Court of Criminal Appeal dismisses appeal against conviction and sentence for sexual assault. The applicant failed to prove jury error on corroboration or sentence excess.

THE COURT OF CRIMINAL APPEAL

Murray, J. [314/09]

de Valera, J.

McGovern, J.

BETWEEN/

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

DANIEL FOLEY

APPLICANT

JUDGMENT of the Court delivered on the 20th December, 2013 by Murray J.

1. On the 4th December, 2009 the applicant was convicted, after a trial by judge and jury at Tralee Circuit Criminal Court, of the

offence of sexual assault contrary to s.2 of the Criminal Law (Rape) Amendment Act, 1990, as amended by s.37 of the Sex Offenders

Act, 2001. The statute provides for a maximum term of imprisonment of 10 years.

2. The applicant was sentenced to a term of imprisonment of 7 years with 2 years suspended.

3. The applicant applied for leave to appeal against conviction and the sentence imposed.

4. On the 31st day of July, 2013 this Court refused the application both in relation to his conviction and sentence. The Court then

stated that it would give its full reasons for its decision at a later date. The judgment sets out those reasons. The judgment first of

all addresses the issue raised concerning conviction and then deals with the question of severity of sentence.

Ground of Appeal Against Conviction

5. The applicant sought to set aside the verdict of the jury on the ground that the learned trial judge “erred in law and in fact in

holding that both the upset of the complainant and the words spoken by her in the ambulance on the way to Kerry General Hospital,

while semi-conscious, were capable, in law, of being corroboration of the complaint.” This ground of appeal relates to evidence given

by a member of the gardai at the trial concerning the distressed state and words spoken by the complainant, who had been the

subject of the assault, when she was in a semi-conscious state in the ambulance that was taking her to hospital after the incident

giving rise to the charge of sexual assault. At the hearing of the appeal the submissions of the applicant focused on the words spoken

by the complainant on that occasion rather than the fact of her ‘upset’ or distress.

6. At the conclusion of the trial no application was made for leave to appeal against conviction. There was an application for leave to

appeal against sentence only which was refused.

7. In December, 2009 a notice of appeal against conviction was filed in the Court by the applicant in person (without any reference to

a corroboration issue) and rejected, as no application for leave to appeal against conviction had been made to the trial judge. Such

an application was subsequently made to the trial judge and refused. In July, 2010 the applicant applied to this Court and was

granted an extension of time for appeal. The notice of appeal and application for leave to appeal subsequently filed raised the issue of

corroboration for the first time.

Background Facts and Circumstances – Evidence at the Trial

8. The complainant and the accused were known to one another, both being from the Listowel area in County Kerry. On the 15th

June, 2008 they met in a nightclub known as the “Mermaid” in Listowel. The applicant was out celebrating his 34th birthday. The

complainant, then 22 years of age, had commenced the evening by going out with her mother and friends for some drinks. Having

visited a couple of licensed premises, at the end of the evening she went with her friends to the Mermaid nightclub. The complainant’s

evidence was that she encountered the applicant in the nightclub and after an initial conversation with him she went outside to

smoke a cigarette. On her return she met him again and he brought her up to the bar and bought her some drink. She subsequently

left his company, met some other friends and then went out to the smoking area for a smoke on her own. When she returned to the

nightclub from the smoking area on that occasion she was feeling sick, dizzy or light headed. She went out again and sat down

against the back of a wall outside. She was joined by the applicant. According to her evidence she told him she wanted to go home

and that she was feeling sick. She said that he offered to walk her home and she declined that offer. She said he insisted on walking

her home.

9. Both the complainant and the applicant were in the area outside the nightclub and the applicant carried the complainant to another

nearby and more secluded area, namely, a car park at the rear of a building known as The Revenue Building. There was CCTV footage

of both of them leaving that area and also evidence from CCTV footage of both of them in the Revenue car park. The sexual assault

was alleged to have taken place in the Revenue car park.

10. It is not necessary for the purposes of addressing the issue of corroboration which has been raised in this appeal to recite in full

the evidence at the trial, including that of the complainant. It was the defendant’s defence that what took place between himself and

the complainant was consensual, and that will be referred to later in the judgment. The complainant’s evidence as to what occurred

included evidence that the applicant was trying to force himself on top of her, trying to have intercourse with her and that she was

resisting him. She recalls asking him how could he do this to me, saying “get off me” and saying no a number of times. She gave

evidence of struggling with him, trying to kick him, hitting him and trying to push him off. She described him as having grabbed a hold

of her wrists and pinning them down over his shoulder. She also referred to him as having tried to unbutton her pants and pull her

pants off her while she was struggling trying to keep them on. At one point she passed out and when she came to her pants were off

her. This was before the gardai arrived.

11. At approximately 3.50 a.m. a garda patrol car entered the car park behind the Revenue building. They were investigating a report

of activities of some youths in the vicinity so that their arrival in the car park was entirely coincidental. As they drove into the car

park Garda White noticed a man in dark clothing leaning on the ground over a woman. He got out and approached the man, who was

the applicant, who kept saying “I found her here”. He noticed that the woman was naked from the waste down. She was mumbling,

constantly moaning and groaning on the ground. He described her as being semi-conscious with her eyes closed, her head rolling from

left and right. She was lying on the ground practically unresponsive. He immediately called an ambulance. The applicant in answering

the questions put to him by Garda White stated that he had come out of the pub to smoke a cigarette and the bouncers had closed

the doors behind him. He added that he had come around to the car park to relieve himself and “I saw yer one lying on the ground

with no one else around her so I came over to see if she was alright and when I got her I realised I knew her. There was nobody

else around. I tried to get her standing.” He denied having sexual intercourse or assaulting her in any way. He said he thought he

would be able to get her on her feet and get her home. He admitted that he had bought her a drink earlier that evening in the

Mermaid but had only been in her company for about 5 minutes at the bar and didn’t see her again until he had come over to the car

park. He was subsequently to admit to the gardai that the account he gave to the gardai on that occasion was untrue and proffered

an explanation as to why he had lied to the gardai at that point. This is referred to later in the judgment.

Evidence of Garda Mary McGinty

12. Garda Mary McGinty was one of the gardai in the patrol car. By agreement her statement of evidence was read to the jury. Her

evidence includes evidence of the complainant’s distress and reaction in the ambulance which the trial judge ruled could be treated as

corroborative of the complaint, and which is in issue in this appeal. The relevant portion of the statement read to the jury is the

following:

“I am a member of An Garda Siochana attached to Listowel Garda Station. I commenced duty at 10 p.m. on Saturday,

14th June, 2008 on town patrol in Listowel. Garda White then contacted me at 3.50 a.m. and asked me to make my way

to the car park at the Revenue Offices at Mill Lane. I immediately made my way there and upon my arrival I found a

female I know to be … lying on the ground of the car park. Ms. ____ was unconscious and had no trousers, underwear

or shoes on. She was covered up by a blanket. An ambulance had already been contacted and was on the way. I tried to

rouse _______ but to no avail. Mr. Foley was also still present and was speaking with Garda White and Murphy while I

remained with Ms. ___________. When the ambulance arrived the two paramedics, John Halpen and Dennis Kearn

attempted to rouse Ms. _________ but failed to do so. They brought a stretcher over to her and, as she was being

lifted onto the stretcher, Ms. ________ began screaming and lashing out in all directions. She was placed in the back of

the ambulance where she began to get sick. Ms. ________ became increasingly agitated and was very distressed and

upset. … Ms. ________ was extremely distressed and upset on route to the hospital and kicked out and lashed out for

the duration of the trip. She was also shouting, “Get off me” and “No” and “I won’t let you” while she was kicking out. I

could see her legs and arms were visibly scratched and marked. She was very disorientated and mumbling incoherently

at times. When Ms. __________ was kicking out she was also reaching out and trying to grab my throat. Ms.

__________ had to be held down in the ambulance for safety during the trip to Tralee. Upon our arrival at the hospital

Ms. _______ became extremely agitated and upset when a male doctor entered the cubicle to examine her. Ms.

_________ eventually fell asleep and I remained with her until she woke up. While she was sleeping I observed there

were bits of twigs in her hair and also all sticky.”

The Defence

13. For the purpose of the issue in this appeal it is only necessary to focus on the essential aspect, and related circumstances, of the

applicant’s defence to the charge, namely, that sexual contact occurred between him and the complainant but that it was consensual

on the occasion in question.

14. When subsequently interviewed by the gardai in Listowel Garda Station on 2nd September, 2008, the applicant acknowledged that

he had told lies to the gardai in the account which he gave when discovered standing beside the complainant in the car park on the

night in question. Having admitted that the earlier account was untrue, the account which he then gave to the gardai at the

interview included a statement that he had met the complainant outside the back door of the Mermaids nightclub and that he and the

complainant went up the back of a laneway behind the Mermaids where they sat down near an archway and began ‘kissing and

cuddling’. The applicant then described to the gardai how they had been touching one another intimately and that she, the

complainant, suggested that they go somewhere else less public. They then went to the back of the Revenue building. There they

began “kissing and cuddling” again. He said the complainant took her jeans and underwear off and then “we gave each other oral

sex”. Everything that occurred occurred with her consent and she was sober enough to consent. Asked to explain why she was

unconscious when the gardai arrived the applicant responded that he did not know “one minute she was talking, the next she fell

asleep”. When asked why did he tell lies to the guards on that occasion he answered “She told me in the Mermaids that she had a

boyfriend who was not the nicest of people. I panicked. I don’t know.” He denies sexually assaulting her. In answer to a specific

question he stated that they walked from the back of the Mermaids over to the rear of the Revenue building and denied a garda

suggestion that he carried her over there. In the course of the interview he was shown CCTV footage which appeared to show the

applicant carrying the complainant in his arms across the car park and around the corner to the Revenue building and then the

footage showed them together until the gardai arrived. Having seen the CCTV footage he accepted that he had, in fact, carried the

complainant as it showed.

15. In his evidence at the trial the account given by the applicant was essentially along the same lines as the account which he gave

to the gardai during the course of the interview, and in particular that any sexual contact between himself and the complainant was

consensual. He did add that after they had been intimate with one another they both fell asleep. He woke up because he felt cold but

said he failed to wake the complainant and shortly after that the gardai arrived.

Submissions at the Trial

16. At the conclusion of the evidence counsel for the defence submitted that the trial judge should caution the jury concerning the

dangers of convicting on the uncorroborated evidence of the complainant in a prosecution for sexual assault, notwithstanding that

there was no obligation in law on the trial judge to do so as a matter of course by virtue of the provisions of s.7 of the Criminal Law

(Rape) ((Amendment) Act, 1990. The trial judge acceded to this submission and duly cautioned the jury. In addition he charged the

jury as to the evidence which was capable of being treated as corroborative of the complainant informing them that it was a matter

for them to determine whether it, in fact, should be treated as corroborative. Among the matters which the trial judge stated were

capable of being treated as corroborating the complainant’s complaint was the evidence given by Garda McGinty concerning the

complainant’s distressed state and statements made by her in the ambulance when she was in a semi-conscious or semi-comatose

state.

17. The learned trial judge had not discussed the question of treating such evidence as being capable of corroboration with counsel

before he commenced his charge. It would have been more prudent if he had done so, as this Court has previously advised in a

number of cases, but nothing turns on this in this case. In any event there was a luncheon break in the course of the trial judge’s

charge and the matter was raised with him by counsel before the charge recommenced after lunch. Counsel for the prosecution

questioned whether, and indeed he expressed the view that it was not, such evidence was capable of amounting to corroboration.

The learned trial judge ruled, since ultimately it was a matter for him, that such evidence was capable of amounting to corroboration.

No issue was raised by the defence concerning this ruling.

18. In the course of his continued charge after lunch he revisited the question of corroboration and as regards the evidence given by

Garda McGinty he gave a direction to the jury in a form that had been agreed by both counsel. At the conclusion of the charge no

requisition was raised by counsel for the defence concerning the form of direction given to the jury concerning corroboration in this

particular respect.

19. Subsequently the jury returned to pose a question and seek clarification concerning the trial judge’s direction on this particular

point. Both counsel for the defence and the prosecution agreed that the trial judge should repeat to them the agreed direction which

he had already given, which he did.

The Trial Judge’s Direction

20. The only issue concerning an error of law on the part of the trial judge, as raised, belatedly, in the Notice of Appeal, concerns the

ruling of the trial judge that the evidence of Garda McGinty was capable of being treated as corroborative evidence. In the

circumstances, the Court is satisfied no issue arises, nor could it properly arise, concerning the form of the direction given to the jury

by the trial judge on this question. In order to place the matter in context the agreed direction given to the jury on this issue by the

trial judge included the following statement:

“... I find that her account or her reaction, her behaviour when placed - what I had said to you was that behaviour can amount

to corroboration. Now, in this instance, the evidence that the complainant was "out of it", to use a colloquialism, when the gardaiì arrived on the

scene. When she was placed on the stretcher she reacted, you will recall, quite violently and bizarrely, railing against those who were attempting to

give her assistance, and that behaviour took place in the first moments into recovery from whatever condition she was afflicted by when the gardaiì

arrived, and it seems to me that that behaviour and utterances of the complainant on the stretcher and in the ambulance are

capable of being corroborative of her account of no consent to what had taken place. Whether it is corroborative is a

matter of fact but, in law, I think my ruling is that it is possible for it to be corroborative. … but whether it is

corroborative or not is entirely a matter for you, ladies and gentlemen, and the weight to be attached to that is equally

a matter for you to add to that evidence.” (emphasis added)

21. Counsel for the applicant, who did not appear at the trial, sought to introduce a letter from counsel who did appear for the

applicant at the trial to explain why no issue was raised concerning the judge’s ruling that the evidence of Garda McGinty was capable

of amounting to corroboration. In the course of the appeal the court ruled that if an appellant, or indeed the prosecution, wished to

introduce evidence of counsel or solicitor in this Court to explain something which occurred at the trial, when the solicitor or counsel

are not themselves appearing in the appeal (or the application for leave to appeal), such evidence should be introduced as sworn

evidence on affidavit unless both the prosecution and the defence are in a position to agree on the explanation as to what occurred.

Even then it will be a matter for the Court to decide whether such agreement is sufficient to deal with the matter arising in the

circumstances. The Court in the particular circumstances agreed to receive the letter de bene esse.

22. Counsel in this application for leave to appeal submitted on behalf of the applicant that the Court should hear and determine the

issue raised in the appeal notwithstanding the failure of defence counsel to object or requisition the trial judge on the point in

question. The explanation given by defence counsel for failing to raise the issue at the trial was essentially that to do so could have

had disadvantages for the defence and does not add anything to the weight of the submission made on behalf of the applicant, and

therefore does not require further consideration. Although it would be open to the Court in these circumstances, in the light of

successive decisions of this Court, to decline to determine the issue on the appeal by reason of the failure to raise the point at the

trial, the Court in its discretion has decided to consider the issue on its merits. (See for example the judgment of the court delivered

by O’Flattery J. in DPP v. Maloney (Unreported, CCA, October, 2000)).

Submissions of the Applicant

23. Counsel for the applicant referred to R v. Baskerville [1916] 2 KB 658/667 and The People (DPP) v. Gilligan [2006] 1 I.R. 107 as to

the essential principles governing what constitutes corroborative evidence. It was submitted that firstly it must tend to implicate the

accused in the commission of the offence; secondly, it must be independent of the evidence that makes the corroboration desirable;

and thirdly it must be credible evidence in itself.

24. It was submitted on behalf of the applicant that the statements of the complainant in the back of the ambulance were not

independent of the complainant, were not credible by reason of her inebriated state and were capable of an alternative explanation.

It is also submitted that what she said in the rear of the ambulance “might in fact be a form of unconscious complaint”. If such

evidence was admissible it could only be admissible as demonstrating consistency on the part of the complainant but not as

corroboration.

Submissions of the DPP

25. Counsel for the DPP did not take issue with the essential elements which are said to constitute corroborative evidence including

the definition of corroboration contained in R v. Baskerville, or more particularly in the approach adopted in The People (A.G.) v.

Levison [1932] I.R. 158, and in The People (AG) v. O’Sullivan [1930] IR 552 and by this Court in DPP v. Meehan [2006] IE CCA 204.

Counsel pointed out that in the judgment of this Court in the latter case it was stated:

“Corroboration has received definitions and characterisations in Ireland which largely follow Baskerville, but which are

replete with nuanced differences. In The People (A.G.) v. Levison [1932] I.R. 158, O’Byrne J. stated at p.165:-

“What constitutes corroboration must depend on the facts and circumstances of each particular case, on the

defence set up by the accused, and on the nature of the question to be determined by the jury … it seems to us

evidence of any material circumstance tending to connect the accused with the crime and to implicate him in it

would appear to us to be corroboration in the circumstances of this case.”

26. In short it was accepted by counsel for the DPP that corroborative evidence must be evidence which tends to implicate the

accused and must be independent of the evidence that makes the corroboration desirable, as put by counsel for the applicant in his

submissions. Counsel for the DPP also submitted that it was sufficient if the evidence confirms a material particular of the witness’s

evidence implicating the accused, and that the nature of the defence is of particular pertinence in determining what might constitute

corroboration in a particular case. In this case the defence was one of consensual conduct on the part of the complainant, and it was

submitted that the evidence in contention was corroborative of the absence of consent and therefore tended to implicate the

applicant in the commission of the offence. It was submitted that, as a matter of law, it had been accepted that evidence of distress

on the part of a victim after a sexual assault is capable of constituting corroboration. In this case the evidence of Garda McGinty, it

was submitted, was evidence of the complainant’s distress shortly after the sexual assault took place and, given her distress and

semi-conscious state, and the nature of the evidence. The mutterings or expressions made by the complainant in the ambulance

when she was semi-conscious were spontaneous and involuntary and therefore capable of being treated as being independent

evidence of her distress.

Decision

27. There is, of course, no issue concerning the admissibility of the evidence of the evidence of Garda McGinty. That evidence was

read in full to the jury with the consent of the defence. There is no question but that it was material and relevant evidence.

28. No issue was taken on behalf of the applicant at the hearing of the appeal with the general principle that evidence of the state of

distress of a victim following on assault may, in appropriate circumstances, be capable of constituting evidence corroborating her

complaint in a material respect.

29. In Attorney General v. Levison [1932] I.R. 158 at 165 the following was stated by this Court:

“What constitutes corroboration must depend on the facts and circumstance of each particular case, on the defence

set up by the accused, and on the nature of the question to be determined by the jury. … Accordingly as it seems to us

evidence of any material circumstance tending to connect the accused with the crime and to implicate him in it would

appear to us to be corroboration in the circumstances of this case.”

30. Counsel for both the applicant and the DPP in this appeal also referred to the definition given to corroboration in R v. Baskerville

[1916] 2 KB 658 to the following effect:

“We hold that 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.”

This dictum has also been cited with approval by this Court and by the Supreme Court. In DPP v. Meehan [2006] IECCA 104 the

judgment of this Court noted that “Corroboration has received definitions and characterisations in Ireland which largely follow

Baskerville, but which are replete with nuanced differences.”

31. As long ago as the judgment given by this Court in The People (AG) v. O’Sullivan [1930] I.R. 552 evidence concerning the distress

of a victim was treated as evidence of corroboration. That was a case in which the accused had been convicted of sodomy of a

young boy and at page 557 of the report it was, inter alia, stated:

“The state of distress of the boy as he came away from the house, proved by the Civic Guard and admissible as part of

the res gestae, is (but his complaint is not) further evidence in corroboration.”

32. That statement and the surrounding passage has been cited with approval in a number of cases not least of which is in the

judgment of Denham J. in the Supreme Court decision of DPP v. Gilligan [2005] IESC 78. (The reference to ‘’his complaint’ was, of

course, a reference to a fully conscious account which he gave to the garda member of the assault). In The People (DPP) v. Reid

[1992] 2 I.R. 186 evidence from the gardai as to the distressed condition of the victim was held to be corroborative evidence.

33. An essential element of corroborating evidence is that it is independent of the complainant’s own evidence. Whether an item of

evidence can be treated as independent of that of the complainant may depend on the particular circumstances of the case and, if it

may be so treated, the weight to be attached to it. Thus evidence of a complainant concerning the interior details of a room in an

accused’s house where an assault was alleged to have taken place would be corroborative if the jury were satisfied that the

complainant had never otherwise been in that room. (see Levison above). An essential element of evidence concerning evidence of a

complainant being in a distressed condition or state following an alleged assault is that it is capable of being treated as a spontaneous

rather than false, contrived or self-serving reaction by a complainant. There may be evidence of distress of a complainant in

circumstances where a trial judge might well rule that it should not be treated as being capable of amounting to corroboration. This

may be due to remoteness from the time and circumstances of the alleged assault or other particular circumstances. Otherwise,

where the trial judge rules that evidence is capable of being treated as corroborative, it is then a matter for the jury to consider

whether evidence should, in fact, be so treated and if so, the weight to be attached to it.

34. In this particular case the evidence was that the complainant was unconscious, or virtually unconscious, lying on the ground

naked from the waist down when the gardai arrived and Garda McGinty endeavoured to rouse the complainant while awaiting the

ambulance. When the ambulance did arrive and she was being lifted on a stretcher the evidence of Garda McGinty was that the

complainant began screaming and lashing out in all directions. Her evidence is set out in full earlier in this judgment. It includes the

fact that the complainant became increasingly agitated, distressed and upset, and remained in that condition during the trip to

hospital. The evidence was that she “kicked out and lashed out” for the duration of trip. “She was very disorientated and mumbling

incoherently at times.” It is not in issue that she was in a semi-conscious condition at the time. Apart from her physical reaction the

evidence from Garda McGinty was that she was shouting “Get off me” and “No” and “I won’t let you”.

35. Counsel for the applicant did not really take issue with evidence concerning the agitated condition of the complainant as such but

objected in this appeal to the words spoken by the complainant being treated as evidence capable of corroboration of her complaint.

It was submitted that at most this was evidence of consistency just as the complaints of a victim of sexual assault as to what

happened to him or her immediately after the assault has been committed may be admissible as evidence of consistency but not as

evidence of the truth of the statements.

36. First of all it should be noted that the agitated words of the complainant in the ambulance made no reference to any form of

sexual assault and do not contain any particular allegation against the applicant or any other person. Both her physical reaction and

the words spoken by her, apart from indicating a high level of distress, would suggest that she was, in a semi-conscious state, trying

to fend off some attacker. The words spoken by the complainant in the distressed condition described by Garda McGinty cannot be

equated to a complaint, properly understood, being made by her of an assault earlier in the car park.

37. One of the important features of the evidence of Garda McGinty is that the physical expressions of distress were inextricably

mingled with the words which she spoke or shouted at the same time. It is not disputed that she was semi-conscious at the time or,

as it has also been put, semi-comatose after having been found virtually unconscious at the scene prior to the arrival of the

ambulance.

38. Being in such a semi-conscious state and taking, in particular, the description of her condition and state as a whole as set out by

Garda McGinty it is clear that the complainant’s physical reaction and accompanying words were capable of being treated as

involuntary and spontaneous by virtue of her emotional and semi-conscious condition. In other words, independent of her own

conscious will. Therefore, in the particular circumstances of the case as described in the evidence the Court is satisfied that the trial

judge was correct in ruling that such evidence was capable of being treated as corroborative of the complainant’s account in some

material respect. Whether it was so was left to the jury to decide. The Court is satisfied, however, that they were entitled to treat

the evidence as independent of the complainant’s conscious account of what took place if they were satisfied that her distress and

accompanying words were a spontaneous and unconscious expression of her distress by reason of her emotional and semi-conscious

state at the time.

39. An important consideration when considering whether evidence is capable of being treated as corroborative of a complainant’s

evidence is whether it tends to implicate or connect the accused with the crime. In this context the defence of the accused may be

of particular importance as pointed out by this Court in AG v. Levison (cited above).

40. As Kearns J. observed in DPP v. Meehan (cited above) having just quoted the relevant passage from the Levison case “An

important feature evident in this definition is that that which constitutes corroboration may depend in an individual case on the

"defence set up by the accused".” In DPP v. Gilligan Denham J. observed “Thus the nature of corroborative evidence depends on the

facts and circumstances of the case and the defence of an accused. Corroborative evidence establishes a link which tends to prove

that the accused person committed the offence. Corroboration may be found in a simple fact.” She went on to add that “The

nature of the defence may be critical in determining what is corroborative evidence.”

41. In this case, as the facts outlined above establish, the applicant admitted having gone into a car park with the complainant in the

early hours of the morning, after they had both been drinking, and to having committed sexual acts with her. His defence was that

she consented to these sexual acts. These allegedly consensual sexual acts took place not long before Garda McGinty arrived on the

scene. On the evidence before the jury it was open to the jury to treat her distressed state as being inconsistent with any

suggestion of she having recently participated in a consensual sexual encounter. If they accepted that to be the case, of course it

undermined the applicant’s defence that she had willingly participated in the sexual acts, and therefore tended to implicate him in the

offence.

42. Accordingly, in the opinion of the Court, the evidence given by Garda McGinty was capable of being treated as corroborative of

the complainant’s account of what happened on that occasion, and the trial judge was correct in so ruling.

43. There is one other matter referred to in the submissions of the applicant, namely, that the evidence should be credible. This

aspect of corroborative evidence was addressed by Denham J. in DPP v. Gilligan (cited above). In that case she stated:

“Thirdly, it should be credible. It should be supporting evidence which has a degree of credibility. In D.P.P. v Hester

[1973] A.C. 296 at 315 Lord Morris of Borth-y-Gest stated:

“The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or

incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible; and

corroborative evidence will only fill its role if it itself is completely credible.”

This is a matter of common sense. Corroboration arises where the evidence to be corroborated has a degree of

credibility. However, corroboration is not a two stage process. It is not a process in which there is first a determination

as to whether a witness is credible, and, if he is credible, then the issue of corroboration is addressed.”

44. In this case the complainant gave evidence of what occurred to her on the night in question, including evidence commenting on

the CCTV footage as to what occurred in the car park in question, and in doing so gave evidence that the accused had sexually

assaulted her. It was a matter for the jury to determine what weight and credibility they attached to her evidence and to decide

whether the evidence of Garda McGinty was corroborative of her account. All these matters were properly left to the jury, including

whether the state of distress described by Garda McGinty was capable of being explained other than as a result of a sexual assault.

45. Accordingly, for all the foregoing reasons, the Court will refuse the application for leave to appeal against conviction.

Application for leave to appeal against sentence

46. The applicant was convicted of sexual assault contrary to s.2 of the Criminal Law (Rape) Amendment Act, 1990 as amended by

s.37 of the Sex Offenders Act, 2001. It carries the maximum term of imprisonment of 10 years.

47. As regards sentencing the complainant gave evidence of how she was severely and traumatically affected by the assaults.

48. In sentencing the applicant the trial judge made an extensive summary of all the circumstances of the case including the

circumstances found to be aggravating, as well as reference to the character witnesses called on behalf of the applicant and the fact

that he had no previous convictions. The aggravating circumstances included the attitude adopted by the applicant when the gardai

arrived on the scene, which included not only the lies which he told to the gardai but referring to his victim as “yer one” and claiming

to have found her by chance, unconscious, in the car park.

49. The trial judge found that the offence fell in the upper mid region of sexual assault.

50. No issue is taken with this conclusion of the trial judge when sentencing.

51. The appeal against sentence is based on two sentences in the transcript of the sentencing hearing where the judge observed: “I

am conscious of the fact that the accused is 35 years of age and has no previous convictions, but one is not entitled to credit

because one has no previous convictions.” He went on to say “Being conviction free is not an accolade which you can bestow upon

yourself. Surprisingly in the plea in mitigation which was made on behalf of Mr. Foley, little remorse has been shown and no apology

has been offered.”

52. The trial judge’s examination of the issues arising in sentencing, including the nature of the offence and the circumstances of the

applicant, is extensive. He imposed, for reasons which he fully explained, a sentence of 7 years but with 2 years suspended. With

regard to the two observations referred to the Court is of the view that the trial judge was addressing the degree of credit to be

allowed to the applicant for no previous convictions, rather than excluding it entirely, particularly in the light of the absence of any

show of remorse or apology in the course of the plea in mitigation and also having regard to the aggravating factors in the case. In

any event, the Court is satisfied that the sentence imposed by the learned trial judge, having regard to the gravity of the offence

and the circumstances of the applicant, was correctly structured and appropriate, and for the purpose of doing justice to the case

concludes that the sentence should not be interfered with.

53. Accordingly, the application with regard to sentence is dismissed.