Defence counsel give closing statements in Midlands rape trial

Lawyers for four men accused of taking part in the alleged gang rape of a teenage girl in a car over five years ago have told jurors it was not their role to judge the morality of the events that night.

In the early hours of the morning of December 27th, 2016, the then 17-year-old girl got into a car with five men in a Midlands town, a decision she has told the jury she now believes was “very stupid”.

The defendants each allegedly sexually assaulted her as the car was driven out of the town. The car was driven to a remote location nearby and three of the defendants, and the fifth man who is not on trial, allegedly raped her at this location one after another.

The jury has heard that two of the defendants were later dropped off at a house back in the town and the car was driven to another location. The woman has said that she asked to be let out of the car but was ignored and that one man raped her for the second time at the same time as a fourth man forced his penis into her mouth.

The defendants, who were aged between 17 and 19 at the time, deny all the charges. Neither they nor the complainant can be identified in accordance with the 1981 Rape Act.

Three weeks of evidence ended on Thursday morning and closing speeches concluded on Friday afternoon before Ms Justice Tara Burns and a jury.

Ms Justice Burns will begin charging the jury on Monday morning.

‘Unedifying behaviour’

Closing his case for the youngest accused, the driver, Brendan Grehan SC told the jury what happened on the night was by any standard “unedifying behaviour”.

He said that sexual activity normally takes place in private, is not normally voyeuristic, not normally recorded on video and does not normally involve sequencing of activity.

He said that none of these features in themselves make up criminal conduct, but that they may explain some of the reactions of people after the events.

“They might say something about why someone may want to lie about it or might want to apologise,” he said.

He told jurors while they might disapprove of what happened that night and find it morally reprehensible, they were not there to make moral judgements.

He said it is accepted that his client lied, but he said the jury will be told that people can lie for innocent reasons. He said in his client’s case he lied out of embarrassment and shame and was afraid that “he would lose everything” and would not be allowed to travel abroad for necessary medical treatment.

“Who wouldn’t be ashamed of being involved? No matter what way you dress it up, it doesn’t reflect well on the persons involved, which isn’t to say it amounts to sexual crimes,” he said.

He said his client admits to some sexual activity which he says was consensual, but does not admit to penetrative sex.

In relation to the question of consent, Mr Grehan said that “in the context of sexual matters, yes is rarely expressly spoken” and “it is more of an implied position”.

He said that communication is done on many different levels apart from speech. He said the reality of human affairs is that a positive response may be communicated “by body language, by going along with a suggestion, by touch, a glance, a sign, a mood change”.

“We know instinctively if somebody is unhappy with something,” he said.

Afraid

He said that his client is alleged to have been the second person to rape the girl and that a third person, who is not on trial, got into the car and raped her. He said that the complainant’s evidence is that she only said stop to the third person and also at this point she said stop to whoever was recording the activity.

“Was that because she was afraid it would be shared?” Mr Grehan asked.

He said that the jury could decide that the complainant was not consenting to sexual activity and also that his client did not know this and that he believed, on reasonable grounds, that she was consenting.

He said the prosecution case is that the girl "didn't have any voice" but the evidence was that at a later stage that morning she got angry and demanded a mobile phone and that his client gave her one and she used it to get on to Facebook and contact a friend.

Colman Cody SC, defending the third accused, said that the woman showed herself capable of being “demanding” and assertive when, in her own words, she became aggressive and asked for the use of a phone.

He said that the actions of the driver in providing his phone were not consistent with someone who thought the girl had been raped. He said that 24 minutes after dropping the girl off at a location close to her friends, the driver then contacted her again on Facebook to let her know they had found her passport in the car.

Mr Cody said that the girl is undoubtedly distressed when she meets her friends and they prevail on her to go to gardaí but “she didn’t want to, she refused to” because “she didn’t want her parents to know, she thought her parents would kill her”.

He said on one interpretation this is understandable, but on another it might suggest that the complainant “might have had some doubts as to what transpired”.

Very embarrassing

“She was going to have to account for her movements. What was prompting her distress. Was the fact or belief on her part that the activity had been recorded the catalyst for these allegations,” Mr Cody said, adding that this was something that could be very embarrassing.

He asked jurors to consider the evidence that when the car was dropping two of the men off the girl moved from the “comparative isolation” of the front seat to the back “into the company of two of her alleged assailants”.

He said this indicated someone capable of making decision and was not reflective of someone subjected to the actions she has alleged. He said at the very least there is an incongruity here.

He accepted that his client had lied to gardaí about the events on the night, but said this could be put down to “instinctive panic reaction” by a young man who was never before in a garda station.

At the end of a number of Garda interviews, Mr Cody’s client later told gardaí that he lied earlier because he was stressed, that he believed he and the others had taken advantage of the girl, and that he would ask her to forgive them.

“I am really sorry I thought she wouldn’t be like this, she wanted it but now she is going through all this,” he said.

Mr Cody said that these were expressions of regret in hindsight for what happened and of the embarrassment for what occurred.

Motivation

“Regret over something cannot and should not automatically be translated into acceptance of an allegation of rape,” he said. He said it might also be possible that the complainant had some regrets over what happened and this was what motivated her allegations.

Counsel told the jury that a situation in which there were five males and one girl having sexual activity in a car did not “automatically transforms this event to gang rape”.

He said it was not their role to bring moral judgements to the events. He said his client’s case is that “he had an honest subjective belief that there was consent to the various sexual acts that he admitted he engaged with”.

He said “there is evidence to support his contention that she was consenting at relative times”.

“Could you reach a conclusion that he had no basis for belief she was consenting? Could you be satisfied beyond all reasonable doubt that he did not honestly believe that there was consent?” he asked jurors.

Closing his case for the second defendant, Seamus Clarke SC told the jury that they had to consider how the conflict of how the complainant could emphatically say she didn’t consent and how his client could emphatically say he was not aware of this.

He said much of that conflict came down to how people communicate and “if we communicate our inner feelings externally to those around us”.

“It’s not just about words, it’s about actions, a touch or a glance - something that conveys if you are comfortable,” he said. He said the jury had to consider whether the men really understood if the woman was not consenting.

His client is charged with sexually assaulting the girl on the car journey to the remote location by touching her breast. He is also charged with sexually assaulting her on the later journey to a second location back at the town, falsely imprisoning her in the car at this location and orally raping her in the car while another defendant raped her.

Not guilty

He was also charged with raping her at the remote location, but Ms Justice Burns has directed a verdict of not guilty on this count where the complainant told gardaí she was “almost sure” there was not a fifth person who raped her there.

Mr Clarke said his client’s position is that he believed the woman was consenting to the first sexual activity. He said his client contended at all times that when the car was parked at the remote location he walked off alone and that when he came back the others locked him out of the car and there was joking about that.

This defendant later told gardaí, when confronted with DNA evidence showing the presence of his semen on the girl’s clothes, that he had masturbated when he had gone off alone. He said the girl later put her hand down his pants on the journey back into town.

Counsel said his client was given consent to the sexual activity on the way back but decided not to go through with it. Mr Clarke said the complainant’s own evidence was that his client asked her did she want oral sex and she remarked that this was the first time somebody had sought her consent.

She testified that she said no, while Mr Clarke’s client contends that she said yes but that he then “baulked” at going through with it when he recalled that the others had already had sex with her.

Mr Clarke said that his client contended that the alleged oral rape at the second location didn’t take place.

He said his client also contends that the woman was free to leave the car at all times and that he did not restrict her liberty. The woman has said she was blocked on both sides of the back seat.

Mr Clarke asked the jury to consider if the woman had “an internal view that she could continue to convince them that she is consenting but it didn’t manifest itself” to them and that they therefore didn’t see any “red flag”.

He asked jurors to consider was there any reason to doubt the prosecution case that his client knew there was no consent or was reckless as to whether there was consent.

Consent

“Could it be reasonably possible that he believed there was consent?” he said.

Hugh Hartnett SC told the jury that it is his client’s case that he did not have penetrative sex with the girl and did not ejaculate in the car. His client is accused of sexually assaulting her in the moving car by touching her genital area and by forcing her to masturbate him.

His client is also charged with sexually assaulting and raping the girl in the parked car at the remote location. He said his client’s case is that he thought she was “up for it” and consenting when he touched her in the parked car and was grinding up against her.

The accused’s account is that he then got a feeling that it was wrong and that she may not be consenting so he stopped and got out of the car, having not had penetrative sex or ejaculated.

Mr Hartnett said that the DNA evidence supports his client’s case. He said DNA analysis did not provide any evidence of the presence of his client’s semen on his client’s underwear, on the car seats or on the girl’s clothing.

He said that this evidence casts doubt on admissions made by his client to gardai where he said that the girl gave him “a hand-job” and he ejaculated.

He said this admission came after hours of interviews in which he repeatedly told gardai this didn’t happen and after a 16 minute period during which he was in the interview room with gardai before the cameras and audio recording devices were turned on.

He said that his client then told gardai that he changed his account because he was being told by “everyone saying that I did get it like”.

His client later again states that “I was pretty sure I didn’t get a hand-job, everyone is saying that..” and at this point the interview is abruptly terminated, counsel submitted.

“The interview is stopped because it looks like he is going to spill the beans that the only reason he is saying this is that he is being told by the gardaí to say it,” Mr Hartnett said. He told the jury that a number of Garda witnesses testified that the “the interruption shouldn’t have happened”.

Change of mind

Mr Hartnett said that his client’s sudden change of mind came about as a result of persuasion by gardai during the unrecorded time period beforehand. He said if the jurors thought gardaí would never do that then they should not be on the jury.

He said the garda evidence would have it that gardaí do everything by the book at all times. “You must bring your everyday knowledge of the world and scepticism to this issue,” he said

He said the allegation of rape against his client is based on evidence in which the woman says “its all a bit of blur” and told jurors they shouldn’t be happy to convict someone on that evidence.

He said the evidence that after the alleged rapes the woman, who had lost her mobile phone earlier before meeting the men, got annoyed about wanting to borrow a phone and “snapped at” one of the men struck him as strange.