The Court of Appeal has dismissed Jimmy O’Brien and Shane Folan’s appeals against their convictions for sexual offences committed near Glanmire, Co Cork, in September 2009. The judgment addressed convictions only; the men’s appeals against sentence were not before the court for decision in it.
A unanimous jury in the Central Criminal Court convicted O’Brien of attempted rape, sexual assault and oral rape under section 4 of the Criminal Law (Rape) (Amendment) Act 1990. He had pleaded guilty to the unauthorised taking of the complainant’s car. The trial judge directed an acquittal on a separate rape count. Folan was convicted of sexual assault and attempted rape; the rape charge against him was withdrawn by the trial judge.
The complainant, identified in the judgment as Ms L.G., was a 31-year-old South African national working in Co Cork at the time. The judgment’s background account says she had been socialising in Glanmire and was later in Folan’s van with four males. She gave evidence that one man forced his penis into her mouth without consent and another unsuccessfully attempted vaginal penetration. The judgment records conflicting evidence at trial; these allegations were not findings made by the Court of Appeal in this appeal.
O’Brien and Folan gave different accounts in police interviews. O’Brien’s statements included accounts of entering the back of the van and seeking oral sex, and later of sexual intercourse. Folan told gardaí that he attempted intercourse after the complainant declined sex, but that she pushed him away and penetration did not occur. The jury heard evidence from the complainant and both appellants.
O’Brien challenged, among other matters, the trial judge’s directions on joint enterprise and individual participation. The Court of Appeal said the jury had been given a clear and fair explanation of those issues, and noted that no requisition had been made on O’Brien’s behalf about the charge. It also said the trial judge’s direction to acquit O’Brien on the rape count did not determine the other counts, which rested on different evidence.
Folan argued that the trial judge wrongly restricted cross-examination of O’Brien about a redacted statement. The appeal court rejected that ground, holding that a previous statement about someone other than its maker could not be put to a witness without a foundation, which had not been laid. It also rejected Folan’s challenges concerning the jury directions on intent, recklessness and attempted rape, and found there was sufficient evidence to leave the charges to the jury.
The Court of Appeal concluded that the convictions should stand and dismissed both appeals against conviction. It did not decide the sentence appeals in this judgment.