A Circuit Court judge who was also a former teacher in a Dublin secondary school has been convicted of the sexual abuse of six young men almost 30 years ago.
Gerard O’Brien (59), of Old School House, Slievenamon Road, Thurles, Co Tipperary, had pleaded not guilty before the Central Criminal Court of one count of attempted anal rape and eight counts of sexual assault in relation to six complainants, some of whom were his students.
The four-week trial heard that the offences occurred on dates between March 1991 and November 1997 at locations in Dublin.
O’Brien was in his 30s at the time of the offences, while the complainants were then aged between 17 and 24.
The jury in the trial returned the verdicts today after seven hours and 34 minutes of deliberations.
O’Brien had denied all of the charges against him, and made no reaction as the verdicts were handed down in court.
Five of the six complaints in the trial were present in court and were surrounded by their loved ones. When the verdicts were delivered, the complaints and their families cried and embraced each other.
Mr Justice Alexander Owens thanked the jurors for their service and excused them from jury duty for 15 years as a mark of the court's appreciation for their work.
He noted that he would have put O’Brien into custody only for the special circumstances surrounding him. O’Brien suffers from Phocomelia, which is a rare birth defect which can affect the upper and/or lower limbs, and is missing both hands and one foot.
The judge said O’Brien is now automatically on the sex offender register.
Mr Justice Owens directed the preparation of victim impact statements and remanded the defendant on continuing bail until sentencing on March 4th.
Sexual misconduct
Opening the prosecution's case, Anne-Marie Lawlor, SC, told the jury that this case involves six complainants who say they were “each and separately the victim of sexual misconduct” perpetrated by the accused man between 1991 and 1997.
O’Brien was teaching in a secondary school at the time, and four of the complainants were students. The other two complainants knew him from his home town.
The six complainants, now in their 40s and early 50s, gave evidence. Some became emotional and upset while recounting their experiences.
Five of the men said they woke up to find O’Brien performing sexual acts on them, to which they insisted they had not consented.
Of these complainants, four said they woke to the man performing oral sex on them, with the fifth saying he woke to the man licking his face and pressing his penis against his buttocks.
The court heard O’Brien would ask students from the secondary school at which he taught to assist him in going to the toilet.
During the trial, the jury heard from many of the complainants that they stayed in O’Brien’s homes to help him get dressed and shaved in the morning.
One of these five complainants also said the accused attempted to rape him anally. The final complainant’s allegation related to an act of masturbation in the toilets of a pub.
Each of the complainants said they had been drinking alcohol, as had the accused.
Complaints
During their evidence, the complainants were each asked why they did not make a complaint to gardaí earlier.
Some said they had compartmentalised the incidents. Others spoke of shame or embarrassment.
The third complainant to give evidence to the jury said he did not want anyone to find out what happened. “It was an extremely intimate action being taken in a manner I never consented to in the first instance. I wanted to keep it to myself.”
The sixth complainant said: “I put it in a block of cement in my mind, and I didn’t think about it”.
During his evidence, the sixth complainant told the prosecution that he googled O’Brien and found out that he was a Circuit Court judge, which was one of the reasons he decided to make a complaint to the gardaí.
O’Brien was interviewed voluntarily by gardaí and initially denied any sexual contact with all complainants.
In later interviews, he said sexual interactions had occurred with three of the complainants.
In his direct evidence, he said he “lied” to gardaí initially because of “shame”.
“The idea of being charged with a sexual assault frightened me beyond reason. I went into a sort of blind panic about it all,” he said.
O’Brien acknowledged that having students at his home and in his bed was “inappropriate” and “should not have happened”.
He gave evidence of sexual contact with three of the complainants but denied any sexual interaction with the rest.
I don't accept I groomed anyone.
During cross-examination, O’Brien was asked if his position is that the six complainants were lying, to which he replied: “Mistaken in some cases.”
He did not accept Ms Lawlor's suggestion he was a “person who tells lies”, nor that he was lying to the jury.
He denied that he “groomed” a number of the complainants, saying: “I don't accept I groomed anyone.”
The first complainant to give evidence told the jury that he was a student at the school where the accused worked, and in November 1997, he stayed in the accused’s home.
O’Brien suggested he sleep in the bed, and while the young man thought this was “unusual”, he “went along with it”.
The young man woke to a “rustling” in his boxers and initially believed that O’Brien might be touching him in his sleep.
A short time later, he again felt touching. O’Brien then shuffled down in the bed, and his mouth made contact with the young man’s penis.
The complainant said he “froze”. Approximately 30 seconds later, he said O’Brien again tried to use his mouth to make contact with his penis.
The man is unsure if contact was made as he jumped out of the bed. He said he was in “total shock” and left the apartment.
This complainant disagreed with the defence’s suggestion that no sexual assault occurred and that if anything had happened, it was “something someone was doing while asleep”.
In his evidence, O’Brien accepted this complainant had slept in his bed but denied any sexual encounter.
He said he fell asleep and woke up to the teenager leaving the apartment, but did not know why.
He said he became concerned that this complainant should not have been in his house while driving to work the next day.
'Froze'
The second complainant to give evidence said the incident took place during his first year of college in 1991.
He said he was asleep on the floor of the man's bedroom when he woke to O’Brien performing oral sex on him. He said he “froze” due to shock and to avoid waking another friend in the room.
The then 18-year-old said he turned onto his side, and O’Brien “mirrored his movement” before “moving his penis against my back, bottom and hips”.
He said he did not react and was not sure if the man was aware he was awake.
This complainant rejected the defence’s position that O’Brien felt his penis on his back and took this as an invitation to be “intimate”.
He did not accept the defence’s suggestion that O’Brien performed oral sex, and believed he was an “active participant”.
He reiterated he was “asleep” and said the incident occurred “completely out of the blue”.
In his evidence, O’Brien said he was in a “spooning position” with the second complainant, who was in the bed, as “both were freezing”.
“I could feel his penis against my back, and I performed oral sex on him in my bed”.
He said this complainant turned away from him and continued to masturbate while he “rubbed himself” against the sheets.
The third complainant said he went to a friend’s house in early 1994, and O’Brien was also there.
He said he had been drinking and fell asleep in a bed beside O’Brien. This complainant said he woke up to his face and neck being licked by O’Brien.
He said O’Brien’s foot was grappling with his boxer shorts. He said O’Brien’s penis was hard against the top part of his bottom, and he was “gyrating against me”.
He said he was initially frozen, then noticed O’Brien’s eyes were closed. He elbowed him at least seven times, telling the accused he was “really disappointed”. O’Brien did not respond and turned away.
During cross-examination, he said he did not confront O’Brien the next morning and expressed doubt that anyone could sleep through “seven elbows”.
He rejected the defence’s suggestion that something happened while O’Brien was asleep. “I don’t believe he could be asleep while thrusting against someone,” he said.
No recollection
In his evidence, O’Brien said he has no recollection of being at a house with this complainant, and further denied any sexual encounter had taken place.
The fourth complainant to give evidence said O’Brien was a teacher at his school.
He said he stayed at O’Brien’s house in late 1995 and woke to find his boxer shorts had been pulled down and the accused performing oral sex on him.
He said he was in shock. He orgasmed, and the accused told him: “It’s your turn now.” He then performed oral sex on the teacher.
Mr O'Higgins asked him during cross-examination that there were four incidents of “mutual” and consensual oral sex between him and his client, during which he was “wide awake”. The complainant disagreed with this.
During his evidence, O’Brien said he became “over-reliant” on the fourth complainant and admitted being “infatuated”.
He said this complainant stayed at his apartment in January 1996, and there was hugging and talking.
“I noticed he had an erection. I went down on him. He ejaculated, then he did the same for me, and I ejaculated.”
The man said he did not agree with this complainant’s evidence.
The fifth complainant was also a student at the school where the accused was a teacher.
He recalled visiting the man’s house and said there was a “playfulness” to the accused’s behaviour during his first visit.
He said he went to a local pub after his Leaving Certificate, and the accused man was there.
He was asked by O’Brien to assist him in going to the toilet. While the man was holding O’Brien’s penis and assisting him to urinate, O’Brien began to move his penis against the young man's hand. He described it as O’Brien “masturbating into my hand” during this incident in the toilets of the pub.
The man said O’Brien then began to lean into him and pinned him against the wall of the cubicle. O’Brien had his face up against the young man’s face, and O’Brien then kissed him on the neck or cheek.
He asked him to stop, but it only ended when a door opened.
O’Brien denied sexually assaulting the fifth complainant. In his evidence, he said he could not recall going to this pub.
'Jump in here'
The final complainant said he stayed at O’Brien’s house one night when he was in fifth year of school. When he went upstairs, he saw the spare bedroom but went into O’Brien’s room and got him undressed.
The man told O’Brien he was going to the spare room, but O’Brien said there was no need and to “jump in here”. The man described being “uncomfortable” with this but got into bed.
The man told the jury that it was his plan to wait until O’Brien fell asleep and then go into the spare room. However, the young man fell asleep, and he woke later to O’Brien performing oral sex on him. He said he turned around to lie on his stomach.
He then told the court that O’Brien “climbed up on top of my back” and manoeuvred his penis towards his buttocks. He said he was frozen and added: “I couldn’t do a thing, and he was trying to penetrate my backside, my anus.”
He rejected the defence’s suggestion that he moved closer to O’Brien. This complainant also dismissed the defence’s contention that O’Brien began to perform oral sex, but stopped and didn’t attempt anal sex.
In his direct evidence, O’Brien said he felt this complainant’s “arm roll across me”, and then he rubbed his leg.
He said he “assumed rightly or wrongly that he wanted to engage in something intimate” and then started to perform oral sex but stopped.
He also denied attempting to have anal sex with this complainant.
Closing arguments
In her closing speech, Ms Lawlor asked the jury to consider whether “there is an inherent unlikelihood that several people would make similar allegations” against the same person.
Prosecuting counsel suggested it is a “significant” factor that the accused “made a very considered and deliberate decision to lie repeatedly to gardaí” for “no reason but to protect himself”.
She said the complainants had each given “compelling” and credible evidence about the alleged incidents.
While the complainants had the legal capacity to give consent, “in five of these incidents, each individual told you they woke up to sexual engagement they hadn’t consented to as they were asleep,” Ms Lawlor said.
In his closing speech, Mr O’Higgins told the jury that his client's decision to initially lie to gardaí was partly because he was “terrified” by the allegations.
He said while his client has lied, this “could not mean that you can’t take what he says on board and give it the scrutiny it deserves”.
Defence counsel asked jurors to look at inconsistencies in the complainants’ evidence, suggesting their memories of events may not be reliable due to the passage of time. He asked them to consider if other evidence supports his client’s version of events.
Defence counsel said his client had acknowledged “completely inappropriate” contact with some students.
“No doubt there was a weakness here, that has resulted in calamitous consequences.”
Charge
In his charge, Mr Justice Alexander Owens told the jury the case “boils down” to whether or not they accept the evidence of the witnesses.
He told them that they are not permitted to infer anything from the fact that the man is facing a number of charges, and they must consider each count individually.
During the trial, there were several robust exchanges about when or if the jury should be made aware of O’Brien’s most recent profession as a Circuit Court judge.
Prosecuting counsel argued that O’Brien’s profession is “no different to any other profession for our purpose”, and it would be “against common sense” to deprive the jury of this information.
Defence counsel argued this was unnecessary information to include in the opening speech, and while jurors would be “repulsed” to hear a teacher had a sexual encounter with a 17-year-old student, they might be “horrified” if they became aware of his most recent job.
Mr Justice Owens ruled that O’Brien’s most recent profession could not be mentioned in the opening speech but added that it was likely to emerge during evidence, and the jury was entitled to be told at this point.
This issue emerged again before each complainant was asked why they decided to make a complainant, as some mentioned his recent profession as a judge in their statements to gardaí.
Mr Justice Owens noted there is no rule that a person’s occupation may be withheld from the jury. He said O’Brien’s occupation may be relevant to the complainants’ explanations of why they decided to speak to gardaí, but noted that it is “neither here nor there” in relation to the alleged incidents.
Only the sixth complainant referred to the man’s most recent profession as a judge when explaining his decision to make a complaint.
One juror was discharged on the seventh day after receiving bad news. Another juror was later discharged after being diagnosed with Covid-19.
After hearing submissions from counsel, Mr Justice Owens decided the trial would proceed with 10 jurors.
