DPP v T.O'D.

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 22 May 2017
• Neutral Citation: [2017] IECA 160
• Docket Number: Record No. 9/2015
• Court: Court of Appeal (Ireland)
• Date: 22 May 2017

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

T. O'D

APPELLANT

[2017] IECA 160

Record No. 9/2015

THE COURT OF APPEAL

Conviction – Indecent assault – Corroboration warning – Appellant seeking to appeal against conviction – Whether trial judge's decision not to give a corroboration warning to the jury was made on an incorrect legal basis and/or was clearly wrong in fact

Facts: The appellant was convicted by a jury at Cork Circuit Criminal Cork on the 27th June 2014 of indecently assaulting a sixteen year old boy, on a date unknown between the 1st March 1979 and the 30th April 1979, contrary to Common Law. He was sentenced on the 18th December 2014 to five years imprisonment (from the 14th November 2014), with the final two years suspended on certain conditions. The appellant appealed to the Court of Appeal against his conviction on the following grounds: (i) the trial judge's decision not to give a corroboration warning to the jury was made on an incorrect legal basis and/or was clearly wrong in fact, (ii) the delay warning given by the judge was impaired by the comment he made in respect of the jury's task of assessing the memory of the complainant's version of events and the appellant's version of events; and that such comments had the effect of creating an onus of proof on the appellant, and (iii) in his charge to the jury the judge said that the appellant's evidence that he had no memory of ever seeing the complainant in the location where he was allegedly abused, demonstrated a failure of memory on his part. The learned trial judge then implied that the appellant could have abused the complainant but had forgotten the incident as he had, on his own admission, abused so many boys. The effect of these unwarranted and erroneous comments was to undermine the delay warning that had been given and to cause irreparable prejudice to the appellant.

Held by the Court that there was an error of principle on the part of the trial judge in the manner in which he exercised his discretion not to give a corroboration warning.

The Court held that it would allow the appeal and quash the conviction, and would hear submissions as to whether or not it was appropriate to order a retrial.

Appeal allowed.

JUDGMENT of the Court delivered on the 22nd day of May 2017 by Mr. Justice Mahon

1 The appellant was convicted by a jury at Cork Circuit Criminal Cork on the 27th June 2014 of indecently assaulting N, then a sixteen year old boy, on a date unknown between the 1st March 1979 and the 30th April 1979, contrary to Common Law. He was sentenced on the 18th December 2014 to five years imprisonment (from the 14th November 2014), with the final two years suspended on certain conditions.

2 The indecent assault took place at a boarding school in Co. Cork where the complainant was then a pupil, and the appellant a priest on the staff of the school. The single incident took place at night time while the complainant was sleeping in the school sick bay. He described how he woke up to find himself being masturbated by the appellant. He described how the appellant told him, the complainant, that he was sick and that he would get him some disprin. He returned with a glass of water and disprin, and then left. The complainant made no complaint for thirty three years, before making contact with the gardaí in April 2012, having earlier undergone counselling and having spoken to a solicitor about taking a civil claim for damages against the appellant's Religious Order. The appellant was interviewed by the gardaí on the 18th April 2012 at Cobh garda station. He denied the allegation.

3 The appellant pleaded guilty in 1999, and again in 2014, to incidents of indecently assaulting a number of pupils at the same school. These earlier convictions had been reported in the press, and the appellant had been named, and the fact of these convictions was disclosed in the course of the trial. The appellant had acknowledged indecently assaulting ten named boys at the school, but was adamant that he had not assaulted the complainant.

4 The appellant's notice of appeal as originally filed included two grounds of appeal. He successfully applied to this court for leave to add a third ground of appeal. The three grounds of appeal therefore are:-

(i) The learned trial judge's decision not to give a corroboration warning to the jury was made on an incorrect legal basis and / or was clearly wrong in fact,

and

(ii) the delay warning given by the learned trial judge was impaired by the comment he made in respect of the jury's task of assessing the memory of the complainant's version of events and the appellant's version of events; and that such comments had the effect of creating an onus of proof on the appellant,

and

(iii) in his charge to the jury the learned trial judge said that the appellant's evidence that he had no memory of ever seeing the complainant in the location where he was allegedly abused, demonstrated a failure of memory on his part. The learned trial judge then implied that the appellant could have abused the complainant but had forgotten the incident as he had, on his own admission, abused so many boys. The effect of these unwarranted and erroneous comments was to undermine the delay warning that had been given and to cause irreparable prejudice to the appellant.

The corroboration warning issue

5 Section 7 of the Criminal Law (Rape) (Amendment) 1990 removed the hitherto mandatory warning by a trial judge to a jury on the dangers of convicting a person for a sexual offence in the absence of corroborating evidence.

6 Since then, it is a matter for the discretion of the trial judge to decide, having regard to all the evidence given, whether the jury should be given a corroboration warning. If a warning is given, no particular form of words need be used. But, if given, it must be clear and unambiguous ( DPP v J.P [2003] 3 I.R. 550 at p. 567).

7 In advance of his charging the jury, the learned trial judge indicated that he was not minded to give a corroboration warning having heard all of the evidence in the case in circumstances where the facts grounding the allegation were secretive in nature. He expressed his concern that a corroboration warning would only confuse the jury, and that it was impossible to contextualise such a warning in the circumstances. An opportunity was afforded to counsel on both sides to address the court as to how the learned trial judge should exercise that discretion. Mr. Creed S.C, counsel for the appellant argued in favour of a corroboration warning being given, while Mr. Sreenan BL, for the respondent argued to the contrary, expressing a concern that such a warning would only serve to confuse the jury.

8 The learned trial judge in deciding to exercise his discretion not to give a corroboration warning, explained his decision in the following terms:-

'Gentlemen, over night I was looking at the evidence in the case and I had mentioned the corroboration warning to you yesterday and it is a discretionary warning. And I am just wondering giving the type of case that it is and the way that the evidence has actually sat, whether or not a corroboration warning is appropriate in this case or not, and I am inclined to the view that it probably isn't. Because the nature of the offence is...