A man jailed for seven years for the rape of a former student has had his conviction upheld by the Court of Criminal Appeal.
The court fixed July 13th for submissions by both sides on whether the issue raised in the appeal regarding the right to silence should be referred to the Supreme Court, either as a question of law or as a matter of exceptional public importance.
Joseph Finnerty (34), of Birr Road, Shrinrone, Co Offaly, was convicted by a jury in the Central Criminal Court last November of raping a 21-year-old woman in Manorcunningham, Co Donegal, on June 1st, 1995.
The victim had been celebrating the end of her exams with friends at Letterkenny RTC when she met Finnerty at a disco.
The young woman said in evidence at the trial she danced with a "nice" man she met there and accepted a lift home in his car. But Finnerty had also got into the car with the hood of his sweatshirt pulled over his head. Finnerty was to have been dropped off first but he refused to get out of the car when it stopped.
The car stopped a second time and the men had a conversation on the roadway. The driver walked away and Finnerty drove to the driveway of a house where he raped her.
Finnerty, in evidence at his trial, said her account of the other man was a figment of her imagination. He said she agreed to go for a drive in his car and consented to sexual intercourse.
In court yesterday, Mr Brendan Grehan, for Finnerty, said that after denying the rape when first arrested, his client was cautioned and told he was not obliged to say anything. But this silence had been used against him at his trial by both prosecution counsel and the trial judge.
Mr Grehan said the evidence in the case was finely balanced. The case came down to who was telling the truth - the accused man or the young woman.
One of the appeal judges, Mr Justice O'Sullivan, said Finnerty had not observed his right to silence but had chosen to speak by giving evidence in the witness box at his trial. Because of this he was not entitled to the protection which silence gave.
Ms Miriam Reynolds SC, for the State, said once the accused man entered the witness box he lost the protection he previously had. In giving evidence, he was entitled to have his story queried in cross-examination.
Mr Justice Lynch, presiding, said Finnerty had been questioned by various gardai but remained silent as he was entitled to do during 12 hours' detention in Letterkenny Garda Station after his arrest.
In this case there were two versions of what happened on the night in question. It was quite proper and reasonable for Finnerty to be asked during his evidence why the explanation he was giving then had not given to gardai during his period of silence.