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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P.-v- C.C. [2006] IECCA 1 (02 February 2006) URL: https://www.bailii.org/ie/cases/IECCA/2006/C1.html Cite as: [2006] IECCA 1, [2006] 4 IR 287 |
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Judgment Title: Composition of ![]() ![]() ![]() ![]() ![]() ![]() Judgment by: Kearns J. Status of Judgment: Approved |
Judgments by | Result | Concurring | Dissenting |
Kearns J. |
15
THE DIRECTOR
OF PUBLIC PROSECUTIONS
The applicant was
convicted
of 180
counts
of indecent assault involving six
complainants
in Sligo
Circuit
Court
on 19th January, 2005. In essence, the
complaints
were
that,
while
a teacher in a primary school in Sligo, the applicant indecently assaulted six
complainants
in
front
of a
classroom
full
of students,
during
class
time, by sitting them on his knee, rubbing his
cheek
against theirs, and by
fondling
their genitals. Evidence
was
also given of use of
corporal
punishment, of locking one
child
into a
cupboard
and of masturbation
while
fondling
the
complainants,
although no
counts
were
laid of gross indecency, physical assault or
false
imprisonment. Apart
from
the six
complainants,
five
other
witnesses
who
were
students in the
class,
gave evidence at the trial. The offences
were
stated to have occurred between 1st July, 1968 and 30th June, 1977.
On 9th March, 2005, the applicant was
sentenced to 8 years imprisonment. Leave to appeal
was
refused and a Notice of Appeal against that refusal
was
filed
on 18th March, 2005.
In summary, the evidence of the six complainants
was
as
follows:-
(a) M.H. said there
were
62-69 students in the particular
class,
that they
were
slapped
with
a
cane,
that he
was
taken up to the teachers
desk
once a
week,
where
he stood beside the
chair
and that the applicant rubbed his hand up and
down
his leg, under his short trousers around his backside; that if he
cried,
the applicant
would
rub his
cheek
against M.H.’s
cheek;
that he now thought the applicant might have been masturbating as his other hand
would
be under his soutane; that he remembered R.M. and P.H. (3 times a
day)
being singled out and being rubbed on their legs and backsides and on their
faces.
He said the abuse stopped in their last year of school (6th
class).
(b) R.M. said that on a very frequent
basis he
was
brought to the
front
of the
class
where
the applicant
would
put him on his knee; that the
contacts
that stood in his mind
were
the
facial
contacts,
that he
would
be
cheek
to
cheek
with
the applicant; that on one occasion, he had ringworm
which
the applicant later
developed
and that he (R.M.)
was
asked to stay home
from
school.
(c)
P.H. said that he
was
three years in the applicant’s
class;
that the applicant tried him out to play the
drums
in the school band and
would
stand behind him and move his hands or sit him into his lap,
with
his arms around him and hold him by the
wrists;
that he
would
be brought up to the applicant’s
desk
and hold him
close
or sit him onto his knee. If he
cried,
the applicant
would
comfort
him; that this happened once a
week,
once a month, 3-4 times a
week
or 2-3 times a
day
at
different
periods.
During
his last year at school (1972) the applicant
would
wear
a
cloak
and
would
put it around both of them and put his hands
down
P.H. trousers and play
with
him,
fondling
his penis through his
clothes.
It is perhaps important to note in respect of this witness
that
when
first
approached by gardaí, he had no memory at all of the abuse. There
were
still periods of time in the school that he
could
not recall at all. He
was
getting therapy at the time of the trial to help him
cope.
(
d)
J.K. gave evidence of being in the applicant’s
class
for
four
or
five
years; that he
was
dyslexic;
that he
was
brought up to the applicant’s
desk
for
assistance
with
reading; that the applicant
would
sit him on his knee and
feel
down
the back of his trousers and
feel
his penis and
would
rub his backside; that this happened once or twice a
week
and eased off after two years; he also saw other boys on the applicant’s knee.
When
first
approached by gardaí, this
witness
also stated that he
couldn’t
recall anything, but later, after hearing about
cases
on the news, he
decided
to speak out.
(e) D.F.
gave evidence of being brought up to the
desk
and asked
for
a kiss, of being struck across the
face
from
side to side on a
constant
basis, of regular
canings,
of being locked into a
cupboard;
of the applicant putting his hand inside his trousers and
fondling
his penis.
(f)
G.
W.
gave evidence of having had a speech impediment, of being
called
up to the applicant’s
desk
and sitting on his lap and being touched by him, three or
four
times a
week
over
four
years; of standing between the applicant’s legs and of the applicant playing
with
himself; that if other boys
were
called
up to the
desk,
one
would
not make eye
contact;
of being
followed
into the
cubicle
of the bathroom and touched; of being
caned;
of another boy being put into a
cupboard;
about there being a
dunce’s
corner,
about being abused on his
confirmation
day
(
which
was
also his birthday).
The defendant
gave evidence in his own
defence
and
denied
the offences. He admitted bringing boys to the top of the
class
and sitting them on his knee occasionally. The
defence
also
called
former
teachers and a
former
pupil to give evidence that they had no knowledge of any such events, allegations or
complaints.
Various grounds of appeal have been lodged, including:-
(1) That the learned trial judge erred in law in refusing to accede to an application to sever the indictment upon which
there
were
180
counts
of indecent assault.
(2) That the learned trial judge erred in law in failing
to accede to an application made to him to sever the allegations of the various
complainants
of
whom
there
were
six on the indictment into groups linked by time or other
factors.
(3) That the learned trial judge erred in law in
failing
to
direct
the jury that they should
first
be satisfied that a reasonably
credible
case
had been presented in respect of each indictment before
corroboration
of such a
count
could
be
considered
by them.
(4) That the learned trial judge erred in law in failing
to adequately or at all
warn
the jury
with
regard to the effect of gross
delay
on the part of
complainants
in sexual offence
cases.
Because this court
has reached a
clear
view that the last ground of appeal must succeed, this judgment
will
confine
itself to that particular issue.
Submissions of the parties in respect of delay
Mr. Michael O’Higgins, senior counsel
for
the applicant, submitted that trials of offences alleged to have taken place many years ago
carry
with
them inherent
dangers,
as
well
as
difficulties,
for
the
defence
and as a
consequence,
it is incumbent upon a trial judge to give such
warning
to the jury as is appropriate in the
circumstances
of the particular
case
to mitigate the prejudicial effects of
delay.
In this
case,
the learned trial judge in his
charge
referred to the age of the
case
in the
following
manner:-
Mr. O’Higgins pointed out that no further
reference had been made in the
course
of the judge’s
charge
in relation to the age of the
complaints
or to the
difficulties
faced
by the
defence
in particular in old
cases.
Specifically, no
warning
was
given that lack of
certainty
on the part of prosecution
witnesses
is
difficult
to
counter
and that vagueness on the part of
defence
witnesses
could
well
be a
consequence
of the lapse of time, and that in assessing the
demeanour
of the
witnesses
and the evidence given, the jury should take into
consideration
the
fact
that the events
complained
of had occurred a long time ago.
Mr. O’Higgins pointed out that, by way
of
contrast,
the part of the
charge
in The People (
DPP)
v. R.B. (unreported,
Court
of
Criminal
Appeal, 12th
February,
2003)
which
referred to the
dangers
inherent in old
charges
being prosecuted ran to 100 lines.
Mr. O’Higgins submitted that a clear
warning
was
particularly necessary in the
circumstances
of this
case
where
the
defendant
was
confronted
by six
complainants.
That
fact
alone inevitably
was
prejudicial to the accused to a significant
degree,
given that as events
demonstrated
the jury quite obviously adopted a “broad brush” approach by simply
convicting
the applicant on all
counts,
although the evidence quite
clearly
could
not have supported
convictions
on each of the individual
counts
had the jury
considered
those
counts
separately.
In response, Mr. Eanna Molloy, senior counsel
on behalf of the
Director
of Public Prosecutions submitted that the similar
fact
evidence given by six
witnesses
in this
case
could
only be seen as lessening the requirement to
warn
of infirmities in the recollection of the
complainants.
The trial judge
was
perfectly entitled to point out to the jury that the various
complainants
corroborated
each other in this respect, so that the
difficulties
which
might be much more significant in the
case
of a single
complainant
did
not arise.
Thus, he submitted that the evidence of M.H. had been corroborated
by three
witness,
the evidence of R.M.
corroborated
by
four
witnesses,
that of P.H. by three
witnesses
and that of
D.F.
by three
witnesses
(none of
whom
were
complainants).
In respect of the evidence of J.K. there had been no
corroboration,
nor had there been
corroboration
in respect of the evidence of G.
W.
Mr. Molloy submitted that the judge’s charge
on the issue of
delay,
though not ideal,
was
adequate in the
circumstances
and had not rendered the trial nor the verdicts unsatisfactory or unsafe. Nor, Mr. Molloy submitted, had the trial judge been unreasonable in refusing a requisition made by
counsel
on behalf of the applicant that he should in his
directions
to the jury have
dealt
more
fully
with
the problems
caused
by
delay.
It must be stated at the outset that the trial judge did
fully
and adequately
deal
with
one aspect of
delay
in his
charge
to the jury by telling them that there had been no
complaints
by the boys at the time
when
these indecent assaults took place. The learned trial judge stated:-
Unfortunately, having indicated that he would
return to the question of
delay
“again and again” in the
course
of his
charge,
the plain
fact
of the matter is that the learned trial judge unfortunately
did
not
do
so. The jury having retired to
consider
their verdict, a requisition
was
immediately raised in that regard.
That requisition was
specifically
directed
to the judge’s
failure
to give the jury an appropriate
warning
about the particular
difficulties
posed
for
the
defence
where
there had been no
contemporaneous
complaints
and
where
the
case
was
“as old as this one”
In refusing this application, the learned trial judge stated:-
In The People (DPP)
v. P.J. [2003] 3 IR 550, this
court,
(per McGuinness J.)
commenting
on the issue of
delay,
stated at p.568:-
It seems to us that whatever
prejudice arises by virtue of
delay
in the
case
of a single
complainant
can
only be seen as exponentially magnified
where
there are multiple
complainants
and a single accused. His
difficulties
of recollection, his
difficulties
in
finding
witnesses,
or of even remembering the identity of individual
complainants
are all magnified in
direct
relation to the number of
complainants
who
come
forward.
So,
while
the
difficulties
of
delay
may in such
circumstances
recede to some
degree
from
the prosecution’s point of view, they are multiplied and exaggerated
from
a
defendant’s
point of view.
This Court
is quite satisfied that the learned trial judge should have
dwelt
at some length on the
difficulties
caused
for
a
defendant
where
offences of such antiquity are alleged, particularly
where
no
complaints
were
made in the aftermath of those offences and
where
there are very
few
isolating islands of
fact
which
would
enable a
defendant
address his mind in a specific
way
to the presence or otherwise of
certain
physical arrangements or
features
of the environment in
which
it is alleged the various offences took place. In the instant
case,
virtually all of the offences are alleged to have taken place in the
classroom
and at the same point in the
classroom.
The Court
will
accordingly quash the
conviction
and
direct a re-trial.