The man at the centre of the 1992 "X" case has lost his appeal against his conviction for the kidnap and sexual assault of a 15-year-old girl.
Sean O'Brien (53), with a last known address at Swords, Co Dublin, was jailed for three and a half years last March 2002 on two counts of sexual assault and one count of false imprisonment of the girl.
The incident happened on August 15th, 1999 after the girl hailed his taxi at Donnycarney Church in Dublin and asked him to drive her to a cinema in the city centre.
At the Court of Criminal Appeal today, Mr Sean Gillane, for O'Brien, appealed against his client's conviction. He argued the trial judge should have directed the jury to return a not guilty verdict on grounds the evidence was circumstantial.
A second ground of appeal related to prosecuting counsel referring to interviews with O'Brien while in custody which were not admitted in evidence to the jury. The DPP opposed the appeal.
Dismissing the appeal, Mr Justice Hardiman, presiding, sitting with Mr Justice Kelly and Mr Justice O'Higgins, said the appellant intended during his trial to refer to being in detention for the purposes of drawing attention to differences between a Garda description of him, which was entered on the custody record, and that given by his alleged victim. In those circumstances, the reference by the prosecution to his having being interviewed was trivial.
Dealing with the argument about circumstantial evidence, the judge said it was undoubtedly unusual to have a criminal case conducted wholly on circumstantial evidence. In this case, the girl read the number of the taxi driver's badge which turned out to be the badge number recited by the appellant to gardaí. This took that evidence to the borderline of circumstantial evidence. The evidence remained circumstantial because the badge could be transferred, stolen or borrowed. The girl had also said the taxi driver gave his name as Sean and she gave two digits of a registration plate which digits were in the plate of the taxi driven by the appellant and another man.
In the X case, O'Brien was convicted in 1994 of unlawful carnal knowledge of a 14-year-old girl and of sexually assaulting her. As a result, the girl became pregnant and the then Attorney General, Mr Harry Whelehan, acting in light of the then wording of Article 40.3.3 of the Constitution which sought to protect the right to life of the unborn, secured an injunction restraining her travelling to the UK for an abortion.
The girl's family appealed to the Supreme Court which, in a decision aimed at balancing the equal right to life of the mother and unborn child, ruled the girl could have an abortion because her life was threatened.