Three rapists who used a young woman like “an object that they were entitled to” have argued that allowing the complainant to give her evidence behind a screen was prejudicial to their trial.
Barristers for Anthony Hickey (41), Fabio Vicente (43) and Matin Zolfaghari (36) also submitted to the Court of Appeal that the trial judge should have given a clearer explanation in response to a jury question on the difference between recklessness and carelessness in Irish rape laws.
The three men were convicted in February 2025 following a trial at the Central Criminal Court. They had pleaded not guilty to offences which took place in a car and in a Dublin house on August 31st, 2019.
In a victim impact statement, the woman said the three men “watched my movements and took advantage of me and used me and my body as if I was an object that they were entitled to”.
The court heard that the woman went to a nightclub in the early hours of August 31st, 2019, where she encountered the three men, whom she didn’t know. The court heard the woman’s memory of the night was particularly poor and her recollections were limited.
She recalled being in the back of a vehicle, which she believed to be a taxi, with up to four men. The woman remembered being raped in the back of the taxi and thought she may have been raped there a second time.
The woman recalled the car stopping and moving, and that a man, who she believed to be a taxi driver, opened the door, unbuttoned his trousers and raped her.
The woman also remembered lying in a bed and kicking out while a male was on top of her. She woke the next morning and a man, identified during the trial as Hickey, was asleep beside her in the bed.
Zolfaghari, of Marley Court, Rathfarnham, Co Dublin, was convicted of the oral rape of the woman in the house. He was sentenced to 14 years in prison with one suspended by Judge Paul Burns in March 2025.
Hickey, a personal trainer with an address at La Vallee, Bray, Co Wicklow, was convicted of raping the woman in his then address in Dundrum, and of orally raping and sexually assaulting her in a car. He had 10 previous convictions. He was jailed for 16 years with one year suspended.
Part-time stripper Vicente, of Little Newtown, Enniskerry, Co Wicklow, was found guilty of raping the woman in the car and raping her in Hickey’s then home. He was also jailed for 16 years with one year suspended.
In launching an appeal against conviction on Wednesday, Michael Bowman, counsel for Hickey, , said that after the jury began their deliberations, they returned with a question as to whether being careless is the same as being reckless under rape laws.
He submitted that the jury had decided that recklessness and carelessness were linked and couldn’t determine where they overlapped, with the trial judge then repeating verbatim the same charge he had given the jury days before, which may have caused the issue in the first place.
Judge Patrick McCarthy pointed out that the trial judge replied to the jury that recklessness and carelessness are not the same, to which Bowman argued that this was not enough.
“It required an understanding of what each term meant,” said Bowman, adding that somewhere along the line the jury had engaged with the concept of carelessness.
John D Fitzgerald, counsel for Vicente, , adopted a similar submission, saying that after asking whether recklessness was the same as carelessness under rape laws, the jury returned with “an instantaneous verdict”, so the answer they received must have been important.
He said that within law, recklessness and carelessness are a million miles apart, as carelessness does not contain mens rea (the state of mind or criminal intent of a defendant), so the judge could have been clearer in his answer.
Moving on to a second ground of appeal, Bowman said that an application was made for special measures to permit the complainant to give her evidence from behind a screen. He said that an investigating garda had told the court that the complainant had expressed concerns that it would be her “worst nightmare” to give evidence in front of the accused, as she was concerned about anxiety, stress and fear. The woman also told the garda that if she didn’t get the screen, she wouldn’t be able to give evidence.
Bowman said that the evidential basis was not sufficient to introduce the screen, as the witness’s vulnerabilities must be over and above merely being a complainant.
Judge Alexander Owens said that if the garda had expressed his view that the woman would not have been able to give evidence without the screen, the trial judge was entitled to take that on board, as these protections were to enable the witness to give evidence.
Bowman said the woman had vetoed the option of giving remote evidence via video-link, so an artificial barrier was erected between her and the accused. He said that the law only contemplates such a measure when there is no alternative option.
McCarthy said this as this was a case of “a gang rape allegation” in which the woman was to come into court and sit within a close distance of the three accused men, it was bound to be different from many cases and would attract special measures.
Bowman replied that the use of a screen was prejudicial, as it interfered with the presumption of innocence by portraying his client as a man to be feared.
Barra McGrory, senior counsel for Zolfaghari, said he wished to adopt the same submissions as his colleagues.
Counsel for the Director of Public Prosecutions Karl Finnegan said that the definition of recklessness given by the judge in his charge to the jury was word perfect, and when the jury later asked their question, he gave another word-perfect definition.
Concerning the introduction of the screen, Finnegan said the judge did not make “an off-the-cuff decision” to allow it but meticulously thought it out.
McCarthy, presiding over the three-judge court, said that judgment would be reserved to a later date.