DPP v B (P)

• Jurisdiction: Ireland
• Judge: Mr. Justice Sheehan
• Judgment Date: 20 April 2015
• Neutral Citation: [2015] IECA 81
• Court: Court of Appeal (Ireland)
• Date: 20 April 2015

[2015] IECA 81

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Mahon J.

246/14

DPP v B (P)

The People at the Suit of the Director of Public Prosecutions

Respondent

v

P.B.

Appellant

Indecent/Sexual Assault - Imprisonment - Appeal against Conviction - Evidence - Unsafe Verdict - Right to a Fair Trial - Grounds of Appeal - Practice and Procedures

Facts: In this case the appellant was convicted on 59 counts of indecent or sexual assault which occurred between the 1st September, 1964 and the 26th June, 1985, in respect of eleven different complainants. The appellant was sentenced to eleven years imprisonment with the final five years suspended and appealed against both conviction and sentence. This judgment was concerned solely with the appeal against conviction. Firstly, it was submitted that the trial judge erred in failing to require the DPP to disclose to him all relevant material within her possession either prior to the trial or in the course of the applications made during the trial and that having regard to that failure the trial was unsatisfactory and the verdicts unsafe. Secondly, it was submitted that the trial judge erred in law and in fact in refusing to transfer the trial to Dublin. Thirdly, it was alleged that the failure by the prosecution to sufficiently particularise the counts on the indictment rendered the trial unfair and the verdict unsafe. In another ground of appeal the appellant contended that the trial judge erred in refusing an application for a direction on his behalf at the conclusion of the prosecution case on grounds of delay and breach of the appellant's right to a fair trial which gave rise to prejudice. The final grounds of appeal all sought to demonstrate inadequacies in the trial judge's charge to the jury in that he failed to contextualise the manner in which the delay gave rise to specific difficulties for the appellant and that he failed to direct the jury to the specific prejudice to the appellant caused by the absence of Garda notes etc.

Held by Justice Sheehan in light of the available evidence and submissions presented, that the appeal against conviction would be dismissed. Acknowledging that counselling records may include intensely private and personal information, much or all of which may be irrelevant to the issue for determination by the jury or court as the case may be, the Court reasoned that the trial judge was correct in refusing to order that these notes be produced. Accordingly, the Court rejected that ground of appeal. It was also reasoned that the trial judge had exercised his discretion properly and acted in accordance with his statutory obligation in refusing to transfer the trial to Dublin. The Court also determined that the trial judge was right in refusing to direct the prosecution to amend the indictment and that he was also right in holding that the manner in which the indictment was drawn constituted neither unfair procedures nor did it lead to an unfair trial. It was further reasoned that the trial judge was correct in refusing to grant a direction because of delay and accordingly rejected that ground of appeal also. It was the opinion of the Court that the trial judge was correct in refusing to direct the jury that specific prejudice was caused to the appellant by the death of Mr. A, the unavailability of Garda Wrenn and the absence of Garda notes. The absence of Garda notes and the unavailability of Garda Wrenn were unrelated to the question of delay and there was no evidential basis for suggesting that the appellant was specifically prejudiced by the death of Mr. A. It was further reasoned that there was no fault with the trial judge's charge on delay, nor for that matter did the Court find any fault with the said charge insofar as it related to the presumption of innocence and an explanation as to what constituted reasonable doubt. Accordingly, the appeal against conviction was dismissed.

Introduction

1 1. On the 11 ^th July, 2014, the appellant was convicted on 59 counts of indecent or sexual assault which occurred between the 1 ^st September, 1964 and the 26 ^th June, 1985, in respect of eleven different complainants. The appellant was sentenced to eleven years imprisonment with the final five years suspended and appealed against both conviction and sentence.

2 2. This judgment is concerned solely with the appeal against conviction.

3 3. On the 2 ^nd December, 2014, the appellant filed twelve grounds of appeal which are set out hereunder:

1 The learned trial judge erred in failing to require the prosecution to disclose to the appellant all relevant material within its possession either prior to the trial starting or during the applications which were made throughout the trial and, having regard to the failure to make full disclosure, including in respect of matters over which the complainants had control, the trial was unsatisfactory and the verdicts are unsafe.

2 The trial was unsatisfactory and the verdicts were unsafe having regard to the various applications, submissions and requisitions made on behalf of the appellant and the adverse rulings made by the learned trial judge in respect of same.

3 The learned trial judge erred in law and in fact in refusing to transfer the trial to Dublin having regard to the very large number of complainants and witnesses and the very large number of persons in the Clare area who are former students of the appellant and the risk that members of the jury drawn from that area could be influenced by the fact that they were likely to have contact with such persons after delivering a verdict.

4 The learned trial judge erred in law in refusing an application during the cross examination of the second complainant to give evidence that the prosecution should particularise what behaviour was included in the counts relating to the said complainant in the indictment and in particular that the prosecution should be obliged to particularise the particulars of the offence or the category of offending behaviour relating to each count on the indictment.

5 The learned trial judge erred in law in refusing to withdraw the charges at the conclusion of the prosecution case on the basis that the appellant was prejudiced by the lack of specificity in the indictment in that it was impossible to distinguish what complaint as to conduct alleged or to constitute sexual assault related to which count.

6 The learned trial judge erred in law in refusing an application for a direction on behalf of the appellant at the conclusion of the prosecution case on the grounds of delay and breach of fair trial rights which prejudiced the appellant.

7 The learned trial judge erred in law in failing to charge the jury in sufficient terms on how the delay in the complaints gave rise to specific prejudice to the appellant in particular by reason of unavailable evidence and deceased witnesses.

8 The learned trial judge erred in fact and in law in failing to charge the jury adequately as to the presumption of innocence and reasonable doubt.

9 The learned trial judge erred in law in the part of his charge where he referred to the fact that the appellant had not given evidence.

10 The learned trial judge failed to adequately put the nature of the defence case to the jury.

11 The learned trial judge erred in law in failing to recharge the jury adequately in response to the requisitions raised by counsel for the appellant.

12 Having regard to all the circumstances relating to the learned trial judge's charge to the jury, the trial was unsatisfactory and the verdict unsafe.

4 4. Written submissions in support of ground 1 and grounds 3 to 12 inclusive were filed on behalf of the appellant and the respondent filed written submissions in reply.

5 5. In order to consider these grounds of appeal it is necessary to set out the background to the offences.

Background

6 6. The appellant was a primary teacher in a national school in County Clare which was a small, mixed, two teacher school in a rural area. He is presently eighty years of age and has hearing difficulties.

7 7. Eleven complainants alleged that when they were young girls in fifth or sixth class they were indecently assaulted by him at school.

8 8. The indecent assaults alleged against the appellant arose either when he would sit down beside the girls at their desks and touch them indecently or when he would call them to the front of the class and make them stand between his legs while he was pressed against them, sometimes bringing their hands up and down his legs and making some of them touch his clothed genital area.

9 9. The first complainant stated that in addition to being indecently assaulted in the classroom she was also kept back on occasions after school and the same offending behaviour occurred. The tenth complainant also stated that she had been indecently assaulted in the hallway between the classroom and the toilet. Apart from these particular complaints all other offences occurred in the classroom in the presence of other pupils between thirty and fifty years ago.

10 10. The prosecution called four former pupils in support of the eleven complainants. The first witness stated that the appellant had been a very strict teacher and he remembered him bringing fifth and sixth class girls to the front of the class and getting them to sit on stools to read stories. The appellant had been his teacher from 1981 to 1983.

11 11. The second supporting witness who was married to one of the complainants said he had been a pupil at the school from 1964 to 1972. He gave evidence that there were six boys and four girls in his class and he remembered girls being brought to the front of the class and the appellant making them stand between his legs while he had his hands around them whispering...