Two men who raped a “blind drunk” student after offering to give her a lift home from a nightclub have lost their appeals against convictions.
Boakye Osei (32), formerly of Tooban, Burnfoot, Co Donegal, but now a prisoner at Midlands Prison, and Kelvin Opoku (35), formerly of Glendale Manor, Letterkenny, Co Donegal, but also a prisoner at Midlands, had pleaded not guilty at the Central Criminal Court to the rape of the woman in February 2015.
The jury found them guilty, however, and both men, who are originally from Ghana, were each sentenced to nine years imprisonment by Mr Justice Alex Owens in March 2020.
The complainant and her friend had returned to Opoku’s flat after they began talking to both men outside a nightclub in the northwest of the country.
Neither woman had ever met the men before agreeing to get into their car that night.
The men had appealed their convictions, arguing that the jury should have been discharged after the judge questioned witnesses about the complainant’s alcohol consumption on the evening in question.
It was also claimed that the complainant should not have been allowed to give her evidence to the jury via a video link and that all relevant material from her mobile had not been disclosed to the defence.
But both men have had their appeals rejected by the Court of Appeal.
In a written judgement delivered on Monday, Court President Mr Justice George Birmingham said the trial judge’s rulings on disclosure had been “considered and proper”, while the issue regarding the video link was similarly rejected.
It was also found that Mr Justice Owens’ questioning of witnesses regarding the “quantity of alcohol consumed and the state of intoxication of the complainant” had not been inappropriate.
Mr Justice Birmingham, who had heard the joint appeal along with Mr Justice Patrick McCarthy and Ms Justice Isobel Kennedy, added that the appellate court had “not been persuaded that the trial was unfair or that the verdicts were unsafe”.
The Court of Appeal had heard last November that one witness, in response to a question from the judge, had told the jury that in her opinion “as a mother” both women appeared drunk.
Michael Bowman SC, for Opoku, told the three-judge it was not the “position of the judge” to ask such a question in a “finely balanced” case where alcohol had been a “core issue”.
“Once the question is asked, that answer is out of the box,” counsel continued.
It was also claimed that “only a small portion of material” from the complainant’s mobile phone had been disclosed to the defence prior to the trial commencing.
Alex White SC, for Osei, told the court that Mr Justice Owens had been “wrong in the view and attitude he took towards the phone material”.
Mr White also said the judge erred in allowing the complainant to remain abroad during the trial and give her evidence via a video link.
“The jury are entitled to see the demeanour of the witness as they leave the witness box and that is something not available to them when there is a video link,” counsel said.
Seamus Clarke SC, for the Director of Public Prosecutions, said the question the witness was asked by the judge had been “quite tame”.
Mr Clarke also said it was well within the judge’s discretion to allow video evidence; while, in relation to the disclosure of data from the complainant’s mobile phone, he noted that “you don’t need to be a rocket scientist” to ascertain exactly what type of material the defence required “in a case like this”.
During the trial, the jury was told that the complainant and her friend had been walking home from a nightclub when they met Opoku and Osei. The victim got into a car believing the men had offered to take her to her home
The complainant told the trial that on a scale of one to 10 in terms of drunkenness, she was a 10 and about to pass out.
A video clip shown during the trial showed the woman staggering around the apartment and later falling on the bathroom floor, exposing her underwear, before the two men lift her up.
They took her into the bedroom where Opoku and then Osei raped her.
The woman testified that she was “blind drunk” and could not and did not consent to any sexual activity.
In an interview with gardaí, Opoku claimed that the woman had not been too drunk to consent and said she had been an enthusiastic participant. Osei denied having any sexual activity with the woman.
Sentencing, Mr Justice Owens said he accepted that neither man set out to rape the woman but they were fully aware of her incapacitation due to her intoxication and were prepared to take advantage of it.
The complainant, who is in her 20s, said in her victim impact statement, which she read out before the court, that the experience of being stripped of her clothes in the sexual assault treatment unit to be examined internally and externally was “challenging and humiliating”.
News credit: Irish times