THE Court of Criminal Appeal has reserved judgement in the case of a former bouncer who is appealing against his conviction and seven year sentence for sexually assaulting a young woman outside a nightclub.
Dan Foley (38) was sentenced to seven years with two years suspended by Judge Donagh McDonagh after he was found guilty of sexual assault by a Tralee Circuit Criminal Court jury in December 2009.
Foley, of Meen, Listowel, Co Kerry, had denied the charges and said the incident was consensual. He told two patrolling gardai who found him crouched over the semi-conscious victim in a carpark in the early hours of June 15th, 2008 that he had happened across her after going to relieve himself.
However, CCTV footage played at the trial showed that Foley had carried the victim across the carpark.
The case attracted significant attention after it was reported that 50 people queued to shake the hand of the convicted man and hug him when he was brought from the cell to the dock.
Counsel for the applicant, Mr Patrick Gageby SC, today told the appeal court that the grounds on appeal related to the trial judge’s charge to the jury on the actions and words of the victim whilst she was in an ambulance en route to Kerry General Hospital in Tralee.
The trial heard that, after being found in an unconsciousness state, the victim was placed in an ambulance where she awoke disorientated and “extremely distressed” and had screamed and kicked out at paramedics.
Mr Gageby said it appeared that Judge McDonagh indicated to the jury that the victim’s distress was capable of amounting to corroboration of her lack of consent.
He said that he could not identify any case in which the distress of a person who has awoken from an unconscious state has ever been held as being capable of amounting to corroboration.
Mr Gageby said that, when passing sentence, Judge McDonagh remarked that Foley was not entitled to credit for a lack of previous convictions and that being conviction-free was not an accolade a person could bestow on themselves.
He submitted that a lack of previous convictions was a most important aspect to consider.
Mr Tom Rice BL, for the State, submitted that evidence the victim had uttered “Get off me” and “I won’t let you” while she was in the ambulance was consistent with someone who had been attacked.
He said that the victim had injuries on her body in line with someone who had been assaulted, while her gestures and actions in the ambulance were consistent with someone who had been attacked rather than had gone through a consensual sexual experience which they regretted.
Mr Rice said the trial judge had left it to the jury to decide whether the complainant’s behaviour was corroborative of her lack of consent.
In relation to sentencing, Mr Rice said the trial judge had made the correct distinction between aggravating factors and an absence of mitigation.
Presiding judge Mr Justice John Murray, sitting with Mr Justice Eamon de Valera and Mr Justice Brian McGovern, said the court would return judgement at a later date.