Court of Appeal dismisses appeal against indecent assault conviction regarding jury discharge and corroboration warning.

THE COURT OF APPEAL

Birmingham J.

Mahon J.

Edwards J.

Record No 283/15

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

K.M

Appellant

Judgment of the Court delivered 13th of October 2016 by Mr. Justice Edwards.

Introduction.

1. In this case the appellant was convicted by a jury at Cork Circuit Criminal Court on the 25th of November, 2015 following a two day

trial of a single count of indecently assaulting one M.H., on the 23rd of December, 1989.

2. The appellant now appeals against his conviction on two discrete grounds.

The grounds of appeal

3. The grounds advanced on foot of which the appellant appeals against his conviction are as follows:-

“1. The trial judge erred in law or in a mixed question of law and fact in failing to accede to an application made by

counsel for the appellant to discharge the jury in circumstances where evidence was adduced by the prosecutor which

had no probative value and excessively prejudiced the appellant, namely in the adduction of evidence of the appellant's

refusal to answer questions put to him when interviewed by members of an Garda Síochána pursuant to section 4 of the

Criminal Justice Act, 1984.

2. The learned trial judge erred in law in failing to provide a warning to the jury on the dangers of convicting in the

absence of corroboration.”

The first ground of appeal:

Relevant background.

4. In 1989, the appellant, a general practitioner, regularly attended the home of the complainant to treat the complainant's mother

who was suffering from terminal cancer. The complainant alleged in evidence that during one of these visits, on the 23rd day of

December, 1989, she was suffering from a head cold or flu and the appellant also attended on her in her bedroom. The complainant

stated that during the course of the medical examination, the appellant proceeded to touch her vaginal area on the outside of her

clothing for approximately five minutes. The complainant was 15 years old at this time. In the following months, the appellant

continued to treat the complainant's mother until she passed away in early 1990. Thereafter, he remained the complainant's general

practitioner until she left the family home to attend university some years later.

5. A complaint of indecent assault was made to the Gardaí on the 2nd day of October, 2010. The appellant was arrested in respect of

the allegation on the 22nd June, 2011 and was questioned pursuant to s. 4 of the Criminal Justice Act 1984 (the Act of 1984). Early

in the interview with which we are concerned, following some initial questions about the appellant's personal and professional

circumstances which the appellant had answered readily, the appellant was then asked “Dr [K.M.], can I ask you, do you recall a girl

by the name of [M.H.] being a patient of yours?”

6. The appellant responded “I have a statement here in relation to [M.H.]. Other than that I have nothing to say”. The appellant

then handed his pre-prepared typed statement to the interviewing Gardaí, who then asked him to read it out, which he did, following

which he signed it, and his signature was witnessed by the interviewing Gardaí then present.

7. The pre-prepared statement, which was placed before the jury at the trial, was in the following terms (with necessary redactions

to preserve the complainant’s anonymity):

"Statement re Ms M. H.. To my recollection, Ms M. H. attended me in or around the time of the death of her late

mother. I do not have any medical records of her attendances as I do not keep retain medical records for patients

which date in excess of 10 years and such records have been destroyed. Shortly after I established practice as a

general practitioner I was contacted by Ms M. H.'s father to request I attend on his wife, Ms M. H.'s mother was at that

time terminally ill with cancer. I attended on Mrs H. four or five times a week up to her death, in order to provide her

with palliative care. I do not recall attending to Ms M. H. at her home during her mother's illness. So the best of my

recollection, Ms M. H. attended on me at my surgery in [a named place] on a handful of occasions in or around the time

of her Leaving Certificate exams. She may have attended on me at my surgery in [another named place] on one or two

occasions but I cannot recall. I recall that her father brought her to my surgery in [a named place] after school and

waited for her while she attended on me. To my recollection, I did not attend at Ms M. H.'s home after the death of her

mother, other than to certify her late mother's death. I do not remember the medical complaint which resulted in Ms M.

H.'s attendance by her as she did not attend on me more than a few occasions over a period of a few months. I cannot

recall whether or not I prescribed any medication for MsM. H.. I do not recall her attending on me with any ongoing

problem. Ms M. H. was a patient for a short period and not a patient of mine over the years whose medical history I

would recall. Her attendances lasted for no longer than in or around 10 minutes or so and to my memory I only spoke

with her for a brief period on each occasion. I do not recall carrying out any physical examination of Ms M. H. on any

occasion. After Ms M. H.'s last attendance on me I did not hear anything about it her again until early last year, 2010,

when I received a phone call on, as far as I remember, two occasions from her requesting advice in relation to her

father who was ill. Her father was a patient of mine. I am deeply shocked and greatly distressed that a patient and

indeed any person would make blatantly false and extremely damaging allegations against me which have very serious

negative consequences for my professional reputation and to my personal integrity and such allegations have also

caused extreme distress for my wife and my children.”

8. Following the signing of this statement, the interviewing Gardaí then asked a number of questions of the appellant, to which the

following responses were received:

Q: “On the 2nd of October 2010 M.H. made a written statement to Detective Garda Colman Murphy at Mallow Garda

Station. In this statement M.H. states that she was a patient of yours from 89 to 92; is that correct?”

A: “I've nothing to say, only what's written in my statement.”

Q: “Would your wife [named] have accompanied you to M.H.'s house at [a specified address] and carried out reflexology

on her mother before she died?”

A: “I have nothing to say other than what's written in my statement.”

Q: “M.H recalls a visit you had made to her home at [the specified address] two days before Christmas Eve in 1989. M.H

states you had called to see her mother and that M.H had a sore throat or head cold. Do you recall that visit?”

A: “I have nothing to say other than what's written in my statement.”

Q: “M.H states that you examined her in her bedroom at [the specified address] on that day and I quote: ‘I recall K.M.

examining my throat and I was lying on the bed as this was happening. I also recall K.M. discussing how seriously ill my

mother was with me and I became quite upset. K.M. then comforted me by hugging me. As part of the examination,

K.M. would have listened to my chest and then proceeded to show me how to carry out a breast examination, which

involved K.M. touching my breasts all over. As K.M. was carrying out this examination he asked me if I ever had a

boyfriend, if I'd ever been kissed and progressed from there if I understand what having sex was. While this conversation

was going on K.M. progressed from touching my breasts to touching and rubbing my vagina with his hand outside my

clothing.’ Do you recall that happening?”

A: “I have nothing to say other than what's written in my statement.”

Q: “M.H. goes on to say: ‘I had just turned 15 years of age and K.M. was well aware of that.’ Is that the case?”

A: “I have nothing to say other than what's written in my statement.”

9. These additional questions and answers were also led in evidence by the prosecution before the jury. Following the giving of that

evidence the defence applied to have the jury discharged on the basis that the evidence in question had disrespected the appellant’s

privilege against self incrimination, and had been led in breach of the principles set down in The People (Director of Public

Prosecutions) v Finnerty [1999] 4 I.R. 364.

10. The trial judge refused to discharge the jury, stating:

“Well, it is not at all comparable with Finnerty, because what the man says is not that I've no comment, I rely entirely

on what I said in my statement, which is completely different to Finnerty and would not be a ground for discharging the

jury”

11. The appellant later gave evidence before the jury in his own defence, in the course of which he flatly denied the complainant’s

allegations, stating, (inter alia), “I have no recollection. As far as I'm concerned, it never happened. Absolutely and utterly never

happened”, and that “[a]s I said already, as far as I'm concerned, I did not see M.H. in her family house and I did not do what she

says I did …”

12. When asked in cross-examination: “Why should she invent this unless, in fact, your better or worse nature got the better of you

on the occasion of that examination; do you understand me?”, the appellant responded: “I understand what you're saying. I can't

answer why she -- I can't tell you why she made that complaint. All I'm saying to you is, as far as I'm concerned, it did not happen.”

13. The appellant did not refer at all in his evidence in chief to his responses at interview in the Garda station, or to the pre-prepared

statement that he had given the Gardaí on that occasion, and he was asked no questions in cross-examination about either matter.

Discussion and Analysis

14. The Supreme Court considered the right to silence in the case of People (Director of Public Prosecutions) v Finnerty [1999] 4 I.R.

364 which concerned an allegation of rape. The accused had been arrested under s. 4 of the Act of 1984 and made no statement to

the Gardaí in response to questioning while in custody. At his trial, the prosecution sought to undermine the accused's credibility

when the accused put forward his version of events (namely that sexual intercourse had taken place on consent) by commenting on

his failure to express this to the Gardaí while in custody. In the Supreme Court, it was held that aside from the circumstances covered

by sections 18 and 19 of the Act of 1984, the constitutional right to silence was left unaffected by the Act. Keane J. observed:

"The Act of 1984, accordingly, did not modify in any way the right of a person whom the garda suspect of having

committed a crime to refuse to answer questions put to him by the gardaí and his entitlement under the Judges' Rules

to be reminded of that right before any questioning begins. That right would, of course, be significantly eroded if at the

subsequent trial of the person concerned, the jury could be invited to draw inferences adverse to him from his failure to

reply to those questions and, specifically, to his failure to give the questioning gardaí an account similar to that

subsequently given by him in evidence. It would also render virtually meaningless, the caution required to be given to

him under the Judges' Rules. "

15. The Supreme Court then proceeded to enunciate the following principles (at p.381 of the report) :

"(1) Where nothing of probative value has emerged as a result of such a detention, but it is thought desirable that the

court should be aware that the defendant was so detained, the court should be simply informed that he was so

detained, but that nothing of probative value emerged.

(2) Under no circumstances should any cross-examination by the prosecution as to the refusal of the defendant, during

the course of his detention, to answer any questions, be permitted.

(3) In the case of a trial before a jury, the trial judge in his charge should, in general, make no reference to the fact

that the defendant refused to answer questions during the course of his detention."

16. The Court of Criminal Appeal applied these principles in People (DPP) v McCowan [2003] 4 I.R. 349. The appellant in this case had

been convicted of larceny. During questioning by the Gardaí while in custody, the appellant denied involvement in the offence and

stated that he was not answering any questions on the advice of his solicitor. The appellant's refusal to answer questions was then

given in evidence by two Garda witnesses at the trial. Giving judgment for the Court, Hardiman J. stated:

"(w)e consider that this should not have occurred and indeed it is not disputed that this should not have occurred. The

authority of the court and the judgment of Keane J. in The People (Director of Public Prosecutions) v. Finnerty [1999] 4

I.R. 364 is very clear. That authority is also very simple to observe and we would be gravely perturbed if it were thought

that it could be departed from at the expense of a rebuke or a comment by this court, but that it would not be taken

seriously beyond that."

17. Hardiman J. later added:

"It must be emphasised firstly that if the People (DPP) v Finnerty[1999] 4 I.R. 364 is to be taken seriously, the Court

should be slow to accept an argument that the rules set out in that case were breached but nothing really turns on it.

We are certainly slow to accept it in the circumstances of this case because we feel that The People (Director of Public

Prosecutions) v. Finnerty was well established at the time that this trial took place and that this was a pretty clear

breach of what is laid down in that case. Therefore we are not disposed either to consider that it was of little or no

importance (it was of sufficient importance for the prosecution deliberately to bring the evidence out), or that the

proviso could be applied as we could not be sure that no miscarriage followed from it. "

18. Counsel for the appellant has argued that his client, having furnished the gardaí with his pre-prepared statement, was asserting

his right to silence thereafter and that the additional questions and answers should not have been given in evidence. Rather, the jury

should simply have been told that nothing further of evidential value had emerged during the remainder of the interview.

19. It was further submitted that, in any event, the evidence concerning the additional questions and answers added nothing of

probative value to what was already before the jury. Moreover, it was highly prejudicial to the appellant in that the questions

suggested the appellant’s guilt and the appellant was portrayed as giving a stock response. This, it was suggested, served to

undermine the credibility of the appellant. It was submitted that it was unfortunate that this should have occurred in a case of this

kind, involving an allegation of a sexual nature, where the credibility of the complainant and the accused, respectively, represented

core issues for assessment by the jury. Moreover, it was a particularly egregious prejudice where the incident was said to have

occurred 25 years prior to the date of the trial, given the inherent difficulties that a defendant faces in any event in defending cases

of such antiquity.

20. It was submitted that the appellant’s case was irretrievably tainted in the eyes of the jury and that it was something that could

not have been remedied other than by the discharging of the jury. As the trial judge had refused to do so, the appellant’s trial had

been unsatisfactory and his conviction was unsafe.

21. In reply to this, counsel for the respondent has argued that the evidence tendered on behalf of the prosecution in relation to

what occurred at the interview does not offend either the privilege against self-incrimination or the right to silence.

22. It was further argued that the circumstances are not comparable to a situation where in response to questioning an accused

might state "No comment" throughout a long or short questioning, or might state that he or she has nothing to say because his or her

Solicitor has so advised, or otherwise refuses to answer questions put.

23. Counsel for the respondent submitted that in this case the appellant had presented a pre-prepared statement which was his

account of the matter and which statement was going before the jury, and that the supplementary questions that had been put to

him served to do no more than to make it clear to him the specifics of what the complainant was alleging, in case he wished to add

anything in the light of having heard those specifics. He did not say that he had “no comment”, or indicate in any way that he wished

to maintain his silence, as would have been his entitlement. On the contrary, his response had been that he had nothing to say other

than what was contained in his statement.

24. It was submitted that in those circumstances, there was nothing of self-incrimination involved and no infringement of any right to

silence, the appellant having expressly elected not to maintain silence but rather to present a statement on which he intended to

rely. Consonant with this, the defence had presented to the jury an accused who showed consistency in his account, providing the

jury were prepared to accept it, between (i) the contents of his statement, (ii) his responses to the supplementary questions put to

him at interview, and (iii) his testimony from the witness box. The fact that the jury had ostensibly rejected the appellant’s account

was simply a hazard of the trial. However, the mere fact that they did so, in circumstances where there had been no disrespect for,

or breach of, the appellant’s right to silence, did not render the trial unsatisfactory or the verdict unsafe.

25. This Court agrees with the submissions put forward by counsel for the respondent. There is a great deal of difference between

saying “No comment” or “I don’t wish to say anything”, on the one hand, and saying, having already in fact commented, that “I have

nothing to add to what I have said already”, on the other hand. The latter was what, in effect, this appellant was saying when

confronted with the specifics of the complainant’s statement of complaint. He was not saying nothing or refusing to comment. Rather

he had voluntarily commented at length in a pre-prepared statement which he had proffered to the Gardaí, and indeed had

characterised the complainant’s allegations as being “blatantly false”. In responding as he did when confronted with the specifics of

the allegations he was simply confirming that he had nothing to add to what he had already said, and that he was still relying on his

statement, i.e., still contending that the allegations were “blatantly false”. That is not the assertion of the right to silence, it is far

from it indeed. It is the assertion of a definite position in response to the questions asked. Moreover, the evidence was probative in

the sense of demonstrating that, when confronted with the specifics of the complainant’s allegations, the appellant’s answer was to

continue to rely on his pre-prepared statement in which he had expressly said that the allegations against him were “blatantly false”.

26. That the appellant was maintaining this position consistently was clearly relevant and probative evidence, and indeed was, on one

view of it, potentially of assistance to the defence. Moreover, we do not agree that the supplementary questions asked “suggested

the accused’s guilt”. They did not do so. They merely afforded the appellant the opportunity to add to, or change, what he had

already said, should he wish to do so, in the light of hearing the detailed specifics of the allegations against him, either for the first

time, or else on being reminded of them (the evidence is unclear as to which it was). He was under caution and had been properly

warned that he “was not obliged to say anything unless he wished to do so but that anything he did say would be taken down in

writing and could be given in evidence”. It is clear that he did not elect to say nothing. Rather he elected to reiterate that he was

relying on the contents of his pre-prepared statement and to confirm that he did not wish to say anything else, i.e., to add to, or

alter, what he had said previously. It was the prosecutor’s duty, as a “Mi nister for Justice”, to elicit before the jury all admissible

evidence gathered in the course of the investigation that was both relevant and probative and not just such evidence as happened

to be favourable to the prosecution. The prosecution is not therefore to be criticised for adducing before the jury admissible evidence

that was both relevant and probative.

27. Unlike in the case of People (Director of Public Prosecutions) v McCowan [2003] 4 I.R. 349, the respondent here is not saying that

“the rules set out in [Finnerty] case were breached but nothing really turns on it”. On the contrary, she is saying that there was no

breach of the principles in The People (Director of Public Prosecutions) v Finnerty, and no disrespecting of the appellant’s right to

silence. We are satisfied that that is in fact so.

Decision

28. In the circumstances this Court is not disposed to uphold the first ground of appeal.

The second ground of appeal

29. It was common case that there was no evidence in this case capable of amounting to corroboration. Moreover, the trial judge

was not asked in advance of his charge to give a corroboration warning. Not only that, he was not asked to do so in a requisition

raised after the charge had been completed. In fact, both sides indicated that they had no requisitions, following which the trial judge

volunteered the following remark:

JUDGE: “In case you were going – I'd half expected you to ask me about corroboration. I had carefully considered

whether such a warning will be necessary. In a case like this, I think it completely inappropriate and I wouldn't have

given it.”

30. This elicited no protest whatever on either side. Moreover, and in particular, defence counsel made no request for the decision to

be re-opened on the basis that he had not been heard. On the contrary, defence counsel did not demur but simply responded “Thank

you, Judge”.

31. The appellant now seeks to complain about the trial judge’s failure to give a corroboration warning. In the written submissions filed

on his behalf it is asserted that “[w]hile requisitions were not raised in respect of corroboration at trial it is submitted that the nature

of the evidence as given by the complainant in the circumstances of the case meant a warning was warranted and should have been

given to the jury. In accordance with the decision of the Court of Criminal Appeal in People (DPP) v Moloney (unreported, Court of

Criminal Appeal, ex tempore, 2nd March 1992) , an appellate court should intervene in circumstances where ‘the essential justice of

the case calls for intervention’. It is submitted in all the circumstances that this is such a case.”

32. Counsel for the appellant has constructed an elaborate argument as to why he believes “the essential justice of the case”

requires this Court to intervene. It centres around alleged inconsistencies between what the complainant said in evidence on the one

hand, and what she said in her statement to the Gardaí on the other hand, concerning a point of detail, namely whether the door of

the bedroom in which she claimed to have been assaulted had been locked at the behest of the appellant (as she stated in evidence)

or was simply closed (as she had told the Gardaí).

33. Reliance was placed, in particular, on the following extract from the cross-examination of the complainant:

“Q. This is a make shift bedroom you're going into?

A. On the day I was examined? Yes.

Q. Well, was there a key in the door?

A. Yes, because that room was used by my grandmother and she had ornaments and stuff there so it was one of the

few rooms in the house with a key, that's why I can definitely say there was a key there and the door was locked.

Q. Well, you know there's a difference between a door being closed and a door being locked?

A. I distinctly remember him asking for the door to be locked.

Q. You do?

A. Yes.

Q. And when did you get that distinct recollection of him asking for the door to be locked?

A. Sorry?

Q. When did you get that distinct recollection of Dr K.M. asking for the door to be locked?

A. When you asked me was the door open or was there a key in it.

Q. Is it just now?

A. I've I can always remember that happening.

Q. Well, I mean, when you talked to the guards back in October 2010 did you give him that recollection that this was

Mum or your grand Mum's room and because of her possessions it was the one door that did have a lock and that you

had this distinct recollection of Dr K.M. insisting on it being locked?

A. I wouldn't have seen the relevance of that at the time in relation to what happened, so I may not have.

Q. But now you do have this clear recollection of this door being locked?

A. Because you asked me was there a key to the door.

Q. Well, are you 100 percent sure about that?

A. To the best of my knowledge, yes, because I had as younger brothers and sisters who were quite active at the time

and he wanted the door locked in case they came in.

Q. But isn't that the whole problem, that there were so many people in the house that now you have to lock the door to

exclude a possibility of somebody bursting in and finding Dr K.M abusing you?

A. Sorry, what do you mean that's a problem?

Q. That your grandparents are living in the house, that your aunt is living in the house, that your four siblings are living

in the house. There seems to be a load of other people coming in?

A. Mm hmm.

Q. And here you are in a make shift bedroom being examined by Dr K.M. and anybody could walk in on top of you?

A. But the door was locked and they'd know I was in there with the doctor so I don't see the relevance.

Q. Well, I'm just wondering are you sort of making up this thing about a lock or a key being in the lock and the door

being specifically locked?

A. I would have no reason to make it up. I know what happened.

Q. Or could it be so that the door was just closed and that anybody could have walked in on top of you?

A. You asked me my recollection. My recollection is that the door was locked.

Q. And do you remember when you were sort of describing this to the guards back in 2010?

A. Do I remember describing?

Q. You say ... was a bedroom and then describing it you said: "The door of the bedroom was closed and there was only

K.M. and myself in the bedroom and I recall K.M. examining my throat."

A. Yes.

Q. There's nothing in there about this being grandmama's former bedroom with all her precious

A. No, it wasn't her former bedroom, it was a room she used.

Q. Okay, all right. So, it was a room that your grandmother used and her precious items were in there and for that

reason was it the only door in the house that had a lock or a key in the lock and that K.M. was insisting on the door

being locked by turning the key?

A. I said he asked for the door to be locked and it was locked. There was no big deal made of it.

Q. But who locked it so if he asked for it to be locked?

A. I can't remember whether he locked it or I locked it but the door was locked.

Q. And why can't you remember whether he locked it or you locked it?

A. Because it would have happened as we were going into the room.

Q. But as you're going into the room he's supposedly asking well, somebody has to lock the door?

A. The key would have been in the door so it would have been just a case of turning it.

Q. Yes, but is there a conversation where he's insisting on the door being locked?

A. No, I said he asked for the door to be locked. There was no need to insist because it was locked.

Q. So, there is a conversation. Dr K.M. is asking that the door be locked in this make shift bedroom in which this

examination is going to be conducted?

A. If that's we walked in, he asked to turn the key in the door to the best of my recollection and that's what happened.

Q. And then if he's asking the only person he's talking to at that stage is you?

A. Possibly.

Q. So, therefore the only person who would have closed the door by turning the key would have been you?

A. Possibly.

Q. Well, did that actually happen or is it just possibly?

A. No, the door was locked.

Q. And if the door was locked with the key, why is it that back in October 2010 you're saying it was just closed?

A. Because I wouldn't have seen the relevance of the difference.”

34. The appellant has argued that these exchanges should have alerted the Court to the questionable nature and lack of reliability of

the complainant's evidence. It was submitted that the inconsistencies in the statements were significant and rendered her testimony

to be unreliable in a material respect, such as to warrant the giving of a corroboration warning to the jury. However, such a

submission does also beg the question as to why, if that were so, defence counsel failed to request that a corroboration warning be

given, and why when it was not given, the failure to do so was not raised in a requisition. No explanation as to this has been

provided.

35. The respondent, predictably, seeks to rely on The People (Director of Public Prosecutions) v Cronin (No 2) [2006] 4 I.R.329, but

recognising the reality that it will be necessary for this Court to engage at least to a degree with the merits of the appellant’s point in

order to form a view as to “the essential justice of the case”, contends without prejudice that there is no basis for regarding the

evidence of the complainant as being of such questionable reliability as to justify a corroboration warning. Counsel for the respondent

has submitted that the alleged inconsistency, if indeed it is an inconsistency, is as to a point of peripheral detail and that there is no

evidence, and it has not been suggested otherwise, of any inconsistency or contradiction in what the complainant has said at various

stages concerning the core aspects of her account, namely the occasion on which she was assaulted, the opportunity for the

assault, and the specific nature and details of the assault perpetrated on her. The contradiction now being relied upon is a contrast

between a door being stated on one occasion to be "closed" and on another occasion to be "locked" and it was submitted that any

difference between what was said by the complainant in the trial and what she may have said to the Gardaí at an earlier time was not

of such significance as to justify a view that the rest of her evidence was to be considered to be worthy of a corroboration warning.

36. Following a detailed consideration of the entire transcript, and in particular the entirety of the complainant’s testimony including

her thorough and robust cross-examination by defence counsel, we find ourselves in agreement that the alleged inconsistency relied

upon was as to a matter of detail that was somewhat peripheral, and did not relate in any significant way to the essentials of her

account..

37. The by now well settled law with respect to the discretionary nature of a trial judge’s entitlement to give a corroboration warning,

and the parameters within which that discretion might legitimately be exercised, was most recently re-stated by this Court in The

People (Director of Public Prosecutions) v R.A. (No1) [2016] IECA 110 (Court of Appeal, ex tempore, 4th March 2016).

38. Giving judgment for the Court, Birmingham J. stated that:

“Since the enactment of the Criminal Law Rape Amendment Act 1990, judges have a discretion as to whether to give a

corroboration warning and it is also the case that if a judge decides in the exercise of his or her discretion to give such a

warning that it is not necessary for him or her to use any particular form of words to do so. The mandatory

corroboration warning was also abolished in England and Wales. In the case of R. v. Makanjoula [1995] 1 W.L.R. 1348 the

Court of Appeal in a passage which has been quoted with approval in Ireland on a number of occasions observed as

follows, Lord Taylor, L.C.J. said:-

‘Whether, as a matter of discretion, a judge should give any warning and if so its strength and terms must depend

upon the content and manner of the witness’s evidence, the circumstances of the case and the issue raised. The

judge will often consider that no special warning is required at all. Where, however the witness has been shown to

be unreliable, he or she may consider it necessary to urge caution. In a more extreme case, if the witness is

shown to have lied, to have made previous false complaints, or to bear the defendant some grudge, a stronger

warning may be thought appropriate and the judge may suggest it would be wise to look for some supporting

material before acting on the impugned witness’s evidence. We stress that these observations are merely

illustrative of some, not all, of the factors which judges may take into account in measuring where a witness

stands in the scale of reliability and what responses they should make at the level in their direction to the jury. We

also stress that judges are not required to conform to any formula and that this Court would be slow to interfere

with the exercise of discretion by a trial judge who has the advantage of assessing the manner of a witness’s

evidence as well as its contents.”

39. Birmingham J. then went on to note 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 and quoted, by

way of examples, from the judgments in the cases of The People (Director of Public Prosecutions) v. Wallace, (Unreported, Court of

Criminal Appeal 30th April, 2001), The People (Director of Public Prosecutions) v. Ferris, [2008] 1 I.R. 1 and The People (Director of

Public Prosecutions) v. Dolan [2007] IECCA 30.

40. In the present case it is clear from the trial judge’s remark following the indication of no requisitions by either side that he had in

fact, on his own initiative, addressed his mind to the possibility of giving a corroboration warning, but had decided, having regard to

the evidence, that it was not an appropriate case in which to do so. On the basis of the jurisprudence just cited, his decision in that

regard represented a valid, appropriate and legitimate exercise of his discretion in all the circumstances of the case.

41. We are therefore satisfied that in circumstances where (a) no explanation has been put forward for the failure to request a

corroboration warning at the trial; and (b) the trial judge appears in any event to have considered possibly giving one but ultimately

decided, in an ostensibly valid exercise of his discretion that it was an inappropriate case in which to do so, that the essential justice

of the case does not require this Court to intervene. In the circumstances the respondent’s reliance on The People (Director of Public

Prosecutions) v Cronin (No 2) [2006] 4 I.R.329 is appropriate and legitimate.

42. We are not disposed in the circumstances to uphold the second ground of appeal.

Conclusion

43. The appeal against conviction must be dismissed.