Alleged Dublin nightclub gang rape case told 'central' issue is consent

Eimear Dodd

The trial of three men accused of the rape and sexual assault of a woman they met at the nightclub is entering its closing stages.

The three men, aged between 34 and 42, with addresses in Dublin and Wicklow, have pleaded not guilty to a total of seven counts of rape, oral rape and sexual assault of the woman at an unknown location in a car and in a Dublin house on August 31st, 2019.

The men, who can’t be named for legal reasons, deny any wrongdoing.

Closing the case on behalf of the prosecution on Tuesday, senior counsel Karl Finnegan told the jury the “central” issue in this case is consent.

Mr Finnegan said the woman's evidence was “dignified and credible” and she was “clear” that she didn't give consent.

He suggested she didn't try to fill in gaps in her memory, but rather “she learnt the extent to which these men used her” while in the witness box.

He said the woman didn't wake up “with a sense of regret for a drunken mistake”, but with a sense that something terrible had happened.

Mr Finnegan noted the complainant's actions are “scrutinised” in trials of this kind, but asked the jury to watch how the three men act in CCTV, suggesting they “look like the soberest people in that nightclub” in the CCTV while the woman appears highly intoxicated.

Mr Finnegan suggested to the jury that Whatsapp messages between the first and third men display their attitude towards the woman, that it was “just a laugh”.

He said there is “no mention” of the woman consenting to being “videoed in the course of sexual activity with three men” she'd only met shortly beforehand.

Mr Finnegan noted that the men arranged to meet before their garda interviews on September 10, 2020.

He said this isn't unusual, but suggested they gave “starkly similar accounts” about that night, which began to fall apart when confronted by evidence.

He submitted that the men didn't know what the woman remembered “so they had to go the whole hog” on the issue of consent. “They paint [her] as the driving force, the one in control”.

He suggested to the jury that consent is a “concoction”, and that the men took advantage of the woman.

In his closing speech, Padraig Dwyer SC, representing the first man, suggested his client's account “makes more sense” than the woman's and is “more in keeping” with other evidence in the case.

Mr Dwyer continued that his client's account of performing oral sex on the woman and she performing oral sex on him led to those charges as the woman has no memory.

He said his client gave a “frank and full” account to gardai “because he is an innocent man”.

Mr Dwyer asked the jury to assess the woman's evidence against other material in the case, suggesting she was capable of giving consent and didn't appear highly intoxicated.

He told the jury he is not “suggesting that [the complainant] is some sort of malicious character” but that her evidence “comes apart due to a set of circumstances”.

Mr Dwyer submitted that the woman's memory is “seriously unreliable and inaccurate”.

“We're not saying she is a calculating liar, but her word is not reliable,” he said.

He noted that the woman believes her drink was spiked, but toxicology tests only found the presence of cocaine in her system.

Referring to CCTV from inside the nightclub, Mr Dwyer suggested the woman was “dancing energetically with the men” and this dancing “was highly sexually suggestive”, but acknowledged this did not mean there was “licence to do anything”.

Mr Dwyer noted that the SUV initially stopped at the home of the third man, then the four individuals went to the first man's home.

He asked the jury “what person in their right mind thinking they were going to abuse a person would bring them to house occupied by family or tenants? It's ridiculous”.

Mr Dwyer suggested the woman gave a particular account to her friend and in her initial complaint to garda, but details changed or were forgotten when she later made a formal statement.

Counsel said he “didn't agree” that it was appropriate that the men weren't interviewed until September 2020 - over a year after the alleged incident – and it was a “poor excuse” for gardai to say they were still gathering evidence.

Referring to Whatsapp messages between his client and the third man, he suggested these messages can be interpreted in many ways.

He suggested two video clips show a woman who is “sexually aroused”.

Mr Dwyer put to the jury that the woman may have felt a “mixture of emotions” including guilt after sexual contact with the men and “unfortunately the ball started rolling when she got to garda station and here we are now”.

He said regretting a sexual practice “does not mean it was non-consensual” or rape.

He suggested it is not unusual for the accused people to discuss a case, but added that their accounts to gardai were different.

Mr Dwyer said his client “might not be a person you approve of in terms of sexual practices, but that doesn’t mean he’s a rapist”.

Garret Baker SC, for the second accused, suggested the quality of the evidence in the case “is not sufficient to ground a criminal conviction”.

He told the jury an acquittal is not a condemnation or “moral proclamation” against the woman but a “simple recognition” that the evidence “does not go far enough”.

“At centre of this case is a woman who has serious memory deficiencies regarding the night in question,” Mr Baker said, noting that the only evidence his client had sex with the woman is from his statement.

In light of the woman's memory gaps, he asked jurors if they can be satisfied beyond reasonable doubt that she was not consenting and suggested that a fair analysis of the evidence is that more is needed.

Referring to CCTV, he suggested the woman's dancing is “energised” and shows “control and co-ordination”. Mr Baker asked the jury to consider how this might affect perceptions of a person's ability to give consent.

Mr Baker submitted that “this is not an abduction from nightclub, not a kidnapping in motion”.

He said video clips recorded during the night breach the woman's privacy, but told jurors “ do not use that to convict these men of rape”.

In garda interviews, the men suggested a 30-second clip records the woman refusing the first man's request for anal sex.

Mr Baker suggested another way to look at this clip is as “these alleged rapists are complying with a desire not to have anal sex” and some noises may be consistent with consensual sexual activity,

In relation to a six-second clip recorded in the bedroom, Mr Baker said this was the “most important” evidence in the case, akin to a “fly on the wall”.

Mr Baker submitted that if this clip is of consensual sexual activity, then it “casts fundamental doubt” on events in the bedroom and earlier in the car.

He said his client co-operated with gardai and provided a full account of the night.

Seamus Clarke SC, for the third man, told the jury in his closing speech that his client was “a bystander in the car to sexual events that other people are engaged in”.

His client says he only kissed the woman in the car, and denies performing oral sex on her.

He submitted to the jury that the prosecution are relying on the fact that his client's DNA was found on a saliva sample from inside the woman's underwear.

Mr Clarke asked the jury to consider if there might be another reasonable explanation of how his client's DNA got onto the woman's underwear, including a “wet transfer” from a finger.

He suggested “secondary transfer” may also explain how his client's DNA was found on the inside of the woman's bra.

Mr Clarke said his client is “still very much a bystander” at the house, where he says the woman briefly performed oral sex on him.

He noted the woman doesn't recall his client doing anything to her. His client's position is that “it was consensual and he didn’t understand it was not consensual” and “she’s the moving party, it was consensual to him”.

In relation to CCTV, he suggested the woman was on her phone during the walk to the second man's SUV as she was looking for a party and his client was doing the same. He submitted “the party was to continue and that’s why she went on a journey with the men”.

Mr Clarke noted the woman has memory gaps, but told the jury that “just because someone had a memory blank doesn’t mean they are incapable of consenting”.

In relation to the woman's evidence that her drink may have been spiked, Mr Clarke suggested it is understandable to “create a narrative” when there is a memory gap, but this may be wrong. He noted gardai checked the CCTV and saw no evidence that the woman's drink was spiked.

He noted his client described the woman to gardai as tipsy, but said it is not accepted that she was so intoxicated that she was incapable of giving consent. He suggested his client may not have been aware that the woman was highly intoxicated, and may have had an honest, but mistaken belief that she was consenting.

Mr Clarke told the jury while the three men are being tried together for convenience, they should only consider the contents of his client's garda interviews when assessing the charges he faces.

He suggested his client laughs in the 30-second video at “someone being knocked back” rather than at “someone being raped by another person”.

He noted young men can be “crude” in their exchanges, referring to Whatsapp messages between his client and the first man.

He said aspects of this case, including the video clips recorded by his client, are “distasteful and crude”.

“The fact that he took out his phone twice while others were engaging in sexual acts does him no favours”, but Mr Clarke said this doesn't mean his client committed the alleged offences.

The first man, aged 39 with an address in Dublin, has pleaded not guilty to one count of raping the woman in his home address and not guilty to one count of oral rape and one count of sexually assaulting her in a car.

The second man, aged 42, with an address in Wicklow, has pleaded not guilty to one count of raping the woman in the car and one count of raping her in the house.

The third man, aged 34 with an address in Dublin, has pleaded not guilty to orally raping the woman in the house and sexually assaulting her in the car.

The trial continues.