O'B. v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hardiman. |
| Judgment Date | 05 February 2007 |
| Neutral Citation | [2007] JILL-IESC 020501 |
| Date | 05 February 2007 |
| Court | Supreme Court |
[2007] JILL-IESC 020501
THE SUPREME COURT
Hardiman J.
Geoghegan J.
Kearns J.
JUDGMENT ( ex tempore) delivered on the 5th day of February 2007,by Mr. Justice Hardiman.
This is a difficult and in some ways an agonising case having regard to the principles I am about to expound. It is, as will be seen, a borderline case, however, it is one of which I have come to a clear view and I do not think there is any point in delaying the giving of judgment.
The bare facts of the case are such that there is not a great deal of disagreement about them. The applicant is an 87 year old member of a religious order and he is a former secondary school teacher. He is charged with offences committed in relation to three people who were then school boys, two of whom are brothers. In relation to the first complainant there are 19 allegations relating to alleged episodes of a sexual character at a swimming pool adjoining the school, and in the school library on dates between June of 1977 and September of 1981, roughly from 30 to 26 years ago. In relation to the second complainant there are 11 allegations relating to incidents at the swimming pool between June 1977 and January 1980, roughly, that is, 30 to 27 years ago In relation to the third complainant there are seven allegations relating to the swimming pool and library on dates between September 1974 and June 1976, that is roughly 33 to 30 years ago. The third complainant, it requires to be observed, is a brother of the first.
Complaints were made by all of these complainants in May of 2002 at which time the applicant would have been 82 years old. At the same time. May of 2002, the eldest complainant was 40 years old, his brother was 38 and the third complainant 37 years of age. The applicant was interviewed in June, 2002, and again in October, 2002, and was charged a little over a year later on the 28th November, 2003. A book of evidence was served later in March, 2004 and further information provided by way of disclosure in November, 2004.
Some, and I think it is fair to say not much, emphasis was laid by Ms. Murphy, on the point that a potential witness (but also, the prosecution say, a potential co-defendant), another priest of the same establishment, died in January, 1990. The other fact that perhaps requires mentioning is that one of the complainants made in some detail a similai allegation in relation to a caretaker but no charge was preferred in relation to him.
In those circumstances, the issue which requires to be addressed emerges clearly and each side, in my view, has a strong case in what you might call visceral justice. It is a feature of this case that the State seem to lay more emphasis on that aspect than the defence in the submissions which were made. On the one hand, one has three boys now men in theirlate 30s or early 40s claiming abuse by a priest and teacher. They allege, and there is evidence to support it in at least one of the cases in a significant way, great distress, arguably very lasting and very far reaching in its effects. They dealt with what they said occurred in different ways. One, the most dramatically affected, after many years in the year 2002, broke down at his parents table and in those circumstances made the allegations which have led to the bringing of the charges. Another, obviously somewhat more robust, at the age of 18 declined support m making a complaint in relation to the allegations he made and dealt with it in his own way.
On the other hand there is the applicant a man now of 87 years of age, ill to a degree that was somewhat, but only somewhat, disputed, arguably isolated in the country having been removed from his long-term home, vulnerable to stress, barely able to read for any long period and prone to confusion, especially if pressed upon details.
The question really resolves itself into this: must he be exposed, in other words does justice require that he be exposed, to the stresses, hazards and shame of a public trial, or would, to put him on such trial, be oppressive? I think it is fair to say that, although it was not expressly limited in this way, the thrust of the case advanced on behalf of theapplicant by Ms. Murphy is not that a trial would necessarily be unfair, though she did not prescind from the suggestion that it would be, but that it would be unfair in the circumstances of the case to put the defendant on trial. And in those circumstances she would say, at least in relation to that submission she would say, that the case is one of those not excluded, in the words of the Chief Justice in H. v. Director of Public Prosecutions (unreported, Supreme Court, 31 July, 2006) which "does not exclude wholly exceptional circumstances where it would be unfair or unjust to put the accused on trial", the distinction being between an apprehension of an unfair trial and an unfairness in putting the defendant on trial.
I think it is fair to say that this submission is principally based on the very advanced age of the applicant here, the defendant in the criminal proceedings combined with his state of health. Ms. Murphy referred to the case of Meenan v. Commission to Inquire into Child Abuse [2003] 3 IR 283 and I first thought the case less then relevant because of course it related to civil or at least to non-criminal proceedings, but it has occurred to me subsequently that the case is indeed of relevance because it relates to the position of an elderly person being put in a position of very considerable stress. Meenan was a case of a man of intellectual eminence and undoubtedly robust personality. He was nevertheless summoned at the age of 86 to give evidence in relation to varioustransactions in the nature of medical research which he had undertaken perhaps 40 years previously....
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