The Court of Criminal Appeal has refused Daniel Foley leave to appeal his conviction for sexual assault and dismissed his application to appeal the sentence of seven years’ imprisonment, with two years suspended.
The court’s judgment, delivered on 20 December 2013 by Murray J., gives reasons for a decision made on 31 July 2013. Foley had been convicted by a judge and jury at Tralee Circuit Criminal Court on 4 December 2009.
His conviction appeal challenged the trial judge’s ruling that a garda’s account of the complainant’s distress and words in an ambulance could be treated as corroborative evidence. The complainant had been found virtually unconscious in a car park, and the garda described her as distressed and semi-conscious during the journey to hospital, shouting “Get off me” and “No”.
The appeal court held that, in the circumstances described at trial, the complainant’s physical reactions and words could be regarded as spontaneous and involuntary. The court said the evidence was capable of being independent of her conscious account and could tend to undermine Foley’s defence that the sexual acts were consensual. It was for the jury to decide whether it was corroborative and what weight, if any, it deserved. The court did not decide that the evidence proved the allegation; it refused leave to appeal against conviction.
The judgment records that Foley admitted sexual contact in his trial defence but said it was consensual. He had initially told gardaí he found the complainant in the car park. In a later interview, he acknowledged that account was untrue and said they had engaged in sexual acts with her consent. The judgment also records that CCTV footage showed him carrying her across the car park; after seeing it, he accepted that he had carried her.
On sentence, the appeal court considered the trial judge’s comments about Foley having no previous convictions, and the absence of remorse or an apology in mitigation. It read the remarks as addressing the credit due for a clean record, rather than excluding credit altogether. Finding the seven-year term, with two years suspended, appropriate to the offence and Foley’s circumstances, it declined to interfere. The sentence appeal was dismissed.