The Court of Appeal has dismissed an appeal against conviction after finding no force in the appellant’s argument that the trial judge should have given a corroboration warning. The court was not persuaded that the verdict was unsafe.
The judgment, delivered ex tempore on 25 February 2020 by Ms Justice Kennedy, says the appellant had been convicted of rape, sexual assault and robbery. A separate count of defilement ended with a nolle prosequi. The appeal concerned only the failure to give a corroboration warning.
The events described in the judgment took place in Arklow, County Wicklow, on 4 March 2014. The injured party was 16 and knew the appellant. The judgment recounts that she went with the appellant and a school friend down a laneway, where the appellant sexually assaulted her. She later noticed her phone was missing. A local shop employee saw she was distressed, Gardaí were called about the stolen phone, and the phone was recovered and returned.
The injured party initially reported the phone theft to Gardaí and later told her mother she had been raped before making a further complaint. The judgment says she did not mention an alleged strike, digital penetration or the presence of the friend until a second statement in 2016. An examination at the Rotunda Hospital’s Sexual Assault Treatment Unit confirmed a bite injury to her right breast. The nurse who examined her agreed in cross-examination that she had not been told about the physical assault.
For the appellant, counsel argued that the trial judge should have exercised discretion to give a warning, citing the injured party’s age, the seriousness of the offences and omissions from her first statement. The respondent argued that the warning issue had not been raised at trial and that the bite injury was evidence capable of corroborating her testimony. It also submitted that the first statement was incomplete rather than inconsistent with the later account.
The Court of Appeal noted that no application for a warning had been made before speeches and the trial judge’s charge, and the issue was not raised after the charge. It said the reason for not applying was unknown; although the court surmised that it might have been apparent to the experienced legal team, it could not say so with certainty. Applying the principles in People (DPP) v Cronin (No. 2), the court said an error or oversight of substance and an explanation for not raising the point would generally be required to argue it on appeal.
The court also found there was evidence capable of amounting to corroboration and that a warning would not necessarily have been granted even if sought. It dismissed the appeal against conviction. It did not order a retrial or alter the convictions.