DPP v O'S (D)

• Jurisdiction: Ireland
• Judge: McGuinness J.
• Judgment Date: 28 July 2004
• Neutral Citation: [2004] IECCA 23
• Court: Court of Criminal Appeal
• Date: 28 July 2004

[2004] IECCA 23

COURT OF CRIMINAL APPEAL

McGuinness J.

Murphy J.

Abbott J.

74A/01

DPP v. O'S (D)

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

and

D.O.'S

APPLICANT/APPELLANT

Citations:

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S4

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S7

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S7(1)

DPP V M 2001 4 IR 385 2000/8/3053

R V MAKANJUOLA 1995 1 WLR 1348

DPP V CULL 2 FREWEN 36

DPP V CAMPBELL UNREP MCGUINNESS 19.12.2003 2003/14/3043

MAKIN V AG FOR NEW SOUTH WALES 1894 AC 57

DPP V BOARDMAN 1975 AC 421

DPP V P 1991 2 AC 447

DPP V KELLY (BRENDAN) 2000 2 IR 199 2000/7/2696

B V DPP 1997 3 IR 140

DPP V GANNON 1997 1 IR 40

1 28th day of July 2004 by McGuinness J.

McGuinness J.

2 The applicant appeared before the Central Criminal Court on 16 ^th May 2001 charged with four counts of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990and three counts of rape contrary to section 4 of the same Act. All the counts related the alleged sexual abuse of D.C., then aged eleven years, between September 1997 and February 1998. The said D.C. was at the time a pupil at a school in the Cork area; the applicant was a remedial teacher in the same school.

3 Following a trial lasting thirteen days before O'Donovan J. and a jury the applicant was acquitted by the jury on count no. 7 (rape contrary to section 4). He was convicted by a majority verdict of eleven to one in respect of the four counts of sexual assault, and by a majority verdict of ten to two in respect of the two remaining rape counts. On 26 ^th July 2001 the application was sentenced to four years imprisonment on each of the courts of sexual assault and ten years imprisonment on each of the two counts of rape, all sentences to run concurrently.

4 Leave to appeal was refused. In this court the applicant sought leave to appeal against conviction and sentence. The application for leave was treated as the appeal itself.

Summary of Evidence

5 The applicant was born on 8 ^th July 1948 and qualified in 1967 as a national teacher. Since qualifying he had taught at the school in question in the Cork area. Following on a heart attack he had a career break for one year in 1996 to 1997. During this career break an incident occurred in which his house was broken into and he was stabbed. During his career break he did a limited course in remedial studies and upon his return to work to he took up a position as a remedial teacher in the school. Both the headmaster of the school and another class teacher gave evidence of having known the applicant for many years; both described him as an excellent teacher with a particular interest in marginalised children. The applicant was also a leader in the Boy Scout movement from in or about 1972 until 1998.

6 The complainant, D.C. was born on 21 ^st June 1986 in England. He is the eldest of five children. His family moved to Ireland when he was about seven or eight years of age and came to live in the Cork area. He attended a local national school in the area in which the family lived. Subsequent to a move of residence by the family D.C. started to attend the school in question in these proceeding at the beginning of September 1997 when he was eleven years of age. He started in fourth class; his class teacher was a Mr C. who subsequently gave evidence at the trial. D.C. suffered from dyslexia and it was therefore decided with the consent of his mother that he would benefit from remedial teaching by the applicant. During the period while D.C. attended the school the marriage between his mother and father broke down and his father left the family home. During the Christmas holiday period in 1997 D.C.'s father came to stay for a short period at the family home but this appears to have been an unhappy period when there was a degree of aggression between the parents. D.C.'s mother has since formed a relationship with a new partner by whom she has a young child. In addition to his dyslexia, therefore, D.C. had a somewhat troubled family background during the relevant period.

7 D.C. attended two types of remedial class with the applicant. There were regular classes, which might be described as the "official" classes, which took place between 11.45 a.m. and 12.15 p.m.; there was some clash of evidence as to whether these classes took place every day or three days a week. The classes took place in a dedicated room known as classroom 11. A number of young boys took part in these classes including P.B. and J.M., both of whom gave evidence at the trial. In addition to these classes D.C. attended further remedial classes with the applicant during lunchtime every day. While some other boys may have attended these classes to begin with the situation shortly developed into one where D.C. was the only pupil involved. The classes were on a one to one basis. For some time it appears that neither the headmaster nor D.C.'s mother was aware that these classes were on a one to one basis. From the evidence of the headmaster it appears that such a practice was regarded with disapproval in the school.

8 In his evidence D.C. said that during these lunchtime classes the applicant used to bring other boys into the room with him and then send them out after a while. He said that the applicant used to look the door of the classroom while he was there with him. He described the applicant leaning over his back correcting his work as he sat at his desk and that he could feel the applicant's penis against his back. He also told the jury that the applicant had on a couple of occasions put his hand down the complainant's trousers and rubbed his penis outside his underpants. In his evidence he also described how the applicant on three of four occasions committed and rape on him which he found very painful. On one of these occasions the applicant had torn his trousers. He excused this to his mother by saying that there were torn while playing in the playground but later explained to her how the damage to his trousers arose. D.C.'s mother gave evidence at the trial of having to mend the trousers and they were produced as an exhibit in evidence. The complainant also gave evidence that the applicant had forced him to take part in oral sex.

9 On 21 ^st January 1998 D.C. told his mother that he did not want to be alone with the applicant again. There was some discussion between his mother and the school authorities as to why he was not attending his remedial classes any longer. The applicant telephoned his mother and offered to teach D.C. at home. The following day D.C.'s mother encouraged the boy to speak to her new partner, P.G., and D.C. made complainants to him about sexual assault on him by the applicant. The boy then spoke to his mother along the same lines and the matter was reported to the Garda Siochana who embarked on an investigation.

10 During the investigation D.C. made three separate statements to the Gardai and it was not until his later statements that he referred to the alleged rape episodes. It was not until the end of the investigation that he complained of the oral sex episode. In fact the jury acquitted the applicant on this particular count.

11 During the course of the trial evidence was given by two other young witnesses who had been pupils at the school, P.D. and J.M. Both of these boys had attended what are described as the "official" remedial classes given by the applicant. The defence objected to this evidence and it was admitted only following a ruling by the learned trial judge. I shall refer to this later in the context of the grounds of appeal. Both boys gave evidence that the applicant had lent over them assessing or correcting their work and that they had felt his penis being rubbed against their backs.

12 Medical evidence was given for the prosecution by Dr. Elizabeth Brosnan of St. Finbarr's Hospital in Cork. She had examined the complainant some considerable time after the date of the alleged abuse. She made certain findings which she accepted were not diagnostic of but were consistent with anal abuse. Medical evidence for the defence was given by Mr Martin Corbally of Our Lady's Hospital Crumlin who had not examined the complainant but had associated Dr. Brosnan's report. His view was that Dr. Brosnan's findings were not diagnostic of anal abuse.

13 Garda evidence was given in regard to the location and type of the classroom involved and in regard to the various aspects of the Garda investigation. As far as the classroom was concerned evidence was given that it was divided from another classroom by a thin partition which would allow noise made in the classroom to be heart in the next door classroom. However evidence was also given that a number of the boys in the school were involved in the making of what was described as "string pictures"; a task which involved a great deal of hammering noise and which at times was carried out during the lunch hour break.

14 The applicant gave evidence in his own defence. He firmly and consistently denied all the allegations made by the complainant and by P.B. and J.M. He gave evidence as to the presence of other boys in the classroom while he was conducting the lunchtime class and also of the presence of the boys who were making "string pictures" in the corridor outside. His evidence was that he only locked the door of the classroom on one occasion in order to keep out a disruptive student. His evidence was that D.C. was very keen to go to the remedial classes until in or about January 1998 when some kind of football league started in the school yard. The effect of his evidence was that D.C. attended only two lunchtime classes after Christmas 1997 even though he had given evidence that three of the rapes and the oral sex incident had taken place during that period. The applicant was...