P.L. -v- DPP & anor, [2004] IESC 110 (2004)

Docket Number:348/03
Party Name:P.L., DPP & anor
Judge:Hardiman J. / Geoghegan J. / Fennelly J.
 
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JUDGMENT BY: Hardiman J.

THE SUPREME COURT

Hardiman J. 348/03

Geoghegan J.

Fennelly J.

Between:

P.L.

Applicant/Appellant

and

HER HONOUR JUDGE BUTTIMER

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

JUDGMENT of Mr. Justice Hardiman delivered the 20th day of December, 2004.

This is the applicant/appellant's appeal against so much of the order of the High Court (Herbert J.) perfected the 9th 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 the 1st July, 1966 and the 30th June, 1968 i.e between 36 and 38 years ago.

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.

The applicant was born in April, 1928 and is accordingly now in his 77th year. He is a retired teacher and a member of a religious order. The complainant was born in May, 1956 and is now in his 49th 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 diploma in psychotherapy, awarded in the mid 1980ies. He has been seeing a psychiatrist since that time.

The allegations 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".

The desk itself was on a raised platform.

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 he was wearing 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.

The appellant was interviewed on several occasions by the Gardaí and 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 taught 5th 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 the relevant years. There were however no rolls for Saturday morning. The applicant denies that the stamp collecting classes ever took place on a Saturday morning.

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 the complainant".

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.

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 classes were held occasionally on Saturday mornings in the school by the appellant". (Emphasis added)

Islands of fact.

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 bare denial.

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 IR 478 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". 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.

By order of the High Court (O Caoimh J.) of the 29th November, 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 steps in the said criminal proceedings. The grounds on which he was permitted to seek these reliefs were:-(i) That the delay and lapse of time between the dates of the alleged offences and the prosecution thereof, the delay being such that of itself and in all the circumstances will as a matter of probability cause the applicant irreparable prejudice in his defence of the proceedings.

(ii) That to proceed with the criminal trial would be unfair and unjust to applicant.

(iii) Violation of the applicant's right to a criminal trial in due course of law pursuant to Article 38.1 of the Constitution.

The statement of grounds was verified by the affidavit of the applicant. In this he said that he spent the period between 1949 and 1992 training and subsequently working as a primary school teacher, apart from a brief period of illness. He stated without qualification that at no stage did he take his stamp collecting classes on a Saturday morning; that he could not specifically recall the attendance of the applicant at his academic class or indeed his stamp collecting class. He denied the allegations strongly and complained of the lack of specificity in them. In a subsequent affidavit he made the complaint, summarised above, about the nature of the desks behind which the abuse was said to have taken place. The complainant swore a largely formal replying affidavit but subsequently, on the 9th November, 2001, swore a further affidavit in which he altered his previous account by accepting that he was in 6th class, not 5th class, at the time he alleged the abuse occurred; stating that the stamp collecting classes were held "occasionally" on Saturday mornings and confirming that "What I experienced with [the applicant] happened behind the classroom desk".

It is significant to note that, at...

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