DPP v M.K.

CourtCourt of Criminal Appeal
JudgeMrs Justice McGuinness
Judgment Date19 July 2005
Neutral Citation[2005] IECCA 93
Docket Number[CCA No. 214 of 2000]
Date19 July 2005

[2005] IECCA 93


McGuinness J.

Herbert J.

Butler J.

Record No. 214/00
DPP v K (M)
M. K.


DPP v FINNERTY 1999 4 IR 364 2000 1 ILRM 191

DPP v CODDINGTON UNREP CCA 31.5.2001 2001/7/1688


DPP v GAVIN 2000 4 IR 557


CRIPPEN 1910 5 CAR 255

PRIME 1973 57 CAR 632



REX v NEAL 1949 2 KB 590




DPP v REID 1993 2 IR 186 1991 ILT 111



DPP v J (P) 2003 3 IR 550 2004 1 ILRM 220


Sexual offence

Corroboration warning - Trial - Charge to jury - Whether adequate corroboration warning given - Absence of corroboration - Whether trial judge obliged to advise jury that no corroborative evidence to link accused to offence - Whether trial judge's reference to other evidence indicated that indirect corroboration available -Trial judge's failure to recharge jury following requisition - Risk of confusion - People (DPP) v Reid [1993] 2 IR 186 and People (DPP) v PJ [2003] 3 IR 550 applied - Appeal allowed, no retrial directed (214/2000 - CCA - 19/7/2005) [2005] IECCA 93


Sexual offences

Charge to jury - Accused's right not to give evidence in own defence - Standard of proof - Whether essential for judge to contrast criminal and civil standard of proof when charging jury - Whether temporary separation of juror with court's consent after jury commenced deliberation rendered verdict unsatisfactory - Corroboration warning - Definition of corroboration - Evidence constituting corroboration - People (DPP) v Coddington (Unrep, CCA, 31/5/2001) and People (DPP) v Gavin [2004] 4 IR 556 distinguished, People (Attorney General) v Byrne [1974] IR 1, People (DPP) v Cronin (Unrep, CCA, 16/5/2003), People (DPP) v Reid [1993] 2 IR 186 and People (DPP) v J (P) [2003] 3 IR 550 followed - Juries Act 1976 (No. 4), s 25 - Appeal allowed and convictions quashed - (214/2000 - Court of Criminal Appeal - 19/7/2005) [2005] IE CCA 93



Deliberations - Irregularity - Whether deliberations in absence of one juror renders verdict unsatisfactory and unsafe - Juries Act 1976 (No 4), s 25 - Appeal allowed, no retrial directed (214/2000 - CCA - 19/7/2005) [2005] IECCA 93


Right to silence

Trial - Charge to jury -Trial judge's reference to accused's failure to give evidence - Inferences to be drawn - Whether trial judge's recharge clarified matter satisfactorily - Appeal allowed, no retrial directed (214/2000 - CCA - 19/7/2005) [2005] IECCA 93

People (DPP) v K (M)



Standard of proof -Charge to jury -Distinction between civil standard of proof and criminal standard of proof - Whether essential for trial judge to contrast criminal standard with civil standard of proof - Appeal allowed, no retrial directed (214/2000 - CCA - 19/7/2005) [2005] IECCA 93

Facts: The applicant was convicted on two charges relating to sexual offences, the first on a 10/1 majority and the second unanimously. The appeal against conviction was based on four grounds:

1. The learned trial judge's charge to the jury that the applicant's failure in all the circumstances to give evidence amounted to his exercising his right to silence was in error both in law and in fact.

2. The learned trial judge erred in law in his charge to the jury in failing to distinguish clearly between the civil and criminal standards of proof when instructing the jury as to the applicable standard of proof.

3. The verdict was rendered unsatisfactory by virtue of a material irregularity, namely the jury deliberated in the absence of one of their members.

4. The learned trial judge's charge to the jury was rendered unsatisfactory and unfair in particular in that the learned trial judge failed to point out unequivocally to the jury that there was no evidence in the case in law which could amount to corroboration.

Held by the Court of Criminal Appeal ( McGuinness J; Herbert and Butler JJ) in allowing the appeal:

1. With regard to the right to silence the court was of the view that the learned trial judge dealt fully and adequately with the required standard of proof and with the explanation of the phrase "beyond reasonable doubt". In his recharging of the jury he further clarified the matter. The jury can have been in no doubt as to the standard of proof they were to apply. People (Attorney General) v Byrne [1974] IR 1 considered

2. This court was of the view that the learned trial judge dealt fully and adequately with the required standard of proof and with the explanation of the phrase "beyond reasonable doubt". In his recharging of the jury he further clarified the matter. The jury can have been in no doubt as to the standard of proof they were to apply. This ground of appeal was rejected.

3. This ground was refused citing People (DPP) v Campbell (unreported) 4th March 2005 (FL 10657); People (DPP) v Moloney (ex tempore, unreported Court of Criminal Appeal 2 March 1992); People (DPP) v Cronin (unreported Court of Criminal Appeal 16th May 2003) (FL 7417).

4. The trial judge's charge to the jury which considered corroboration, taken as a whole, could have given confusion in the minds of the jury.

Reporter: BDD


Mrs Justice McGuinness on the 19th day of July 2005


The applicant was convicted by a jury in the Dublin Circuit Criminal Court on the 23 rd day of October 2000 on one count of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990 and one count of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861. The alleged assaults were occurred on 9 th August 1996 when both the applicant and the complainant were thirteen years of age. At the time of his trial, therefore, the applicant was seventeen years of age. The presiding judge, His Honour Judge Kieran O'Connor, sentenced the applicant to one year's detention on each count, the sentences to run concurrently from 23 rd October 2000. Leave to appeal was refused. The applicant has now served his sentence and his application is for leave to appeal against conviction only.


The facts of the case insofar as they are relevant to this application are that on the evening of 9 th August 1996 the complainant attended a young persons' discotheque in a town in Co. Wicklow. In the course of the evening she consumed some alcohol. The amount of alcohol she had consumed was in issue: varying accounts of her intoxication or otherwise were given by a number of witnesses while the medical evidence in this regard was inconclusive. The discotheque ended at around 10.30 to 10.45 p.m. The complainant left the discotheque and walked along the main street to a chip shop in the company of two girls. A number of young people, including the complainant's brother and some girls from Northern Ireland, were about the main street and around the chip shop and some conversations took place. It appears that after speaking to her brother the complainant agreed to go home and went back along the main street. The complainant met with the applicant and walked with him to the entrance of a laneway. It was common case that they had a conversation there. The evidence of the complainant was that the applicant pulled her up the lane to a place where there were some bottle banks and there assaulted her both sexually and physically. She gave evidence of recognising and identifying the applicant, whom she had known for some time. The applicant's evidence was that he left the complainant at the mouth of the lane and joined other people who were standing around the chip shop.


It was common case that some time later the complainant emerged from the laneway and made her way up to the chip shop. She was bleeding from the head and had a gash in her knee. Her legs had scraping type injuries. There were abrasions inside her mouth. She was extremely distressed. She alleged that the applicant had assaulted her both physically and sexually. The applicant vigorously denied all these allegations.


The complainant was taken to the local Garda Station and thence to the Rotunda Hospital, where she was examined by Dr. Patricia Cahill, who gave evidence at the trial of her multiple injuries. The complainant alleged to Dr Cahill and in a later statement to the Gardai that the applicant had digitally penetrated her vagina and also touched the area of her vagina with his hands.


It was conceded at a very early stage on behalf of the applicant that the complainant had been assaulted in the lane concerned but he denied that he had carried out the assaults. The primary issue at the trial was, therefore, not whether the complainant had been assaulted, but rather whether the applicant was the perpetrator of the assaults.


The trial took place over a period of four days. At the opening of the trial it transpired that one of the jurors was personally known to the learned trial judge and he was therefore excused from service. The trial continued with a jury of eleven persons. During the course of the trial a number of applications were made by counsel to the court in the absence of the jury; such of these as are relevant to the grounds of appeal will be dealt with later in the course of this judgment. On the fourth day of the trial a technical witness gave brief evidence. Subsequently counsel for the prosecution and for the defence addressed the jury. The learned...

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