P.B. v DPP

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley
• Judgment Date: 06 September 2013
• Neutral Citation: [2013] IEHC 401
• Court: High Court
• Date: 06 September 2013

B (P) v DPP

JUDICIAL REVIEW

Between/

P.B.

Applicant

-and-

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

[2013] IEHC 401

Record No. 74 JR/2012

THE HIGH COURT

JUDICIAL REVIEW

Prohibition

Prosecution - Indecent assault - Delay - Fair trial - Prejudice - Health of accused - Test to be applied - Whether real risk of unfair trial - Whether degree of disability suffered justifying prohibition of criminal trial - Whether failure of investigating gardaí to take notes of interview justified prohibition of criminal trial - Whether death of witness gave rise to real risk of unfair trial - SH v DPP [2006] IESC 55, [2006] 3 IR 575 and K v Judge Moran [2010] IEHC 23, (Unrep, Charleton J, 5/2/2010) applied - People (DPP) v Lacy [2005] IECCA 70, [2005] 2 IR 241; R v Oliva (1965) 49 Crim App R 298 and PT v DPP [2007] IESC 39, [2008] 1 IR 701 considered - Relief refused (2012/74JR - O'Malley J - 6/9/2013) [2013] IEHC 401

B(P) v Director of Public Prosecutions

Facts The applicant sought injunctive relief to prevent his pending prosecution against on indecent assault charges. The offences allegedly took place when the applicant was a schoolteacher in a small rural national school. The applicant contended that the delay had prejudiced him in his defence the extent that there was a real risk of an unfair trial which could not be remedied by the rulings of a trial judge. It was also contended that there was specific prejudice in that the applicant”s own memory of events after such a length of time was poor. Witnesses who could have been of assistance to him were dead and it was contended that investigating Gardaí failed to make adequate notes of their interviews with the complainants. It was further submitted that the death of a particular witness had prejudiced his defence.

Held by O”Malley J in refusing the relief sought. The issue was whether prejudice had arisen as a result of the delay and, if so, whether it was such so as to have given rise to a real risk of an unfair trial. The court accepted that the applicant was elderly, had health problems and that these charges had caused real stress and upset to him. This was a normal reaction to being charged with a criminal offence. Although a teacher could not be expected to remember all the pupils taught over a long career, this did not mean that old allegations could not be tried. The applicant had not discharged the burden of showing a real or serious risk of an unfair trial. There was no authority for the proposition that failure by the Gardaí to take notes was a ground for prohibition or that the unavailability of a potential witness would render his trial unfair.

H (S) v DPP 2006 3 IR 575

K v JUDGE CARROLL UNREP CHARLETON 5.2.2010 2010/24/6037 2010 IEHC 23

DPP v LACY UNREP CCA 12.5.2005 2005/20/4166 2005 IECCA 70

R v OLIVA 1960 46 CAR R 241

Introduction

1 In this case the applicant seeks injunctive relief relating to the pending prosecution against him of 67 counts of indecent assault. The charges concern 11 female complainants and date from between 1965 and 1985. During this period of time the applicant was a schoolteacher in a small rural national school. Each of the complainants was a pupil in the school at the relevant times.

2 The applicant denies the allegations. He claims that the delay in prosecuting him has prejudiced him in his defence to the extent that there is a real risk of an unfair trial which could not be remedied by the rulings or directions of a trial judge. He further alleges specific prejudice in that his own memory of events after such a length of time is poor; that his health generally is suffering from the stress of the allegations and investigation; that witnesses who could have been of assistance to him are dead; and that the investigating Gardai failed to make adequate notes of their interviews with the complainants. One further matter that arose after the grant of leave in the case is very much relied upon and that is the death of a man to whom I shall refer as A.

History of complaints and the investigation

3 The applicant was born on the 24 ^th February, 1934. He qualified as a teacher in 1954 and after some years in the profession was employed by the school in question in 1964. He taught there until his retirement in 1989.

4 The school was as already stated a small one, with two teachers and two adjacent classrooms. One teacher took 1 ^st, 2 ^nd and 3 ^rd class in one room, while the applicant took 4 ^th, 5 ^th and 6 ^th in the other. In some years there was a 7 ^th class, which the applicant also took. During the period of the applicant's employment the post of the second teacher was held by four women, the first three of whom are now deceased, while the fourth took up her position only in the final year of his time there. There are no complaints in relation to that year.

5 There is evidence regarding the layout of the school and it does not appear to be in dispute that there has been no change material to this case in that layout since the school was built in 1961. There is also evidence, from the current principal, that the original two-seater desks were there until relatively recently and at least one is still available for inspection.

6 On the 12 ^th March, 2010 the man referred to as A. went to the local Garda station to make complaints against the applicant. A. was a past pupil, born in 1964, who had been in the school from 1968 to 1976. He spoke to Garda Margaret Wren, who recorded that he was very distressed. He told her that he had been physically assaulted by the applicant and that the applicant had on one occasion exposed himself to him and asked him to perform a sex act. He further alleged that he had witnessed the applicant touching girls inappropriately and that he had once seen him in the girls' toilet with a girl. A. was not able to make a statement at this time.

7 On the 18 ^th May, 2010 A. returned to the station and made a written statement to Garda Wren. He recalled being in the applicant's class from 1972 until he left the school. He named one other boy and five girls as having been in his class, out of about 30 children in the classroom.

8 The complaints made in relation to A. himself concerned, for the most part, incidents of severe physical beatings. He described one such incident as having started at about half nine in the morning, continuing until lunchtime and then starting again after lunch for an hour. He said that his mother confronted the applicant over this, that he was off school for two weeks and that the applicant did not beat him again. A. said that not long before this beating he had gone with the applicant to clean the boys' toilet. He alleged that the applicant took his penis out saying "suck my mickey". A. said that he reacted by telling the applicant to "go fuck" himself and running out of the room.

9 A. also described the applicant's conduct with girls in the class. He said that the applicant used to ask the girls from the bigger classes to take out the ashes from the fire or to look after the daffodils. He would then leave the classroom after the girl and they might be gone half an hour. While the applicant was gone the class would go "out of control". A. said that it was always just one girl and it could be any one of them. He said that "thinking back on it" the girls used to be distressed but nobody ever said anything.

10 A. alleged that the applicant would often call a girl up to the front of the class, where he sat on a stool. He would make the girl stand between his legs and run his hands up under her skirt or inside her trousers. The girls were distressed by this.

11 Three specific events were recounted by A. In relation to one, A. said that he was passing the school shed one day when he heard a girl screaming. He said that he knew the applicant was in the shed with her. On another day he was walking past the toilets. The door was open and he saw the applicant in the girls' toilet. There was a girl with him and she was masturbating him. The third occasion was when the class had been taken out for a nature walk. A. said that he saw the applicant stripping a girl naked in a field. His trousers were pulled down. A. said that that was not the only time the applicant had taken a girl to that field. He stated that other boys saw this but nobody said anything, out of fear.

12 No girl is named or described by A. in respect of any of these incidents.

13 In the concluding part of his statement A. referred to having had a lot of counselling, and needing more. He said that the applicant and another named man had, between them, ruined his life.

14 The Book of Evidence contains the statements of 11 complainants, four of whom are sisters. The initial statements are dated as having been taken on the 6 ^th July, 2010, the 8 ^th July 2010, the 1 ^st October, 2010, the 7 ^th December, 2010, the 20 ^th December, 2010, the 27 ^th December, 2010, the 29 ^th December, 2010 (two complainants), the 3 ^rd January, 2011, the 13 ^th January, 2011 and the 15 ^th January, 2011. There is controversy as to how the complaints came to be made.

15 Detective Garda Oliver Downes says in his statement that on the 7 ^th December, 2010 he obtained from the current principal of the school the roll books covering the period 1964 to 1989. He and Garda Wren then endeavoured to contact past pupils as potential witnesses. It is however clear that they had commenced the process before getting the roll books, in that a number of contacts are recorded as having been made in earlier months. According to a "diary" of the investigation the Gardai succeeded in speaking with about 155 past pupils, the vast majority of whom appear to have had nothing to say on the issue, or said that they saw nothing of an indecent nature.

16 The behaviour alleged against the applicant by the complainants can...