Trial judge decision not to give corroboration warning in sexual assault case upheld

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The appellant had been convicted in the Central Criminal Court of a count of attempted rape, a number of counts of sexual assault and one count relating to the restriction of the personal liberty of a child for the purposes of sexual exploitation contrary to s. 3(2) of the Child Trafficking and Pornography Act 1998.

During the giving of evidence, it emerged that there was a disparity between the complainant’s evidence, and the evidence of the complainant’s friend.

Following the conclusion of the evidence, the jury was addressed by prosecution counsel and then by defence counsel and then the trial judge delivered his charge. There was no discussion between counsel and the judge before speeches or before the charge in relation to the issue of corroboration.

Mr Justice Birmingham observed that the Court of Appeal had on a number of occasions indicated its view that it is desirable that such discussions should take place.

He stated: “One reason why that is so, is that if the discussions take place in advance of the speeches and charge, the judge may be more disposed to provide a warning whereas if the issue is raised only after the judge has concluded his charge it is possible that he may feel that to address the issue at that stage would be to do so in an unbalanced manner.”

The judge did not give a corroboration warning during the course of his charge, and when the charge was completed junior counsel for the defence requisitioned and requested one.

He said that obviously the question of a corroboration warning was a matter for the judge’s discretion, but that he was urging that the discretion would be exercised to give a corroboration warning because of the run of the case, but in particular because he said that there were inconsistencies in the prosecution case.

The judge responded that “In relation to the corroboration warning, there is nothing exceptional really about this case. Cases time and again may have some inconsistencies between, say, one witness and another. The fact that there is nothing which would bring it within the authorities taking it out of what we call the - making it the exception rather the rule and so I am against you on that.”

Mr Justice Birmingham noted that since the enactment of the Criminal Law Rape Amendment Act 1990, judges have a discretion as to whether to give a corroboration warning. He noted that mandatory corroboration warnings had also been abolished in England and Wales.

It was observed that the courts in Ireland have made the point on a number of occasions that judges should not circumvent legislative policy by routinely giving the warning where, for instance it is a case without corroboration. Examples included DPP v. Wallace, 30th April, 2001, DPP v. Ferris, 1 I.R. and People v. Dolan , IECCA 30.

In Wallace, Keane C.J. commented that “The express legislative provision for the abolition of the mandatory warning must not be circumvented by trial judges simply adopting a prudent or cautious approach of giving the warning in every case where there is no corroboration or where the evidence might not amount, in the view of the trial judge, to corroboration. That would be to circumvent the clear policy of the legislature and that of course, the courts are not entitled to do.”

Similar comments were made in DPP v Ferris and in DPP v. C. 3 I.R. 345.

Mr Justice Birmingham found that “If this Court was to conclude that the circumstances of the case mandated a warning, then the cases where a warning was not required would be few and the legislative policy would be set at nought.”

However, the defence also argued that the judge had applied the wrong test, as he seemed to have felt that the case had to be exceptional before a warning would be given, and in a sense wrongly fettered his own discretion.

The defence claimed that his was a case where there should have been a warning or at the minimum it was a case where the appellant was entitled to have the application for a warning carefully considered by reference to the correct test.

Mr Justice Birmingham reiterated that there had been no discussion between counsel and judge before the speeches in charge, and that if there had been, no doubt the discussions would have addressed the circumstances in which a warning is appropriate or is required.

It was also possible that the judge would have elaborated on how he approaches that issue.

As it was, the judges statement at the requisition stage, that there was “nothing exceptional” about the case, was interpreted as being a reference to the fact that warnings were not given as a matter of routine.

The decision was found to be, by statute, one for the trial judge’s discretion. The case law indicated that the Court of Appeal should be slow to interfere, and should allow appeals only when the decision was made on an incorrect legal basis or was clearly wrong in fact.

This was not found to be the case, and therefore the appeal was dismissed.