The Court of Appeal has dismissed J.F.’s appeal against his conviction for sexually assaulting a 12-year-old girl, finding no error in the trial judge’s decision not to give the jury a corroboration warning.
J.F. was convicted at Dublin Circuit Criminal Court on 7 December 2017 of sexually assaulting D.M. on 14 February 2015. He appealed on two grounds: that the trial judge should have warned the jury about the complainant’s evidence, and that the late disclosure of notes relating to alleged counselling made the trial unfair. At the appeal hearing, his counsel did not pursue the disclosure ground, so the court considered only the warning issue.
The judgment recounts that D.M. was staying overnight at the home of her friend, M.S., on 13 February 2015. She testified that someone tried to put a hand under her top while she was sharing a bed with M.S. She said she saw J.F.’s outline, tartan pyjamas and bald head during a second attempt, and woke M.S., who screamed. M.S. disputed that account of what she saw and said D.M. had told her she saw eyes and a dark shape. J.F. denied wrongdoing and said he ran upstairs after hearing the screaming. D.M.’s father described her as upset and crying when he collected her.
The trial judge decided not to give a corroboration warning, citing the circumstances of the case and the content and manner of the complainant’s evidence. On appeal, J.F.’s counsel argued that the distress described by her father could have had another explanation, including a conversation about ghosts earlier that day and D.M.’s initial thought that the touching might have been M.S.’s foot.
The Court of Appeal rejected that proposed alternative as fanciful. It said evidence of a complainant’s distress may be capable of corroborating her account, and that whether evidence is corroborative is ordinarily for the jury to decide based on the version it accepts. A possible conflict in the evidence does not by itself require a warning. The court also held that the trial judge had considered the discrepancies raised and was entitled to exercise his broad discretion to refuse the warning.
The court dismissed the appeal. The judgment addresses the challenged warning decision; the disclosure ground was not argued at the hearing.