DPP v C.C.

• Jurisdiction: Ireland
• Judge: Kearns J.
• Judgment Date: 02 February 2006
• Neutral Citation: [2006] IECCA 1
• Date: 02 February 2006
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A. No. 69 of 2005]

[2006] IECCA 1

THE COURT OF CRIMINAL APPEAL

Kearns J.

O'Donovan J.

Gilligan J.

[C.C.A No. 69 of/2005]

DPP v C (C)

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

C.C.

APPLICANT

DPP v B (R) UNREP CCA 12.2.2003 2003/13/2871

DPP v J (P) 2003 3 IR 550

DPP v GENTLEMAN 2003 4 IR 22

CRIMINAL LAW:

Delay

Charge to jury - Delay in making complaint -Multiple complainants - Prejudice to accused- Whether direction of trial judge on issue of delay mandatory - People (DPP) v C(C) -DPP v C (C): 2006 4 IR 287; [2006] IECCA 1

1 JUDGMENT delivered on the 2nd day of February, 2006, by Kearns J.

2 The applicant was convicted of 180 counts of indecent assault involving six complainants in Sligo Circuit Court on 19 ^th 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 1 ^st July, 1968 and 30 ^th June, 1977.

3 On 9 ^th 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 18 ^th March, 2005.

4 In summary, the evidence of the six complainants was as follows:-

5 (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 (6 ^th class).

6 (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.

7 (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.

8 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.

9 (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 cased off after two years; he also saw other boys on the applicant's knee.

10 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.

11 (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.

12 (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).

13 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.

14 Various grounds of appeal have been lodged, including:-

15 (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.

16 (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.

17 (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.

18 (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.

19 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

20 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:-

"As has been pointed out, and I will come back to this again and again, how old this case is."

21 However, he then continued:-

"So do the witnesses appear to have a good memory? Did a witness appear to be honest and straightforward in answering questions or were they evasive and shifty? Has a witness any interest in the result? Well it is obvious that the witness for the prosecution is in support of a conviction, is it equally obvious that the witness for the defence is in support of acquittal. So you have to bear in mind that people have their own agenda so to speak apart from giving you their best, truthful recollection of the facts as they remember them."

22 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 from 'other 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...