DPP -v- CC (No. 2), [2012] IECCA 86 (2012)

Docket Number:125/10
Party Name:DPP, CC (No. 2)
Judge:O''Donnell J.

COURT OF CRIMINAL APPEALCCA/125/10O’Donnell J.Moriarty J.O’Keeffe J.Between:The People at the Suit of theDirector of Public Prosecutions RESPONDENT VC C APPELLANTJudgment of the Court delivered on the 6th day of December 2012 by O’Donnell J.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.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.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 15th 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 the judge, and the parties involved including counsel for both sides, was admirable. In particular the trial judge clearly sought to conduct this trial in a fashion which was conspicuously fair, and which was business like and efficient in the running of the trial yet sensitive to all the interests involved.4 The trial commenced with an opening statement from prosecuting counsel. It was set out that it was not in dispute that the appellant, while still a religious brother, had been a teacher in the school in the 1960s and 1970s. The allegations concerned two classes which he taught. The first time period was between 1968 and 1972, when the first three complainants (MH, RM and PH) were pupils in a class taught by the accused. The second class was one which he taught between 1973 and 1978 in which the fourth and fifth complainants (JK and DF) had been pupils. Both classes had consisted of between 65 and 70 boys of varying ages. It is not in dispute, and not perhaps surprising, that the atmosphere in the class was tough, and it appears to be accepted that the appellant repeatedly used corporal punishment, which although lawful at that time, undoubtedly contributed to the complainants’ unhappy memories of the classroom.5 The structure of the indictment was to allege one act of indecent assault for each school term in respect of all the complainants, other than the case of the complainant DF where only one act of indecent assault was charged. At the outset of the trial there was some skirmishing and an intimation given that an application might be made on the part of the defence to seek a separate trial in respect of the charges relating to each complainant. Counsel for the accused also raised concerns about his side’s capacity to deal with the disclosure which had been provided, particularly in relation to a sixth complainant (GW) who was the subject matter of counts 56-70 on the indictment. In the course of debate before the court, counsel for the prosecution offered to outline what the “system evidence” was, presumably for the purposes of explaining why the counts were being tried together. The judge observed however that there had been no application, and that this was in some sense to put the cart in front of the horse. In the event, there was no application for a separate trial (an application which had little prospect of success) but counsel for the accused did ask, “Is my friend saying that one count in someway becomes evidence in relation to another count. The law in this is far from clear and I, before embarking on this trial, from the defence point of view, would like to know what my friend says is the law in relation to this and what the attitude of the prosecution is”. The judge asked if counsel for the prosecution felt “compelled to reply” and perhaps seeing the way the argument was progressing, counsel for the prosecution said that the court was correct and that it was for counsel for the accused to say why the matter should be tried separately. There being no further application, that was the end of the forensic shadow boxing on this issue and counsel for the prosecution opened the case to the jury.6 During the opening of the case to the jury, counsel for the prosecution went to some lengths to give an explicit warning “that it is dangerous to convict in a case of this nature because of the difficulties that are faced by a defendant.” It is also fair to say that she expanded on these difficulties at some length. She then explained the substance of what remained in the case as follows:“The first three witnesses were in one class and that class was taught by [the accused], from approximately 1968 to 1972. The last two witnesses were taught by [him] from approximately 1972 to 1977. Very broadly the allegations will be from each of the five – complainants I think is the best word to use in describing these first five witnesses – very broadly the allegations that each of them was brought to or asked to come up to their teacher’s desk and this, in each case, their teacher being [the appellant] who was then teaching.The allegations will include allegations of having put the boy on his knee, [the appellant] then touched and rubbed the boy’s bottom. In at least one case he also touched the boy’s penis. In at least one other case he fingered the boy’s bottom underneath his trousers and fingered the anal area. In each case or certainly in a majority of cases there was face to face conduct and skin to skin conduct. In a number of cases the boys – they are now men in their forties – will describe to you that they were asked to kiss their teacher. You will hear some evidence in...

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