National: Pair jailed over rape and sex assault of woman in van lose appeal against convictions

TWO men who were jailed over the rape and sexual assault of a woman in the back of a van during the Galway Races have failed in their conviction appeals after they argued that an incorrect time-stamp on phone evidence affected their legal teams' preparation for their cases. 

At the Central Criminal Court in November last year, Karl Reilly, aged 40, of Inny View, Aghara, Carrickboy, County Longford was sentenced to seven years' imprisonment with 18 months suspended for the single charge of raping the woman in the back of the van at a car park in the harbour area of the city on August 5, 2017.

Patrick McLoughlin, aged 36, of Torboy, Moydow, County Longford was sentenced to five years' imprisonment with 18 months suspended by Ms Justice Mary Ellen Ring for the sole charge of sexual assault of the woman also in the back of the van.

Both men had pleaded not guilty to the charges.

The trial heard that the woman met Reilly and McLoughlin on a night out in the city and returned with Reilly to have consensual sex in the van with but was interrupted by his friend, (McLoughlin). 

McLoughlin was told to leave the van and at that point, the woman said she no longer wanted to continue having sex with Reilly and said "no, no, no".

Reilly did not stop and then raped her. The trial heard that McLoughlin left and returned to the van minutes later and sexually assaulted the woman by digitally penetrating her anus.

At the Court of Appeal in October, counsel for both men submitted to the three-judge court that an "erroneous" time-stamp on phone evidence discovered during the trial meant that the defences did not have an opportunity to prepare for the correct timeline, rendering the trial "unsatisfactory".

Michael Bowman SC, for Reilly, also submitted that the trial of the two men should have been separated, as differences in the men's accounts to gardaí meant it was possible for the jury to pit one accused against another.

At the Court of Appeal today this Friday, presiding judge Mr Justice George Birmingham said the court was dismissing the conviction appeals of both men.

He said the rejected application to sever the trials of the two men was decided by trial judge Ms Justice Ring, who said: “Experience has shown the capacity of jurors to deal with the complexity of multiple accused in other trials once properly instructed in the law”.

Mr Justice Birmingham noted: “She [Judge Ring] was satisfied that the difference in the two statements was not sufficient to require her to exercise her discretion to order separate trials."

In statements to gardaí, Reilly said that when McLoughlin entered the van he was “finishing up or finished” having sex but McLoughlin maintained that Reilly was still having sex with the complainant.

However, the difference in the two statements “it could be argued could amount to no difference at all”, said Mr Justice Birmingham.

“It does not necessarily follow that there is any difference between these two positions, but certainly any difference there is very minor indeed,” she said.

Mr Justice Birmingham said joint trials routinely take place “when the potential difficulties for the defence are of a far greater order of magnitude”, adding that the trial judge was “fully entitled to refuse the application”.

The judge further observed that the complainant was also spared “the potential ordeal” of giving evidence on several occasions in separate trials and then dismissed this ground of appeal. 

Regarding the application to discharge the jury over the differing “time stamps” relating to calls on McLoughlin’s phone when analysed by gardaí, Mr Justice Birmingham said 29 calls on the date were examined.

Mr Justice Birmingham said there were also ten calls analysed from the phone of the complainant.

However, the phone records “did not feature in any way as part of the prosecution case”, said the judge.

The phone issue was raised at the trial and concerned a one-hour difference in the two phones’ call records that could have damaged the credibility of the complainant’s’ statement to gardaí regarding her account of the night's timeline.

Mr Justice Birmingham said that the calls recorded used the 24-hour clock, or Universal Time Co-ordinated (UTC) clock, but that in Ireland the actual time in summer was “plus one hour” which led the defence to apply for the jury to be discharged.

It had been suggested that the defence had been denied an opportunity to engage an independent phone analyst, but Mr Justice Birmingham said the court of appeal “sees this argument as something of a red herring”.

“We do not believe an expert was ever required to explain what UTC was, or to explain summertime in Ireland,” said Mr Justice Birmingham.

“There is no reality to the argument. What had happened was readily apparent; there had been a mistake or a misunderstanding,” said the judge, who added that the defence had “misinterpreted” phone data provided by the prosecution.

“We are in no doubt the issue which has arisen, arising from the misinterpretation of data provided, while unfortunate, has not caused irrevocable damage to the trial.

“On the contrary, we are quite convinced it was a matter capable of being dealt with either by recalling the complainant for further cross-examination or through closing speeches,” said Mr Justice Birmingham.

In dismissing the appeal, Mr Justice Birmingham said the court was “satisfied that the trial judge acted well within her rights in declining to discharge the jury, so we are not prepared to uphold this ground of appeal”.

Mr Justice Birmingham then dismissed both appeals in their entirety.