Monday 17 December 2018

Man who held woman down while another man raped her has conviction upheld

(stock photo)
(stock photo)

Ruaidhrí Giblin

A man who held a woman down while another man raped her has had his conviction upheld on appeal

Keith Aherne (24), of Sawmill Lane, Sawmill Street, Cork, was unanimously found guilty of raping the woman in a Cork city park on June 28, 2013. He had denied the charges.

It was alleged that Aherne held the woman down while another man, who pleaded guilty to the offence but who died before he was due to be sentenced, raped her.

Sentencing him to ten years imprisonment with the final year suspended, Ms Justice Isobel Kennedy said Aherne aided and abetted the commission of the offence and was liable as a principal offender. She said that rape is an attack on the bodily and psychological integrity of a woman.

She said Aherne held the victim down but accepted his role was the lesser of the two men. She said the fact that Aherne declined to have sex himself with the woman was a mitigating factor affecting his moral culpability.

Ms Justice Kennedy said that the main aggravating factors were the severe impact of the attack on the victim and the fact that were two men present. She also noted Aherne's young age, his history of addiction difficulties and his hopes to improve his life.

His conviction was upheld today in the Court of Appeal. Mr Justice Alan Mahon, who sat with President of the Court of Appeal Mr Justice George Birmingham and Mr Justice John Edwards, said none of Aherne’s grounds of appeal had succeeded and the appeal was therefore dismissed.

Aherne’s barrister, Brendan Grehan SC, had submitted that the trial judge erred in admitting evidence of recent complaint, erred in failing to discharge the jury after prosecuting counsel made certain comments, incorrectly curtailed the cross examination of various witnesses and erred in refusing to give a corroboration warning to the jury.

Mr Grehan described his complaint about prosecution counsel’s comments as his “main ground of appeal”.

He maintained that certain comments made by counsel contravened Section 1(b) of the Criminal Justice Act 1924 in that the “failure of any person charged with an offence … to give evidence shall not be the subject of any comment by the prosecution”.

The comment complained of arose out of cross examination of the complainant when it was suggested to her that she let Aherne go off to urinate - which she denied as being “so untrue”.

Mr Grehan said the net effect of prosecution counsel’s comments was to highlight the fact Aherne had not given evidence in his own defence and that seriously undermined his right not to give evidence in his own defence.

Mr Justice Mahon said the subject matter of Aherne leaving the scene was not simply putting a denial of the crime to the injured party, it suggested alibi evidence favouring Aherne in that he had left the scene for a specific purpose at the crucial time. It was introduced by Aherne’s own counsel, it was not evidence and Aherne was not the only potential source for evidence that he had left the scene at a crucial time because the co-accused might have given this evidence, had the defence so required.

Mr Justice Mahon said the trial judge dealt with the matter in her charge to the jury to the effect that no significance could be attached to the fact Aherne had not given evidence and that that was his entitlement.

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