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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: http://www.bailii.org/ie/cases/IECCA/2006/C1.html
Cite as: [2006] 4 IR 287, [2006] IECCA 1

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Judgment Title: D.P.P.-v- C.C.


Neutral Citation: [2006] IECCA 1


Court of Criminal Appeal Record Number: 69/05

Date of Delivery: COLOR="000080"> 02/02/2006

Court: Court of Criminal Appeal


Composition of Court: COLOR="000080"> Kearns J., O'Donovan J., Gilligan J.

Judgment by: Kearns J.

Status of Judgment: Approved

Judgments by
Result
Concurring
Dissenting
Kearns J.
Quash conviction, order retrial & admit to bail

Outcome: Quash conviction & order re-trial

15

THE COURT OF CRIMINAL APPEAL
Kearns J.
O’Donovan J.
Gilligan J.

[CCA No.69 of 2005]

BETWEEN

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT
AND

C.C.

ALIGN=right>APPLICANT
JUDGMENT delivered on the 2nd day of February, 2006, by Kearns J.

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:-

However, he then continued:-Mr. O’Higgins submitted that by adopting this form of warning about delay, in a case in which both sides accept a warning was required to be given, the learned trial judge confused the issues of reliability arising out of infirm memories and those arising fromother agendas’. He did not in fact warn the jury that in old cases recollections on both sides are frequently vague and may appear less certain or definite by virtue of the passage of time and that this presents difficulties for the defence as well as the prosecution. He again adverted to the age of the case when explaining to the jury the nature of the issue paper before them and the dates on which the charges were laid, but his reference to the age of the case is a bare statement that the offences were alleged to have taken place “over a nine year period, which is from 37-28 years ago.”

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.

Decision

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:-

It seems to this Court that that direction was an appropriate precursor to a more detailed warning about delay in old cases such as this one.

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:-

It goes without saying that this ruling in no way addresses the particular difficulties faced by a defendant in the applicant’s position, being as it is no more than an expression of the general difficulties which delay can bring to the capacity of witnesses to recall events of more than 30 years previously.

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:-

SIZE=4 FACE="Times New Roman">In the same case (at p.570) the court further stated:-In The People (DPP) v R.B. (Unreported, Court of Criminal Appeal, 12th February, 2003), Denham J had stated (at p 20):-Quite obviously the nature and detail of the warning to be given to the jury in an old case will turn very much on the facts and circumstances peculiar to the case in question. A good example of an appropriate warning, being that given by Haugh J in The People (DPP) v R.B., was approved on appeal in that case and was further approved in The People (DPP) v P.J. [2003] 3 I.R. 550 by this Court and was in the following terms:- SIZE=4 FACE="Times New Roman">In The People (DPP) v Gentleman [2003] 4 I.R. 22, Keane CJ. underlined the need to give an appropriate warning which would be adequate in the circumstances of the particular case, stating at p.25:- It is common case that a warning most certainly had to be given in the instant case but this court is of the view that the requirements set out in The People( DPP) v P.J. [2003] 3 I.R. 550 as outlined above were not adequately dealt with.

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.


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URL: http://www.bailii.org/ie/cases/IECCA/2006/C1.html