Midlands men jailed for Galway Races van rape and sexual assault hear appeal outcome

Two men jailed over the rape and sexual assault of a woman in the back of a van during the Galway Races have failed to overturn their convictions after arguing that an incorrect time-stamp on phone evidence affected their legal teams' preparation for their cases.

At the Central Criminal Court in November last year, Karl Reilly (40) of Inny View, Aghara, Carrickboy, Co 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 at a car park in the harbour area of the city on August 5, 2017.

Patrick McLoughlin (36) of Torboy, Moydow, Co 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 then raped her. The trial heard that McLoughlin left and returned to the van minutes later and sexually assaulted the woman by digitally penetrating her anus.

At the Court of Appeal in October, counsel for both men submitted to the three-judge court that an "erroneous" time-stamp on phone evidence discovered during the trial meant that the defences 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.

At the Court of Appeal today (Friday, December 8), presiding judge Mr Justice George Birmingham said the court was dismissing the conviction appeals of both men.

Mr Justice Birmingham said the rejected application to sever the trials of the two men was decided by trial judge Ms Justice Ring, who said: “Experience has shown the capacity of jurors to deal with the complexity of multiple accused in other trials once properly instructed in the law”.

“She [Judge Ring] was satisfied that the difference in the two statements was not sufficient to require her to exercise her discretion to order separate trials,” said Mr Justice Birmingham.

In statements to gardaí, Reilly said that when McLoughlin entered the van he was “finishing up or finished” having sex but McLoughlin maintained that Reilly was still having sex with the complainant. However, the difference in the two statements “it could be argued could amount to no difference at all”, said Mr Justice Birmingham.

“It does not necessarily follow that there is any difference between these two positions, but certainly any difference there is very minor indeed,” said Mr Justice Birmingham.

Mr Justice Birmingham said joint trials routinely take place “when the potential difficulties for the defence are of a far greater order of magnitude”, adding that the trial judge was “fully entitled to refuse the application”.

Mr Justice Birmingham further observed that the complainant was also spared “the potential ordeal” of giving evidence on several occasions in separate trials and then dismissed this ground of appeal.

Regarding the application to discharge the jury over the differing “time stamps” relating to calls on McLoughlin’s phone when analysed by gardaí, Mr Justice Birmingham said 29 calls on the date were examined.

Mr Justice Birmingham said there were also ten calls analysed from the phone of the complainant.

However, the phone records “did not feature in any way as part of the prosecution case”, said the judge.

The phone issue was raised at the trial and concerned a one-hour difference in the two phones’ call records that could have damaged the credibility of the complainant’s’ statement to gardaí regarding her account of the night's timeline.

Mr Justice Birmingham said that the calls recorded used the 24-hour clock, or Universal Time Co-ordinated (UTC) clock, but that in Ireland the actual time in summer was “plus one hour” which led the defence to apply for the jury to be discharged.

It had been suggested that the defence had been denied an opportunity to engage an independent phone analyst, but Mr Justice Birmingham said the court of appeal “sees this argument as something of a red herring”.

“We do not believe an expert was ever required to explain what UTC was, or to explain summertime in Ireland,” said Mr Justice Birmingham.

“There is no reality to the argument. What had happened was readily apparent; there had been a mistake or a misunderstanding,” said the judge, who added that the defence had “misinterpreted” phone data provided by the prosecution.

“We are in no doubt the issue which has arisen, arising from the misinterpretation of data provided, while unfortunate, has not caused irrevocable damage to the trial.

“On the contrary, we are quite convinced it was a matter capable of being dealt with either by recalling the complainant for further cross-examination or through closing speeches,” said Mr Justice Birmingham.

In dismissing the appeal, Mr Justice Birmingham said the court was “satisfied that the trial judge acted well within her rights in declining to discharge the jury, so we are not prepared to uphold this ground of appeal”.

Mr Justice Birmingham then dismissed both appeals in their entirety.

At the appeal hearing, 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 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, 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," said Mr Dwyer.