Judgment Title: D.P.P.-v- M.K.
Composition of Court: Mc Guinness J., Herbert J., Butler J.
Judgment by: Mc Guinness J.
Status of Judgment: Approved
Mc Guinness J.
Quash conviction, no re-trial
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These are, of course, pre-1990 cases but where in the context of the present law a discretionary warning is given, it is still, in the view of this court, necessary for the meaning of corroboration to be made clear to the jury. These principles were set out in the judgment of this court in The People (Director of Public Prosecutions) v P.J.  3 I.R. 550 (at pages 566 to 568 of the report) to which counsel for the applicant referred in argument. Counsel also directed the attention of the court to the judgment of this court (Hardiman J. in The People (Director of Public Prosecutions) v Doyle), in which stress was laid on the confusion caused by a failure to make clear what evidence was fully corroborative, or “corroborative in the strict sense” (Court of Criminal Appeal ex-tempore 28th May 2001) at page 2. This, however, was an ex-tempore judgment and the learned judge in delivering the judgment of the court, while allowing the appeal, did not deal with the matter in full detail.
In the present case, as the court has already remarked, there was no preliminary discussion between counsel and the learned trial judge as to whether the judge intended to give a corroboration warning or, if so, what evidence constituted corroboration. 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. In this case it seems to this court that a somewhat confused picture was conveyed to the jury in regard to corroborative evidence.
In his charge to the jury at page 77 day 4, the learned trial judge succinctly and correctly set out the legal principles on corroboration. “Corroboration is evidence which is independent of the complainant’s evidence which confirms in some material particular that the offence was committed and that the accused committed it.” He then warned of the danger of convicting in the absence of corroboration and stated that there was no direct evidence of corroboration in the case. However, he then went on to refer in some detail to the evidence of the injuries suffered by the complainant. While he told the jury that the injuries confirmed the complainant’s evidence that she was assaulted but did not confirm that the accused man was responsible, he then went on to tell the jury that they “would have to look for some other evidence in the case to ascertain if there was corroboration.”
In this case there was no issue as to the fact that the offence was committed – that the complainant suffered a serious sexual assault. On that very account, it seems to this court, it was necessary for the learned trial judge to distinguish clearly between evidence that confirmed that the offence was committed and evidence that connected the accused man with the commission of the offence. Only this second type of evidence would be “corroboration in the strict sense” in the context of this case. In saying that there was no direct corroboration the trial judge appears to have accepted that there was no evidence of this second type. However, his further direction to the jury to look for other evidence might well have suggested to them that there was some form of indirect corroboration available to them. This is likely to have given rise to confusion in the minds of the jury.
The concept of corroboration and its proper definition in law is quite a difficult one but one which is of considerable importance to a jury in deciding the guilt or innocence of an accused person. It is essential that a clear definition of the principle of corroboration be given but it is also of great importance that it be clearly and unequivocally pointed out to the jury what, if any, of the evidence before them is capable of amounting to corroboration as defined.
In the view of this court the passage in the learned trial judge’s charge which concerned corroboration, taken as a whole, could have given rise to confusion in the minds of the jury. The possibility of such confusion was raised with considerable emphasis by way of requisition by counsel for the defence but no further reference to the matter was made by the learned trial judge in his recharge of the jury. Any confusion which might have arisen from the original charge therefore remained uncorrected. It must therefore be concluded that the trial was unsatisfactory in this important respect. The court will therefore treat this application for leave to appeal as the hearing of the appeal, will allow the appeal and will quash the convictions of the applicant. Since the applicant has already served his sentence no retrial will be directed.
DPP v K.