Irish Court of Criminal Appeal

15

The applicant was convicted of 180 counts of indecent assault involving six complainants in Sligo Circuit Court on 19th January, 2005. In essence, the complaints were that, while a teacher in a primary school in Sligo, the applicant indecently assaulted six complainants in front of a classroom full of students, during class time, by sitting them on his knee, rubbing his cheek against theirs, and by fondling their genitals. Evidence was also given of use of corporal punishment, of locking one child into a cupboard and of masturbation while fondling the complainants, although no counts were laid of gross indecency, physical assault or false imprisonment. Apart from the six complainants, five other witnesses who were students in the class, gave evidence at the trial. The offences were stated to have occurred between 1st July, 1968 and 30th June, 1977.

On 9th March, 2005, the applicant was sentenced to 8 years imprisonment. Leave to appeal was refused and a Notice of Appeal against that refusal was filed on 18th March, 2005.

In summary, the evidence of the six complainants was as follows:-
(a) M.H. said there were 62-69 students in the particular class, that they were slapped with a cane, that he was taken up to the teachers desk once a week, where he stood beside the chair and that the applicant rubbed his hand up and down his leg, under his short trousers around his backside; that if he cried, the applicant would rub his cheek against M.H.’s cheek; that he now thought the applicant might have been masturbating as his other hand would be under his soutane; that he remembered R.M. and P.H. (3 times a day) being singled out and being rubbed on their legs and backsides and on their faces. He said the abuse stopped in their last year of school (6th class).
(b) R.M. said that on a very frequent basis he was brought to the front of the class where the applicant would put him on his knee; that the contacts that stood in his mind were the facial contacts, that he would be cheek to cheek with the applicant; that on one occasion, he had ringworm which the applicant later developed and that he (R.M.) was asked to stay home from school.
(c) P.H. said that he was three years in the applicant’s class; that the applicant tried him out to play the drums in the school band and would stand behind him and move his hands or sit him into his lap, with his arms around him and hold him by the wrists; that he would be brought up to the applicant’s desk and hold him close or sit him onto his knee. If he cried, the applicant would comfort him; that this happened once a week, once a month, 3-4 times a week or 2-3 times a day at different periods. During his last year at school (1972) the applicant would wear a cloak and would put it around both of them and put his hands down P.H. trousers and play with him, fondling his penis through his clothes.

It is perhaps important to note in respect of this witness that when first approached by gardaí, he had no memory at all of the abuse. There were still periods of time in the school that he could not recall at all. He was getting therapy at the time of the trial to help him cope.
(d) J.K. gave evidence of being in the applicant’s class for four or five years; that he was dyslexic; that he was brought up to the applicant’s desk for assistance with reading; that the applicant would sit him on his knee and feel down the back of his trousers and feel his penis and would rub his backside; that this happened once or twice a week and eased off after two years; he also saw other boys on the applicant’s knee.

When first approached by gardaí, this witness also stated that he couldn’t recall anything, but later, after hearing about cases on the news, he decided to speak out.
(e) D.F. gave evidence of being brought up to the desk and asked for a kiss, of being struck across the face from side to side on a constant basis, of regular canings, of being locked into a cupboard; of the applicant putting his hand inside his trousers and fondling his penis.
(f) G.W. gave evidence of having had a speech impediment, of being called up to the applicant’s desk and sitting on his lap and being touched by him, three or four times a week over four years; of standing between the applicant’s legs and of the applicant playing with himself; that if other boys were called up to the desk, one would not make eye contact; of being followed into the cubicle of the bathroom and touched; of being caned; of another boy being put into a cupboard; about there being a dunce’s corner, about being abused on his confirmation day (which was also his birthday).

The defendant gave evidence in his own defence and denied the offences. He admitted bringing boys to the top of the class and sitting them on his knee occasionally. The defence also called former teachers and a former pupil to give evidence that they had no knowledge of any such events, allegations or complaints.

Various grounds of appeal have been lodged, including:-
(1) That the learned trial judge erred in law in refusing to accede to an application to sever the indictment upon which there were 180 counts of indecent assault.
(2) That the learned trial judge erred in law in failing to accede to an application made to him to sever the allegations of the various complainants of whom there were six on the indictment into groups linked by time or other factors.
(3) That the learned trial judge erred in law in failing to direct the jury that they should first be satisfied that a reasonably credible case had been presented in respect of each indictment before corroboration of such a count could be considered by them.
(4) That the learned trial judge erred in law in failing to adequately or at all warn the jury with regard to the effect of gross delay on the part of complainants in sexual offence cases.

Because this court has reached a clear view that the last ground of appeal must succeed, this judgment will confine itself to that particular issue.

Submissions of the parties in respect of delay

Mr. Michael O’Higgins, senior counsel for the applicant, submitted that trials of offences alleged to have taken place many years ago carry with them inherent dangers, as well as difficulties, for the defence and as a consequence, it is incumbent upon a trial judge to give such warning to the jury as is appropriate in the circumstances of the particular case to mitigate the prejudicial effects of delay. In this case, the learned trial judge in his charge referred to the age of the case in the following manner:-

“As has been pointed out, and I will come back to this again and again, how old this case is.”

“So do the witnesses appear to have a good memory? Did a witness appear to be honest and straightforward in answering questions or were they evasive and shifty? Has a witness any interest in the result? Well it is obvious that the witness for the prosecution is in support of a conviction, is it equally obvious that the witness for the defence is in support of acquittal. So you have to bear in mind that people have their own agenda so to speak apart from giving you their best, truthful recollection of the facts as they remember them.”

Mr. O’Higgins pointed out that no further reference had been made in the course of the judge’s charge in relation to the age of the complaints or to the difficulties faced by the defence in particular in old cases. Specifically, no warning was given that lack of certainty on the part of prosecution witnesses is difficult to counter and that vagueness on the part of defence witnesses could well be a consequence of the lapse of time, and that in assessing the demeanour of the witnesses and the evidence given, the jury should take into consideration the fact that the events complained of had occurred a long time ago.

Mr. O’Higgins pointed out that, by way of contrast, the part of the charge in The People (DPP) v. R.B. (unreported, Court of Criminal Appeal, 12th February, 2003) which referred to the dangers inherent in old charges being prosecuted ran to 100 lines.

Mr. O’Higgins submitted that a clear warning was particularly necessary in the circumstances of this case where the defendant was confronted by six complainants. That fact alone inevitably was prejudicial to the accused to a significant degree, given that as events demonstrated the jury quite obviously adopted a “broad brush” approach by simply convicting the applicant on all counts, although the evidence quite clearly could not have supported convictions on each of the individual counts had the jury considered those counts separately.

In response, Mr. Eanna Molloy, senior counsel on behalf of the Director of Public Prosecutions submitted that the similar fact evidence given by six witnesses in this case could only be seen as lessening the requirement to warn of infirmities in the recollection of the complainants. The trial judge was perfectly entitled to point out to the jury that the various complainants corroborated each other in this respect, so that the difficulties which might be much more significant in the case of a single complainant did not arise.

Thus, he submitted that the evidence of M.H. had been corroborated by three witness, the evidence of R.M. corroborated by four witnesses, that of P.H. by three witnesses and that of D.F. by three witnesses (none of whom were complainants). In respect of the evidence of J.K. there had been no corroboration, nor had there been corroboration in respect of the evidence of G.W.

Mr. Molloy submitted that the judge’s charge on the issue of delay, though not ideal, was adequate in the circumstances and had not rendered the trial nor the verdicts unsatisfactory or unsafe. Nor, Mr. Molloy submitted, had the trial judge been unreasonable in refusing a requisition made by counsel on behalf of the applicant that he should in his directions to the jury have dealt more fully with the problems caused by delay.

Decision

It must be stated at the outset that the trial judge did fully and adequately deal with one aspect of delay in his charge to the jury by telling them that there had been no complaints by the boys at the time when these indecent assaults took place. The learned trial judge stated:-

“Had there been complaints at that time, it would have shown the reaction of the time, their feelings at the time, how you would have expected a person to react, had these things happened to them. The defence is relying to some extent in this case on the absence of any such complaint at the time, saying: ‘well, that shows they were inconsistent; had it happened, wouldn’t you think they would have said something about it there and then, but they didn’t.’ Well that’s a factor for you to consider. I will go through the evidence later as to the boys reasons why they said they did not complain: they felt it impossible they could report it home even about the corporal punishment, not to speak about the sexual aspect. It is a matter for you, but there it is, that is a point the defence make.”

Unfortunately, having indicated that he would return to the question of delay “again and again” in the course of his charge, the plain fact of the matter is that the learned trial judge unfortunately did not do so. The jury having retired to consider their verdict, a requisition was immediately raised in that regard.

That requisition was specifically directed to the judge’s failure to give the jury an appropriate warning about the particular difficulties posed for the defence where there had been no contemporaneous complaints and where the case was “as old as this one”

In refusing this application, the learned trial judge stated:-

“As to the time frame… I think I harped on that repeatedly, highlighting all the contentions, the length of time ago and the frailties and the question of - I harped, I remember, on witness memories and so on, so I think the course of the charge in its entirety adequately met that too.”

In The People (DPP) v. P.J. [2003] 3 IR 550, this court, (per McGuinness J.) commenting on the issue of delay, stated at p.568:-

“The dangers inherent in a trial which takes place many years after the offences alleged and the difficulties which such a trial creates for the defence, has been repeatedly stressed both by this court, by the High Court and by the Supreme Court… The problems caused for the defence by delay on the part of a complainant were dealt with in great detail by Hardiman J. in his judgment in J.L. v DPP [2000] 3 I.R. 122. It has again and again been pointed out that trial judges are obliged to issue appropriate directions and rulings to avoid the possible prejudicial effect of delay in sexual abuse cases.”

“We fully concur with the conclusions reached by this court in The People (DPP) v R.B. (unreported, Court of Criminal Appeal, 12th February, 2003). It may not always be necessary for a trial judge, in charging the jury in this type of case, to go into such elaborate detail as to the effects of delay. In our view, however, he or she should deal reasonably fully with the various aspects of the problems caused by delay in the making of a complaint of this nature.” (emphasis added)

“No formula has been established by any institution nor have any guidelines been given as to the charge to be given in a case such as this. Arising out of all the circumstances of a case a charge is a matter for the trial judge in which to exercise judicial discretion in accordance with the law and the facts of a case. In this case, in a lucid and clear charge, the trial judge drew the jury’s attention to the difficulties of delayed cases. He charged also on the issue of corroboration. There were no requisitions after his charge….the court is satisfied that in a case such as this where a long interval exists between the date of the offences alleged and the trial itself, the charge of the trial judge to the jury in this particular case was adequate and appropriate insofar as it dealt with the problems which flow from such delay, and insofar as a warning should be given as to how such cases should be approached by a jury in the course of its deliberation.”

“I now want to move from the general, not totally to the particular, but to this kind of case. You have heard in this case, and it is undoubtedly a further difficulty for the case, that this is a case of an old complaint. The events that you have to decide here are alleged to have occurred more than fifteen years ago. It obviously makes the task for a jury and the task for a court in trying these cases a lot more difficult. As Mr. McKeon says, they normally degenerate into one man’s word against another, a ‘you did, I didn’t, you did, I didn’t’ kind of a contest and that is because when you are dealing with old complaints, you are dealing with events from a long time ago and for the very reason that they are so old they generally lack precision, they generally lack detail. And it is in precision and in detail that cross-examinations generally take place. Witnesses seldom change their stories and admit that what they had said was a fabrication or a lie. You probe looking for the truth by questioning people in relation to detail. If there are contests, as there is in this case or any case where there is a plea of not guilty, again it is much easier to defend an allegation when there is detail alleged against you. If somebody alleged that any one of you had assaulted me in the middle eighties and left it no more than that, it is very, very hard for you to defend it. I think that would be accepted by all of you and it is, no doubt, so. But if I had complained that one of you had assaulted me last July, if I had complained that one of you had assaulted me on the 17th of July, the chances are that you will be able to work out your whereabouts at that time and who can vouch for you at that time and be able to grapple with issues on the basis of detail. You will be able to look up your diaries maybe, if you keep them, or check with your employers if you have them and your may have been on holidays. But how can a person be expected to attack the allegation, to contest the allegation with any subtlety, with any detail, with any forensic form of attack if all you are told about it is that you did it about fifteen years ago on some date unknown over a period of eighteen months? That, I suggest to you, makes it far harder to defend it than it is to prosecute it. In fact, to prosecute it is easier if you do not nail your colours to the mast because there is less you can be cross-examined on. But the law does not say that stale cases, old cases, cannot be tried. But what I must tell you is that an accused person cannot in your minds or in your consideration be disadvantaged because the case is old, because the complaint is related to events from a long time ago. You have to be all the more careful and it should be much harder to satisfy you in relation to an event that is phrased in a vague and general way, rather than an event which carries details or particulars. You cannot let the fact that Mr. B. is handicapped by reason of the lack of precision in the charge cause you to come easier to a decision adverse to him. The State should not take benefit from old cases. Their life should not be made easier by bringing old cases. Juries must, with their hand on their heart, recognise the huge difficulty that accused persons have of dealing with old cases and be all the more careful and take that into account when arriving at a decision.”

“This was quite obviously a case in which one would not be in the least surprised to find that a trial judge would consider it necessary to give a warning for three reasons; first of all, there was no corroboration of the victims story; secondly, this happened some 22 years ago and time can do strange things to people’s memories of events so long in the past; thirdly there was no complaint made at the time and while there may well have been reasons, assuming the complainant’s version of events were true, as to why there was no complaint it is nevertheless a factor to be considered. These were all points to which the jury’s attention had to be drawn once the trial judge had quite properly come to the conclusion that this was a case in which, clearly, a warning should be given.”

It seems to us that whatever prejudice arises by virtue of delay in the case of a single complainant can only be seen as exponentially magnified where there are multiple complainants and a single accused. His difficulties of recollection, his difficulties in finding witnesses, or of even remembering the identity of individual complainants are all magnified in direct relation to the number of complainants who come forward. So, while the difficulties of delay may in such circumstances recede to some degree from the prosecution’s point of view, they are multiplied and exaggerated from a defendant’s point of view.

This Court is quite satisfied that the learned trial judge should have dwelt at some length on the difficulties caused for a defendant where offences of such antiquity are alleged, particularly where no complaints were made in the aftermath of those offences and where there are very few isolating islands of fact which would enable a defendant address his mind in a specific way to the presence or otherwise of certain physical arrangements or features of the environment in which it is alleged the various offences took place. In the instant case, virtually all of the offences are alleged to have taken place in the classroom and at the same point in the classroom.

The Court will accordingly quash the conviction and direct a re-trial.