P B v DPP
| Jurisdiction | Ireland |
| Judge | Denham C.J.,Hardiman J.,Charleton J. |
| Judgment Date | 29 October 2015 |
| Neutral Citation | [2015] IESCDET 47 |
| Court | Supreme Court |
| Date | 29 October 2015 |
[2015] IESCDET 47
An Chúirt Uachtarach
The Supreme Court
DETERMINATION
Denham C.J.
Hardiman J.
Charleton J.
This determination concerns an application brought by the applicant, in which the applicant seeks a determination under Article 34.5.3° of the Constitution to allow an appeal to this Court from the decision of the Court of Appeal delivered on the 20th day of April 2015 by Sheehan J, Birmingham and Mahon JJ concurring.
The applicant was the accused in Bill number CEPD 59/2011 of a large number of counts of sexual assault, some called because of the age of the offences indecent assault, occurring while he was a teacher between September 1964 and June 1985. The applicant was by the time of his trial before the Circuit Criminal Court an elderly man and is now in his 80s. On the 11th of July 2014 he was convicted by a jury of 59 counts on that indictment and was sentenced to 5 years imprisonment with 6 years suspended thereafter. The applicant himself did not give evidence at his trial but called a number of witnesses. These testified that unlike those who complained that they had been subjected to sexual assaults from him, nothing untoward had occurred and that classes were normal and decent and his conduct as a teacher and as an adult had been proper. Upon conviction, he appealed to the Court of Criminal Appeal, a function now taken up by the Court of Appeal under the new constitutional arrangements.
In the judgment of the Court of Appeal of 20th April 2015, 12 separate grounds of appeal were considered as to why the conviction was unsound. That entire judgment is sought to be appealed against. That, in itself, is contrary to the scheme under Article 34 of the Constitution since leave to appeal to this Court depends upon identifying a matter of general public importance or demonstrating why the interests of justice require a further appeal. Thereafter, however, 1 ground seems to be isolated and argued to be a matter of general public importance. This is the particularisation of the indictment in respect of the multiple offences. The applicant states:
During the cross-examination of the second complainant to give evidence, counsel for the appellant complained to the trial judge about the lack of particularisation and absence of specificity in the indictment and the difficulty for the defence arising from the evidence of different incidents and the lack of clarity as to which of the allegations related to the counts on the indictment. At the conclusion of the prosecution case counsel for the appellant applied to have the charges withdrawn from the jury 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 to constitute sexual assault related to which count. The learned trial judge, despite acknowledging the different categories of offending given in evidence, refused to accede to the application on the basis that the book of evidence alleged the conduct of the accused towards each of the complainants and therefore he knew the nature of the conduct which it was being alleged constituted the charges of indecent assault and moreover that the trial judge could address the issue in his direction to the jury.
It is claimed, however, as two additional points, firstly that contact information for other pupils should have been given to the defence and that the trial judge's charge to the jury was inadequate in failing ‘to contextualise the manner in which the delay [in prosecution] gave rise to specific difficulties for the appellant’. The Director of Public Prosecutions opposes the application. But, regrettably, that opposition is limited to claiming that the judgement of the Court of Appeal is correct. Some reference to the issue as to whether a point of general public importance has been raised would have been both expected and helpful.
The judgment of the Court of Appeal rejected the indictment ground, holding:
Framing an indictment in old cases involving serious child sexual abuse is often fraught with difficulty. In particular, when the drafters attempting to ensure, on the one hand, that the indictment reflects the behaviour complained of and, on the other, ensuring that the indictment does...
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