The Court of Appeal has dismissed K.A.’s appeal against his conviction for rape, rejecting all five grounds argued before it. The judgment, delivered on 20 June 2018, addressed the conviction appeal only. K.A. had also appealed a sentence of 10 years’ imprisonment, with the final year suspended; that sentence appeal was not decided in this judgment.
A jury unanimously convicted K.A. on 27 March 2017 of one count of rape. The prosecution alleged that, in the early hours of 28 June 2013, K.A. forcibly held Ms. N. while co-accused P.O’B. raped her in a Cork park. P.O’B. had pleaded guilty, and K.A.’s trial proceeded alone. These were allegations before the appeal court, not new findings made in this judgment.
The court first rejected K.A.’s challenge to the admission of the complainant’s 999 call as recent complaint evidence. It said that, in the circumstances, excluding the call merely because it followed an earlier complaint to a cyclist would have been artificial. The court dismissed the argument that prosecution counsel’s closing remarks improperly commented on K.A.’s decision not to give evidence. It considered that the trial judge’s direction to the jury—that no significance could be attached to his not testifying—was sufficient in the circumstances.
The appeal court also upheld limits placed on defence questioning about statements from people who did not testify. It said the defence could put propositions to witnesses, but could not present a non-witness’s statement as evidence. The trial judge had allowed questioning based on the statement of a deceased man, while rejecting similar questioning based on a living man’s statement when he could have been called by the defence.
The court found no basis to overturn the refusal to withdraw the case from the jury because two potential witnesses were absent. One was deceased; the other was available to be called by the defence. Neither had been present in the park when the alleged rape occurred, and the court said their potential evidence was limited. It concluded that no real risk of an unfair trial had been shown.
Finally, the court upheld the trial judge’s discretionary decision not to give a corroboration warning. It noted evidence about Ms. N.’s demeanour shortly after she left the park and described her account of the rape as relatively clear and strong. The appeal was dismissed; the judgment did not determine the separate sentence appeal.