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

THE COURT OF APPEAL Record No: 226/2023 Edwards J. Neutral Citation Number [2025] IECA 268 Kennedy J. Butler J.

BETWEEN/ THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT V M.K.

APPELLANT

JUDGMENT of the Court delivered by Mr. Justice Edwards on the 13th day of November, 2025.

Introduction

1. On the 9th of May 2023, M. K. (i.e., “the appellant”) was convicted by a jury in the Central Criminal Court of thirteen counts, namely:

(i) Count no. 1 of rape contrary to s. 48 of the Offences Against the Person Act 1861 and s. 2 of the Criminal Law (Rape) Act 1981 as amended by s. 21 of the Criminal Law (Rape)(Amendment) Act 1990 (“the Act of 1990”);

(ii) Count nos. 2 – 13 inclusive of sexual assault contrary to s. 2 of the Act of 1990 as amended by s. 37 of the Sex Offenders Act 2001.

2. The trial judge passed sentence on the 18th of July 2023, on which occasion the appellant was duly sentenced to concurrent terms of imprisonment of 10 years and 6 months in relation to count no. 1 and 7 years and 6 months in relation to each of count nos. 2-13 inclusive. These sentences were backdated to the 18th of July 2021 to account for time spent in custody while on remand.

3. The appellant by Notice of Appeal dated the 4th of August 2023 appealed to this Court against his conviction imposed in the Court below. The Notice of Appeal indicated that specific grounds of appeal were to follow. On the 26th of January 2024, the appellant advanced the following sole ground of appeal:

“The learned Judge erred in law by declining to give a corroboration warning and had predetermined this decision prior to hearing the application by the defence.”

Factual Background

4. A Sergeant Richard Fitzgerald described in evidence that the offending took place on a regular basis over the period of almost a year, between the 21st of September 2012 and the 6th of September 2013. The complainant, Ms. “A”, was born in August 2005 and had just turned 7 years of age when the offending commenced. The appellant was born on the 19th of September 1969 and was 43 years of age at the time of the offending.

5. The complainant’s parents, a Ms. “J” and a Mr. “R” have been separated since 2009.

There was an arrangement in place whereby the complainant would spend Monday to Thursday with her mother, and Friday to Sunday with her father.

6. The offending occurred at the appellant’s home in county Wexford, a house which he shared with other persons, including the complainant’s father. The appellant lived in the house with his ex-wife, a Ms. “B” and her son “M”. The appellant shared a room with Ms.

B and M had his own room. When the complainant stayed over, she slept in the same room as her father, Mr. R. and his partner Ms. J.

7. In her specialist interview, the complainant stated that the appellant would try and touch her “whenever he got the chance”, that he would “feel her up” and “just do inappropriate things”. She stated that this progressed to the appellant offering her treats such as Kinder Eggs and she described the appellant saying words to the effect: “if I give you this, would you let me do that”. She stated that she would always say no, but he would still go ahead and do it. When asked what the appellant did to her, the complainant described in reasonable detail the nature of how she was sexually assaulted, which involved non penetrative intimate touching, both orally and digitally, – “and this was more than one time.”

8. In evidence the complainant alleged that the offending occurred when she was left alone in the house with the appellant, or when people were downstairs. The complainant stated that the appellant would feel her and touch her in a sexual way, and on one occasion he licked her genitals. The complainant gave evidence that the abuse happened “whenever he got the chance - nearly every weekend.”.

9. The evidence in relation to count no. 1 concerning the offence of rape, was that the appellant was in his son’s room using the computer. He called the complainant into the room, and she described that, “He started feeling me up first, gave me the [Kinder] egg, the usual”, and then when she tried to walk out of the room, he grabbed her by the hand, pulled her back into the room, pulled down her pants, bent her over the bed, and vaginally raped her.

10. The complainant described that when the appellant realised that she was getting older and more mature and that she knew what was going on, he threatened her, saying something along the lines of “If you tell your dad or tell your mam, like, whatever is going on, something is going to happen to you.” The complainant’s evidence was that being a child she was scared, and she did not tell anyone at the time.

11. The complainant initially told her mother about the offending around the summer of 2019 and later made certain disclosures to a counsellor in school in November 2020. Her mother was contacted following these disclosures. Gardaí were informed and a formal complaint was made on the 13th of November 2020. The complainant then participated in a specialist interview on the 5th of December 2020.

12. The appellant was arrested on the 21st of December 2020. During garda interviews he denied committing the offences. The appellant was subsequently charged on the 18th of July 2021.

The Corroboration Warning

13. It has been submitted by the appellant that the net issue to be decided by this Court is whether the trial judge erred in declining to give a corroboration warning and had prejudged and pre-determined this issue prior to hearing an application by the defence that she should give a corroboration warning.

14. Section 7 of the Act of 1990 provides that at a trial of an accused on indictment for a sexual offence it is within the discretion of the trial judge to decide, having regard to all of the evidence received in the case, whether to give the jury a corroboration warning. The section provides:

“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.

(2) If a judge decides, in his discretion, to give such a warning as aforesaid, it shall not be necessary to use any particular form of words to do so.”

15. On the 5th day of trial (the 5th of May 2023), counsel for the appellant made an application to the trial judge for a corroboration warning to be given. It was highlighted to the trial judge that there were no independent witnesses in the case and the prosecution’s case was essentially based solely upon the evidence of the complainant. Counsel for the appellant submitted that there was a certain “generality” to the complainant’s evidence and a lack of detail. The following examples were given to demonstrate such: “there was no ties to any specific days or times, nor was there any reference as to how the complainant physically felt or emotionally felt, or how she reacted – in the aftermath of the alleged acts”.

16. The application was opposed by counsel for the respondent, who disputed that the complainant’s evidence had lacked detail and who contended that the existence of some contradictions or inconsistencies in the evidence was not unusual in cases of this type.

However, it was argued, there was nothing special or peculiar about the case that would justify a corroboration warning. The court was referred by prosecuting counsel to People (DPP) v. Wooldridge [2018] IECA 135 and People (DPP) v. R O’M [2021] IECA 243 in support of her arguments.

17. The trial judge in refusing this application introduced her remarks by stating:

“I had anticipated that an application might be made seeking the Court to give a corroboration warning, so I had actually considered matters, subject of course to the submissions which have been made and I was just reading over the submissions, just to make sure I hadn't missed anything in taking down my notes of the submissions which have just been made.”

18. The trial judge then outlined the basis for the application that had been made, and the previously mentioned case law that had been opened to her. She also referenced the earlier cases of People (DPP) v. JEM [2001] 4 I.R. 385 (which had approved the approach in the English case of R v. Makanjuola [1995] 3 All E.R. 730) and People (DPP) v. Wallace 2001 WJSC-CA 2212. She then continued:

“I have considered the application which has been made before me. I am very familiar with the evidence, having reviewed the transcripts over the course of the evening and reviewed my notes and notes provided to me by Ms Porter during the course of the trial and I am going to refuse the application. I have considered the submissions made on behalf of [the appellant] and on behalf of the prosecution.

Regarding the decision to give a corroboration section 7(1) of the Criminal Law (Rape) (Amendment) Act 1990 abolished the mandatory warning in cases of sexual offences and child complainants, it is a matter for the judge to use her discretion. I am of the view that any inconsistencies or inaccuracies or frailties will be covered in relation to a delay warning which will be tailored to meet the defence which has been presented during the course of this case. And of course the accused person did not have to present any defence, but I will endeavour to tailor my warning in relation to delay appropriately on. Any frailties or inconsistencies will no doubt be commented upon in closing speeches. But they are not at a level which would lead this Court to give a corroboration warning. They are not what has been referred to as the something special and peculiar referred to in Wooldridge 2018 IECA 135 which give rise to the danger of convicting on uncorroborated evidence. Paragraph

75 of ROM Ms Justice Ní Raifeartaigh referred to the existence of discrepancies between a complainant's statement and her oral evidence or as between the evidence and that of other witnesses is not an unusual feature of such cases.

Now, in relation to this case, I have already gone through the alleged inconsistencies in my previous ruling and I have referred to them again during the course of this ruling. So, I don't intend going through them all again and [defence counsel] has carefully taken the Court through them also. So, it's for that reason I'm not going to go through every single alleged inconsistency at this point. I think I have covered the material. And, having considered the submissions on behalf of the accused and the prosecution, the evidence in the case and the applicable law, I am refusing the application”

19. The reference to a previous ruling was to a ruling on an unsuccessful application made by counsel for the defendant for a direction at the end of the prosecution case. No issue is taken in regard to that on this appeal.

Submissions on the Appeal

20. The appellant accepted that the issue of whether to give a corroboration warning is entirely within the discretion of the trial judge. However, it was submitted that the trial judge erred in this case by failing to exercise her discretion appropriately to give a corroboration warning, having regard to the absence of corroboration evidence in this case.

21. In response to this, counsel for the respondent argued that the complainant gave a detailed account and narrative which was age appropriate. It was submitted that none of the factors given by the appellant as justifying a corroboration warning (i.e., the absence of witnesses, the asserted generality of the complainant’s evidence, and the asserted conflicting accounts of other witnesses as regards when the appellant would be in the house) were unusual in the case of sexual offending generally, and certainly not in the case of offending perpetrated against a child. The respondent referred again to People (DPP) v. R O’M (referenced previously), where Ní Raifeartaigh J., giving judgment for the Court of Appeal, stated:

“The existence of discrepancies between a complainant’s statement and her oral evidence, or as between her evidence and that of other witnesses (such as, here, the appellant’s mother) is not an unusual feature of such cases. The jury had to consider the credibility and reliability of each and every one of the witnesses as well as the totality of the evidence. We do not consider that the discrepancies or conflicts were, even when combined with the delay in making complaint to the Gardai… such as to amount to an error of law on the part of the trial judge not to have given the corroboration warning.”

22. The respondent also highlighted that three of the impugned features of the evidence in this case, namely, the fact that the offending took place while other people were potentially in the house, the assertion that the evidence of the actual offending was said to be vague and a discrepancy as between the complainant and her mother as regards the reporting of the offending had also existed in the case of People (DPP) v. M.C. [2022] IECA 96, where this Court upheld a decision not to give a corroboration warning.

23. Counsel for the appellant submitted that there was an “over focus” on what counsel characterised as the “formulation” (by which it is presumed is meant “formulaic”) phrase in People (DPP) v. Wooldridge, i.e., that something “special and peculiar” or “something unusual” in the case was required in order for the trial court to exercise its discretion to give a corroboration warning. The following extract by Ní Raifeartaigh J. in People (DPP)

v. R O’M was quoted in support of this: “it was important not to become overly entangled in semantics. What is important is that the trial judge avoids giving the warning simply as a matter of routine or out of an excess of caution (DPP v JEM [2001] 4 IR 385; DPP v Wallace, unreported CCA 30 April 2001) and instead considers whether on the evidence in the particular case before her it would be dangerous to convict on the uncorroborated evidence of the complainant.”

24. In reply on this argument, counsel for the respondent referenced the cases of People (DPP) v. K.C. [2016] IECA 155 and People (DPP) v. Wooldridge as outlining that there needs to be “something special and peculiar” requiring the corroboration warning to be given. It was submitted that there was no such “special and peculiar” feature in the instant case. It was also submitted that there was no error in the exercise of the trial judge’s discretion on this issue.

25. On the issue of alleged pre-judgment, counsel for the appellant argued that the specific reference by the trial judge to anticipating the defence application and to considering matters [in advance of that application] raises a legitimate concern as to prejudgment on the issue as to whether or not there should be a corroboration warning.

26. In response, the respondent argued that this assertion by the appellant is groundless, and this was nothing more than responsible management of the trial. Further, this was a historical sexual abuse case and in such cases the trial judge will almost invariably have to give due consideration to whether a corroboration and/or delay warning is required and the content of same. It was entirely unremarkable therefore that the trial judge had anticipated a likely application for a corroboration warning and had begun to consider matters in a preliminary way that might be relevant to that. However, the trial judge was careful to caveat that her anticipatory consideration of matters was “subject of course to the submissions which have been made”. Counsel for the respondent submitted that there was therefore no question of any prejudgment.

27. Finally, on the main issue of whether there should or should not have been a corroboration warning, the respondent further asks us to note that aspects about which complaint is made were in fact covered by the trial judge’s charge on delay. In that regard, the trial judge stated:

“when there has been a delay…It increases the likelihood that the case will come down to one word against the other, to [the complainant’s] word against [the appellant’s] word and so one word -- one person saying something happened and the other person denying it, coupled with the problem that cases where there are older allegations frequently lack precision and detail. The less detail provided in an allegation the less easy it is for the defence to test and challenge the evidence and you have seen, during the course of this trial, some of the witnesses, including [the complainant] saying I can't recall, I can't remember that…” Analysis & Decision

28. Following a full consideration of the transcript we have arrived at a clear view that this appeal must be dismissed. The issue of whether or not to give a corroboration warning was a discretionary decision for the trial judge to make following a detailed consideration of the evidence, and with due regard to submissions received. There is nothing to suggest that the discretion was wrongly exercised. There was nothing special and peculiar about this case that would have required the giving of a corroboration warning.

29. It is true that there was no corroboration in the strict legal sense and that it was largely the complainant’s word against the appellant’s word. However, we think counsel for the respondent was correct in her written submissions to suggest that it is overstating the case to say that the complainant’s evidence was very general in nature and lacking in detail and specificity. As counsel for the respondent pointed out, the following matters were in fact addressed in the complainant’s evidence:

• The living and custody arrangements as between her separated parents;

• The other people that lived in the house with her father;

• The fact that the appellant’s child was there, and they used to play together;

• The fact that she was threatened not to say anything;

• That the appellant would try and touch her and feel her up whenever he got the chance;

• That she did not understand what was going on because she was only 7;

• An account of the first incident and her being enticed into a room with him;

• The fact he used to buy Kinder Eggs and give them to her in return for letting him do things to her;

• That he touched her intimately, albeit non penetratively, both digitally and orally, and that this happened on more than one occasion;

• That the offending commenced just after her 7th birthday and stopped when she moved out;

• The days of the week that she would be in the house and the frequency of the offending;

• The fact that it was opportunistic;

• The detail of the rape including the fact that everyone was gone out of the house, that the appellant was in his son’s room at the computer and called her in, gave her the Kinder Egg as usual before raping her after she tried to leave the room;

• An account of the physical element of the rape;

• An account of how she began to stick up for herself more as she got older and say no;

• An account of the layout of the house, garden and surrounds, including the furniture and decoration;

• The fact that she told her friend about the abuse, the circumstances in which that came about and her reaction;

• The fact the appellant would act normally when he was downstairs with her, but as soon as he got her upstairs, he would be very sexual with her;

• The fact he would buy two packets of three kinder eggs and give some to his son and use the others to inveigle himself with her;

• A detailed account of an occasion that he touched her over her clothes, telling her he had a surprise to lure her upstairs then giving her a kinder egg causing her to ask do I not have to do anything for it, him saying no and her fleeing after he began touching her shoulders and running his hands down to her hips;

• The fact he would strip her completely naked, lay her on the bed and do whatever he wanted to do, be it finger her or lick her and that she had no control over what he was going to do;

• That sometimes the other occupants of the house would go out, that her father would play football on Wednesdays and that they might go shopping and she might not want to go; and

• That when he started realising she was getting older and more mature he threatened her that if she told her parents something would happen.

30. Counsel for the respondent made the further, we think valid, points:

“In so far as there is an asserted generality or vagueness in the complainant’s account, it is submitted that a review of the transcript of the complainant’s crossexamination (Day 3, 3rd May, p. 7 onwards) also does not suggest any difficulty in answering questions on issues of substance. It is perhaps unreasonable to expect a child of 17 to be able to recall who did the cooking when she was 7 or on the exact presence of other people in the house in relation to abuse that was taking place on a regular basis. In any event such matters are entirely for consideration by a jury and have very limited, if any, bearing on the exercise of a Court’s discretion in respect of a corroboration warning.”

31. We also think the respondent was correct in submitting that contradictions and inconsistencies in the evidence are routinely encountered in cases involving sexual offending, and particularly in cases involving children, and their mere existence would not per se and without more justify the giving of a corroboration warning. Ms. Justice Ní Raifeartaigh’s judgment on behalf of this Court in the R O’M case makes that very point, at paragraph 75. The trial judge in the present case explicitly referenced it, and she was right to do so.

32. We find no error in her decision not to give a corroboration warning and consider that her discretion was appropriately exercised.

33. Apropos the suggestion of prejudgment, we dismiss this complaint in limine. As counsel for the respondent correctly points out requests for a corroboration warning are virtually ubiquitous in this type of case, and it is wholly unsurprising that the trial judge should have anticipated that she would receive one and that she would take preparatory steps towards addressing it in due course. The judge’s reference to “considering matters” was perhaps an infelicitous use of language but on any fair reading of her remarks it cannot, it seems to us, be interpreted as importing advance deliberation, in the decision making sense, on the issue of how the discretion should be exercised, particularly in light of the express caveat that it was “subject of course to the submissions which have been made.”

The trial judge was entitled to take preparatory steps to deal with the anticipated application, to review the transcripts and her notes to refresh her memory, to marshal her initial thoughts and impressions in regard to the complainant’s evidence, and as to the evidence before the court as a whole, all with a view to being better able to critically analyse the arguments of counsel when eventually presented, and to decide upon the application from a fully informed position at the appropriate time. It is the essence of a judge’s job to maintain an overview of a trial as it is progressing, and where necessary to review evidence given, and notes taken, earlier in the case where it is considered that they might be potentially relevant to an upcoming issue. We ask rhetorically, how else, for example, does a trial judge prepare for their charge to the jury? We have no hesitation in saying that we regard this complaint as being utterly misconceived and as lacking in reality.

Conclusion.

34. The appeal must be dismissed.

APPROVED JUDGMENT

NO REDACTION NEEDED