A rapist who attacked a vulnerable woman he met on a street in Dubin city centre has had his appeal against his conviction dismissed.
Jose Lacerna Pena (33) had carried out the rape "brazenly in the most public and humiliating manner" as people were walking by, the trial judge had noted.
Pena, of no fixed abode but originally from Bolivia, pleaded not guilty at the Central Criminal Court to one count of orally raping a woman at Wicklow Street, Dublin 2, on September 26th, 2017.
A jury found him guilty and in April 2020 he was sentenced to six years’ imprisonment by Mr Justice Paul McDermott.
Pena has never accepted the verdict and launched an appeal against the conviction.
Bernard Condon SC, for the Director of Public Prosecutions, had told the Court of Appeal at a hearing last November that the complainant had repeatedly said in evidence during the trial that she never consented.
“The judge made it clear that the issue was that this woman said she was not consenting,” added Mr Condon.
Anne-Marie Lawlor SC, for Pena, had claimed that a failure by the trial judge to give the jury assistance on the issue of consent meant her client’s conviction was unsafe. “An irredeemable unfairness has been visited upon the accused,” she said.
However, Pena’s appeal has been rejected by the three-judge court.
In written judgement delivered on Tuesday, Ms Justice Isobel Kennedy, who had sat with Mr Justice John Edwards, presiding, and Mr Justice Patrick McCarthy, stated that the jury could "have been under no illusion whatsoever that the issue for their determination was whether there was in fact an absence of actual consent".
Ms Justice Kennedy observed that “it would have been preferable if the judge had indicated to the jury that capacity was not in issue in the present case and it was unnecessary for them to consider it”.
However, she also noted that “by instructing the jury that the complainant said she did not consent and that it was necessary for them to consider whether there was a lack of consent”, Mr Justice McDermott had made “quite clear that the lack of consent was the issue for their consideration and not the capacity to consent”.
Dismissing the appeal, Ms Justice Kennedy stated: “We have no hesitation in concluding that the charge in the present case was both fair and balanced.”
During Pena’s trial. the jury was told the attack ended when two young men passing by saw the woman was in distress and intervened.
Sergeant Wayne Donnelly said the victim had been at a nightclub with her friends and was making her way across the city centre to meet with more of her friends. CCTV footage showed her at one point stumbling and unsteady.
Sgt Donnelly said Pena approached the woman, began walking alongside her and talking to her. He linked his arm around her and then put his hand on the back of the woman’s head, pushed her head down and put his penis in her mouth. She came up and Pena forced her head down for a second time and again put his penis in her mouth.
Pena remained in the area and was arrested.
During interview with gardaí he said he could not remember the incident and claimed he had done nothing wrong.
Sentencing, Mr Justice McDermott said Pena carried out the offence “brazenly in the most public and humiliating manner” as people were walking by. He said that rather than offering the woman assistance, Pena “took full advantage of her vulnerable position”.