DPP v K.C.

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 30 May 2016
• Neutral Citation: [2016] IECA 155
• Docket Number: Appeal No. 25/2015
• Court: Court of Appeal (Ireland)
• Date: 30 May 2016

[2016] IECA 155

THE COURT OF APPEAL

Birmingham J.

Appeal No. 25/2015

Birmingham J.

Sheehan J.

Edwards J.

Between

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

V

K.C.

APPELLANT

Conviction – Indecent assault – Corroboration warning – Appellant seeking to appeal against conviction – Whether trial judge ought to have given a corroboration warning

Facts: The appellant allegedly sexually abused the complainant, his sister, between 1983 and 1987 at a time when the complainant was aged between seven and eleven years of age and when the appellant was between the ages of 21 years and 25 years, the offending allegedly having occurred in the family home. A limited form of disclosure of abuse was made by the complainant in the year 2000 when she was 25 years of age, but it was only in 2012 that there was a formal complaint to An Garda Síochána. During the appellant?s trial, he sought a corroboration warning. The judge refused to give the corroboration warning. On the 16th December, 2014, the appellant was convicted of sixteen counts of indecent assault and subsequently on the 12th January, 2015, was sentenced to a term of nine years imprisonment. The appellant appealed to the Court of Appeal against conviction. The appellant argued that there was a factual basis?for the giving of a corroboration warning. Furthermore, the appellant said that while the case may not have been a classic restored memory case, the manner in which the complainant?s memories of the abuse that she said she suffered were triggered or retriggered should have weighed more heavily in the judge?s analysis as to whether this was an appropriate case for a warning. It was pointed out that aspects of the complainant?s evidence were in conflict with other evidence in the course of the trial.?The appellant argued that by reason of the combination of the various factors identified that this was a case where a corroboration warning would have been appropriate and where such a warning was required. He said that the judge erred in failing to give such a warning but also erred in applying the wrong legal test and in particular erred by requiring a threshold of ?exceptionality? to be crossed if there was to be a warning.

Held by Birmingham J that none of the factors pointed to as providing an evidential basis for a warning was such that taken in isolation it could be said that it mandated the judge?s discretion to be exercised in one way and one way only.?In the view of the Court, the judge in deciding not to give a warning in the way that he did was acting well within his jurisdiction; the issues that were advanced at trial as elaborated and expanded upon before the Court were not of such a nature that there was only one way a discretion could be exercised. The Court was of the view that there was nothing in the case to take it out of the ordinary in the sense of ousting the judge?s discretion and making the giving of a warning mandatory, referring to R v Makanjuola?[1995] 1 WLR 1348. Birmingham J held that it had not been established that the judge acted on an incorrect legal basis or was clearly wrong in fact; the judge had a discretion to exercise and exercised it in a way that was open to him.?

Birmingham J held that the Court must dismiss the appeal.

Appeal dismissed.

Judgment of the Court delivered on the 30th day of May 2016 by Mr. Justice Birmingham

1 On the 16th December, 2014, following a four day trial the appellant was convicted of sixteen counts of indecent assault and subsequently on the 12th January, 2015, was sentenced to a term of nine years imprisonment. The appellant now appeals against conviction and against severity of sentence. This judgment deals with the conviction aspect only.

2 So far as the conviction appeal is concerned, one issue is raised in the appeal relating to the decision of the trial judge not to give a corroboration warning.

3 The background to this case is that the appellant and the complainant are brother and sister. The trial related to alleged offences committed between 1983 and 1987 at a time when the complainant was aged between seven and eleven years of age and when the appellant was between the ages of 21 years and 25 years, the offending allegedly having occurred in the family home. The home comprises a small mid terrace house in which there were three bedrooms. There were four girls and four boys in the family and the complainant, Ms. MS, was the youngest. Initially she slept in a front bedroom with three of her brothers, including the appellant. There came a point when the complainant moved to the girl's bedroom. There is some element of uncertainty as to precisely when that happened and this is a point to which the defence attach some significance, highlighting that there are differences between what the complainant has to say in that regard and what some other members of her family have to say.

4 A limited form of disclosure of abuse was made by the complainant in the year 2000 when she was 25 years of age, but it was only in 2012 that there was a formal complaint to An Garda Síochána.

5 In terms of the timing of the complaint it should be noted that the appellant's brother M had been injured in a car accident at a young age and after a long illness finally passed away in 2009. The complainant says that in the aftermath of this she suffered considerable emotional turmoil, went for counselling and it was then that the memories of abuse came to the fore.

6 At the start of day 3 of the trial, senior counsel on behalf of the appellant sought a corroboration warning as well as a delay warning. The delay warning request was acceded to and there is now no issue in that regard. However, the judge refused to give the corroboration warning that was being sought. In those circumstances it is appropriate to look at the application for a corroboration warning in some more detail. Counsel submitted as follows:-

?The second issue, Judge [the first issue related to the delay warning/ Haugh warning] is that I was going to ask the court to give the jury a corroboration warning as well in light of the fact that there is no corroboration and also in light of the fact of the actual evidence as it is played out in court. In respect of the complainant's own evidence, there are two specific issues that have now arisen on the basis of prosecution evidence. Firstly, she has forgotten a second period of time when the accused was not present in the house. Secondly, there is a very real issue as to when in fact she moved from one bedroom to another bedroom, and there has a very real effect in terms of the length of time and when her allegations stand, Judge and I say that this is a real issue in terms of her credibility. Now all of that aside Judge the further significance, of course, is how she has come about to remember the allegations that she has made as against the accused and in fact that on her own evidence she had blocked these memories out and they were then retriggered when she attended counselling and discussed issues with persons and I say that, having regard to all of that, and evidential basis has been laid for a corroboration warning to appropriately and properly be given in this case and I say that there would be serious concern from the accused's perspective if that in fact was not given in the case.?

7 When asked to respond, counsel for the prosecution commented:-

?It is clearly a matter for you as the trial judge in view of your discretion. I can certainly concede that there is no corroboration in the manner in the way in which the evidence has unfolded. However, you will be aware of the various cases that say that you should not just err on the side of caution and give the warning just because there is no corroboration because the statutory provisions in relation to repeal of that are important.

So in terms of the material that my friend has put before you as grounding her reasons as to why you should give the warning, I can say this in relation to the time span, that there is no difficulty in relation to the time span. The complainant has always been clear that this happened between the ages of seven and eleven. Where there may be some conflict is in relation to when she in fact moved into the back bedroom, but we are looking at the situation where the events of which complaint is made span a period some 30 years ago, and that would be covered, in any event by the Haugh warning in terms of that.

In relation to what my friend has submitted to you about how she came about remembering these matters, that they had been blocked out before, well, I think a vital piece of the evidence is that the original complaint that she made was in 2000 and that was made to members of her family, that thereafter ? and she concedes this in evidence ? she did put to the back of her mind and get on with her life. And then the triggering event of bringing those again to the fore, not remembering them for the first time, but bringing them to the fore was the death of her brother. So whilst I hear what my friend says, I think that there are two sides to all these matters, but is a matter ultimately for your discretion.?

8 The judge's ruling was a succinct one. He commented:

?I generally do not give a corroboration warning. Obviously, I will be very clear to the jury that there is no corroboration and they must believe the evidence of the complainant to the necessary degree. I don't see why I should give a corroboration warning in this case. It seems that this case ? if you want to use the word ? is bedevilled by the normal problems of old cases. It seems the complainant is certain that from seven to eleven she was abused on many occasions by the accused man. That is her evidence. Obviously it could be conceived as...