A trial judge failed to highlight to a jury the differences between the cases of two men in their 20s accused of raping a young woman who had “blacked out” at a party, the Court of Appeal was told on Friday.
The first accused, who cannot be identified for legal reasons, had pleaded not guilty to raping the woman at an address in in Co Leitrim on a date in 2017.
His co-accused, who also cannot be identified, had pleaded not guilty to the oral rape of the same woman at the same time and place.
The men were later found guilty by a jury following a trial at the Central Criminal Court in November 2019 and jailed for seven years each by Ms Justice Eileen Creedon.
Both men have since appealed their convictions.
In legal papers submitted to the Court of Appeal, the first man claimed that Ms Justice Creedon failed in her charge to highlight the differences between his case and the case of his co-accused.
It was also submitted that the judge failed to give the jury an adequate corroboration warning before sending them out to consider their verdict.
A corroboration warning can be given by a judge to a jury to highlight the dangers of convicting a defendant on the basis of uncorroborated evidence.
The second man in his appeal has submitted that the judge erred in law in refusing the application to acquit on the ground that “the State had failed in its duty to gather and preserve evidence”.
At a joint hearing at the Court of Appeal on Friday, Brendan Grehan SC, for the first appellant, said his client and the complainant had been socialising in a flat following a birthday party at a public house.
Mr Grehan told the court that the other guests had observed his client and the complainant engaging in “flirtatious” behaviour together before leaving the kitchen area and going to a bedroom.
The assumption among many of the guests, counsel continued, was that his client and the woman were “getting together”.
Mr Grehan then told the court that next thing the woman said she remembered was waking up and his client was having sex with her.
The complainant, Mr Grehan added, said that his client had his hands around her neck and had “slapped her” during the intercourse.
When his client returned to the party, he had scratches on his back “arising from [what] went on” in the bedroom, the defence barrister said.
Mr Grehan added that the account he had given was to distinguish his client’s case from that of the co-accused’s.
He also referred to claims the complainant made during the trial that she had “blacked out” after going to the bedroom and only woke up when his client was having sex with her.
“If it was the accused who said that he woke up in the bedroom having sex without knowing how he got there he would be laughed out of court,” Mr Grehan said.
Colm Smyth SC, for the second appellant, said his client and the complainant “had been friends at school and been well-known to each other”.
Mr Smyth said his client had a brief conversation with the woman after entering the bedroom before engaging in “foreplay” with her, at which point she placed “her hands inside his trousers”.
Counsel told the court that if his client’s clothing had been made available to Forensic Science Ireland, then a touch test could have been carried out to establish if the victim had left her DNA inside his client’s trousers.
But he said this opportunity was lost when gardaí decided not to seize his client’s trousers after he was arrested and placed in custody.
Eilis Brennan SC, for the Director of Public Prosecutions, told the appellate court that it had been "very clear in the course of this case that these were two separate matters and the jury had to consider them differently".
“The facts in the case were very much jury matters,” Ms Brennan said, adding that the jury had rejected the defence put forward by the appellants at their trial.
She said that on the night in question, the complainant “came to” to find the first accused was raping her.
Ms Brennan said the woman had described the intercourse as “violent” and that she had scratched her attacker’s back as she told him to stop.
She said the second accused entered the room shortly after the first man had left and forced his penis into the complainant’s mouth, hurting her as he did so.
After the attacks, when the complaint was alone in the room , she heard other guests at the party talking about her, Ms Brennan said.
One guest was heard to say, “you effed her, you get rid of her”, while another said: “You guys think you can abuse a woman while she’s drunk?”
Regarding the issue of DNA evidence on the second appellant’s trousers, Ms Brennan noted that “whatever DNA was on his penis would have transferred to his trousers”.
Judgement has been reserved.