A JUDGE HAS directed a jury to acquit a second man accused of raping a woman on a tour bus after a Jason Derulo concert.
On day 12 of the trial today, Mr Justice Paul Butler told the jury at the Central Criminal Court that he was very reluctant to withdraw the case from them but it was necessary as a matter of law.
He told them that while the investigation was handled very well overall, the failure to test the neck of the accused man for DNA left a very real danger of an unfair trial.
The jury heard that the 35-year-old man, who denied raping the then 19-year-old woman in June 2014, told gardai the complainant had kissed him on the right side of his neck.
He said he believed her saliva would be there, and asked them to test for it. During her evidence in the trial the woman repeatedly denied that she had kissed the man.
The man, who cannot be named for legal reasons, had pleaded not (NOT) guilty at the Central Criminal Court to rape, oral rape, sexual assault and false imprisonment of the then 19-year-old woman. The offences allegedly occurred in a vehicle at an unknown location in Cork city on June 27, 2014.
The direction to the jury to acquit the man on all charges ends the trial.
Previous defendant
Last Wednesday Timothy O’Leary SC, prosecuting, told the jury that the Director of Public Prosecutions was dropping all charges against a 44-year-old co-accused because of insufficient evidence. This followed a separate ruling by Mr Justice Butler which prevented the prosecution from calling certain evidence in relation to this defendant.
Mr Justice Butler told the jury today that last week he ruled that the man’s detention was unlawful.
Jason Derulo was not charged with any offence in relation to these events.
The complainant in this case alleged that a man, identified as “cap guy”, blocked her from getting off the tour bus. She claims he brought her upstairs, where he raped her, orally and vaginally, while they were “half in, half out of a bunk bed”.
She claims another larger man came over at one point and also raped her. The woman said she was terrified and asked them to stop, but they didn’t. She said she managed to make her escape after a third man came over and said “I’m next”.
It was the prosecution case that “cap guy” was the 35-year-old accused and the larger man was the 44-year-old accused man. Both men denied all the charges.
Lawyers for the 35-year-old accused told the jury that their client accepted he had sex with the complainant, and accepted she performed oral sex on him, but didn’t accept consent was absent.
”No bearing on credibility of the complainant’
Mr Justice Butler told the jury that his ruling “has no bearing on the credibility of the complainant in this case or anyone’s credibility”.
“I as a judge have only done this maybe three or four times in 18 years. But it is a matter of law to ensure that the accused got a fair trial,” he said.
In the absence of the jury Sean Guerin SC, defending, submitted that the complainant’s evidence was that she had not kissed the accused and that she would have been kissing him if she wanted to have sex.
“Proof of kissing goes directly to the question of consent in this case,” Guerin said. He said his client said the woman had kissed him on the neck and invited gardaí to swab his neck for saliva. This was not done.
Mr Justice Butler said if it were shown that kissing, as alleged by the accused, took place, it would at the very least put doubt in the mind of a jury.
He said a swab of the defendant’s neck could have been tested against the DNA of the complainant.
“We don’t know the answer that would have resulted had this test been carried out, but without it there is a very real danger that the accused would have been subjected to an unfair trial,” he said.
He said that while he had the benefit of hindsight, investigating gardaí did not have this advantage, adding that overall their investigation was “handled very well indeed.”
He said that he was, therefore, withdrawing the decision from the jury as a matter of law and directed them to find the defendant not guilty by direction of the trial judge. He excused the 10 men and two women from jury service for a period of 10 years.
In his submission Guerin had said that it was the duty of gardaí to seek out all evidence in an investigation.
“My client offered scientific evidence to the gardaí; they didn’t obtain it and no explanation for this failure was offered,” he said.
Timothy O’Leary SC, prosecuting, argued that the absence of the taking of a swab of the defendant’s neck was not a material or central piece of evidence in the case.
“It is not central enough to stop the trial, and places too much of a burden on the prosecution” he told Mr Justice Butler.
A friend of the complainant told the trial that she was at the nightclub and went back to the tour bus. She said she got off the bus after receiving a phone call saying it was travelling by ferry to the UK. She texted the complainant and told her to get off the bus and went back in a car to pick her up.
“She (the complainant) was shaken, shook. Her jumpsuit was inside out. She could barely talk, she was very very upset,” she said.
The witness said the complainant told her friends that a bouncer had prevented her from getting off the bus, and that two men had then raped her at the same time, one from behind and one from the front.
Mr Guerin told the jury that his client accepted he had sex with the complainant, and accepted she performed oral sex on him, but didn’t accept consent was absent.
In a video recorded garda interview shown to the jury, the man described how he was never alone with the complainant and that other people witnessed him having sex with her in the tour bus. The accused described the “rock and roll” lifestyle of the tour bus where he said he had consensual sex with the woman in the bus’s hallway.
Last Wednesday, on day nine of the trial, Timothy O’Leary SC, prosecuting, told the jury that the Director of Public Prosecutions was dropping all charges against a 44-year-old co-accused because of insufficient evidence.
This followed a ruling by Mr Justice Butler in which he said that gardaí had no power to seize the man’s clothing because the period of his detention had expired. Both defendants took part in an identity parade but the 44-year-old man’s participation in the parade was deemed inadmissible, because it preceded his formal arrest.
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