The Irish Times - Saturday, March 6, 2010

Effort to appeal sex assault conviction

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ELAINE KEOGH

A KERRY man who was given a seven-year sentence last year for sexually assaulting a woman outside a nightclub is attempting to appeal the conviction, a court was told yesterday.

The case involving security man Danny Foley became the subject of controversy in December after a number of people, including his parish priest, shook his hand in court in what was seen as a show of support for him.

Foley was given the seven-year sentence, the final two years of which were suspended, by Judge Donagh McDonagh at the Circuit Criminal Court in Tralee.

Yesterday an application was made by barrister Pat Purcell on Foley’s behalf to Judge McDonagh, who was sitting at Trim Circuit Criminal Court.

Mr Purcell asked the judge to extend the time within which he could make an application seeking a certificate for leave to appeal conviction and sentence.

He later withdrew his motion but it is expected a new one will be made before the judge in the near future.

As part of his initial application yesterday, Mr Purcell said that, after the conviction in Tralee, an application was made to the judge for a certificate for leave to appeal the severity of the sentence, but it should have been for conviction and sentence.

Mr Purcell said the relevant affidavit from Foley and papers lodged with the court in Tralee had referred to it being leave to appeal conviction and sentence.

However, reference was made only to severity of sentence at the court in Tralee and when the matter was before the Court of Criminal Appeal earlier this week, Mr Justice Adrian Hardiman told Mr Purcell that, as a result, the court had no jurisdiction to hear the full appeal.

Yesterday, Judge McDonagh refused to extend the time and was told by Mr Purcell that there was no other possible way for Foley to appeal the matter.

Later in the day, Mr Purcell raised it again with the judge and mentioned case law on the issue before asking to withdraw his motion from the judge.

Judge McDonagh allowed him to do that and it is understood that another motion will be brought before the judge in the near future.

If the judge allows Foley the extension of time, he will then be able to lodge an appeal with the Court of Criminal Appeal and challenge both his conviction and sentence.

During yesterday’s hearing, Judge McDonagh said the trial had been conducted by the prosecution with probity and it was a verdict he “personally and fully agreed with in the particular circumstances”.