Two of three men jailed for the gang rape of a vulnerable teenager who had recently left State care have launched appeals against their convictions, arguing issues of consent were relevant during their trial.
At the Court of Appeal on Thursday, counsel for Dion Genockey (26) argued the trial judge should have advised the jury his client may have had reasons for not mentioning to gardaí that he believed the victim had given her consent.
On behalf of Daryl Rooney (27), it was argued he was not aware the woman had not given her consent.
Genockey, of Clarion Quay Apartments, and Rooney, of Railway Street, Dublin city centre, were convicted of raping the woman at Bull Island, Dollymount, Dublin, on January 5th, 2016.
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The convictions came in 2022 following a second trial at the Central Criminal Court. The jury in the first trial, held in 2020, was unable to reach a verdict.
Genockey was sentenced to nine years in prison, while Rooney was sentenced to 10 years.
A third accused, Troy Ryan, of Lower Gardiner Street, Dublin city centre, was also convicted and sentenced to 9½ years.
The sentencing court heard the men maintain their innocence and do not accept the jury’s verdict.
Genockey’s senior counsel, Thomas O’Malley, said his client had given evidence at the trial that the complainant had consented, but he had not mentioned this in interviews with gardaí.
Mr O’Malleysaid Genockey was advised by his father not to mention anything to gardaí, which in this case turned out to be his defence.
Counsel submitted that the trial judge ought to have told the jury they must consider the possibility that Genockey may have had reasons for not mentioning to gardaí that he believed the woman had consented.
Senior counsel for Rooney, Dominic McGinn, said that, to achieve a rape conviction, the prosecution must prove the act, the absence of consent and that the accused knows there is an absence of consent. In this case, said counsel, the third aspect was lacking. Mr McGinn said the complainant said she was not interested in sexual activity, but when Rooney was alone with her in the car, she did not say anything.
Ms Justice Isobel Kennedy said that while he was relying on the defence of “honest belief” of consent, this belief must be founded in reality.
“Where is the counter evidence? The evidence was all going the one way, as she said she did not consent,” said Ms Justice Kennedy.
Mr McGinn said the complainant had changed her mind about getting into the car with the men, which made Rooney “alive to the fact she was a young woman who could change her mind”.
“By the time he got into the car, he knew two others had had sexual relations with her,” said Mr McGinn.
He said that in her evidence, the complainant said she made it clear to the first two men that she was not consenting, but Rooney was not aware of that.
On behalf of the State, senior counsel Eilis Brennan said the prosecution had argued that this was a very vulnerable woman addicted to tablets and was targeted by the men. They lured her away in a car, even though she told them she did not want to have sex, and took her to a remote location.
Addressing Rooney’s claim he did not know the woman did not consent, Ms Brennan said “honest belief” of consent is subjective, but there must be some reality to it. She said there was ample evidence for the matter to go to a jury.
Mr Justice Patrick McCarthy, presiding over the three-judge court, said the court would deliver its judgment at a later date.
