Court of Appeal dismisses appeal where trial judge correctly refused corroboration warning for child complainant.

THE COURT OF APPEAL

Birmingham P.

Hedigan J.

McCarthy J.

[156/17]

The People (at the suit of the Director of Public Prosecutions)

Respondent

And

Sean Garvey

Appellant

JUDGMENT of the Court delivered on the 31st day of July 2018 by Mr. Justice Hedigan

1. The appellant was convicted on 17th May, 2017 following a trial by jury in the Cork Circuit Criminal Court of a count of sexual

assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by section 37 of the Sex Offenders Act

2001. He was sentenced on 1st June, 2017 to seven years imprisonment with the last two years suspended. The appellant has

appealed against conviction and severity of sentence, however this appeal deals with the conviction aspect only.

Background

2. The offence in question is alleged to have occurred on 6th February, 2016. The complainant was 10 years old at the time of the

offence. The evidence of the complainant was given to the jury by way of DVD. She had previously been interviewed by specialist

Gardaí for the purposes of giving evidence in court. She was cross-examined by the defence via video-link before the jury. The

complainant alleged that on the night in question, she was at a sleepover at her friend’s house. Both girls were sleeping in the same

bedroom. Her friend’s mother’s partner was the appellant. Both were present in the house. At some time during the night, the

complainant stated that she was woken from her sleep, and found herself in the appellant’s arms. He convinced her to go out to the

landing and asked her to go downstairs with him, as he wanted to talk to her about something. She asked to go to the bathroom,

which she did. She stated that the appellant pushed open the door of the bathroom after a time and dragged her downstairs. All the

lights were off in the house. He took her into a room and sat her on the couch. At this stage, the complainant stated that she was

attacked by the appellant as he put his hands down her pyjamas. He touched her private parts as well as putting his hands up her

top, groping her breast area. She stated that she fought him off by kicking him and ran back upstairs to her friend’s room. She locked

the door. She told her friend’s mother what had happened the following morning upon which her friend’s mother contacted the

complainant’s own mother.

Grounds of Appeal

3. The learned trial judge erred in law in refusing the appellant’s application for a direction in the case.

4. The learned trial judge erred in law in failing to give a corroboration warning in the particular circumstances of the case.

Submissions of the Appellant

5. It is submitted that the learned trial judge erred in law in refusing the appellant’s application for a direction in the case. The

application was based upon what is commonly referred to as the second leg in the case of R v. Galbraith, whereby some evidence

exists in a case, however, it is “of a tenuous character […] because of inherent weakness or vagueness or because it is inconsistent

with other evidence”.

6. Counsel for the appellant draws attention to the inconsistencies given in the complainant’s evidence: for example, the fact that

she had an iPad to contact others and that she was using the iPad after the alleged assault; the difficulties in terms of the mechanics

of what occurred, for example, that the lights were off throughout the house; the fact that the girls’ room was very close to where

the mother of the complainant’s friend was sleeping and that the complainant’s friend’s mother stated in evidence that she had heard

nothing on the night in question; the fact that the complainant stated that she locked the door and that her friend’s mother opened

the door from the outside, as she had a key; the evidence of the friend's mother that were no keys for the doors in the house; the

fact that the complainant gave evidence of her clothes being pulled at when she was wearing a tight-fitting crop-top; the fact that

the complainant told her friend’s mother that what had happened only involved the appellant touching her belly area.

7. It is submitted that in this case there were numerous inconsistencies, and matters which simply did not seem believable - nobody

had heard anything and the sheer mechanics of what occurred appear improbable. All of these are matters go to the very core of the

credibility and the reliability of the evidence of the complainant. In circumstances where the complainant’s evidence was the only

evidence against the appellant in the case, the learned trial judge erred in law in failing to grant a direction in this matter.

8. It is submitted that the learned trial judge erred in law in failing to give a corroboration warning in the particular circumstances of

the case. Even if the inconsistencies in the case are not sufficient for this Court to conclude that the learned trial judge erred in

refusing to grant a direction, they are sufficiently serious such that the learned trial judge should have given a corroboration warning

in the case.

Submissions of the Respondent

9. The learned trial judge considered the application and correctly refused to grant the application for a directed verdict. The

evidence of the complainant was consistent and free from vagueness in the essential matters – that she was sexually assaulted by

the appellant. Counsel cites the decision of DPP v M [2015] IECA 65, wherein it was stated in dealing with the issue of the refusal to

grant a direction:

“Approaching matters in that way, this Court finds itself in agreement with the respondent that in the present case the

trial judge’s decision on the application for a direction was a legitimate exercise of his discretion, and one that was made

within jurisdiction. The mere fact that aspects of the complainant’s evidence might be characterised by some, as counsel

for the appellant sought to do, as “bizarre” and “extraordinary” and “outside of the norm” did not render it unfair that the

jury should be asked to consider that evidence. Whether it was correct to so characterise it, or indeed to characterise

her overall account as being “in the realm of fantasy and not reality”, were quintessentially matters for the jury. These

were matters for consideration by the jury in assessing whether the prosecution evidence, and complainant’s evidence in

particular, could be regarded as credible and reliable. This Court asks rhetorically was there any reason why it would be

unfair to ask the jury to make that assessment? There was nothing in the evidence that rendered it necessarily incapable

of belief, or inherently unreliable. It was therefore proper that the jury were allowed to consider that evidence. It was

then a matter for the jury to determine whether it was in fact credible and whether they could in fact rely upon it.

However, this Court is satisfied that the trial judge was correct in the circumstances of the case to allow the evidence to

go to the jury. The state of the evidence was not such as to render it unfair to proceed with the trial.”

10. Secondly, the issue of whether or not to give a corroboration warning is by statute a matter for the trial judge’s discretion. It is

made clear in the jurisprudence on this point that an appellate court should be slow to intervene with a decision, and interfere only if

the decision is made on an incorrect legal basis or was clearly wrong in fact. In DPP v. KC [2016] IECA 155 Birmingham J stated:

“The starting point for consideration of this issue is that the decision to issue a warning or not is a matter for the trial

judge’s discretion. The Court will be slow to intervene with the exercise of that discretion by a trial judge and a court will

intervene only if it appears that the decision was made upon an incorrect legal basis or was clearly wrong in fact.”

Further, in DPP v. Ryan [2003] 3 I.R. 550 at 566, Geoghegan J stated:

“as in the case of all discretionary orders, an appellate court may interfere if, on the facts of any particular case, a failure

to give the warning was manifestly a wrong exercise of the discretion.”

11. It is submitted the appellant has not shown the failure to give the warning was a manifestly wrong exercise of discretion.

Decision

12. The first ground of appeal is one which has been all but abandoned. Mr. Bowman simply has referred us to his written submissions.

Although these are excellent submissions, they are unconvincing to the Court on this point. The argument raised is under the second

wing of the principles in R v. Galbraith. The question is whether the evidence of the child victim in this case was “of a tenuous

character…because of inherent weakness or vagueness or because it is inconsistent with other evidence”. We are referred to certain

inconsistencies in her evidence, among these are the alleged difficulty in the mechanisms of what occurred, to the fact her friend’s

mother stated she heard nothing and the contradiction by her of the presence of keys in the locks of doors in the house. There are

indeed certainly inconsistencies in the complainant’s evidence. However they all relate to peripheral matters. The court accepts that

there are frequently inconsistencies in a child’s evidence. The issue of the keys is perhaps the most concrete contradiction. However,

the complainant was very precise in what was the central thrust of all of her evidence. She was very clear that she was sexually

assaulted by the appellant. As is established in DPP v. M. [2015] IECA 65, the mere fact that aspects of a complainant’s evidence

may be considered bizarre or extraordinary or outside the norm does not render it unfair that a jury should be allowed to consider it.

The contradictions in the evidence between what her friend’s mother said and what the complainant said are, like in M., in our view,

matters quintessentially for the jury to consider and resolve. Here also there was nothing in her evidence that rendered it inherently

incapable of belief or unreliable. It was for the jury to decide whether it was, in fact, credible and in our judgment the learned trial

judge was correct to refuse the application for a direction. This ground fails.

13. The main ground upon which this appeal was argued was the question as to whether a corroboration warning should have been

given. Although not a part of the grounds of appeal, nor referred to in written submissions, the appellant has also argued that the

learned trial judge should have given reasons for his decision to refuse to give a warning. The point of departure in regard to this

point is the provision made by s. 7 of the Criminal Law (Rape) Amendment Act 1990 which states as follows:-

“7.(1) Subject to any enactment relating to the corroboration of evidence in criminal proceedings, where at the trial on

indictment of a person charged with an offence of a sexual nature, evidence is given by the person in relation to whom

the offence is alleged to have been committed and, by reason only of the nature of the charge, there would, but for this

section, be a requirement that the jury be given a warning about the danger of convicting the person on the

uncorroborated evidence of that other person, it shall be for the judge to decide in his discretion, having regard to all

the evidence given, whether the jury should be given the warning, and accordingly any rule of law or practice by virtue

of which there is such a requirement as aforesaid is hereby abolished.”

14. This provision was considered by the Court of Criminal Appeal in DPP v. JEM [2001] 4 I.R. 385 at pp 400-403. There Denham J.

stated as follows:-

“The Irish legislation is clear. The Criminal Law (Rape) (Amendment) Act, 1990, states that in a trial, such as this, where

evidence is given by the person in relation to whom the offence is alleged to have been committed, it is for the judge to

decide in his discretion, having regard to all the evidence given, whether the jury should be given a warning. This is a

clear statement of principle and law.

The trial judge in this case exercised his discretion. This was a long trial where the issue of corroboration was debated

by counsel before the judge. In light of the issues raised, the circumstances and the evidence given, the trial judge

exercised his discretion not to give a warning. No reason has been given upon which this court could interfere with the

trial judge's exercise of discretion. Consequently, this ground of appeal failed.”

15. Case law on this provision establishes that judges should not give a warning in every case where there is no corroboration. To do

so would be to circumvent the clear policy of the legislature. See DPP v. Wallace, 30th April 2001. Further in DPP v. Ferris [2008] 1

I.R., delivering the judgment of the Court of Criminal Appeal Fennelly J. stated as follows:-

“The question of whether the jury should be warned about the danger of convicting on the uncorroborated evidence of a

complainant being, as already stated, a matter for the exercise of discretion by the trial judge, this court should not

intervene unless it appears that the decision was made upon an incorrect legal basis or was clearly wrong in fact.”

16. Thus this court may only intervene where satisfied that the learned trial judge in refusing to give a corroboration warning was

clearly wrong or where it was made on an incorrect legal basis. Was there an impermissible exercise of judicial discretion?

17. The argument supporting this ground was much the same as those in the first ground of appeal i.e. the issue of the keys, the

absence of any DNA evidence on the complainant’s clothes, that the complainant was upset and crying where her friend’s mother said

she was not and what was described as the evolving nature of the complaint. It is fair to say that some judges might have given a

warning in such circumstances but that is not the test. The test is much stricter than that. This court must be satisfied that in such

circumstances as here, the learned trial judge, in refusing to give a warning, was clearly wrong, that it was not open to him to

exercise his discretion in that regard in this case. We cannot find this. In our judgment it was well within his discretion to refuse the

application. This ground fails.

18. Although not raised in the grounds of appeal, we did hear Mr. Bowman on the question of the failure by the learned trial judge to

give reasons for refusing the warning. It is true that he initially stated that he would give a warning but ultimately, having thought

about it overnight, decided not to do so. The debate on the question of the warning was rather truncated. Only counsel for the DPP

addressed the judge on the question when he said he intended to give such a warning, asking him not to do so. It may be assumed

that counsel for the appellant relied upon his submissions in support of a direction. One may assume that had counsel for the

appellant raised some other points, the judge would likely have dealt with them. Nevertheless in the light of the case law above, a

decision not to give a warning may be considered all but self-explanatory. Moreover, in DPP v. Wooldridge delivered on the 12th April,

2018, this court found at para 14(d) of its judgment that:-

“It is not a requirement that the trial judge must always give a reasoned ruling where corroboration warning is

requested. In most instances the arguments for and against a warning will be obvious to all concerned. There is no

requirement that where the judge exercises the discretion by refusing to give a warning it must be by reference to

detailed, specific and analytical reasons mentioning the evidence in the case.”

19. Thus, this ground also fails. The appeal is dismissed.