DPP v CC

• Jurisdiction: Ireland
• Judge: O'Donnell J.
• Judgment Date: 06 December 2012
• Neutral Citation: [2012] IECCA 86
• Court: Court of Criminal Appeal
• Date: 06 December 2012

DPP v C (C)

Between:

The People at the Suit of the Director of Public Prosecutions

RESPONDENT

V

C C

APPELLANT

[2012] IECCA 86

O'Donnell J.

Moriarty J.

O'Keeffe J.

CCA/125/10

COURT OF CRIMINAL APPEAL

Criminal law - Sexual offences - Indecent assault - Appeal against conviction - Appeal against sentence - Standard of proof - Delay in prosecution - Direction to jury - Recovered memory - Cumulative effect - Corroboration of evidence

Facts: The appellant was a former religious brother who was charged and convicted of 35 counts of indecent assault against several complainants during the 1960s and 1970s whilst he was a teacher at a national school. He was sentenced to 12 months imprisonment but because he already spent 10 months in custody, he was not required to serve any further sentence of imprisonment. He subsequently appealed against the conviction on a number of grounds whilst the Director of Public Prosecutions appealed against the sentence on the grounds that it was unduly lenient.

The appellant's first ground was that the judge had erred in law in failing to withdraw a number of counts against him which were as a consequence of complaints made by the witness 'PH'. PH had admitted that he had no memory of the alleged incidents until some 25 years after they had occurred when he was able to make recollections. The appellant contended that it was for the prosecution to provide evidence to explain this sudden memory recovery which was not done. The second ground was that as an alternative to the first, the judge had erred in failing to direct the jury properly as to the reliability of recovered memories and that the direction that was given was inadequate without supporting expert evidence. The third ground was that the judge had erred in giving his opinion to the jury that the complainant 'JK' was an honest witness.

The fourth and fifth grounds concerned the delay and lapse of time between the alleged incidents and the prosecution which was contended as prejudicial against the applicant especially in light of the lack of specific evidence put forward by the prosecution. It was averred that the judge erred in not withdrawing all counts against him or alternatively, that the direction to the jury was inadequate. The sixth ground was that the judge had erred in his direction to the jury that in referring to the fact the applicant had not given evidence, that there was no obligation on him to do so. The seventh, eighth, ninth and tenth grounds were that the judge erred in his direction to the jury by not directing adequately as to corroboration as to the witnesses because of the similarity between the allegations made against the appellant.

On the first and second grounds, it was held by O'Donnell J that the judge had not erred in not withdrawing the PH related charges. Expert evidence was not required because this was not a case where PH had suddenly believed he could remember events that he had long since forgotten as a result of therapy, but a case where the complainant had not thought about the events for a long time but was able to recall them when questioned by the gardai. However, the judge had erred in his direction to the jury. He had suggested an explanation of recovered memory to the jury that it allowed for full and clear recollection of past events when the applicant's case aimed to challenge the credibility and accuracy of the complainant's account and this had the potential to mislead the jury. On the third ground, it was held that in a case where there was so little evidence and the issue of credibility was key, it was a significant error for the judge to then give his opinion to the jury on the honesty of witnesses.

On the fourth and fifth grounds, it was held that the judge had not erred. There was a potential for the lapse of time to have been prejudicial to the applicant but it was deemed that the direction that had been made to the jury had highlighted the potential flaws in the prosecution's case adequately and provided a warning to take these factors into account when reaching a verdict. On the sixth ground, it was held that the judge had properly made the jury aware that no adverse inference should be drawn by the fact the applicant had not given evidence. On the seventh, eighth, ninth and tenth grounds, it was held that the direction given by the judge to the jury was inadequate as to warn them to consider carefully where was no corroboration between the witnesses evidence.

It was finally held that there was a cumulative effect of the individual grounds that meant the conviction could not be sustained.

Conviction quashed.

1 Judgment of the Court delivered on the 6th day of December 2012 by O'Donnell J.

2 1 This appeal illustrates in quite a stark way the difficulties posed for the administration of justice by the trial of offences, often indecent assault and other serious crimes, alleged to have occurred a considerable period before and when the complainants were young children. Such cases are often referred to as childhood sex abuse cases, but that description covers a wide range of fact situations. The revelation of widespread sexual abuse of children, particularly by persons in authority including members of religious orders, has been a feature of Irish life for the past quarter century approximately but has still retained its capacity to shock. The interests of justice towards the victims of sexual abuse, and the public interest more generally, demands that such matters be sensitively investigated, if appropriate be the subject of a criminal trial, and where guilt is established to the standard required by the criminal law, that the perpetrator be punished. But justice also demands that no person be convicted of a criminal offence other than where their guilt of the specific offence charged is established beyond any reasonable doubt, and after a trial in which only admissible evidence is received and where the procedures adopted both in investigation and at trial, have been fair. This is rightly a rigorous and demanding standard, and all the more so when cases are tried after a significant lapse of time with inevitable loss of witnesses, impairment of memory, and sometimes loss of more tangible evidence. The clash of these competing demands has often resulted in protracted and difficult proceedings which have rarely been entirely satisfactory for any of the participants involved.

3 2 Here the appellant is a former religious brother who taught in a national school in the west of Ireland in the 1960s and 1970s. Long after the period with which this appeal is concerned (and in circumstances apparently unconnected with any of the matters now alleged) he left religious life, got married and established a family. In 1999 he became the subject of an active Garda investigation resulting in prosecution. The trial the subject of this appeal commenced in February 2010. The appellant originally faced 70 counts of indecent assault contrary to common law. As a result of developments at the commencement of the trial the Director of Public Prosecutions agreed not to proceed with counts 56-70 in relation to one complainant (GW). At the close of the prosecution case the trial judge directed withdrawal of a further 20 counts namely counts 1 (being one of the charges concerning a complainant MH), counts 15-28 inclusive (being all of the charges concerning complainant RM), and counts 31-35 (concerning complainant PH). Consequently 35 counts of indecent assault (concerning four complainants; MH, PH, JK and DF) went to the jury which returned a verdict of guilty on all counts. The appellant was sentenced by the learned trial judge to 12 months imprisonment on counts 2, 29, 38, and 58, this being one count in relation to each individual complainant. The other counts were also taken into account. For reasons which will shortly be discussed, the appellant had already served ten months imprisonment on these charges and accordingly, as a result of his conviction and sentence, he was not required to serve any further time in custody. The appellant now appeals against his conviction on the 35 counts. The Director of Public Prosecutions has also appealed the sentence contending that it was unduly lenient. The appeal which is the subject matter of this judgment was confined to the appeal against conviction.

4 3 This was not the first time the appellant had been in court in respect of these matters. When originally charged, he had unsuccessfully sought to have his trial prohibited on the grounds of the passage of time since the events of which complaint had been made. In 2005 he was tried and convicted on 180 counts of indecent assault in respect of his time as a teacher, which appear to have included the charges and complaints now the subject matter of these proceedings. He was sentenced to eight years imprisonment. While detained in prison he was the subject of a serious assault. In February 2006 the Court of Criminal Appeal quashed his conviction on the ground that the direction given in relation to the manner in which the jury should approach the question of the lapse of time since the events was inadequate. Thereafter two further trials commenced both of which had to be aborted, first because of an inadvertent reference in the evidence to the first trial and conviction, and the second because of a desire to avoid any possible perception of conflict of interest on the part of one of the lawyers involved. Accordingly when this trial commenced on the 15 ^th of February 2010 it was the fourth time that the accused had been arraigned on these charges and, it should be said, the fourth time that the complainants and other witnesses had been obliged to come to court. It is necessary to say that the conduct of this difficult trial by...