P.L v Buttimer

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan,Mr. Justice Hardiman
• Judgment Date: 20 December 2004
• Neutral Citation: [2004] IESC 110
• Court: Supreme Court
• Docket Number: [S.C. No. 348 of 2003]
• Date: 20 December 2004

L (P) v. BUTTIMER & DPP

Between:

P.L.

Applicant/Appellant

and

HER HONOUR JUDGE BUTTIMER

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

[2004] IESC 110

348/03

THE SUPREME COURT

Synopsis:

[2004] 4 IR 494

Appeal - Tests To Be Applied - Whether Delay Of Itself In Absence Of Specific Prejudice Sufficient - Whether Delay In Making Complaint Referrable To Accused's Own Actions - Whether Degree To Which Accused's Ability To Defend Himself Has Been Impaired Is Such That Trial Should Not Be Allowed To Proceed

Facts: The High Court refused the applicant an order by way of judicial review prohibiting the further prosecution of eight counts of indecent assault which dated back in excess of 30 years at the time of the making of the complaint on the ground that the delay was attributable to the effect of the offending conduct, of itself, on the complainant. The applicant appealed that refusal to the Supreme Court

Held by the Supreme Court in allowing the appeal that in the absence of specific factual evidence the delay itself, notwithstanding the prorated period during which the applicant enjoyed a portion of dominance over the complainant, was sufficient to create the real and serious risk of an unfair trial.

Reporter: F.McE.

Citations:

O'C (J) V DPP 2003 3 IR 478

O'C (P) V DPP 2000 3 IR 87

CONSTITUTION ART 38.1

C (P) V DPP 1999 2 IR 25

O DOMHNAILL V MERRICK 1984 IR 151

SHEEHAN V ALMOND 1982 IR 235

O'REILLY V CIE 1973 IR 278

O'KEEFFE V COMMISSIONER OF PUBLIC WORKS UNREP SUPREME 24.3.1980 1980/9/1610

ALLEN V SIR ALFRED MCALPINE & SONS LTD 1968 2 QB 229 1 AER 543

LEK V MATTHEWS 1926 25 LL LR 525

G V DPP 1994 1 IR 374

J (B) V DPP UNREP SUPREME 19.12.2003 2003/28/6468

DPP V REDMOND UNREP CCA 28.7.2004

D (D) V DPP UNREP SUPREME 19.5.2004

DPP V BYRNE 1994 2 IR 236

HOGAN V PRESIDENT OF THE CIRCUIT COURT 1994 2 IR 513

BARRY V DPP & ORS UNREP SUPREME 17.12.2003 2003/5/993

1 Mr. Justice Hardimandelivered the 20th day of December,2004.

2 This is the applicant/appellant's appeal against so much of the order of the High Court (Herbert J.) perfected the 9 ^th September, 2003 as refused to restrain the second-named respondent from taking any further steps in relation to a prosecution of the appellant. In the prosecution, the Director has preferred eight counts of indecent assault on one B.L. These are said to have taken place between the1 ^st July, 1966 and the 30 ^th June, 1968 i.e between 36 and 38 years ago.

3 The appellant seeks relief on the substantial ground that the delay and lapse of time between the dates of the alleged offences and the prosecution thereof is such that of itself, and in all the circumstances of the case, will as a matter of probability cause the appellant prejudice in the defence of these proceedings. He says that to proceed with the criminal trial would be unfair and unjust and would constitute a violation of his right to a trial in due course of law.

Factual background.

4 The applicant was born in April, 1928 and is accordingly now in his77 ^th year. He is a retired teacher and a member of a religious order. The complainant was born in May, 1956 and is now in his49 ^th year. He works as a public relations consultant having formerly worked as a child care worker and in the advertising industry. He is the holder of a diplomain psychotherapy, awarded in the mid 1980ies. He has been seeing a psychiatrist since that time.

The allegations

5 The allegations relate to a time when the appellant was a teacher and the complainant a pupil at a school in a large provincial town. The complainant alleged that while he was in fifth and perhaps sixth class in the National School he was sexually abused by the appellant in the following context. He said that the appellant had a stamp collecting class on Saturday mornings between 10am and 12 noon. At this class, he said, the appellant would sit at his desk at the front of the class. He would call the boys up one by one with their stamp books. In view of the arguments made on the hearing of the appeal I set out in full the complainant's description of the desk:-

"The desk was tall, enclosed at its front and sides and as one looked up towards it from the class the only portion of one's body visible was the chest upwards".

6 The desk itself was on a raised platform.

7 The form of abuse alleged was that, while looking through the complainant's stamp book, the appellant allegedly felt his private parts by putting his hand up the leg of the appellant's short trousers when hewaswearing these and by pulling his trousers down if he was wearing long trousers. He also said that the appellant exposed himself on these occasions though he also stated that he was unable to say how he managed to do this since he always wore a soutane. At the relevant time, the complainant was been between 10 and 12 years old and the appellant between 38 and 40 years.

Conflict on facts.

8 The appellant was interviewed on several occasions by the Gardaíand he consistently denied the allegations. He said he could not remember the complainant individually but from records was aware that he had taught him in sixth class in 1967/68. He had never taught5 ^th class. It seems that during most of his career he taught scholarship classes until these were abandoned with the introduction of free secondary education in 1967. Up to then, he said, he was teaching on Saturdays because the scholarship classes would have extra tuition. With the ending of the scholarship classes he said he began to play golf on Saturday mornings from 8.45am onwards. He did not recall at all bringing students to the desks during stamp class and doubted if he himself sat there. His denials of the allegations were repeated and couched in very strong terms. He appears to have cooperated fully with the Gardaí and identified his handwriting in the rolls for therelevantyears. There were however no rolls for Saturday morning. The applicant denies that the stamp collecting classes ever took place on a Saturdaymorning.

9 After service of the Book of Evidence, which contained the description of the desk quoted above, the applicant said in an affidavit that to the best of his recollection the teachers' desks:-

"... were not enclosed but were low tables with drawers on one side and that they were placed on a raised platform at the front of the classroom... They were not as described by thecomplainant".

10 He said however that he could not independently verify his recollection of the desks because the items themselves were not available for inspection having been replaced by more modern classroom furniture and that the authorities of his Order could not establish exactly when the replacement took place.

11 It appears that the appellant's suggestion that he was elsewhere on Saturday mornings in and after 1967 may have been put to the complainant because other evidence was produced suggesting that the stamp collecting classes had perhaps occurred on Friday evenings. In a replying affidavit the complainant stated that "stamp collecting classeswere held occasionally on Saturday mornings in the school by the appellant". (Emphasis added)

Islands of fact.

12 The two factual matters mentioned above — the day on which the stamp collecting classes took place and the nature of the desk —appear to be the only islands of fact, as I have used that term in other cases, in what is otherwise a case of unsupported assertion and baredenial.

13 The role of such isolated factual elements in a case such as this was described, in my judgment in JO'C v. DPP[2000] 3 IR478 at 504:-

"The effect of documentary, physical or forensic evidence, where it exists is to provide some basis on which the part of a case which depends on mere assertion can be assessed and tested. Inevitably there will be a certain number of criminal cases, and far fewer civil cases, in which no such evidence exists. In such a case each side will normally look to the surrounding circumstances: the prosecution to see whether there is corroboration or at least evidence consistent with the allegations being true, and the defence to see if there is material with which the complainant's story can be contradicted, even on a collateral matter, or his credibility challenged. Apart from the effect of lapse of time on the memories of those principally involved, an interval of twenty or more years makes it difficult if not impossible to clarify the surrounding circumstances and to introduce any element at all of undoubted fact with which the statements of the parties can be correlated and tested. The element of hazard or chance which this state of affairs introduces into a trial has been recognised for centuries. The more nearly a serious trial consists of mere assertion countered by bare denial, the less it resembles a forensic inquiry at all".

14 The role of evidence in relation to surrounding circumstances was more fully discussed in PO'C v. DPP[2000] 3 IR 87. There, the continuation of a trial was prohibited on the basis that the applicant was able to point to a relevant aspect of the case —whether or not a particular door was capable of being locked —"which it is reasonable to think could have been the subject of irrefutable evidence one way or the other but for the very lengthy lapse of time", and which would have been useful to the defendant.

Proceedings in the High Court.

15 By order of the High Court (O Caoimh J.) of the 29 ^thNovember, 1999 the applicant was granted leave to seek certain reliefs by way of judicial review. These were, firstly, a declaration that by reason of delay in the institution of the criminal proceedings there is a real risk that the applicant will suffer prejudice in making a defence at the trial of the said charges against him and in consequence that the applicant has been denied his right to a fair trial; and secondly an order restraining the Director from taking any further...