The Court of Appeal has ordered the Director of Public Prosecutions to pay T. O’D’s costs of appealing his conviction, which the court quashed on 22 May 2017. The order concerns the appeal only; no application was made for the costs of the trial.
In a judgment delivered on 1 June 2017, Mr Justice Mahon said the conviction had been undermined by an error of principle in the trial judge’s decision not to give a corroboration warning. The warning had been sought by the defence and opposed by the prosecution.
T. O’D had been convicted by a jury on 27 June 2014 of indecently assaulting N, who was then a 16-year-old boy. The alleged offence was said to have occurred between 1 March and 30 April 1979 at a boarding school in County Cork. The judgment’s earlier description of the conviction being quashed does not amount to a finding that the alleged offence occurred.
The court had refused the prosecution’s request for a retrial on 22 May. It cited the completion of the custodial part of the sentence, the age of the allegation and T. O’D’s age, then 74. The court said the decision was made in the interests of justice and was not due to any impediment, failure to cooperate or action by N. At the appeal hearing on 24 March 2017, T. O’D had already served the five-year custodial element of his sentence; the final two years had been suspended.
In considering costs, the Court of Appeal treated the quashed conviction as if the appellant had been acquitted, taking account of the reasons the appeal succeeded. It found the prosecution had been warranted because N had made a specific complaint of a serious offence. The judgment also noted the passage of about 33 years between the alleged offence and the complaint, and more than two years between the complaint to gardaí and the trial, while observing that the latter period might arguably have been shortened.
The court said there was no criticism of how T. O’D had defended the charge. It noted he had pleaded guilty to other similar offences against named students at the school, where he worked, while maintaining he had not offended against N. The court attributed no blame or responsibility to him for the trial judge’s failure to give the warning. It concluded that he should receive his appeal costs.