A WEXFORD man has been found guilty to two charges of sexual assault, in which a woman claimed she was assaulted in her hotel bedroom, by majority verdict.
Following deliberations at Wexford Circuit Court from Wednesday to Saturday and Monday, the jury of seven men and five women came back with a majority verdict mid-morning yesterday (Monday) having failed to reach a unanimous verdict. The man cannot be named for legal reasons.
The defendant had pleaded not guilty to sexual assault on October 11, 2008, at a Wexford hotel. He had also pleaded not guilty to burglary.
Following the verdict, Defence Counsel John Peart asked for sentencing to be adjourned to a future date to allow time for a victim impact report and a Probation and Welfare report.
Prosecuting Counsel Sinead Gleeson said there was no objection to the application on condition that the defendant lodged his passport with a County Wexford garda station.
Remanding the defendant on continuing bail, Judge Barry Hickson adjourned sentencing in the trial, which yesterday entered its fourth week, to April 19.
In her closing speech on Friday, Ms Gleeson told the jury that this was a very straightforward case and described the victim as a very credible witness who was consistent in giving her evidence in the trial.
She said: 'Why would she come and tell lies in the witness box? She complained to her sister immediately.. she was distraught on the bed with her knees up to her chest.'
Ms Gleeson said her client was digitally assaulted by the man, adding that it was a strange and unusual case, 'but these things do happen'.
She said it was no secret that the hotel room door was open and the defendant verified every detail her client outlined, except for the alleged offending behaviour.
Ms Gleeson said two lower vaginal swabs showed blood, according to the evidence of a witness.
Ms Gleeson said the defendant varied his account of what happened in his Garda statements, asking: 'Why didn't he go to his parents? The golden thread right throughout is inconsistency. He gives one explanation and then he gives another.. he had the opportunity and he took it.'
She said the defendant said he drank ten pints and four or five shots on the night.
In his closing speech, defending barrister John Peart said a medical expert in the trial said there was no injury.
He said there was no forensic evidence in the case due to a 'shambles' in the transmission of test samples.
'This is a case where there is really only a complaint.'
He questioned the evidence given by the complainant and her sister, adding that the jury can expect to find inconsistencies in his client's evidence as statements were given months after the alleged offence occurred.
On Thursday, Garda Inspector Denis Whelan, now based in Bray but working as a sergeant in Wexford at the time of the events being reviewed by the court, was called as witness.
He told how he attended the hotel in response to the call received on the morning from the lady in question.
Inspector Whelan left his colleague Mark Whitty there as he decided to investigate by going from door to door along the hotel corridor.
In a room next door to the victim's, he met two young persons, the then 17-year-old defendant and his younger brother.
He asked the defendant to fetch his parents from an adjoining room as he started questioning the older boy.
The youth said it was after 3 a.m. when he and his sibling left the wedding reception they had been attending in the hotel
He recalled that the next door room door was open.
The defendant told him he went in and shook the 'girl' (in fact an adult woman) who was there in the bed in an attempt to wake her up.
He then left to go to his own accommodation with his brother.
The youth told the then-sergeant that he did not feel sound of mind and said he went back to the woman's room and continued trying to wake her.
He insisted that he did not touch her anywhere but around the shoulders and head.
When she did wake up, she was very upset and told him to get the f*** out.
The defendant repeated this version of events with some variations over the course of several interviews.
'I wanted to see if she was all right,' he told investigators at one stage in explanation of why he went into the wrong room.
He was concerned that she might have been drinking, he suggested, and did not like the way she was lying on the bed.
In several interviews, he stated that he had drunk ten pints of beer during the day and several shots of a spirit he believed was whiskey.
This was enough to make him 'tipsy, going on drunk' but not, he felt, paralytic.
He denied taking any of the women's clothes, touching her breast or her private parts.
No evidence was heard last Tuesday because one of the jurors was unwell, but on Wednesday the case resumed, with the jury hearing cross examination of Garda Whitty by Mr Peart.
Garda Whitty confirmed that samples taken by Doctor Mary Hooper from the victim had been sent to the forensic laboratory in the Phoenix Park.
Also dispatched to the lab were saliva samples taken with the consent of the man while he was in garda custody for questioning in February of 2009, some months after the date of the incident in the hotel during October of 2008.
The garda confirmed that clothing was sent too, including a striped shirt, black shoes, a pair of underpants, pyjamas, socks and a jacket.
He told Mr Peart that no swabs were taken from the hands and fingernails of the man at the time that the allegation of molestation came to light.
Dr Maureen Smyth, a former director of DNA services at the Forensic Science Laboratory, who retired in 2014, was called to the witness box to recall that she reviewed the file on the material referred to the lab.
She said that, as it was accepted that there had been close contact between the complainant and the defendant, she did not recommend DNA profiling.
The presence of DNA on any of the material would not differentiate between the different types of contact: 'forensics can be misinterpreted,' she remarked. In reply to questions from defence counsel, she confirmed that her colleagues in toxicology department did not test for alcohol. Drink was not considered an issue in the case as the woman reported clear recollections of what happened.
The barrister recalled that the complainant accepted that she had consumed half a bottle of white wine, four bottles of Ritz, a Sambuca and a drink called a 'B52'. Mr Peart pointed out that it was alleged that his client had put his finger in the woman's private parts and he wondered whether this, if true, would leave DNA. The scientist assured him that any such DNA would be undetectable and, therefore, the profiling was not recommended.
The third witness of the day was Doctor Hooper, a GP attached to the sexual assault treatment unit in Waterford Regional.
She was on duty early on the afternoon of October 11, 2008 when Garda Caroline Coffey arrived with the complainant who had no external injuries when examined from head to toe. However, blood showed up on vaginal swabs, though she was not menstruating at the time.
Garda Coffey now based in Cahir, County Tipperary, told how she joined Garda Whitty, then-sergeant Whelan and student garda Pat Doyle at the hotel.
She said she went to the hotel room where she found the victim and her sister, the former is an extremely upset condition.
Earlier in the hearing, the victim of the assault told the court she had arrived at the hotel on the Friday night accompanied by her sister.
Following a meal at the hotel they went to a nightclub.
At the end of the night they shared a taxi back to the hotel with several other people going in the same direction. The woman said she went straight to bed. The woman told the court how she woke up to find a stranger on her bed touching her. She shouted at him to get out. She said he left but returned some time later knocking at the door. He subsequently got his trousers off the bed, before she locked the door and rang her sister.
The hotel manager was called and a short time later, the gardai arrived.