trial judge also erred in directing that the jury be asked to answer whether or not Mr McGregor “assaulted” Ms Hand rather than “sexually assaulted” her, he said.
Assault was “manifestly not” the appropriate cause of action in the trial, he said.
Ms Justice Kennedy remarked the trial judge’s reference to assault was “assault by rape”.
Opposing the appeal, Ray Boland SC argued there was no error in how his side or the trial judge dealt with the no comment responses.
Mr McGregor had “put himself out there as trying to be as co-operative with the gardaí as possible”. It was in that context his no comment responses were relevant and there was no question of self-incrimination in the High Court hearing, he said.
In disputing the trial judge erred in putting “assault” on the issue paper, counsel said this was “assault by rape” and it was attendant on physical assault. It was “an insult to the intelligence of the jury to suggest they did not know what the case was about”, he said.
Ms Hand, accompanied by her partner Gary Foy, her mother Deborah, a cousin and some friends, were in the packed Hugh Kennedy courtroom in the Four Courts for the appeal. Mr McGregor was not in court.
