The Court of Appeal has dismissed M. B.’s appeal against his conviction for indecent assault, finding no error in the trial judge’s decisions on evidence and jury warnings. The judgment concerned the conviction appeal only; it did not determine the separate appeal against sentence.
M. B. was convicted in the Central Criminal Court on 16 March 2016 of one count of indecent assault. He had faced ten counts: two indecent assault charges and eight rape charges concerning Ms. A. After a seven-day trial, he was convicted on Count 4. The count alleged that, on a date unknown between 19 April 1983 and 18 April 1985, he indecently assaulted Ms. A in a field at Ballycarroll, Portarlington, County Laois. The judgment records that the location in the count had been amended from a shed to a field.
The appeal challenged the admission of evidence from Ms. A’s brother, Mr. B, and the judge’s directions to the jury about that evidence. Mr. B said he had witnessed the incident as a child. He initially thought he had been five, but accepted in cross-examination that he was probably about four years and eight months old. The defence argued that the age discrepancy, the passage of more than 30 years and alleged inconsistencies made his account too unreliable to put before the jury.
The trial judge ruled that reliability was for the jury to assess and affected the weight of the evidence, rather than its admissibility. She did exclude evidence about what Mr. B had allegedly told his sister, accepting that it would be hearsay. The Court of Appeal agreed with the decision to leave his direct evidence to the jury, saying the roughly four-month difference in his estimate of his age did not, by itself, show that his evidence was unreliable. It also noted that no application for a separate inquiry into reliability had been made at trial.
The defence also sought a corroboration warning and asked the judge to tell the jury to treat Mr. B’s evidence with caution. The trial judge refused a corroboration warning but gave a warning about the difficulties caused by the long delay, including the loss of opportunities to check memories and call witnesses. The Court of Appeal said the judge had properly directed the jury that it was for them to decide whether to accept all, part or none of any witness’s evidence, and described that direction as “near perfect”. It also considered the delay warning and the detailed cross-examination of Mr. B.
The Court of Appeal dismissed the conviction appeal.