The man who was at the centre of the X case in 1992 yesterday lost his appeal to the Court of Criminal Appeal against his conviction for the kidnap and sexual assault of a 15-year-old girl.
Sean O'Brien (53), with a last-known address at Swords, Co Dublin, was jailed for 3½ years in March 2002 on two counts of sexual assault and one of false imprisonment of the girl.
The incident happened on August 15th, 1999, after he had been released from a prison term imposed for unlawful carnal knowledge in relation to the X case.
The new conviction arose out of an attack on a girl who hailed his taxi at Donnycarney Church in Dublin and asked him to drive her to a cinema in the city centre.
Yesterday Mr Sean Gillane, for O'Brien, appealed his client's conviction. He argued that the trial judge should have directed the jury to return a not guilty verdict on the grounds that the evidence was circumstantial.
A second ground of appeal related to prosecuting counsel referring to interviews with O'Brien while in custody which were not admitted in evidence to the jury. This point was rejected as trivial by the appeal court yesterday.
Dismissing the appeal, Mr Justice Hardiman, presiding, said it was undoubtedly unusual to have a criminal case conducted wholly on circumstantial evidence. In this case the girl had read the number of the taxi-driver's badge, which turned out to be the badge number recited by the appellant to gardaí.
This took that evidence to the borderline of circumstantial evidence.
The evidence remained circumstantial because the badge could have been transferred, stolen or borrowed.
The girl had also said the taxi-driver gave his name as Sean and had given two digits of the registration plate of the taxi driven by the appellant and another man.
The issue was whether the trial judge was right to leave the case to the jury, and the appeal court was of the firm opinion that he was, Mr Justice Hardiman said.
It was plainly open to the jury to regard the evidence as pointing reasonably to the appellant as having worn the badge and driving the taxi. The appeal court could not see there was anything that had rendered the trial unsafe or unsatisfactory and would dismiss the appeal. The other appeal judges were Mr Justice Kelly and Mr Justice O'Higgins.
In the X case, O'Brien was convicted in 1994 of unlawful carnal knowledge of a 14-year-old girl and of sexually assaulting her.
As a result, the girl became pregnant and the attorney general at the time, Mr Harry Whelehan, acting in the light of the then wording of Article 40.3.3 of the Constitution, which sought to protect the right to life of the unborn, secured an injunction restraining her from travelling to the UK for an abortion. The girl's family appealed to the Supreme Court which, in a decision aimed at balancing the equal right to life of the mother and unborn child, ruled that the girl could have an abortion because her life was threatened by the possibility of suicide.
