The Court of Appeal has quashed the conviction of T. O’D for indecently assaulting a pupil at a Cork boarding school, ruling that the trial judge used the wrong principles when deciding not to give the jury a corroboration warning.
The court did not decide whether a retrial should take place. It said it would hear submissions on that question. It did not consider the separate appeal grounds concerning the delay warning because its decision on corroboration was sufficient to allow the appeal.
T. O’D was convicted by a jury at Cork Circuit Criminal Court in June 2014 of assaulting N, who was then 16, on an unknown date between 1 March and 30 April 1979. He was sentenced in December 2014 to five years’ imprisonment, with the final two years suspended on conditions. The sentence was to run from 14 November 2014.
The judgment said the incident took place at night while N was sleeping in the school sick bay. N testified that he woke to find T. O’D masturbating him. The appellant denied the allegation when interviewed by gardaí in April 2012. The judgment records that he had pleaded guilty to indecently assaulting other pupils at the school, but maintained he had not assaulted N.
At trial, the judge decided not to give a corroboration warning, reasoning that the offence was secretive, there was little or no evidence that could corroborate the allegation, and a warning could confuse the jury. The Court of Appeal held that this reasoning was wrong. It said the secretive nature of the alleged assault and the absence of corroboration strengthened the case for warning the jury to take care. The central issue was the assailant’s identity, and the jury should have been directed to consider whether independent evidence connected the appellant to the offence.
The court also rejected the concern that a properly explained warning would confuse jurors. It said the judge could have used a hypothetical example: a record showing N had been in the school sick bay around the time might have been considered corroborative evidence.
The court concluded that the trial judge’s approach involved an error of principle. It allowed the appeal and quashed the conviction. The judgment does not record a decision on retrial; that remained for later submissions.