The Court of Appeal has dismissed an appeal by P.B. against his conviction for sexually assaulting his daughter, who was about nine at the time of the alleged incident. The court held that the trial judge was entitled to leave the case to the jury and acted within her discretion in not giving a corroboration warning.
P.B. was convicted by a jury in the Dublin Circuit Criminal Court on 25 November 2022 of one count of sexual assault under section 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended. The charge concerned an alleged incident between 1 January and 30 April 2017. The Court of Appeal judgment, delivered on 13 November 2023, records that this was a retrial following an earlier successful appeal and an order for a retrial.
The appeal focused primarily on whether the trial judge should have directed a verdict of not guilty after the prosecution closed its case. The defence argued that the complainant’s evidence did not establish that P.B. was awake or intended to commit an assault. The complainant had said in a specialist Garda interview that she did not know whether he was awake and indicated she thought he may have been asleep.
The Court of Appeal said the complainant’s belief about whether her father was asleep did not determine what had actually happened. It considered that a properly instructed jury could conclude that the detailed actions she described were consistent only with someone who was conscious and awake. The jury could also consider her account that, after she told him her bottom hurt because he had put his hands down her trousers, he apologised, cried and asked whether she would tell her mother. The court concluded the trial judge was entitled to leave the case for the jury’s consideration.
A secondary appeal ground concerned the judge’s decision not to give a corroboration warning. The Court of Appeal noted that the request was raised after the evidence and closing speeches. It said the complainant was uncertain about whether her father was awake, but had not expressed doubt that the actions she described occurred. The court also identified evidence the jury could potentially regard as corroborative, including P.B.’s earlier statement that the complainant had never stayed at his home in 2017 and his reported question about whether she would tell her mother. Whether that evidence was corroborative was for the jury to decide.
The Court of Appeal was not persuaded by either ground and dismissed the appeal. The judgment does not set out any separate order altering the conviction.