Three men have been convicted of the rape and sexual assault of a woman they met in a Dublin nightclub almost six years ago.
The three had pleaded not guilty at the Central Criminal Court to a total of seven counts of rape, oral rape and sexual assault at an unknown location in a car and in a Dublin house on August 31st, 2019.
The jury of eight men and four women returned guilty verdicts on Wednesday on six of the seven charges after deliberating for a total of 13 hours.
Anthony Hickey (39), of Ballyogan Square, Carrickmines, Dublin 18, was convicted of rape, oral rape and sexual assault by a majority verdict.
He had pleaded not guilty to one count of raping the woman in his then-home address in Ballyogan and not guilty to one count of oral rape and one count of sexually assaulting her in a car.
Fabio Vicente (42), of Little Newtown, Enniskerry, Co Wicklow, was convicted of two counts of rape by a majority verdict. He pleaded not guilty to one count of raping the woman in the car and one count of raping her in the house.
Matin Zolfaghari (34), of Marley Court, Rathfarnham, was convicted of oral rape by a majority verdict and acquitted of sexual assault. He had pleaded not guilty to orally raping the woman in the house and sexual assault in the car.
Mr Justice Paul Burns thanked jurors for their care and attention to this “particularly difficult case”.
The complainant was present in court when the verdicts were read out.
The judge said the men’s status had changed following their convictions. Remanding the three in custody, he adjourned the case until March 10th for sentence and directed the preparation of a victim impact statement.
During the trial, the woman gave evidence from behind plastic screens attached to the side of the witness box.
She said she and her housemate went for drinks before going to the nightclub in the early hours of August 31st, 2019.
She said they were dancing and she had “silly chat” with a group of possibly three or four men.
Her housemate decided to leave and the woman said she would follow her home. She told Karl Finnegan SC, prosecuting, that things started to become “faded and hazy” after that point.
“I believe I was drugged,” the woman said.
She recalled there being a “bag of white powder in the vicinity”, but could not remember if she took any.
Her first recollection after leaving the nightclub was of sitting in the back of a vehicle, which she thought was a taxi. A man was sitting with her and three others were also in the car.
She said her memory of this time was “hazy” but she remembered “a male being on top of me”.
She said she was raped twice in the car, but could not say if it was by the same person. The car stopped and she recalled the taxi driver “playing with his zipper then there’s nothing else from me until the house”, the woman said.
Her next memory was of lying on a bed, with two others in the room, one of whom was on top of her. She said she tried to kick out her leg, but “wasn’t going to be able to fight”.
She passed out and a man, identified as Hickey during the trial, was asleep beside her when she woke. She said she rushed out of the house, got a taxi home and told her housemate what happened.
Counsel for each of the accused men put their clients' version of events to the woman during cross-examination, outlining a series of allegedly consensual sexual activities in Vicente’s SUV and later in Hickey’s then home.
The woman said she had memory gaps from the night but insisted she had not consented to any sexual acts with the men, who “were strangers to me then, they are strangers to me now”.
The woman disagreed with defence counsel when it was put to her that she did not appear highly intoxicated in CCTV footage from inside and outside the nightclub.
The trial heard that in separate voluntary interviews with gardaí on September 10th, 2020, the men offered similar accounts of the events of the night and morning.
They each said the woman consented to sexual activity, except for a request by the first man for anal sex. They each told gardaí that the woman did not withdraw consent or appear too intoxicated to give consent.
The three men told gardaí they and the woman went to the SUV and intended to find an after-party.
Hickey said he and the woman kissed while they and Vicente waited in the SUV for Zolfaghari, who had gone into his home. When he returned, they drove on.
Vicente said at some point, Hickey asked the woman when was she going to have the chance to have sex with “three good-looking guys” who are comfortable together. Vicente said Hickey told her “no one will know” and she agreed.
It was alleged that the SUV pulled over and Hickey performed oral sex on the woman, who then kissed Zolfaghari. Vicente got into the back, kissed the woman and then had sex with her. Hickey said the woman performed oral sex on him while having sex with Vicente.
They said the woman went with them to Hickey’s then residence. In his bedroom, she had sex with Vicente. She also kissed Hickey, then performed oral sex on him.
She then had sex with Hickey and also performed oral sex on Zolfaghari. Vicente and Zolfaghari left in the early hours.
Hickey said the woman asked to stay and they slept in the same bed. He said he walked her to his front door the next morning and saw her get into a taxi.
He told gardaí that he “thought it was a normal night” and that “what she is saying happened is wrong”.
Vicente described the woman as being “in control” and said he “would never” do what had been alleged.
Zolfaghari said the woman was “having fun” and did not withdraw consent at any point.
An analysis of Hickey’s phone found WhatsApp messages between him and Zolfaghari. On September 9th, 2019, he wrote “send me that clip of your one”.
Zolfaghari replied “which one”, to which Hickey responded with the name of the nightclub.
Two video clips were sent by Zolfaghari, with Hickey replying “listen to you laughing after she says no”.
Zolfaghari said he recorded the videos as it was his “first time experiencing something like this” and that they record consensual sexual activity.
He said he shared the videos “for a laugh”, describing it as a “locker room chat” between “blokes.”
In his garda interviews, Hickey described this exchange as “boys being boys [which] might come across crude”.
Vicente also suggested to gardaí that the woman was saying ‘no’ to a request to remove her top.
When gardaí put to him that these videos record him and the other accused raping the woman, he replied that “she was never forced, [she] was never raped”.
Evidence was heard that bruises and red marks were found on the woman’s arms and legs during an examination at a sexual assault treatment unit.
In the absence of the jury, the prosecution sought to introduce a series of WhatsApp messages recovered from Vicente’s phone. This phone was seized after he suggested in garda interviews that there was a third video, but no other recordings were found.
The court heard that Hickey had messaged Vicente with an account of the night in question on January 16th, 2020.
This was not read to the court, but was described during legal argument as a collective account. Hickey then wrote “read and see what you think”, then later asked if an email had been sent.
A screenshot of this account was also sent by Zolfaghari to Vicente on a later date.
In a message dated July 30th, 2020, Hickey forwarded an article to Vicente about the quashing of a rape conviction saying “read this” and “can you talk”.
On September 8th, 2020 – two days before their garda interviews – Hickey messaged Vicente with the account, asking him to read it.
Hickey said he had been going over it “to stay sharp” and that they should “meet tomorrow before we go to war”.
The defence initially sought to exclude these messages on the grounds of relevance and potential prejudice. It was later argued that the account of the night was legally privileged as it arose from legal advice provided to the men by their solicitor.
An email of this account sent by Vicente on January 17th, 2020 to their solicitor was handed into the court.
The men’s solicitor told the court he recalled holding a preliminary consultation in December 2019 during which he suggested they “should individually work on their memory” and if necessary, to speak with each other about that night to refresh their memories.
Mr Finnegan argued that the case was “about the credibility of witnesses” and the exclusion of these messages would leave the jury without “very relevant evidence” when they are considering the reliability of the men’s accounts.
No ruling was made by Mr Justice Paul Burns as an agreement was reached by the parties. Instead, the jury heard that the men messaged each other before their garda interviews, arranging to meet.
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