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You are here: BAILII >> Databases >> Irish Court of Appeal >> Director of Public Prosecutions -v- P.B. [2015] IECA 81 (20 April 2015)
URL: http://www.bailii.org/ie/cases/IECA/2015/CA81.html
Cite as: [2015] IECA 81
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Judgment
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THE COURT OF APPEAL Birmingham J. 246/14 The People at the Suit of the Director of Public Prosecutions Respondent v
P.B. Appellant Judgment of the Court delivered on the 20th day of April 2015 by Mr. Justice Sheehan Introduction 2. This judgment is concerned solely with the appeal against conviction. 3. On the 2nd December, 2014, the appellant filed twelve grounds of appeal which are set out hereunder:
2. The trial was unsatisfactory and the verdicts were unsafe having regard to the various applications, submissions and requisitions made on behalf of the appellant and the adverse rulings made by the learned trial judge in respect of same. 3. The learned trial judge erred in law and in fact in refusing to transfer the trial to Dublin having regard to the very large number of complainants and witnesses and the very large number of persons in the Clare area who are former students of the appellant and the risk that members of the jury drawn from that area could be influenced by the fact that they were likely to have contact with such persons after delivering a verdict. 4. The learned trial judge erred in law in refusing an application during the cross examination of the second complainant to give evidence that the prosecution should particularise what behaviour was included in the counts relating to the said complainant in the indictment and in particular that the prosecution should be obliged to particularise the particulars of the offence or the category of offending behaviour relating to each count on the indictment. 5. The learned trial judge erred in law in refusing to withdraw the charges at the conclusion of the prosecution case 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 or to constitute sexual assault related to which count. 6. The learned trial judge erred in law in refusing an application for a direction on behalf of the appellant at the conclusion of the prosecution case on the grounds of delay and breach of fair trial rights which prejudiced the appellant. 7. The learned trial judge erred in law in failing to charge the jury in sufficient terms on how the delay in the complaints gave rise to specific prejudice to the appellant in particular by reason of unavailable evidence and deceased witnesses. 8. The learned trial judge erred in fact and in law in failing to charge the jury adequately as to the presumption of innocence and reasonable doubt. 9. The learned trial judge erred in law in the part of his charge where he referred to the fact that the appellant had not given evidence. 10. The learned trial judge failed to adequately put the nature of the defence case to the jury. 11. The learned trial judge erred in law in failing to recharge the jury adequately in response to the requisitions raised by counsel for the appellant. 12. Having regard to all the circumstances relating to the learned trial judge’s charge to the jury, the trial was unsatisfactory and the verdict unsafe. 5. In order to consider these grounds of appeal it is necessary to set out the background to the offences. Background 7. Eleven complainants alleged that when they were young girls in fifth or sixth class they were indecently assaulted by him at school. 8. The indecent assaults alleged against the appellant arose either when he would sit down beside the girls at their desks and touch them indecently or when he would call them to the front of the class and make them stand between his legs while he was pressed against them, sometimes bringing their hands up and down his legs and making some of them touch his clothed genital area. 9. The first complainant stated that in addition to being indecently assaulted in the classroom she was also kept back on occasions after school and the same offending behaviour occurred. The tenth complainant also stated that she had been indecently assaulted in the hallway between the classroom and the toilet. Apart from these particular complaints all other offences occurred in the classroom in the presence of other pupils between thirty and fifty years ago. 10. The prosecution called four former pupils in support of the eleven complainants. The first witness stated that the appellant had been a very strict teacher and he remembered him bringing fifth and sixth class girls to the front of the class and getting them to sit on stools to read stories. The appellant had been his teacher from 1981 to 1983. 11. The second supporting witness who was married to one of the complainants said he had been a pupil at the school from 1964 to 1972. He gave evidence that there were six boys and four girls in his class and he remembered girls being brought to the front of the class and the appellant making them stand between his legs while he had his hands around them whispering and nuzzling them. The third witness was a pupil of the appellant from 1972 to 1976. He was a brother of one of the complainants. He said that there were occasions when the appellant would have a girl between his legs at the front of the classroom and he witnessed him run the girl’s hand up and down his legs. He gave evidence that the appellant would also sit down beside the girls at their desks and put his arms around them. 12. The fourth witness called in support of the complainants had been a pupil of the appellant between 1974 and 1979. He stated that there were four boys and three girls in his class and that the appellant used to sit between the girls and put his arms around their shoulders and his hands down onto their breast area. This witness also remembered the appellant having girls on his lap behind the desk but that he thought nothing of it at the time. 13. Detective Garda Downes, who had taken over the investigation from Garda Wrenn, said that he had interviewed over 160 past pupils and approximately 150 of these had been categorised as having “nothing to say”. Detective Garda Downes gave evidence that these former pupils were asked if they had ever noticed inappropriate behaviour and statements were taken from people who were willing to make them. He took no notes of any of the interviews that he conducted with the former pupils who did not make statements and he also told the Court that Garda Wrenn, who had spoken to some of the complainants, had taken no notes of her interviews with them. When Detective Garda Downes was challenged on his evidence, he reiterated that each pupil had been asked to make a statement. 14. The appellant did not give evidence but called seven witnesses on his behalf. The first defence witness had been a pupil in the school from 1963 to 1971. She said there were eight pupils in her class and she never saw anything inappropriate about the appellant’s behaviour. She gave evidence that the appellant would invite pupils up to where he was sitting on the high stool for reading and she had done so when she was older. 15. The second defence witness was a pupil of the appellant’s from 1967 to 1971. In his evidence, he stated that the appellant was a nice man and that he never saw him engage in any inappropriate behaviour. The third and the fourth defence witnesses were brothers who lived in the same general area as the appellant. Both were past pupils of the appellant from 1964 to 1969. Neither recollected any inappropriate behaviour by the appellant. 16. The fifth defence witness was a pupil of the appellant from 1967 to 1971. She gave evidence that she had never had any problems with the appellant and that he had never engaged in any inappropriate behaviour. 17. The sixth and seventh defence witnesses were brother and sister. She gave evidence that she never saw anything inappropriate happening. She remembered being called up once in front of the class. She had no recollection of the appellant sitting at desks. She was not challenged on any matter by the prosecution. However, she was subsequently recalled and asked whether the gardaí had contacted her about speaking to the defence solicitor, she said that they had not contacted her. Arising out of this answer, the witness was cross examined at some length about how she came to give evidence in the case. She told the trial court that her brother queried whether she would speak about her time at school if she was needed and she said she would. 18. The final defence witness gave evidence that he had never seen the appellant behave inappropriately and he had told the gardaí that he was prepared to make a statement. He said it was not true to say that the appellant had used corporal punishment excessively. He never saw the appellant touching a girl on the chest but confirmed that he had witnessed pupils being called up to the high stool at the top of the class once or twice. Ground 1 20. The appellant contends that the trial judge erred in failing to require the Director of Public Prosecutions to disclose to him all relevant material within her possession either prior to the trial or in the course of the applications made during the trial and that having regard to this failure the trial was unsatisfactory and the verdicts unsafe. 21. Originally the Director of Public Prosecutions had refused to disclose the details of the 150 pupils who had been interviewed but who had not made statements. Each of these past pupils was again contacted and 15 of them agreed to speak to the defence solicitor. 22. The defence contended that this failure to disclose the contact details of the remaining 135 former pupils breached the appellant’s constitutional right to fair procedures and also breached his right to a fair trial under Article 6 of the European Convention on Human Rights. 23. The respondent submitted that the prosecution had complied with its disclosure obligations and contended that the defence had been given appropriate assistance in this matter. The respondent stated that the appellant had not been prejudiced by the State’s refusal to give contact details of those who did not want their contact information to be disclosed. 24. The respondent further contended that the trial judge was correct in law and in fact in not withdrawing the case from the jury on this ground. 25. This matter did not arise for consideration in the trial until the fourth day when the investigating garda gave evidence. At one point the trial judge intervened to suggest that it might have been possible for the defence to follow up on the information in the school roll book. However, counsel for the appellant said at the time that the Legal Aid certificate did not extend to this type of investigation. The matter was left there. 26. There was no application for an adjournment on the grounds that the defence wanted further time to ascertain the whereabouts of one, some or all of the 135 past pupils who told the gardaí that they did not want the defence solicitor to have their contact details. There was no evidence before the Court of any attempt by the defence to contact any of those people whose names had been entered on the school roll book by the appellant himself. In fact, the suggestion to this Court was that, as the Legal Aid certificate did not provide for this type of investigative work, a further onus rested on the prosecution to disclose the relevant information. The defence maintained that it was prejudiced by the lack of this contact information. This line of argument appears to be speculative. There was no failure to disclose relevant information, the defence was not prevented from making contact with the former past pupils and, accordingly, this Court agrees with the finding of the trial judge that the failure to supply the contact information to the defence did not result in a breach of fair procedures, nor did it breach the appellant’s right to a fair trial. 27. The second aspect relates to two of the complainants who had been in counselling. They had been asked to authorise the handing over of their counselling notes to the defence, but refused to give such authorisation. 28. The defence maintains that they were prejudiced by this failure of the prosecution to make disclosure of these notes and, in the course of his oral submissions in this appeal, counsel argued that it might well have been helpful to have had this material, especially as it might have provided a basis for cross examination. Counsel for the appellant sought to rely on the unreported judgment of the Court of Criminal Appeal in The People (at the suit of the Director of Public Prosecutions) v. Kavanagh (Unreported, O’Flaherty J. in the Court of Criminal Appeal, 6th February, 1996). 29. In that case, following the defendant’s conviction, it emerged that the gardaí were in possession of a statement by a social worker which contained an account of material events by the complainant which differed from the evidence she had given in court. The Court of Criminal Appeal held that the statement ought to have been disclosed and directed a re-trial. This case is different in a number of respects. First, the social worker was involved in a parallel investigation. Secondly, his statement was in the possession of gardaí and thirdly, counsel for the Director of Public Prosecutions conceded at the appeal hearing that the statement ought to have been disclosed to the defence. 30. As Professor O’Malley points out in his book ‘Sexual Offences’, 2nd Ed., (Dublin, 2013) at paragraph 16.12:- “Disclosure of counselling, therapeutic and medical records of complainants in sexual offence cases raises an acute ethical dilemma.” The Court recognises in particular that counselling records may include intensely private and personal information, much or all of which may be irrelevant to the issue for determination by the jury or court as the case may be. The defence had asked for counselling notes of each of the complainants in the event that any of them had attended counselling in respect of the subject matter of the allegations. 31. Notwithstanding the fact that the prosecution was not in possession of this information, a further inquiry was carried out and the defence were told, on the 14th February, 2012, that two complainants had received counselling in respect of the incidents they complained about and were not consenting to their notes being released. The height of the appellant’s case in respect of these notes was that they might have assisted the defence in the cross examination of the complainants. Accordingly, the Court holds that the trial judge was correct in refusing to order that these notes be produced. Accordingly, this Court rejects this ground of appeal. Ground 3 33. The appellant submitted that the substantial dangers of injustice could be eliminated if the trial was transferred to Dublin. 34. During the oral submissions on this ground, it emerged that the Circuit Court in County Clare also sat in Kilrush, a town much closer to the townland where the offences in this case were alleged to have occurred. The offences occurred in what can be described as a small two teacher school that was geographically isolated and which was also a considerable distance from Ennis where the trial was held. 35. The Court notes the careful way in which the trial judge addressed potential members of the jury stating as follows:-
Grounds 4 & 5 39. Each of the 67 counts on the indictment under the heading ‘Particulars of Offence’ allege that the appellant, on a date unknown within a time band of four months or less at an identified rural national school in County Clare, indecently assaulted a named complainant being a female. 40. As can be seen from the summary of the complainants’ evidence, most of them alleged they were indecently assaulted at their desks or on occasions when the appellant brought them to the front of the class and made them stand between his legs. In a small number of cases, complainants alleged that they were indecently assaulted at or near the school toilet. 41. In support of his submission on this ground, the appellant relied primarily on the judgment of the Court of Criminal Appeal in The People (at the suit of the Director of Public Prosecutions) v. E.D. [2006] IECCA 3, as well as on the remarks of Mr. Justice Rougier in R. v. Evans [1995] Crim. L. R. 245, which were cited with approval in the E.D. case. 42. Professor O’Malley, in his book ‘Sexual Offences’, 2nd Ed., (Dublin, 2013), at para. 14.37, helpfully summarises the appellant’s authorities when he says:
44. The respondent submitted that the indictment was in accordance with law, that the appellant could not have been in any doubt about the nature of the allegations he faced and that he was not prejudiced in respect of his defence. The respondent also sought to distinguish the present case from E.D., where the allegations concerned indecent assault occurring at five very specific and very separate locations during specific periods of time while in the instant case, all allegations were alleged to have occurred at one location during specific time periods. 45. At one point during the course of submissions by the parties at the trial, counsel for the prosecution offered to amend the indictment by further particularising counts, but explained that this could lead to an indictment containing up to 300 counts. Counsel for the defence rightly refused to be drawn into negotiations on this matter and the matter was left there. 46. Section 4 of the Criminal Justice (Administration) Act 1924 states as follows:-
(2) Notwithstanding any rule of law or practice, an indictment shall, subject to the provisions of this Act, not be open to objection in respect of its form or contents if it is framed in accordance with the rules under this Act.” 48. Framing an indictment in old cases involving serious child sexual abuse is often fraught with difficulty. In particular, when the drafter is attempting to ensure, on the one hand, that the indictment reflects the behaviour complained of and, on the other, ensuring that the indictment does not become so unwieldy that it contains numerous counts resulting in unnecessary difficulties for a jury. 49. In this case, where the defence was that no wrongdoing occurred and where there was also a degree of consistency between the wrongdoing alleged by all the complainants, this Court considers that the appellant was not hampered in his defence by the failure of the prosecution to further particularise counts on the indictment. 50. Accordingly, the Court holds that the trial judge was right in refusing to direct the prosecution to amend the indictment and that he was also right in holding that the manner in which the indictment was drawn constituted neither unfair procedures nor did it lead to an unfair trial. Ground 6 52. In the course of lengthy submissions, the appellant reviewed much of the delay jurisprudence and contended that by virtue of the delay in this case, he was seriously prejudiced. The appellant identified the unavailability of Mr. A, whose complaint initiated the garda investigation, as an area of particular prejudice as well as the deaths of two teachers who at different times had taught in adjacent classrooms at times when the alleged wrongdoing was taking place. Again, under this ground of appeal, the appellant contended that he was prejudiced by the absence of 135 witnesses whose contact details had been refused and also prejudiced by the fact that desks from the school had been destroyed. In this regard, a question concerning the size of the desks was an issue in the case, particularly in the context of the complainants alleging that they were assaulted at various times by the appellant sitting beside them at their desks. 53. In refusing this application, the trial judge dealt with each area of specific prejudice alleged by the appellant and concluded that any unfairness could be dealt with by him in his charge to the jury at the conclusion of the trial. 54. In the case of H. v The People (at the suit of the Director of Public Prosecutions) [2006] IESC 55, the Supreme Court conducted a review of delay cases and in the course of its conclusions held:-
In this case the Court is satisfied, as the learned High Court Judge found, that the delay has not resulted in prejudice to the applicant so as to give rise to a real or serious risk of an unfair trial. Further, no wholly exceptional circumstances arise in this case whereby it would be unfair to put the applicant on trial. Consequently, the Court would affirm the order of the High Court and dismiss the appeal of the applicant.” Grounds 7, 8, 9, 10, 11 & 12 56. The appellant contends that the trial judge failed to contextualise the manner in which the delay gave rise to specific difficulties for the appellant, particularly in light of deceased witnesses and unavailable evidence. He further contends that when requisitions were raised on this matter, the trial judge failed to direct the jury to the specific prejudice to the appellant caused by the absence of garda notes, the unavailability of Garda Wrenn and the unavailability of Mr. A, whose original complaint led to the garda investigation. 57. The trial judge gave a detailed delay warning and partially contextualised the present case by referring to the fact that the jury had to consider events alleged to have occurred between 30 and 50 years ago. On being requisitioned by the defence to further contextualise and emphasise the delay warning because of the number of complainants, the trial judge pointed out that the degree of prejudice to a defendant was greater where there were multiple complainants and the fact that teachers from the adjoining classroom were deceased. 58. It is the Court’s view that the trial judge was correct in refusing to direct the jury that specific prejudice was caused to the appellant by the death of Mr. A, the unavailability of Garda Wrenn and the absence of garda notes. 59. The absence of garda notes and the unavailability of Garda Wrenn were unrelated to the question of delay and there was no evidential basis for suggesting that the appellant was specifically prejudiced by the death of Mr. A. 60. This Court finds no fault with the trial judge’s charge on delay, nor for that matter does this Court find any fault with the said charge insofar as it related to the presumption of innocence and an explanation as to what constitutes reasonable doubt. The trial judge’s charge in respect of these latter matters was fair and balanced, as also was the part of the charge where he explained to the jury that no adverse inference could be drawn from an accused person’s decision not to give evidence. 61. The appellant also complained that the trial judge had failed to state that there are reasons why an accused may decide not to give evidence at his trial. This Court is of the view that not only is there no obligation on the trial judge to point to possible explanations as to why an accused person might not give evidence, but that it would be wrong for a trial judge to speculate in the manner contended for by the appellant. 62. A review of the transcript confirms that the trial judge reviewed the evidence in detail and the appellant’s case, which was a straightforward denial of all the allegations, was abundantly clear. 63. In his final submission, the appellant again complains about the adequacy of the trial judge’s re-charging concerning the contextualising of the delay warning and in particular that the trial judge should have explained to the jury how the deceased teachers might have helped the appellant. This was something that did not require a further explanation and the trial judge’s charge in this matter was entirely satisfactory. 64. The final complaint of the appellant is that the trial judge failed to re-charge the jury on the absence of an explanation for the delay in making complaints. It was clear from the evidence that the complaints were made as a result of a garda inquiry following a complaint by Mr. A. Were it not for that inquiry, it is possible that no complaints would have been made. Therefore, no explanation was required and, accordingly, the Court holds that there is no merit in this final ground of appeal. 65. Accordingly, the appeal against conviction is dismissed. |