The Court of Appeal has dismissed an appeal by a man convicted of sexually assaulting a woman at her home on 29 August 2011. It found no error in the trial judge’s refusal to give the jury a warning about convicting on the complainant’s uncorroborated evidence, or in admitting photographs of her injuries. It also rejected an argument about forensic testing.
The judgment, delivered ex tempore by Mr Justice McCarthy on 26 March 2019, identifies the respondent as M. (orse J.) D. The complainant is identified as B. S. The court said the complainant and the appellant were acquainted and that she was in a long-term relationship with a man identified as Mr S.
The court recounted evidence that, after socialising at McKee Barracks, the complainant accepted a lift home on the appellant’s motorcycle. The appellant later stayed on a couch at her request. She testified that he entered her bedroom, forced himself on her, pulled down her top and sucked her breast. She said he tried to move his hands towards her vagina, which she stopped, and that he beat her when she fought him off and again after she said she had contacted gardaí. The appellant admitted the beatings but denied sexual assault.
The appeal challenged the refusal of a corroboration warning, relying on alleged discrepancies in accounts given after the incident and at hospital, as well as the absence of forensic evidence said to support penetration. The Court of Appeal said the trial judge had discretion on whether to give such a warning and was better placed to assess the evidence and credibility. It found the alleged discrepancies insufficient to interfere with that discretion, and said the matters had been addressed in the jury charge. The court also said there was no basis to treat the absence of forensic evidence as evidentially significant through speculation about what testing might have shown.
The appellant also argued that photographs of the complainant’s injuries were more prejudicial than probative. The court found them relevant and probative and dismissed that ground.
On the investigation, the appeal focused on the failure to request laboratory tests for possible fibre transfer from bedding to the appellant’s clothing, including Velcro patches on his motorcycle leggings. The court found no evidence that the omission caused prejudice and said it could not speculate whether fibres might have transferred. It dismissed the appeal on this ground too, and dismissed the appeal in full.