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Cite as: [2012] IECCA 86

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Judgment Title: DPP -v- CC (No. 2)

Neutral Citation: [2012] IECCA 86

Court of Criminal Appeal Record Number: 125/10

Date of Delivery: 06/12/2012

Court: Court of Criminal Appeal

Composition of Court: O'Donnell J., Moriarty J., O'Keeffe J.

Judgment by: O'Donnell J.

Status of Judgment: Approved


Judgments by	Link to Judgment	Result
O'Donnell J.	Link	Quash Conviction (no re-trial)

Notes on Memo: Quash Conviction (no re-trial)

COURT OF CRIMINAL APPEAL

CCA/125/10

O’Donnell J.
Moriarty J.
O’Keeffe J.

Between:

The People at the Suit of the

Director of Public Prosecutions

RESPONDENT

C C

APPELLANT

Judgment of the Court delivered on the 6th day of December 2012 by O’Donnell J.

1 This appeal illustrates in quite a stark way the difficulties posed for the administration of justice by the trial of offences, often indecent assault and other serious crimes, alleged to have occurred a considerable period before and when the complainants were young children. Such cases are often referred to as childhood sex abuse cases, but that description covers a wide range of fact situations. The revelation of widespread sexual abuse of children, particularly by persons in authority including members of religious orders, has been a feature of Irish life for the past quarter century approximately but has still retained its capacity to shock. The interests of justice towards the victims of sexual abuse, and the public interest more generally, demands that such matters be sensitively investigated, if appropriate be the subject of a criminal trial, and where guilt is established to the standard required by the criminal law, that the perpetrator be punished. But justice also demands that no person be convicted of a criminal offence other than where their guilt of the specific offence charged is established beyond any reasonable doubt, and after a trial in which only admissible evidence is received and where the procedures adopted both in investigation and at trial, have been fair. This is rightly a rigorous and demanding standard, and all the more so when cases are tried after a significant lapse of time with inevitable loss of witnesses, impairment of memory, and sometimes loss of more tangible evidence. The clash of these competing demands has often resulted in protracted and difficult proceedings which have rarely been entirely satisfactory for any of the participants involved.

2 Here the appellant is a former religious brother who taught in a national school in the west of Ireland in the 1960s and 1970s. Long after the period with which this appeal is concerned (and in circumstances apparently unconnected with any of the matters now alleged) he left religious life, got married and established a family. In 1999 he became the subject of an active Garda investigation resulting in prosecution. The trial the subject of this appeal commenced in February 2010. The appellant originally faced 70 counts of indecent assault contrary to common law. As a result of developments at the commencement of the trial the Director of Public Prosecutions agreed not to proceed with counts 56-70 in relation to one complainant (GW). At the close of the prosecution case the trial judge directed withdrawal of a further 20 counts namely counts 1 (being one of the charges concerning a complainant MH), counts 15-28 inclusive (being all of the charges concerning complainant RM), and counts 31-35 (concerning complainant PH). Consequently 35 counts of indecent assault (concerning four complainants; MH, PH, JK and DF) went to the jury which returned a verdict of guilty on all counts. The appellant was sentenced by the learned trial judge to 12 months imprisonment on counts 2, 29, 38, and 58, this being one count in relation to each individual complainant. The other counts were also taken into account. For reasons which will shortly be discussed, the appellant had already served ten months imprisonment on these charges and accordingly, as a result of his conviction and sentence, he was not required to serve any further time in custody. The appellant now appeals against his conviction on the 35 counts. The Director of Public Prosecutions has also appealed the sentence contending that it was unduly lenient. The appeal which is the subject matter of this judgment was confined to the appeal against conviction.

3 This was not the first time the appellant had been in court in respect of these matters. When originally charged, he had unsuccessfully sought to have his trial prohibited on the grounds of the passage of time since the events of which complaint had been made. In 2005 he was tried and convicted on 180 counts of indecent assault in respect of his time as a teacher, which appear to have included the charges and complaints now the subject matter of these proceedings. He was sentenced to eight years imprisonment. While detained in prison he was the subject of a serious assault. In February 2006 the Court of Criminal Appeal quashed his conviction on the ground that the direction given in relation to the manner in which the jury should approach the question of the lapse of time since the events was inadequate. Thereafter two further trials commenced both of which had to be aborted, first because of an inadvertent reference in the evidence to the first trial and conviction, and the second because of a desire to avoid any possible perception of conflict of interest on the part of one of the lawyers involved. Accordingly when this trial commenced on the 15th of February 2010 it was the fourth time that the accused had been arraigned on these charges and, it should be said, the fourth time that the complainants and other witnesses had been obliged to come to court. It is necessary to say that the conduct of this difficult trial by the judge, and the parties involved including counsel for both sides, was admirable. In particular the trial judge clearly sought to conduct this trial in a fashion which was conspicuously fair, and which was business like and efficient in the running of the trial yet sensitive to all the interests involved.

4 The trial commenced with an opening statement from prosecuting counsel. It was set out that it was not in dispute that the appellant, while still a religious brother, had been a teacher in the school in the 1960s and 1970s. The allegations concerned two classes which he taught. The first time period was between 1968 and 1972, when the first three complainants (MH, RM and PH) were pupils in a class taught by the accused. The second class was one which he taught between 1973 and 1978 in which the fourth and fifth complainants (JK and DF) had been pupils. Both classes had consisted of between 65 and 70 boys of varying ages. It is not in dispute, and not perhaps surprising, that the atmosphere in the class was tough, and it appears to be accepted that the appellant repeatedly used corporal punishment, which although lawful at that time, undoubtedly contributed to the complainants’ unhappy memories of the classroom.

5 The structure of the indictment was to allege one act of indecent assault for each school term in respect of all the complainants, other than the case of the complainant DF where only one act of indecent assault was charged. At the outset of the trial there was some skirmishing and an intimation given that an application might be made on the part of the defence to seek a separate trial in respect of the charges relating to each complainant. Counsel for the accused also raised concerns about his side’s capacity to deal with the disclosure which had been provided, particularly in relation to a sixth complainant (GW) who was the subject matter of counts 56-70 on the indictment. In the course of debate before the court, counsel for the prosecution offered to outline what the “system evidence” was, presumably for the purposes of explaining why the counts were being tried together. The judge observed however that there had been no application, and that this was in some sense to put the cart in front of the horse. In the event, there was no application for a separate trial (an application which had little prospect of success) but counsel for the accused did ask, “Is my friend saying that one count in someway becomes evidence in relation to another count. The law in this is far from clear and I, before embarking on this trial, from the defence point of view, would like to know what my friend says is the law in relation to this and what the attitude of the prosecution is”. The judge asked if counsel for the prosecution felt “compelled to reply” and perhaps seeing the way the argument was progressing, counsel for the prosecution said that the court was correct and that it was for counsel for the accused to say why the matter should be tried separately. There being no further application, that was the end of the forensic shadow boxing on this issue and counsel for the prosecution opened the case to the jury.

6 During the opening of the case to the jury, counsel for the prosecution went to some lengths to give an explicit warning “that it is dangerous to convict in a case of this nature because of the difficulties that are faced by a defendant.” It is also fair to say that she expanded on these difficulties at some length. She then explained the substance of what remained in the case as follows:

“The first three witnesses were in one class and that class was taught by [the accused], from approximately 1968 to 1972. The last two witnesses were taught by [him] from approximately 1972 to 1977. Very broadly the allegations will be from each of the five – complainants I think is the best word to use in describing these first five witnesses – very broadly the allegations that each of them was brought to or asked to come up to their teacher’s desk and this, in each case, their teacher being [the appellant] who was then teaching.

The allegations will include allegations of having put the boy on his knee, [the appellant] then touched and rubbed the boy’s bottom. In at least one case he also touched the boy’s penis. In at least one other case he fingered the boy’s bottom underneath his trousers and fingered the anal area. In each case or certainly in a majority of cases there was face to face conduct and skin to skin conduct. In a number of cases the boys – they are now men in their forties – will describe to you that they were asked to kiss their teacher. You will hear some evidence in relation to the general way in which the class was run but also you’ll bear in mind this is, again, all of these offences and allegations predate 1977 at a time when corporal punishment was not unlawful and you will hear that corporal punishment was used in the classroom by [the appellant] as he then was.”

7 Counsel for the prosecution made reference to what she said the courts have called “system evidence”. She referred to this as the “same modus operandi, the same system in which the boys are asked to come up to the teacher’s desk, being put on the teacher’s knee and that all the offences were alleged to have occurred in the classroom at the teacher’s desk”. She referred to a decision of this court in DPP v. B.K. [2000] 2 I.R.199 and quoted from the judgment delivered by Barron J. at p.200 that system evidence is admissible because of “the inherent improbability of several persons making up exactly similar stories, or by showing a practice which would rebut accident, innocent explanation or denial.” It was clear from this that the prosecution was addressing the question posed by counsel for the defence at the outset of the trial, and was contending that evidence on one count was indeed admissible as evidence in relation to another. Counsel for the prosecution also pointed out that there was further evidence which might be considered direct supporting evidence where some of the complainants gave evidence that they had witnessed similar acts in respect of other complainants.

The Evidence of the Complainants
8 The first complainant, MH, gave evidence. At the time of giving evidence he was 50 years of age. He said he began in the school in 1968. He agreed that there were probably over 60 boys in the class. If he was slapped with the cane, he would cry sometimes and in that case he would be brought up to the teacher’s (the appellant’s) desk. He was asked what would happen then. His answer was as follows:

“When he would hold you beside him here and he would start to rub your leg from below the knee. If you were wearing short trousers up around your backside, in underneath your trousers or on the outside of your trousers if you were wearing long trousers.”

Later he said:

“He’d pull you in and rub his face up and down the side of your face like this….

… I always remember the stubble and the smell. It could be alcohol generally. And a smell coming from his feet. I can remember that distinctly. He would often rub you closer, faster and he’d rub your leg faster and he’d often be in a sweat …”

Asked how often this could occur he said:

“Well it depended. It could be weekly you know? I saw it happening to boys on a daily basis. Two lads in particular PH and RM. It was every day because sometimes I was in the front seat and I could see clearly in front of me.”

In cross-examination MH acknowledged that the appellant had on occasions brought him away on overnight school trips for periods of five days and two to three weeks and that nothing improper had occurred on these occasions. He acknowledged that he was a serious alcoholic but had recovered. In relation to the school, he said that it was an old national school which had very large windows which, in his memory, were high up.

9 This account, albeit short and general, set the tone for the evidence of the other complainants. A second complainant, RM, said that he was in the class between 1968 and 1972 and that it was a big class with lots of children in a tough environment. He said he had been brought up to the front of the class on a regular basis by the appellant who would put his arm around him rub his face against the complainant’s. This made him feel extremely uncomfortable and at times he would cry, and on many occasions he would try to pull away. RM further recalled a time when he contracted ringworm of the eye, which led to him being sent home for a few weeks. When he came back to school, he recalled that the appellant had ringworm of the face. In cross-examination he acknowledged that he had seen a counselling psychiatrist and had said he did not remember any sexual abuse and could not remember being sexually abused. In re-examination he said he understood sexual abuse to be contact with his private parts and that sort of thing.

10 A third complainant, PH, was also in the class from 1968 to 1972. He gave evidence of being called up to the front of the class “and there were times when he would fondle with my body play with my body … play with my penis play with my back passage.” He said that the appellant would rub his face against his face. He also recalled the appellant wearing a cloak which he would put around the complainant and then put his hands inside his clothes, his trousers and shorts and fondle his private parts. When asked how often this could occur he said initially it was not too frequent, maybe once a month or every three weeks but there were times when it was two to three times a week and at times a couple of times a day. There was no set pattern. In cross-examination he acknowledged that he had not made any complaint prior to 1999 when first approached by the gardaí. He said that he had blanked the matters from his mind and had had no memory of them whatsoever. He agreed that when initially approached by the gardaí he said he could not help them. He agreed that he had told a psychologist that he had “no memory of being abused until about three years ago when gardaí first approached him in 1999 and talked to him about life in school with [the appellant].” He explained:

“When questions were asked at the time and I gave my statement, questions were asked about life in school and what the day to day occurrences were like, what did I do my daily routine and the like, when those questions were asked to me that’s when I thought about what happened. I had not thought about my time in school.”

He denied having been shown statements by other boys and said that a statement to that effect attributed to him in another psychologist’s report was inaccurate. He also said that even still, there was a period from mid 1970 until the end of 1971 when he was in fifth class which he did not recall. He accepted that it was being asked by the gardaí which prompted him to recall these matters saying, “I may have told them it was my first time to remember it yes, but I also told them it was the first time that anybody asked me questions about that time.” He also suggested that the appellant had on more than one occasion put his cloak “on the two of us and start to fondle my back passage”. He remembered a belt which he believed was a leather belt, not a rope belt, which he said the appellant took off and put around both of them.

11 The fourth complainant, JK, had been in class from 1972 to 1977. He had a memory of being brought up to the appellant’s desk on occasion if he was struggling with reading or something like that. Then the appellant “would either put you sitting on his knee or stand on one side of him or stand in between his legs and he would put his arm around you around your waist and he would put his hand inside your trousers and touch your private parts”. He said that this happened over the period he was there and maybe twice a week for a period of maybe two to three years, but after that it may have happened once a month. He recalled one instance when the appellant was pulling the zip of his trousers up and down and feeling the appellant’s knuckles touching him before his hand slipped inside his trousers to touch his penis. He accepted that on the first occasion the gardaí contacted him he said he could not remember. He explained this by saying that after the gardaí had contacted him he had spoken to his wife and told her what it was about. This was, he said, because he had never spoken about these events to her or his children throughout his life. In cross-examination he accepted that he had initially made a formal statement saying “I want to say I was not abused by any teacher or [the appellant] while in [ ] school and I don’t wish to make a complaint to the gardaí.”

12 The fifth complainant, DF, was also in the class between 1972 and 1977. There was only one count on the indictment relating to DF alleging a single act of indecent assault. His evidence was that in third, fourth, fifth and sixth class, physical and sexual abuse took place. He said he was often brought up to the desk and on one occasion he was asked to give the appellant a kiss using the Irish vernacular “tóg pógín dom” and on another occasion he said “he kind of wrapped himself around me, perhaps I was standing and he put his arm around my face and put his hand down my trousers and felt my penis.” In cross-examination he stated that “I can recollect at least on one occasion he put his hand down my trousers.”

13 At this point in the trial there was an application in relation to some further evidence that was to be given by reference to the complainant DF. A witness had proffered a statement included in the book of evidence to the effect that on one occasion while DF was sitting on the appellant’s knee he, the witness, saw the appellant put his hand up DF’s shorts and fondle his genitals. It is of some significance that the trial judge excluded this evidence because there was significant difference between its detail and the description of the incident given by DF. The trial judge observed that the count which the accused faced in relation to the DF was that “on a school day unknown between July 1972 and June 1977” he had sexually assaulted DF. The judge observed, correctly, that one could not imagine a more imprecise account covering the entire time that DF was a pupil in the school. He refused to permit this evidence to be given, but did permit the testimony of another witness where the disparity between his evidence and that of DF did not appear so clear cut. In the event that witness, CD, gave evidence. He was asked did he ever see [the appellant] touch DF? He answered that he had. He was then asked to describe exactly what he saw and replied “well he used to bring them up, put them sitting on his knee and feel their privates.” This was all the direct evidence concerning the indecent assault charges. Thereafter, a witness was called to confirm that the relevant witnesses had been enrolled in the school at the relevant times, that the class size had been between 62 and 69 and that there were large windows looking out on to the yard which were quite close to the ground, and anyone in the yard could see into the classroom. Three other pupils gave evidence generally to say that they saw boys being brought to the teacher’s desk and in particular RM and PH. A cautioned statement from the appellant was also introduced into evidence which accepted that he had a practice of bringing boys up to his desk and that he had used corporal punishment, but denying any sexual assault.

Application for Withdrawal of the Case from the Jury
14 At the close of the prosecution case the trial judge dealt with the defendant’s application that the case should be withdrawn from the jury. The judge directed that claim number 1 in relation to the complainant MH be withdrawn due to a lack of sufficient evidence that he had been at the school during the particular time charged in that count. In relation to the complainant RM, while accepting that as a matter of law it was a matter for the jury to decide whether any particular assault was indecent, he nevertheless directed the withdrawal of all charges in relation to that complainant because “given the age of the case and the necessary caution to be attached to the conclusion of it, coupled with the view that the jury would be asked to speculate about what actually happened, all counts in relation to this complainant will be withdrawn from the jury”. In relation the complainant PH, he observed that in giving evidence he had admitted that he had a blank memory in relation to the period between mid 1970 and 1971. Accordingly he directed the withdrawal of charges 31-35 which he considered covered that period. The rest of the charges could proceed. By that process the case was reduced to 35 counts of indecent assault in respect of four separate complainants. The appellant did not go into evidence.

Charge to the Jury
15 The trial judge decided that given the nature of the case, being an allegation of sexual matters, it was appropriate to give a corroboration warning to the jury. He told the jury that the law asks for care and caution where there is no independent supporting evidence. He then told the jury that the evidence of each of the complainants was capable of acting as corroborative support for the complaints of the other complainants (Day 5, p.47, line 10). He also addressed what might be described as direct corroboration. He pointed out that the evidence of MH was capable of corroborating the evidence of PH because he (MH) had said that he saw the same thing which had been done to him, done to PH (and RM, although by that time the charges in relation to him had been withdrawn). In relation to the evidence of CD (who was not himself a complainant) of having seen DF’s penis being interfered with by the appellant, the trial judge pointed out the potential discrepancies between his account of DF sitting on the appellant’s knee and that of DF himself who said he was perhaps standing beside the appellant. He observed that it had been suggested that this could be talking about two separate incidents. If so that was a matter for the jury. If however they considered it was two separate incidents, it was not supportive evidence. The judge pointed out that the evidence of the other pupils to the effect that boys were brought up to the desk, was not itself capable of being corroboration but it was relevant in that it could be considered in the overall context of assessing the credit of the other complainants and the other witnesses. He pointed out there was no witness giving corroborative evidence in respect of the evidence of MH or JK. The trial judge also warned the jury in relation to the dangers of convicting in a case of this age and where the lapse of time was so significant between the events complained of in the trial.

16 It must be observed that the trial judge in directing withdrawal of the counts as he did, and deciding to give a corroboration warning, and in the lengths he went to in giving the warning about the age of the case, acted with scrupulous care and fairness towards the accused. Nevertheless, it is contended on this appeal that in certain specific respects, the charge to the jury was inadequate. Before considering the specific complaints made it is perhaps appropriate to make some observations on the nature of the case as it stood.

17 In this case the evidence on behalf of the prosecution was very limited. It was devoid of any surrounding detail apart from the identification of the school and the accused by name. There was no detail as to the timing of any the events of indecent assault by reference to any particular year, a period in the year, or by reference to any other memorable event whether public or private. The evidence was generalised, and almost generic, and mixed conclusions (“I felt I was being psychologically manipulated at that time, psychologically abused”), with direct evidence (“he put his hand down into my trousers and felt my penis”). This may be unavoidable in prosecutions of sexual offences, particularly those alleged to have occurred a long time before when the victims were very young. It is now recognised that complainants of sexual abuse in childhood, particularly where they were subjected to abuse on a continual basis, will often not be able to recall any detail, and may simply be able to give evidence of the first incident and then say little more than that the same thing happened regularly thereafter. The Supreme Court recognised in DPP v. Mc Neill [2011] 4 J.I.C. 0801 that this could have an impact both on the way such offences are charged and the way evidence is adduced, but it does not make the task of adjudication any easier. This appears perhaps most clearly in the charge in relation to the complaint made by DF. The indictment charged a single incident of indecent assault alleged to have occurred “on a school day between 1972 and 1977,” a period of four years and eleven months. The limitation of the day of the alleged offence to a school day does not bring much definition to this charge since it is after all an allegation of indecent assault by a teacher on a school boy in a school room while attending school. At least in those cases where it is alleged that a person was indecently assaulted or abused on a weekly or monthly basis the number of offences alleged can increase the chance of testing the evidence by, for example, proving the absence of either the accused or the complainant for a significant time during the period. But an allegation of a single incident alleged to have occurred on a day otherwise unspecified within a five year period poses exceptional difficulties. The direct evidence which supported the charge was limited:

A. “In third, fourth, fifth and sixth class physical abuse and sexual abuse took place.

Q. Is there any particular occasion of sexual abuse, you’ve used that term, that you can remember and tell to the court and to the jury?

A. I was often brought to the desk and another incident sticks in my mind is one time he asked to give him a kiss, I think he used the Irish vernacular “tóg pógín dom”. Another occasion he kind of wrapped himself around me, perhaps I was standing and he put his arms around my waist and he put his hand down into my trousers and felt my penis.

Q. Thank you Mr F, if you’d answer any questions?”

It will be recalled that the judge had decided that a corroboration warning should be given to the jury. The following evidence was admitted on the grounds that it was capable of corroborating the evidence given by Mr F:

“Q. Did you ever see Mr. C or Brother C. as he then was, did you ever see him touch DF?

A. I did yes.

Q. Could you describe exactly what you saw to the jury please?

A. Well he used to bring them up put them sitting on his knee and feeling their privates.

Q. And when you “privates” in relation to Mr F, can you just be specific as to what you mean?

A. Penis.

Q. I see if you’d answer any questions? Thank you” (Emphases added)

18 Although the theory upon which the indictment was laid was that there was a single identifiable incident of indecent assault against DF, the prosecution did not attempt to explore this matter in any further detail whether in the evidence of the complainant DF, or the witness CD, notwithstanding the apparent differences between the two sparse accounts. That however did not mean that the evidence was not powerful. To some extent the assertion of indecent assault was all the more stark because it was set against a background that was almost entirely blank. It calls to mind a minimalist stage setting when the landscape although somewhat familiar is not recognisable either as to place or time. But that only illustrates part of the difficulty here: such stage settings are intended to convey the sense that some generalised or universal statement is being made or is to be understood. The trial of a specific criminal offence involves the opposite. A specific and particular event is alleged to have occurred, perpetrated by a specific individual on another, and the trial is to determine, beyond reasonable doubt, whether that event occurred. Such minimal evidence reduces the trial as has regularly been observed, to little more than a charge countered by a denial, contained in this case in the statement of the accused, and necessarily involved the jury in an attempt to determine whether or not they believed each complainant beyond any reasonable doubt. This necessarily places heavy reliance on the perception of the jury in relation to the demeanour of the witness. But as Lord Atkin famously pointed out in Société d’avances Commerciales (Société Anonyme Egyptienne) v. Merchants’ Marine Insurance Co. [1924] 20 Lloyd’s L. Rep. 140 at p.152 “an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour”. That is an observation borne of lengthy experience, and with which many judges have agreed. It is significant that those with the greatest experience of judging the credibility of witnesses have the least faith in the capacity of any person to simply observe the witness giving evidence and determine if he or she is telling the truth. However, almost by definition, that is an experience which a jury does not have. That is partly why it has been considered necessary to give the jury an explicit warning as to the dangers of conviction of persons where there has been a significant lapse of time, blurring of memory, and evaporation and loss of evidence. It is an added complicating feature that the stark singling out of an allegation of a criminal offence without the clutter of context and surrounding provable and therefore contestable facts, may make a false allegation appear more convincing to a jury and a true allegation less convincing than such evidence given closer to the time, and in a more fact rich context. The warning which must be given to a jury is designed to provide a jury encountering evidence of any sort for the first time with the accumulated experience of trial courts to the effect that it is normally by the testing of evidence against observable provable facts that credibility is more persuasively established, and that the stark and isolated evidence of the assertion of a criminal offence on a day without specification, definition or description, rather than providing clarity and persuasiveness, is something to be approached with considerable caution.

19 One further important consequence of this process must be that the significance of everything done or said in court is magnified against such stark and spartan background, and in particular complaints about the conduct of the trial may loom much larger than in a case in which there is considerable factual evidence for the jury to assess. This undoubtedly imposes a heavy and demanding burden on the trial court.

20 On behalf of the appellant a number of specific complaints are made. In the written submissions the appellant grouped certain grounds together, and accordingly it is proposed to follow that sequence.

Grounds 1 and 2: Recovered Memory
21 On these grounds the appellant contended that the judge erred in law in failing to withdraw the counts relating to complainant PH on the grounds that he admitted that he had no memory of the alleged offence for a period of approximately 25 years and that his memories were the result of a phenomenon of recovered memory where no evidence was called by the prosecution to explain this phenomenon. Ground 2 contended alternatively that the failure to warn the jury of the dangers of evidence of recovered memory and giving to the jury the judge’s own opinion to the effect that this phenomenon could be compared with the recovery of information on the hard drive of a computer without any such expert evidence, was an error.

22 It will be recalled that the complainant PH acknowledged that he had blanked the matters of which he had given evidence out of his memory and that he had only recalled them when approached by the gardaí, and that there was still a period which he did not recall. No mention was made of memory being recovered after therapeutic intervention. However counsel for the accused introduced the concept of recovered memory in the application to have the case withdrawn from the jury. It was stated that:

“He admits that the memory he has is a recovered memory. Now the jury are not psychiatrists or psychologists and even if they were, it think it is within public knowledge and judicial knowledge that there is a split camp within the psychological and psychiatric community in relation to the validity of recovered memory, repressed memory and the vague borderlines between all of these. If this matter was allowed to go to the jury … they would have to consider the question of recovered memory and its psychiatric background and the expert knowledge in relation to that, that evidence has not been called here.”

This was vigorously contested by counsel for the prosecution. As already set out, the trial judge directed the withdrawal of counts 31 to 35 on the grounds that the complainant still admitted that he had no memory of the period between 1970 and 1971 but otherwise he refused to withdraw the counts from the jury.

23 Although the appellant challenges this decision, the court is satisfied that the trial judge was quite entitled to take the course he did. In truth, the whole concept of recovered memory introduced by the defence was something of a misnomer and potentially misleading. This was not the type case which gave rise to the dispute in the expert professions, to which counsel for the defendant had referred in his application. It has not been suggested that the complainant had undergone any process of therapy, as a result of which he had believed he had recovered a memory which had been lost. Instead he was merely saying that he had put these matters out of his mind and had only remembered them when asked about them by the gardaí. That is not a concept that required expert evidence, or indeed was something upon which there was any expert debate in the field of psychiatry. It was a matter well within the province of the jury to consider and assess.

24 This Court is satisfied therefore that neither expert evidence nor judicial direction was necessary on the evidence as it stood. However the matter went further, and in his charge to the jury the judge referred to the evidence given by PH and in doing so, unfortunately in the view of this court, adopted the characterisation of counsel for the accused. Thus he said:

“This phenomenon of recovered memory, which I understand, says, is that something has gone out of your mind completely, but with the help of professionals is recovered, almost like the hard disk of a computer; you get the expert who knows how to go in and find it buried within the mechanisms and restore it to good use, to current use.”

The reference to “recovered memory” is itself perhaps unobjectionable since if it meant anything to a jury, it may have called to mind an awareness of a somewhat controversial topic about which doubts had been expressed. That could only have been of assistance to the accused. However, when the judge went further and gave an explanation of the phenomenon and drew an analogy with a professional recovering an item from the hard disk of the computer, this may well have suggested to the jury that this case involved the finding and restoration of genuine memories. The accuracy and credibility of the memories of the witnesses, and particularly PH and GK, who had in different ways acknowledged having no memory of the matters over a period of 25 years until approached, was a central issue in the case. To the extent that the jury paid attention to this passage in the judge’s charge, it can only have suggested to the jury that those memories were intact, genuine and reliable. In another context this reference may not have been of major importance, but in the context of this case, where there was so little evidence of detail and memory was central to the case, it was in this court’s view, a significant error.

Ground 12: Evidence of JK
25 A related ground was that “the learned trial judge erred in law and in fact and trespassed into the domain of the jury by instructing them that in his opinion the complainant, JK, was an honest witness and that his apparent change of mind in making a complaint was a “feature of the honesty of the man”.

26 It will be recalled that this complainant had made a formal statement to the gardaí denying that he had been abused by the accused. Later he made a second statement containing the evidence he gave to the court. In his evidence the complainant sought to explain the inconsistent statements by saying that he had not until then spoken to his wife and child about these matters, and he wanted to tell them before he began to open up to others. There was therefore a live issue in the trial as to the extent to which the jury could rely on JK’s evidence. In his charge to the jury the trial judge recounted the complainant’s explanation and asked whether it was a fair and reasonable one. He made the point that the complainant had not said to the gardaí “at last someone is catching up, I have someone to talk to, but please, let’s leave matters stand until I go home. I have my wife and child to think about first.” The trial judge then continued “his answer was nothing wrong happened. Does that cause you concern? It is a feature, I believe, of the honesty of the man that this is what he said occurred.” It is only fair to say that the judge continued “bearing it in mind, particularly bearing in mind the sworn testimony in court, are you convinced? Are you satisfied that what he says did occur? If you are, it is open to you to convict. Short of being so satisfied, you must acquit the accused.” Nevertheless, the sentence “It is a feature, I believe, of the honesty of the man that this is what he says occurred” is troubling. The inconsistency of the statements, which raised a possible question as to the credibility of the witness is treated as a demonstration of credibility, of his “honesty”. Furthermore, it is formulated in a way which appears to suggest that the judge himself believes the witness to be honest. The appellant relied upon DPP v. Morrissey [1998] 7 J.I.C. 1001 where this court quashed a conviction in which a trial judge complimented a witness whose evidence had been challenged in a way which this court considered clearly gave to that evidence the seal of approval.

27 It is true that the challenged sentence is but one sentence in a lengthy charge, and is followed by an impeccable statement of the jury’s duty to acquit if not satisfied that what the witness described to have occurred had indeed occurred as he said. But every challenge to the judge’s charge must be analysed in the context of the case as a whole. In other cases it may be that the impact of a statement such as this may not be considered significant. But here, the evidence is so limited, and stark and bereft of other contexts which can be assessed that the credibility of witnesses and issues giving rise to any legitimate question as to credibility, loom large. Any statement by the judge, capable of being understood as expressing not just a view, but a conclusion on the honesty of a key witness, cannot be readily disregarded.

Ground 3
28

“The learned trial judge erred in law and in fact by taking into account as a factor in refusing to grant acquittal by direction the fact that the Superior Courts had not granted an injunction by way of judicial review pending the trial, and the fact that the Court of Criminal Appeal have ordered a retrial, having quashed his first conviction on these offences.”

In the course of his ruling on the defence application for direction, the trial judge reasoned as follows:

“The Superior Courts, through an earlier appeal and hearing and judicial review proceedings have had the full history and facts of the general case here and has on two occasions at least, or at the trial to be heard or reheard. This is a consideration not binding on a trial judge but is a matter which should and does have a bearing. Nothing in the course of this trial has emerged that is radically different, in detail or event, from either the judicial review proceedings or the first appeal trial to warrant a departure per se from the fact of a fresh trial.”

It is argued, and with some merit, that at least in respect of the judicial review proceedings, this is a dubious form of reasoning. The Superior Courts’ approach to judicial review is increasingly that questions of the fairness of the trial are best gauged in the context of the trial. Thus as Denham J. (as she then was) said in DPP v. P. O’C. [2006] 3 IR 238, at pp.247-248:

“…whether an application for judicial review is made or not, the trial court retains at all time its inherent and constitutional duty to ensure that there is due process and a fair trial. Thus, in the course of a trial matters may arise, evidence may be given, which renders a trial unfair, or the process unfair. In these circumstances the trial judge retains the jurisdiction of preventing the trial from proceeding. This jurisdiction is exercised in the course of a trial but does not enable, or relate to, a preliminary hearing at the commencement of a trial on the issue of delay.”

It follows that if the Superior Courts have refused judicial review in part because there remains a jurisdiction to prevent a trial from proceeding on grounds of unfairness, that it is potentially illogical for a trial judge when considering an application to withdraw the case from the jury, to take into account the fact that the Superior Courts have refused judicial review. But that is an objection at the level of theory that can only be successful if it led to a decision which ought not to have been made. In this case the question is whether the trial judge was right to refuse the application for a direction, however he expressed himself, and subject to one specific issue, this court is satisfied that he was correct to do so. If so, the fact that he placed some reliance on the approach of the Court of Criminal Appeal and perhaps more dubiously, the High Court, on the subject of judicial review, is not significant.

Grounds 4 and 6: Delay and Lapse of Time
These grounds can be dealt with together.

Ground 4:
29 The learned trial judge erred in law and in fact and failed to withdraw a count from the jury in respect of all complainants in view of the prejudice caused to the defence as a result of the delay in bringing the case to trial and in particular, the inability of prosecution to produce details of the room and desk at which the offences are alleged to have occurred, the dimensions of which were relevant to issues in the case.

Ground 6:
30 The learned trial judge erred in law and in fact in failing to direct the jury properly, or at all, in relation to general or specific aspects of prejudice arising from the delay in the investigation of this case. In particular he erred in respect of the significance of the desk and failed to explain to the jury in particular that unavailability was an example of the prejudice of the applicant arising from the lapse of time in the prosecution of the alleged offence.

31 The first conviction of this accused had been overturned by the Court of Criminal Appeal on the ground that the trial judge failed to charge the jury adequately in respect of the impact of delay. In that case, Kearns J. (as he then was) observed:

“It seems to us that whatever prejudice arises by virtue today in a case of a single complainant can only be seen as exponentially magnified when there are multiple complainants and a single accused.”

While lapse of time is always likely to be a major factor in any case of this antiquity, it was clearly central to this trial.

The trial judge here said the following in respect of lapse of time:

“This case and these charges, these accusations, are very old in age. Be very sure of that, be very certain of that. It is an unusual feature. Cases of this antiquity so not often come before the courts, and where they do, from experience in what we know, juries must be advised and must act with extreme caution and care. Now why is that? It is because as time moves, detail evaporated, and cases in effect deteriorate in to the situation in which the Director accuses you of doing something wrong and what’s left remaining is for a defendant to say “no I didn’t”.”

He dealt at length with the features which would be available to another person to defend themselves against an accusation against wrongdoing in the recent past and concluded:

“Now that is why because of the elapse of time, the evaporation of detail and the deterioration of the trial, evidence to an assertion of the “yes you did”; “no I didn’t” situation that we ask jurors and juries considering these types of cases to exercise extreme care before arriving at a decision of guilt. [Counsel for the prosecution] has used the expression that it would be dangerous to convict without such care and caution being taken and I echo those sentiments.”

No complaint has or could be made about this aspect of the charge. The appellant points out however, that on day 6 the trial judge did observe “it is perhaps a bit surprising that the prosecution didn’t produce a photograph or a ground plan of the school because my understanding is the building is still there.” But otherwise it is said the judge did not identify other specific areas where evidence had not been produced which might have assisted the jury such as the type of uniform worn by a Brother in the order of which the accused was a member (and in particular whether it had a leather or rope belt), the nature of the desk at which the accused sat, and the layout of the room. It was pointed out on behalf of the accused that the obligation of a judge in any particular case is to give a direction which should be custom built to make the jury understand their task in relation to the particular case. This is correct. However, it appears to this court that the submissions on behalf of the appellant confuse two different issues: the impact of delay in terms of loss of available evidence, and what was alleged to be prosecutorial default in failing to produce evidence which was potentially still available such as a floor plan of the school. It is true that in this case perhaps the most extensive warning that was given to the jury about the dangers created by cases of this antiquity was that referred to by counsel for the prosecution in opening the case, and again in her address to the jury. There were perhaps good forensic reasons for doing this, but it was in any event very fair. Taking the trial judge’s warnings then in the context in which they were delivered, and in particular the endorsement of the examples given by counsel for the prosecution, it does not appear to this court that this issue amounts to a defect in the trial.

Ground 5
32 The trial judge erred in law and in fact in inappropriately instructing the jury when referring to the fact that the applicant had not given evidence that there was no onus on the applicant to participate in the process.

The appellant accepted that the trial judge correctly told the jury there was no obligation on the accused to give evidence and that they should not draw any adverse conclusion from the fact. However, it is suggested that in doing so the trial judge characterised the applicant’s decision not to give evidence as a failure to participate in the process. It is argued that this was an unfortunate formula to adopt. Even if this is so, when looked at in the broader context, it does not appear to this court that the jury could have formed any adverse impression of the accused from the language used by the trial judge. On the contrary, he emphasised that the accused was not obliged to give evidence, did not comment on that in any way, and repeatedly emphasised to the jury that they could only convict the accused if they were satisfied beyond any reasonable doubt.

Grounds 7, 8, 11 and 13: Corroboration
33 The interlinked questions of corroboration and the admissibility of what was described loosely as “system evidence” were at the heart of this case. Given the sparse and generalised nature of the evidence of the individual complainants taken separately, it seems difficult to believe that the jury were not influenced, perhaps heavily, by the fact that the same allegation was being made by a number of different complainants. The law relating both to system evidence and corroboration is complex in any case, and in this case these separate but related issues were of such importance that they required a very clear explanation to the jury.

34 The trial judge announced that he would give the jury a corroboration warning. It is within the discretion of the judge to consider whether, in any particular case, the jury should be warned that it is dangerous to convict on the evidence of the complainant alone unless that evidence is corroborated by other evidence in the classic sense of evidence which shows not only that an offence has occurred, but also that it has been committed by the accused. In this case the trial judge advised the jury that the law “asks for care and caution” where there is no corroboration. He went further and addressed the question of what specific evidence could amount to corroboration. He instructed the jury that the evidence of MH to the effect that what happened to him had also happened to PH, was capable of corroborating the evidence of PH. In relation to the case of DF, he instructed the jury that if they considered that the evidence of CD referred to the same incident being described by DF, then that evidence was capable of amounting to corroboration. On the other hand he said that there was no direct evidence relating to matters of which MH complained, and so in that case “you are dealing with a witness who is unsupported by corroborative evidence in his account, and there again the law requires care and caution to be exercised before you arrive at a view of guilt.” Again in relation to JK he said “In the same way, it would seem that the account of JK does not speak, or in the body of the testimony does not speak of corroborative supportive evidence, and care and caution in that respect [is required in] that you are dealing with complaints of indecent assault that is not supported by corroborative evidence”. Earlier however the trial judge had dealt with the general question of the possibility that one complainant’s evidence about what had occurred to him could support the case made by another complainant. He said:

“The evidence of each of the complainants is capable of acting as corroborative evidence in support of the other complainants, provided you were satisfied to act upon that evidence in the first place, so that if you are convinced that the evidence of a witness beyond reasonable doubt to say that what Mr H, Mr M, Mr H, Mr K or Mr F had said is reliable and leaves you with no reasonable doubt, after everything that has been said, well then you can act upon that as potential corroborative evidence of the complaints of the others.”

35 While this analysis of the evidence in the case is technically correct, it is the view of this court that the direction to the jury was insufficiently clear and detailed on these difficult concepts. First, while the individual statements, when read against a background knowledge of the difficult legal concepts involved, may be correct as a matter of law, it seems at least possible that the jury, lacking such knowledge may have had difficulty in understanding the direction in relation to the admissibility and potential corroboration of the evidence of the individual complainants. Furthermore, there was at least some level of confusion between the general statement that the evidence of one complainant could be the corroboration of the evidence of another, with the statement that the evidence of MH and JK was unsupported by corroborated evidence. Second, this court does not consider that in truth the evidence of CD was capable of being corroboration of the evidence of DF. On its face it contradicted it both in detail (whether DF was standing or sitting on the knee of the accused) and more importantly as to frequency (whether it was a single incident or occurred repeatedly). Not only was such generalised evidence of little value in providing support for evidence which itself lacked any precision or definition, it was also necessarily prejudicial since it suggested a regular course of indecent assaults not charged or otherwise referred to in the evidence. Furthermore to pose the question as to whether the jury considered the evidence related to the same incident or some other incident, seemed to suggest that the evidence was to be accepted and the only question was whether it disclosed one incident of indecent assault or many. In this way a weakness in the prosecution case, namely that it was not apparent that CD and DF were even referring to the same incident, became a possible source of prejudice for the accused. It is fair to observe that this arose from a misunderstanding of the line being taken by the defence and having been requisitioned the judge readily agreed to address it with the jury and did so by explaining that the defence was questioning whether the evidence could amount to corroboration. However the possibility that the jury were being asked to choose between a version in which CD corroborated DF’s evidence, and one where he gave generalised evidence of other incidents of indecent assault, illustrates the dangers in this type of case. Furthermore the jury were given no instruction on how to deal with such evidence if they were not satisfied that it related to the same incident. Third, the warning on corroboration was not in this court’s view sufficient to convey the essence required by the law once it is decided, within the court’s discretion, to give such a warning. To say that “the law requires care and caution to be exercised before you arrive at a view of guilt” is likely to be confusing, since a jury might well consider that they were obliged to exercise care and caution before coming to a view of guilt in any case. It is not clear what was added by these words. Furthermore, all warnings given to juries are an attempt to give to a jury approaching a one off task something of the general experience of courts. Thus whatever language is used, it is necessary to convey to a jury that the law considers it dangerous to convict in the absence of corroboration, because by definition these offences occur in private, or at least in circumstances of some furtiveness, and there have been occasions where evidence apparently plausible, has subsequently been shown to be untrue. Accordingly, over and above the degree of care and caution they would normally expect to exercise in coming to a verdict of guilt beyond any reasonable doubt, the jury should recognise that it is the law’s experience that it is dangerous to convict on the uncorroborated evidence of a complainant, and should only do so when, having considered the warning, they nevertheless feel a very high degree of assurance that the evidence is true. Unless something of this nature is conveyed to the jury, there seems little benefit in giving a corroboration warning at all.

36 Fourth, and perhaps most importantly, the jury were told, correctly in the view of this court, that the evidence of one complainant was admissible in support of the evidence of another, and could therefore provide corroboration. However, as counsel for the accused observed at the outset of the case, the law relating to such system evidence is far from clear or indeed satisfactory. It is unfortunate that after some initial skirmishing on the issue there was no debate on the admissibility of this evidence, the circumstances for such admissibility or the manner in which it should be addressed by the jury. Indeed, it is desirable in cases of complexity and where such so called system evidence looms large – as it undoubtedly did in this case – that the court, together with counsel for the prosecution and accused, should seek to address the question of system evidence, and the manner in which it may be admissible, at an early stage in the trial, and certainly before the speeches to the jury, so that all the participants are aware of the basis upon which such evidence is being admitted in the case.

37 Had such a debate taken place, it seems probable that the jury would have been given more guidance, and therefore more help, in relation to this aspect of the case. Given the fact that the evidence of individual complainants was given at a level of generalisation and abstraction, it seems likely that the jury were significantly influenced by the fact that evidence of indecent assault was given by a number of different complainants. It is desirable that the court should first address the question of whether in any given case such evidence is admissible in relation to the counts relating to other complainants. If it is decided that such evidence is admissible, (and in this case that was not really challenged) the jury should not only be informed of this, but also, and more importantly, why that is so. Initially such evidence was treated with considerable caution by the courts because of the potential for prejudice and the shifting of the focus from whether the accused was guilty of a specific offence on an identified occasion, to a more generalised consideration of the accused’s character and propensities. But if for example, the same person had lived in a number of different places and complainants had come forward independently and described in varying degrees and detail offences containing perhaps a single distinctive element or signature, then any fact finder would be entitled to place considerable reliance on the fact that in the absence of deliberate collusion, it would be extremely unlikely that such witnesses could emerge by pure coincidence having the same mistaken or indeed false memory involving the accused. The force of that reasoning is undeniable and explains why notwithstanding the risks, such evidence is admissible. However if the jury was to adopt that line of reasoning in this case, it had to also take account of the fact that there were a number of other confusing factors which were relevant. First, these allegations involved a teacher and a limited time span. The complainants came from two classes in the same school in the same location. There was also, it appears, a history of severe corporal punishment in an atmosphere that was tough and challenging. There are now civil proceedings in being. All of these features tend to some extent, against the classic picture of individual unconnected complainants. Drawing conclusions from the possibility of events occurring by random, rather than simply assessing the evidence in relation to a particular incident, is permissible, but it is an exercise in logic and probability: in the absence of some connecting factor, it is highly unlikely that individual independent accounts of similar conduct could emerge and yet be mistaken. The greater the number of accounts the more remote the possibility of collective error. This is a powerful line of reasoning but its force is dependent on the exclusion of any possibility of connection between those giving the accounts, particularly when it is otherwise limited in verifiable detail. It is necessary to take into account the possibilities of suggestibility, contamination of evidence, copy cat evidence or collaboration, if only for the purposes of excluding them. There was also the unusual feature of this case that it was alleged that the incidents occurred in full view of a class of between 60 and 70 boys, and although necessarily furtive, contained elements which were undeniably public such as the vigorous rubbing of the accused’s face against that of the complainant. Furthermore the case had been the subject of a comprehensive garda investigation, which appears to have sought out pupils in the relevant classes.

38 It was also important that the jury distinguish between two different processes of reasoning which may have been available to them. In the first place, if a jury concluded in relation to any one complainant that the case was compelling and that they were satisfied beyond any reasonable doubt of the guilt of the accused in relation to such incidents, then they could consider that it was now more likely that the account given by another complainant of a similar incident was true. However, it is also logically possible for a jury not to be satisfied beyond any reasonable doubt on the individual evidence relating to any single complainant or incident, but nevertheless to reach that point of being satisfied beyond reasonable doubt by virtue of the range of offences in respect of which evidence has been given, their interconnection, and the unlikelihood that the evidence in respect of each of the complaints is either the product of collusion or chance. But it is important that the jury should recognise which of these courses it is contemplating because it is obviously important to recognise, if indeed that is the case, that the jury is not satisfied beyond reasonable doubt on the individual evidence taken alone, and therefore the reliance being placed on the system evidence is that much greater. None of this is comprehended by a general statement that the evidence of one complainant is admissible in relation to another. However counsel for the appellant did not rely on these matters, nor was any doubt in relation to the nature of the evidence or any question of possible contamination or collaboration, conscious or unconscious, raised. However there had been some limited discussion of the question of system evidence at the outset and in any event this court must come to a conclusion on the safety of the conviction in this case. While no individual part of the judge’s direction to the jury on this issue could be said of itself to be clearly wrong, it is nevertheless the view of this court that overall, the direction fell short of the level of detail required to give effective guidance to the jury on a central, and difficult, issue.

Ground 9: Purported Corroboration by MH of PH’s Evidence
39 The appellant complains that the differences between the account given by PH of the incidents alleged by him, and that which MH described and said he saw happen to PH, was such that the evidence could not amount to corroboration of the evidence of PH. Although the evidence of PH was perhaps the most detailed of any of the evidence given by any of the applicants, it does not appear to this court that the evidence of MH was so different in detail that it was not capable of corroborating the account of PH if believed by the jury. In this case, it is significant that both witnesses spoke of events which occurred on a number of occasions.

Grounds 14 and 15: Matters Arising in Cross-Examination
40 When PH was being cross-examined it was put to him that in a report prepared by a consultant on his behalf, and which had been disclosed to the defence, he was recorded as having been shown statements from other boys. This would clearly have been important on the question of contamination or suggestion but the complainant denied it. Counsel for the accused returned to this in his speech to the jury and asked them to consider if it may have been true. The judge in his charge said:

“Don’t suppose ladies and gentlemen that you are being asked to speculate … act upon the evidence. It was there in the document, it’s a fair foil and tool to use to probe. You’ve had the answer of MH saying he disagrees and [the consultant] is wrong. And Mr Hartnett building on that asks you to suppose he did say it. Well I am asking you not to because you begin to speculate. You are moving into areas not supported by the evidence.”

41 It was argued by the appellant that since these documents were produced by the prosecution and had been disclosed to the defence, counsel for the prosecution had full knowledge of all matters and a conflict between the complainant’s evidence and material contained in the reports had to be addressed. This court is satisfied that this point is misconceived. The trial judge was clearly correct in telling the jury that what was contained in the reports could be put to the witness in cross-examination, but that the only evidence upon which they could act was the evidence of the complainant in response.

Ground 16: The Account Given by the Accused in his Statement
42 The judge in his charge to the jury paraphrased what the accused had said in his interviews. No complaint is made about the detail of that or the accuracy with which it is recounted but it is suggested that the jury should have been told that if they accepted the explanation of the accused they must acquit, and if they thought that what the accused had said might reasonably be true, they should also acquit. Even if they rejected his account they would still have to be satisfied on the evidence, beyond a reasonable doubt, of the guilt of the accused before they could convict him. In this court’s view, the fact that the jury could have been so told does not mean that the charge was defective because it did not contain the statements desired by, or on behalf of, the accused.

Grounds 10, 17 and 18: Counts Relating to DF
43 In these grounds the appellant contends that the trial judge ought to have granted a direction on the count relating to complainant DF in view of the five year period in which the offence is alleged to have occurred and the frailty of the complainants evidence, and also contends that the trial judge was wrong to allow the evidence of CD as possible corroborative evidence of DF.

44 This matter has already been addressed in part above. This court has come to the conclusion that although the trial judge was careful to suggest that the evidence of CD could only be considered to be corroboration if the jury first considered and were satisfied that he was referring to the same incident, in truth the evidence could not properly have been regarded as corroboration since it was too general, and arguable contradictory, to be even capable of being presented to the jury as evidence capable of corroborating that of complainant DF. Furthermore, this count presented an extraordinary, if not unique combination of features: a single offence of indecent assault alleged to have occurred on a school day within a period commencing on the first day on which the complainant attended the school, and ending on the last day he attended that school almost five years later; evidence of an entirely generalised nature which could not identify the occasion with any greater clarity. The evidence offered as corroboration did not provide any greater precision but was of undoubted prejudicial value. While this court recognises that a trial court has a unique vantage point in assessing the evidence of witnesses, nevertheless, it is satisfied that the count relating to the complainant DF ought to have been withdrawn from the jury.

Ground 19: Cumulative impact of individual grounds
45 In J.T. v. DPP [2008] IESC 20 Denham J. (as she then was) applied what she described as the “omnibus principle” being that while none of the matters individually would justify prohibiting a trial, the court must view the matter with regard to the cumulative effect of the concerns. While this principle was identified in the context of a claim for prohibition, there is no reason why it cannot also be applied in the context of an appeal from a conviction. It applies with particular force where the counts are interlinked and the prosecution relies on system evidence so that evidence in respect of one complainant is admissible in the counts relating to other complainants. Trials of offences consisting of indecent assaults alleged to have occurred as long as 40 years ago impose significant challenges if the demands of a fair trial are to be met. The Superior Courts are slow prohibit trials on grounds of lapse of time or absence or loss of evidence, and correctly so. This involves a recognition of the important function of a trial court, and trial judge, in ensuring that a trial is fair in fact. It is also preferable to seek to judge the fairness of trials and indeed the importance of individual items of evidence in the context of a trial which has occurred, rather than seeking to predict the possible impact of such matters in advance. But this process necessarily requires that courts scrutinise carefully those trials when they take place. In this case the trial was conducted with admirable efficiency and sensitivity. While many of the matters identified in the appellant’s ground of appeal might in other circumstances not give rise to the same level of concern, the fact remains that this was a trial of some 70 criminal offences alleged to have occurred over a period of between 44 and 35 years ago, and where there was little if anything by way of background against which to judge the stark allegations of indecent assault. The law rightly requires a very high standard of proof before a citizen may be convicted of any criminal offence. Here the prosecution case was that each case was intertwined with the others and each supported the other. Accordingly once individual errors are identified which undermine some of the convictions it is not possible to isolate other counts from that frailty since it is not possible to be satisfied that the jury would have convicted the accused on those counts without the evidence and conviction on the other counts. This court is satisfied that the reference to recovered memory in relation to PH, the reference to the honesty of the man in relation to JK, and the treatment of the case of DF were errors in the context of this case and that direction in relation to the central issues of system evidence and corroboration was insufficiently clear even if not the subject of express requisition on behalf of the accused. Accordingly the court concludes that the conviction of the appellant cannot be sustained and must be quashed.

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