The Court of Appeal has dismissed Sean Garvey’s appeal against his conviction for sexual assault, finding that the trial judge was entitled to leave the complainant’s evidence to the jury and to refuse a corroboration warning.
The judgment, delivered on 31 July 2018 by Mr Justice Hedigan, concerns the conviction appeal only. Garvey had also appealed the severity of his sentence, but that issue was not dealt with here.
A jury in the Cork Circuit Criminal Court convicted Garvey on 17 May 2017 of sexual assault under section 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended. He was sentenced on 1 June 2017 to seven years’ imprisonment, with the final two years suspended.
The alleged offence took place on 6 February 2016. The complainant was 10 at the time. Her evidence was given to the jury by DVD, and she was cross-examined by the defence over video link. The judgment records her allegation that, during a sleepover at a friend’s home, Garvey took her downstairs and sexually assaulted her. These are allegations described in the judgment; the appeal court was reviewing the conviction, not conducting a new trial.
Garvey argued that the trial judge should have directed the jury to acquit because the complainant’s evidence was too weak or inconsistent to be left for its consideration. The appeal court acknowledged inconsistencies, including a dispute about whether doors had keys and differences between accounts of what the friend’s mother heard. It held that these concerned peripheral matters and that the complainant had been clear about the central allegation. Credibility and reliability were for the jury to assess, the court said, and the trial judge was correct to let the evidence go to them.
The court also rejected the challenge to the refusal to give a corroboration warning. Under the legislation cited in the judgment, whether to give such a warning was within the trial judge’s discretion. The appeal court said it could intervene only if that decision was based on an incorrect legal basis or was clearly wrong in fact. Although some judges might have given a warning in the circumstances, that was not the test; the refusal was within the trial judge’s discretion.
The appeal court further held that the judge was not required in every case to give detailed reasons for refusing a warning. All grounds considered in the judgment failed, and the conviction appeal was dismissed.