Men jailed over rape and sex assault of woman in van launch appeals to overturn 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 appealed their convictions, arguing that an erroneous time-stamp on phonecall 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.

The offence happened 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 also 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 raped her. McLoughlin returned to the van minutes later and also sexually assaulted the woman.

At the Court of Appeal this Friday, counsel for both men submitted to the three-judge court that an "erroneous" time-stamp on phone evidence, discovered at the trial, meant that defence lawyers 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.

Mr Bowman said that records of phone calls made on the night were presented to the court but were exhibited as being in real time but in fact were one hour fast. The matter was only discovered by the court to be "erroneous" after the defences had completed their cross-examinations.

Mr Bowman said the facts in both cases were the same in that the two men attended the races after travelling in a van from Longford.

Counsel said the timeline on the night given to the trial was that the woman and Reilly went to the van at around 3am on the night after drinking in various pubs and a hotel bar.

The lawyer said the trial heard that after the woman became "uncomfortable to proceed" she said "no" to Reilly, who, Mr Bowman said, denies that she told him to stop.

Mr Bowman said that it was alleged by the woman that when McLoughlin returned he digitally penetrated her anus.

It was claimed, counsel said, that "this goes on for an unspecified time but ends when she kicks Reilly off her".

Mr Bowman said that after that "the timeline becomes hazy" but that the woman called McLoughlin's phone so he could find it in the van.

She then left, meeting a separate man tending to boats at around 5.30am, who took her to a garda station.

Mr Bowman said that in addition to the time-stamp issue, "the difficulty here is that you have two individuals diametrically opposed in interviews".

Appeal court judge Mr Justice Patrick McCarthy said: "So what? This is what happens in joint trials."

"I didn't think they were incompatible, there were modest discrepancies," said Mr Justice McCarthy.

Mr Bowman said that there had been "elements forgotten" in the case as McLoughlin said sex was still taking place when he returned but Reilly had told gardaí that he had concluded sex and was asleep.

"A jury could take a view that each of the men is denying the truth of the situation to cover themselves," said Mr Bowman.

Mr Justice George Birmingham acknowledged the question of the erroneous timing of matters and the defence's cross-examination preparation but said that he did not think that timing featured excessively in the case. 

"I would have clearly deployed that defence regarding the phone," said Mr Bowman. 

"Timeline is of assistance in this case," said counsel who noted that "not even the time on the CCTV was accurate". 

Hugh Hartnett SC, for McLoughlin, said "the preparation of cross-examination is of huge importance and this case was blighted by a misunderstanding by the defence and prosecution regarding timelines".

"The cross-examination was based on incorrect phone timelines. The defence team was faced with what appeared to be definitive material and ran the defence based on that," said Mr Hartnett.

The prosecution seemed to have made an "understandable" mistake, however, said Mr Hartnett.

"It's a mistake that could be made by any one of us," said counsel, who said the defence case was "predicated on false information".

Counsel said that trial judge Ms Justice Ring, in her charge to the jury, identified the time difference on the phones for their consideration. 

"Is one to start the cross-examination again?" said Mr Hartnett. "One wonders what the jury might think. I submit that the trial was unsatisfactory," he said.

"What would the observer at the back of the courtroom think about it being a fair crack of the whip?" said counsel.

James Dwyer SC, for the State, said that the differences in the accounts by the two men were "minor" ones and that he had told the jury at the trial not to use one account against the other.

Mr Dwyer said there was also no real risk in the trial judge not separating the two cases.

Regarding the phone timeline issue, counsel said "the intervals between them did not change". "There was still a call that took place and we have the approximate time of going to the van at around 3am. We have a call at 3.19am and then later we have the call to Mr McLoughlin so he could locate his phone," said Mr Dwyer.

"We have about an hour in the back of the van and the intervals between calls - that doesn't change," he said. 

"It was patently obvious that this was a misunderstanding that everyone had but the correction marries the timeline together," said counsel.

"The opportunity for the defence was there to further cross-examine the complainant," added Mr Dwyer.

Mr Justice Birmingham said the Court of Appeal would reserve its judgement in the matter.