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Cite as: [2015] IECA 82

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Judgment

Title:	Director of Public Prosecutions -v- M.L.
Neutral Citation:	[2015] IECA 82
Court of Appeal Record Number:	129/13
Date of Delivery:	27/04/2015
Court:	Court of Appeal
Composition of Court:	Ryan P., Sheehan J., Edwards J.
Judgment by:	Court of Appeal
Status:	Approved

___________________________________________________________________________

THE COURT OF APPEAL

The President
Sheehan J.
Edwards J.

129/13

Between

The People at the Suit of the Director of Public Prosecutions

and

M. L.

Appellant

JUDGEMENT of the Court of Appeal delivered by Mr. Justice Sheehan on the 27th day of April 2015

Introduction
1. Following an eighteen day trial, the appellant was found guilty by a majority verdict on 60 counts of sexual assault against six sisters over a ten year period between 1994 and 2005. Apart from count 21, where the offence occurred in the appellant’s car, all the other offences were committed in the family home.

2. In respect of 37 counts for which the maximum sentence is five years, the appellant was sentenced to four years imprisonment with the final twelve months suspended. In respect of 23 counts for which the maximum sentence is fourteen years imprisonment, the appellant was sentenced to seven years imprisonment with the final two years suspended on condition that the appellant engage in a sex offenders treatment programme while in custody. The Court further directed that the appellant be subject to a two year post-release supervision order and directed all sentences to run concurrently.

3. The appellant filed a notice of appeal in respect of all convictions and the Director of Public Prosecutions filed a notice pursuant to s. 2 of the Criminal Justice Act 1993, seeking to have the seven year sentences reviewed by this Court on the ground of undue leniency.

4. This judgment is concerned only with the conviction appeals.

Grounds of Appeal
5. The appellant filed a number of grounds of appeal, though at the oral hearing he submitted that his primary ground of appeal was the failure of the learned trial judge to give a clear corroboration warning. Other grounds relied on by the appellant were:-

(a) The failure of the learned trial judge to discharge the jury following prejudicial remarks made by prosecution counsel in her closing address and a further related ground that, having refused to discharge the jury, the learned trial judge was insufficiently condemnatory of the prosecution counsel’s remarks in his charge to the jury;

(b) The failure of the learned trial judge in his charge to adequately address the evidence that related to the credibility of the complainants and, in particular, the failure to address key matters relating to conflicts in the evidence which impacted on credibility, and;

(c) That the learned trial judge erred in failing to direct the jury that each of them was required by their oath not to return a verdict with which they did not agree.

6. In order to consider these grounds of appeal it is necessary to set out the background to the offences.

Background
7. The complainants were six sisters who alleged that the appellant had sexually abused them over a period of ten years when he lived in their family home as their mother’s partner from in or about 1994, when the youngest complainant was six months old, until in or about May 2005. When the appellant moved into the family home, seven sisters were living there at the time. According to their mothers evidence the sexual relationship between herself and the appellant had ended after the first couple of years in or about 1996.

8. At trial, the six complainants all gave evidence describing the nature of the abuse and the circumstances in which the abuse took place. Each of the six complainants gave evidence that the abuse had occurred a couple of times a week and over a prolonged number of years. Each described the abuse as comprising of frequent, and sometimes daily, touching of the breasts and vagina of each complainant in addition to forced masturbation, simulated and oral sex in respect of most complainants.

9. Each stated that the abuse mainly occurred in the appellant’s bedroom but also in the sitting room and bathroom of the house apart from one complainant’s evidence that one incident had occurred in the appellant’s car. Five of the six complainants gave evidence that upon their return from school each day, the appellant would knock on the floor of his upstairs bedroom demanding a cup of coffee. The abuse would commence when one of the complainants went to his room with his cup of coffee. Five of the complainants gave evidence that the appellant would either be naked or if wearing underpants or a towel he would expose himself. Other evidence was also given by five of the complainants that the appellant forced them to watch pornographic films in his company. Four of the complainants stated that the appellant wore a studded belt, ring and an attached chain on his penis. The mother of the complainants confirmed that the appellant had worn such items and the studded belt, ring and chains were exhibited at the trial.

10. Four of the complainants gave evidence of being forced to perform oral sex upon the appellant and another complainant also gave evidence that she had been requested to perform oral sex but had refused. Evidence was also given by four of the complainants that the appellant had given yoghurts, sweets or money to them after the abuse had occurred. Three of the complainants also specifically gave evidence of the appellant using baby oil as a lubricant during the incidences of sexual abuse.

11. Three of the complainants gave evidence of another sister being present while they were being sexually assaulted or having seen the appellant assault one of her sisters. A fourth complainant, who did not confirm her sister’s evidence of sexual assault when she was present, gave evidence that they both watched a pornographic video together with the appellant.

12. The first complainant gave evidence that she and her other sister, A.F., withdrew their previous complaints made in 2003 under threat of being thrown out of the family home and that they had nowhere else to go. A.F. subsequently reiterated that reason to the trial court.

13. In 2005, M.F. made a disclosure to her sister A.F., who took her to a Dublin Hospital and also to An Garda Síochána. The other complainants then made statements and these were taken over a period between May and September 2005. The eldest sister had left the family home when she was approximately seventeen years of age and did not make any complaint against the appellant.

14. Following his arrest, the appellant was interviewed by the gardaí. He denied all the offences and said that the complaints were complete lies.

15. The Court proposes to consider the grounds of appeal marked (a) to (c) above and then go on to consider the submissions of both parties on the question of corroboration.

Failure to Discharge the Jury
16. In the course of her closing address to the jury, counsel for the respondent referred to the fact that the eldest sister had not complained and suggested that this might have related to her age. Counsel for the appellant objected to these remarks and applied for the jury to be discharged because of their prejudicial nature. Counsel for the respondent, while conceding that it was prejudicial to bring the issue of the eldest daughter’s lack of complaint into the case at that stage, submitted that the matter could be adequately dealt with by the learned trial judge in his charge. In the course of that charge the learned trial judge said the following with regard to these remarks:

“There was a suggestion in this, could I say, that I think I should correct really, that you were asked to draw an inference from the fact that L.F. had left home at sixteen to seventeen, and that there was no complaint laid by her and that you were to draw an inference from her because she was older, in fact, than the others and had left perhaps, I think she said she was born in 1982. That should not take part of your - take up time as part of your considerations or deliberations. There is no evidence to suggest as to why she left home, and I think it would be wrong if you were to draw an inference from that, that perhaps could be adverse to M.F. in his dealings with the other children.”

17. Following his charge, counsel for the appellant requisitioned the learned trial judge on this matter submitting that a more forceful condemnation of prosecution counsel’s remarks was required. The learned trial judge refused to comply with this requisition.

18. This Court is satisfied that the appellant’s concerns about the remarks complained of were adequately dealt with by the learned trial judge in his charge and that he was right not to revisit the matter.

Failure to adequately put the defence case regarding issues of credibility
19. In the course of his charge, the trial judge told the jury that:

“The defence case really, to put it in a nutshell, is firstly that these complainants, that they are telling lies, or alternatively, particularly insofar as the younger ones are concerned, that they are being misled or influenced incorrectly, and as such that they are unreliable, and should not be regarded as anything other than unreliable and therefore it would be unsafe to rely on their evidence, particularly to the standard of beyond a reasonable doubt, but you will have to go through the evidence yourselves and look at your own notes and see whether you are satisfied to rely on their evidence or not.”

20. Moreover, in the course of the charge, the trial judge also set out a large number of matters raised in cross-examination by the defence.

21. In addition to all of that, as the appellant acknowledges in his written submissions to this Court, the trial judge at the conclusion of his charge further alluded to the fact that the defence case included that the allegations were vague as to timing, that the defence had had difficulty pinpointing the allegations, and that the ability to ascertain with certainty the start and end point for the allegations was a most important matter. He also pointed out that the defence relied on the fact that the complainants had said different things at different times.

22. The trial judge further emphasised that no adverse inference could be drawn from the fact that the accused did not give evidence.

23. He also told the jury, in further reference to the defence case, that the tone of the defence submission was that the jury ought to be guarded against the cumulative effect of the complainants’ evidence, and that where one complainant had made an assertion it did not necessarily follow that she was right merely because others had said something the same or similar. He told the jury that the defence’s position was that the complainants were unreliable people, that their evidence was not credible and, in so far as it had been and could be tested, that it had not stood up to cross-examination.

24. Finally, the trial judge also reminded the jury that counsel for the defendant had referred to a number of “bullet points”, as counsel himself had characterised them in his closing speech, and the jury were encouraged to have regard to these.

25. Notwithstanding all of these matters having been pointed out to the jury, the appellant complains that the trial judge failed to adequately put the defence case regarding issues of credibility. It was submitted to this Court that during the requisition stage of the trial, counsel for the defence had asked the trial judge to charge the jury as to key matters of fact upon which the defence was placing reliance upon regarding the issue of the credibility of the complainants. A number of examples were given by counsel for the defence such as where the social worker contradicted the complainants. The trial judge indicated that he was not disposed to deal with such matters and was resolute in his view that the requisition should not be acceded to.

26. The respondent contended that the trial judge’s charge dealt adequately with these matters pointing out that the trial judge in his summing up dealt at length with the cross-examination of the complainants. The extent of the cross-examination can be gauged from the uncontested assertion in the respondent’s submission that the complainants’ evidence was heard over a period of ten days, that that evidence was recorded in 374 pages of the transcript and that 313 pages of the said transcript related to cross-examination.

27. This Court is satisfied that the trial judge explained to the jury that the issues of credibility were for them, and it holds that the trial judge dealt adequately in his charge with the defence case, particularly having regard to the level of attention he gave to reviewing the cross examination of the complainants. In this Court’s judgment, the jury cannot have been in doubt about the case being made by the defence. Accordingly, the Court is unable to hold with the appellant on this ground.

Failure to give further Warning to the Jury
28. The appellant submitted that the learned trial judge ought to have told the jurors that each of them was required by their oath not to return a verdict with which they did not agree. This submission was advanced to the Court unsupported by any authority. The Court is satisfied that there was no obligation on the learned trial judge to give the warning the appellant contends for.

Corroboration Warning
29. In the course of oral argument in this Court, counsel for the appellant submitted that his primary ground of appeal was that the learned trial judge had failed to give a clear and distinct corroboration warning resulting in the jury not receiving effective guidance on this important issue and therefore rendering the verdict unsafe.

30. In support of his submissions the appellant relied on the relevant part of the charge and on the judgments of the Court of Criminal Appeal in The People at the suit of the Director of Public Prosecutions v. P.J. [2003] 3 I.R. 550, and The People at the suit of the Director of Public Prosecutions v. C.C. (No. 2) [2012] IECCA 86.

31. In the course of his charge, the learned trial judge explained to the jury what was meant by corroboration on two occasions. He pointed the jury to certain areas of evidence, where in one case, two of the sisters described being both present during an act of abuse on one of them and to another incident where another sister spoke of a fourth sister being present while she was being abused. The learned trial judge pointed out that this was not supported by the fourth sister. He did however point out that the fourth sister had given evidence that she was also present with this sister when both of them watched pornographic videos with their stepfather.

32. The learned trial judge went on to say in his charge:

“Now why am I giving you this warning? I am giving you this warning that you must exercise great care in considering these matters and you must also consider it within the ambit of, subject to the exceptions that I have mentioned to you that there is no corroborative evidence of the complainants complaints and I am doing that because firstly it does appear to me that there has been delay in a complaint being made and indeed in denial when initially some of the children were asked about whether they were being touched or otherwise and they gave the reason that the accused was still in the house.”

33. The learned trial judge went on to further contextualise the warning by referring to the way in which the various offences were alleged to have occurred between various tranches of time.

34. This warning was followed by a delay warning. It is worth noting at this point that the crimes for which the appellant was convicted occurred between the years 1995 and 2005 and he was certainly aware in 2005 of the nature of the allegations being made against him by the complainants in circumstances where he was interviewed by the gardaí in respect of these matters in October of that year.

35. In The People at the suit of the Director of Public Prosecutions v. P.J. [2003] 3 I.R. 550, the Court of Criminal Appeal held that once a trial judge elected to give a corroboration warning, such warning had to be clear and unmistakable. Counsel for the appellant drew this Court’s attention to p. 568 of the judgment and in particular the second paragraph which stated:-

“The wording used by the trial judge in the instant case was not calculated to convey any clear message to the jury. No proper effort was made to define what in law is meant by corroboration, nor was it explained in detail how a lack of corroboration might affect the jury’s view of the evidence. It is hard to understand what assistance can be gained from saying that the fact that there is no corroboration ‘is not the complainants fault’.”

36. In The People at the suit of the Director of Public Prosecutions v. C.C. (No. 2) [2012] IECCA 86, the Court of Criminal Appeal, in its judgment delivered by O’Donnell J., held inter alia, that the learned trial judge’s direction in relation to system evidence and corroboration was insufficiently clear and necessitated the quashing of the convictions.

37. Paragraph 35 of the said judgment was opened to this Court:-

“Third, the warning on corroboration was not in this court’s view sufficient to convey the essence required by the law once it is decided, within the court’s discretion, to give such a warning. To say that the law requires care and caution to be exercised before you arrive at a view of guilt is likely to be confusing, since a jury might well consider that they were obliged to exercise care and caution before coming to a view of guilt in any case. It is not clear what was added by these words. Furthermore, all warnings given to juries are an attempt to give to a jury approaching a one off task something of the general experience of courts. Thus whatever language is used, it is necessary to convey to a jury that the law considers it dangerous to convict in the absence of corroboration, because by definition these offences occur in private, or at least in circumstances of some furtiveness, and there have been occasions where evidence apparently plausible, has subsequently been shown to be untrue.

Accordingly, over and above the degree of care and caution they would normally expect to exercise in coming to a verdict of guilt beyond any reasonable doubt, the jury should recognise that it is the law’s experience that it is dangerous to convict on the uncorroborated evidence of a complainant, and should only do so when, having considered the warning, they nevertheless feel a very high degree of assurance that the evidence is true. Unless something of this nature is conveyed to the jury, there seems little benefit in giving a corroboration warning at all.”

38. Counsel for the appellant further argued that in the course of his charge, the learned trial judge had conflated the delay and corroboration warnings. Counsel for the respondent contended, however, that the learned trial judge had given clear warnings on delay and corroboration and that these concepts had not been conflated. Counsel for the respondent also sought to distinguish the facts of the present case from those in both The People at the suit of the Director of Public Prosecutions v. P.J. [2003] 3 I.R. 550 and The People at the suit of the Director of Public Prosecutions v. C.C.(No. 2) [2012] IECCA 86 respectively.

39. Counsel for the respondent pointed out that in The People at the suit of the Director of Public Prosecutions v. P.J. there was one complainant who alleged she had been raped and indecently assaulted over a six year period when she was aged between four and ten and the appellant was aged between thirteen and twenty, the most recent offence having occurred 22 years prior to the trial. Furthermore, unlike in the present case where the learned trial judge properly defined corroboration on two occasions, the court had failed to define corroboration in The People at the suit of the Director of Public Prosecutions v. P.J.

40. Counsel for the respondent also pointed out that in The People at the suit of the Director of Public Prosecutions v. C.C. (No. 2) [2012] IECCA 86, O’Donnell J. had noted that the offences were alleged to have occurred over a period ranging between 35 and 44 years previously, and that there was little if anything by way of background against which the jury could test the allegations of indecent assault. Counsel contrasted this with the detailed evidence in the present case.

41. In the course of her written submissions, counsel for the respondent pointed out that the learned trial judge had incorrectly stated on two occasions in his charge that there was no corroboration, whereas, in the view of the respondent, there was in fact and in law considerable evidence capable of amounting to corroboration. The learned trial judge failed to identify these matters to the jury and counsel for the respondent submitted that this failure rebounded in favour of the appellant. It was submitted that any deficiency in the charge with respect to the issue of corroboration did not therefore impact on his right to a fair trial.

42. It is of relevance that when counsel for the appellant requisitioned the learned trial judge on the question of corroboration, he confined himself to the observation that generally there is no corroboration in sexual assault cases and requested that the learned trial judge readdress the jury and tell them that: “there is in fact corroboration in many cases, not all, and this is absent in this case”.

43. Before considering the submissions of the parties, the Court notes s. 7(1) of the Criminal Law (Rape) (Amendment) Act 1990 and paras. 68 to 75 inclusive of the judgment of the Court of Criminal Appeal in The People at the Suit of the Director of Public Prosecutions and Jason Murphy delivered by McKechnie J. on the 18th January, 2013.

44. Section 7(1) of the Criminal Law (Rape) (Amendment) Act 1990 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.”

45. Paragraphs 68 to 75 inclusive in The People at the suit of the Director of Public Prosecutions v. Jason Murphy [2013] IECCA 1 provides as follows:-

“68. Corroboration in essence may be defined as independent evidence which implicates the accused, in a material way, in the offence charged. Many years ago it was authoritatively articulated by Lord Reading C.J. in the English Court of Criminal Appeal in R. v. Baskerville [1916] 2 K.B. 658 at p. 667 where he stated:

‘… evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it.’

69. This dicta has been approved and applied by the Irish Courts on numerous occasions: see for example People (A.G.) v Phelan (1950) 1 Frewen 98 at p. 99 and more recently in People (D.P.P.) v. P.C. [2002] 2 I.R. 285, where this Court, confirmed (at p. 300) the following definition of “corroboration” as:

‘… independent testimony or evidence which affects the defendant by connecting or tending to connect him to the crimes alleged. It is evidence which implicates him which confirms in some material particular not only the evidence that the crime has been committed but also that the accused committed it’ (pp. 297 to 298).

The reference to evidence being independent means independent of the evidence in respect of which corroboration is thought necessary. Such evidence also of course, must always be credible.

70. Thus, whilst evidence, in order to be corroborative, ‘does not have to directly prove that the offence was committed’ (People (D.P.P.) v. Meehan [2006] 3 IR 468 at 491, para. 56), nor does it have to ‘corroborate the whole of the evidence of the witness who requires corroboration’ (People (D.P.P.) v. Murphy [2005] 2 IR 125 at 159, para. 103, citing Richard May, Criminal Evidence (2nd ed.), p. 330), nonetheless it must be some independent evidence which implicates the accused in the offence charged in some ‘material particular’.

71. Moreover, while it has been repeatedly stated by the courts that the wording of a corroboration warning does not have to take any particular form (see for example People (A.G.) v. Williams [1940] I.R. 195 (“Williams”), and People v. P.J. [2003] 3 I.R. 550), there are nevertheless, certain essential elements which must be incorporated so as to avoid the charge being susceptible on appeal. At its most fundamental, the warning should communicate in clear and unambiguous terms to the jury the risks, howsoever valued or appraised, of convicting an accused on uncorroborated evidence. They must be made aware of the possible associated danger of relying thereon (People v. Cradden [1955] I.R. 130 (“Cradden”) at 141). Coonan & Foley, in The Judge’s Charge in Criminal Trials (Dublin, 2008) note at paras. 33-24 to 33-26 that it will generally not suffice for a judge to simply refer to the danger of convicting on uncorroborated evidence. Rather,

‘the trial judge must contextualise that foundational principle with reference to the particular facts of the case. Thus, the trial judge should provide the jury with some guidance as to precisely why - in this case - it may be dangerous to act on uncorroborated evidence’ (para. 33-24).

The authors go on to state that, as the danger may be due to a number of factors, it is for the trial judge to contextualise the warning by outlining those factors, including those relating to different facets of the evidence (see: People (D.P.P.) v. Gilligan (Unreported, McCracken J., 8th August, 2003)). As a result of this contextualising endeavour, the degree and gravity of the warning appropriate “may vary with the degree and gravity of the risk involved in accepting the evidence which requires corroboration” (Cradden at p. 141).

73. In the further case of The People (D.P.P.) v. Gilligan [2006] 1 IR 107, Denham J. said that there may be multiple factors relevant and that:

‘[t]he likelihood of the trier of fact requiring corroboration will rise as the factors multiply … These multiple factors go to the issues of credibility and to the weight to be attached to the evidence. Thus they should be assessed in light of all the circumstances of the case. However, it is open to the trier of fact to determine that in spite of these multiple factors the credibility of a witness is such that corroboration is not required and that significant weight may be given to his evidence’ (at pp. 142 to 143, paras. 85 to 87).

74. Finally, the judge, having explained to the jury what corroboration is, must also identify the specific items of evidence which are capable of amounting to corroboration (People (D.P.P.) v. M.K. [2005] 3 IR 423), and whilst the judge is permitted to comment upon the weight and character of such evidence, nonetheless he must make it clear to the jury that it falls solely to them to determine whether or not any particular piece of evidence in fact amounts to corroboration (R v. Stephenson [1947] N.I. 110; R. v. Vallance [1955] N.Z.L.R. 811).

75. Furthermore and a matter of some importance is that the judge must alert the jury, where appropriate, to a situation where in fact there is no evidence before the court which can constitute corroboration (Williams, at p. 204).”

46. Bearing in mind the above matters, it is clear that when a trial judge exercises his or her discretion in favour of a corroboration warning, it is necessary that he or she give reasons for so doing. Equally it is necessary to contextualise the warning in general terms as well as relating the warning to specific elements in the case. In addition it is necessary not only for the trial judge to define what it meant by the term corroboration, but to go on to explain to the jury where it might be possible for them to find corroboration and highlighting that whether or not there is corroboration in the case is a matter of evidence and a matter for the jury. It is also of course for the trial judge to tell the jury if it is his view that corroboration cannot be found in any part of the evidence.

47. While the trial judge correctly defined corroboration and partially contextualised the warning by linking it to delay, he mistakenly took the view that subject to a limited area there was no evidence on foot of which the jury could consider that there was corroboration. The prosecution had submitted that if the jury was satisfied beyond a reasonable doubt that there was no collusion or innocent contamination of one complainant’s evidence by another, then there were a number of areas in the case where a jury might find corroborative evidence.

48. Two areas relate to the evidence given by the different complainants of items of sexual apparatus worn by the appellant in the course of some of the sexual assaults, as well as evidence of those complainants who spoke about sexual assaults occurring following a request for coffee. These aspects of the case could have been drawn to the jury’s attention on the basis that, if accepted, they rendered the evidence of one complainant capable of corroborating the evidence of another complainant or other complainants.

49. The evidence of one sister who witnessed another sister being abused was also not only capable of amounting to corroborative evidence, but also capable of amounting to independent confirmation, again provided the jury accepted that evidence and was also satisfied that collusion or independent contamination did not apply. Evidence of the complainant’s mother who identified a black belt and another item and who said that the appellant always kept these in a drawer beside the bed might also have amounted to corroborative evidence.

50. The question of whether or not there would be a corroboration warning in this case arose in a somewhat unusual way. Counsel for the prosecution in her closing address sought to counteract what she considered would be part of defence counsel’s address by saying that she had a difficulty with defence counsel saying to a jury in a sexual assault case “that false allegations had been made in the past and for that reason you have to be careful”. This led to some discussion about corroboration between the learned trial judge and the defence counsel following the closing address of prosecution counsel, but the principal issue at that time was a concern by the defence about another remark made by the prosecution counsel in her closing address which led to an application by the defence for a discharge of the jury. This matter has already been dealt with in this judgment.

51. The question of corroboration was left there and returned to by prosecution counsel following defence counsel’s closing address. In anticipation of a defence request for a corroboration warning, prosecution counsel submitted that such a warning was unnecessary in this case and further submitted that there was ample evidence capable of constituting corroboration. When the learned trial judge said that he was not quite sure he was in complete agreement with this, prosecution counsel then went on to make further submissions in relation to corroboration, including the fact that jury members should be directed that they had to be satisfied that there was no collusion or innocent contamination in the case before they could treat any of the evidence as corroborative.

52. The problem in this case was compounded by the fact that no discussion took place on whether or not there should be a corroboration warning prior to counsel’s closing speeches. Had this occurred, there might also have been a proper discussion about what evidence was capable of amounting to corroboration. As the Court of Criminal Appeal pointed out in The People at the suit of the Director of Public Prosecutions v. M.K. [2005] 3 IR 423 at p. 445:-

“Such a prior discussion no doubt is not essential and the fact that it did not take place is not a ground of appeal. However, this practice is often helpful to the trial judge and consequently, on occasion, to the jury, in that it leads to clarification as to what should come within the ambit of the established definition of corroboration.”

53. While this did not happen in this case, what did happen was that most of what was said by the trial judge about corroboration rebounded to the benefit of the appellant. It is noteworthy that the only requisition raised by the appellant in this regard was to simply urge the trial judge to say to the jury: “there is in fact corroboration in many cases, not all, and this is absent in this case”. Had the learned trial judge agreed to this request it would have led him into further error again in favour of the appellant.

54. While the Court holds that the trial judge’s corroboration warning did not adequately contextualise the warning either in general terms or terms specific to the case and particularly failed to point the jury to a number of important areas of evidence where corroboration might be found, the overall effect of what was said in relation to corroboration was to the benefit of the appellant.

55. It would be unjust to overturn the conviction on the basis of a defect or defects in the charge which operated in favour of the appellant and especially when he did not then complain about the inadequacies which he now seeks to rely on as a reason for setting aside the verdict. Accordingly, the Court dismisses the appeal.

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