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Cite as: [2006] 2 ILRM 61, [2006] IESC 12, [2006] 3 IR 57

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Judgment Title: DPP -v- D.O.

Neutral Citation: [2006] IESC 12

Supreme Court Record Number: 528/04

Court of Criminal Appeal Record Number: 2001 74 A

Date of Delivery: 08/03/2006

Court: Supreme Court

Composition of Court: Murray C.J., Denham J., Hardiman J., Fennelly J., McCracken J.

Judgment by: Hardiman J.

Status of Judgment: Approved


Judgments by	Result	Concurring
Murray C.J.	Other (see notes)	Denham J., McCracken J.
Hardiman J. *	Other (see notes)	McCracken J.
Fennelly J.	Other (see notes)

Notes on Memo: Allow Appeal Set Aside Convictions and Sentences. *Hardiman, J. also agrees
with the judgment of the Chief Justice

- 22 -

THE SUPREME COURT

Murray C.J. 528/04
Denham J,
Hardiman J.
Fennelly J.
McCracken J.

Between:

D.O.

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT delivered the 8th day of March, 2006 by Murray C.J.

This is an appeal from an Order of the Court of Criminal Appeal which certified two points of law pursuant to s. 29 of the Courts of Justice Act, 1924 for the purposes of an appeal to this Court. The facts and circumstances of the case are fully set out in the judgment of Mr. Justice Hardiman including those related to a substantial part of the cross-examination of the accused at the trial by prosecuting counsel. I do not think it necessary to repeat those facts and limited reference to them will suffice. An issue concerning the nature of that cross-examination arose in the appeal before this Court which enables and in my view requires the Court to set aside the verdict of the jury on grounds arising from that issue and it is unnecessary to address the other points of law.

On any consideration of the nature and course of the cross-examination of the accused by counsel for the D.P.P., as outlined in the judgment of Mr. Justice Hardiman, one is driven to the conclusion that the jury were improperly influenced by prejudicial questioning and by innuendos that had no admissible or indeed evidential basis.

It has long been laid down that the duty of prosecuting counsel is not to obtain a conviction at all costs. Such counsel should not regard himself, or herself, as appearing for a party. He or she should present all relevant evidence to the jury fairly and objectively. Prosecuting counsel is, of course, entitled to present the case for the prosecution thoroughly and firmly and highlight the strength of the prosecution’s case or the weakness of the defence. The duty of prosecuting counsel to act fairly and objectively has long been a requirement of the common law system generally in which criminal trials are conducted in accordance with an adversarial procedure. As far back as 1865 in R. –v- Puddick (1865) 4 F & F 497 at 499, and English Reports 176, 662, it was stated that counsel for the prosecution “are to regard themselves as ministers of justice”. This was reiterated in R. –v- Banks (1916) 2 KB 621, 623 by Avory J. when he cited with approval the aforementioned authority in stating that counsel for the prosecution should regard themselves as ministers of justice “assisting in its administration” rather “than as advocates”. More recently the standards to be observed by counsel for the prosecution were referred to by the Supreme Court of Canada in Boucher –v- The Queen (1954) 110 CAN CC 263 at 270:

“It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.”

In very recent times these duties of prosecuting counsel were reflected in paragraph 9.19 of the Code of Conduct of the Bar which states:

“It is not the duty of a prosecuting barrister to obtain a conviction by all means at his command but rather he shall lay before the jury fairly and impartially the whole of the facts which comprise the case for the prosecution and shall assist the Court with adequate submissions of law to enable the law to be properly applied to the facts.”

The observance of appropriate standards does not mean that the prosecution is in any way inhibited from presenting its case at its fullest strength or cross-examining an accused or witnesses for the defence with the fullest vigour or robustness appropriate to the context of the trial.

The principles governing the conduct of prosecutions are not established simply for the benefit of the defence but in the interest of society as so to ensure that a trial is fair, that the risk of an innocent person being convicted is avoided, and that confidence in jury verdicts is maintained.

There is also a duty on the trial judge to ensure that these standards are observed so as to ensure that the trial is conducted in a proper manner which is fair to both prosecution and defence. If counsel departs from accepted standards of conduct the trial judge must immediately exert his authority to require that they be observed. The duty of the trial judge for this purpose is not in any way dependent on an objection by counsel who, at least in certain circumstances, may feel that an overt objection would risk exacerbating the adverse affects of an improper cross-examination on the jury.

I have come to the conclusion in this case that the verdict of the jury should be set aside on the grounds that there were such departures from the standards of proper practice to be observed by counsel for the prosecution in this case as to deny the accused the substance of a fair trial.

In Randall –v- The Queen (2002) 1 WLR 2237 in a judgment delivered by Lord Bingham, the Judicial Committee of the Privy Council, in addressing the duties of counsel in criminal trials, stated:

“While the duty of counsel may require a strong and direct challenge to the evidence of a witness, and strong criticism may properly be made of a witness or a defendant so long as that criticism is based on evidence or the absence of evidence before the court, there can never be any justification for bullying, intimidation, personal vilification or insult or for the exchange of insults between counsel. Any disparaging comment on a witness or a defendant should be reserved for a closing speech. … Reference should never be made to matters which may be prejudicial to a defendant but which are not before the jury.”

These considerations also apply in this country.

Not all of those elements were present in this case. But there was certainly significant elements of the cross-examination which were intimidating, disparaging and, if not personally vilifying, demeaning. As already mentioned it is not necessary to repeat the details of the cross-examination as referred to in the judgment of Mr. Justice Hardiman. I do, however, find it necessary to refer to some examples such as the comment in the form of a question “You don’t seem to have many erections?” The question “Do you masturbate?” and later on “Now back to masturbation, when did you last masturbate?” The demeaning nature of these questions was underscored by their irrelevance to the issues which the jury had to decide. The accused was also cross-examined on the basis that his involvement with the scout movement suggested that he “had a colossal appetite for engagements involving boys” and that this involvement was part of the ‘profile’ one would expect to find of a person who was a sexual deviant or pervert. Apart from the fact that general evidence as to an alleged criminal disposition of an accused, or a ‘profile’ to that effect, is inadmissible in law there was no evidential basis before the jury for such an inference being drawn from the accused’s involvement in the Boy Scout movement nor any as to what the ‘profile’ of such a deviant or a pervert might be. None of the offending elements of the cross-examination could be justified by the assertion of counsel that he was taking issue with a statement of the accused that he was heterosexual assuming that to have been relevant, which is itself questionable. The offending part of the cross-examination was replete with impermissible innuendos as to the accused’s profile or disposition. If it was not by those means calculated to prejudice the jury, it can only have had that effect. There was direct evidence from witnesses alleging that the accused had committed the offences with which he was charged. That was the essence of the prosecution’s case and on which it rested. The accused vehemently denied the charges and asserted his innocence. It was all a question of credibility for the jury to assess on the basis of the evidence lawfully tendered. The cross-examination, given its nature and extent, can only have distracted and prejudiced the jury in its ability to reach a fair verdict based on the real and admissible evidence placed before them. It is, to say the least, most unfortunate that this occurred.

That is not to say that every inappropriate question, comment or intervention by prosecuting counsel could be regarded as a basis for calling in question the ability of a jury to try a case fairly. In the sparse instances where such slippages do occur they may have little impact on the course of the trial and in any event can usually be dealt with either by a ruling of the trial judge, in the presence or absence of the jury, or by an appropriate direction to the jury. Criminal trials take place on a daily basis in our Courts in which the case for the prosecution is and can be presented professionally to their full strength in accordance with the standards to which I have referred. This is a rare case and appears to be a singular lapse by counsel from the standards normally observed.

However, where there is a gross departure from these standards by a prosecutor which has not been or which was incapable of being addressed by appropriate directions by the trial judge to the jury a court of appeal will have little option but to set aside a guilty verdict. Unfortunately this is such a case. In my view the jury could only have been prejudiced in their task by the tendentious nature and content of a significant part of counsel’s cross-examination. Accordingly, I would allow this appeal and set aside the verdict of the jury. A retrial will not be ordered having regard to all circumstances of this case, which include the fact that the applicant has substantially served his sentence when the standard rate of remission is taken into account and the fact that the evidence of two witnesses relied upon in the trial in this case was found by a jury in a subsequent trial, on other charges relating to those witnesses, as not being sufficient to entitle them to give a verdict of guilty.

JUDGMENT of Mr. Justice Hardiman delivered the 8th day of March, 2006.

This is an appeal from the judgment and order of the Court of Criminal Appeal. That Court certified, pursuant to s.29 of the Courts of Justice Act, 1924, that its decision of the 28th July, 2004, refusing leave to appeal against the applicant’s convictions of the 2nd June, 2000, involved points of law of exceptional public importance and that it was desirable in the public interest that an appeal should lie to this Court. The applicant, who is a primary teacher by profession, was convicted of a number of offences of sexual assault and rape in relation to a boy, D. Part of the evidence led against him was that of two other boys (B and M) who made allegations of sexual assault but not of rape against him. The applicant was convicted on certain counts, including one of rape in respect of which he received a ten year sentence. Subsequent to the convictions the subject of the present appeal the applicant was tried for the offences of sexual assault, comprising the acts of which B and M had given evidence at the trial leading to the applicant’s conviction. However, when the applicant was tried on these counts themselves, he was found not guilty by the jury.

The points of law of exceptional public importance identified by the Court of Criminal Appeal were:
(1) Is a conviction rendered unsafe and unsatisfactory where it is procured in part by similar fact evidence of extraneous offences in respect of which the convicted person is subsequently tried and acquitted?
(2) Is similar fact evidence admissible notwithstanding that the proposed evidence contains within it allegations which are contradictory of the prosecution case?

Background.
It is desirable to set out the factual background to this case insofar as it is known to the Court. In large part what follows is based on what was said by counsel on each side on the hearing of this appeal. As will appear there are certain areas of disagreement but they do not appear to be very significant for present purposes.

The applicant has been for many years a teacher in a National School in a country town. In the late 1990s allegations were made against him of sexual offences on pupils over a long period of time. In all there were nine or ten such allegations, made by people of varying ages. It appears that these accusations were disposed of in the following way:
In relation to one count, representing an allegation made by an adult person, the learned trial judge quashed the indictment on the application of the defence, apparently on the grounds of excessive delay.
In respect of two other counts, each representing allegations by adult persons, the Director of Public Prosecutions then entered a nolle proseuqui.

Three allegations were withdrawn by the persons who had made them. In relation to the remaining three allegations, the prosecution applied to sever the indictment so that allegations of rape and sexual assault by a boy, D, would be tried first. This involved leaving over to the later date allegations made by two other boys, B and M. The defence agreed to this and intended themselves, in any event, to apply for severance. The prosecution account of this matter is slightly different; according to State Counsel, the prosecution agreed to a defence request to sever.

The trial of the allegations made by D proceeded. The evidence of the boys B and M was introduced into the prosecution case against the defendant in respect of assaults on D. This was done on the basis that it was “similar fact evidence”.

Subsequent to the applicant’s conviction on the counts in relation to D, he was tried and acquitted by the jury in respect of the counts in relation to B and M. The incidents which gave rise to these counts were the same as those of which the relevant boys had given “similar fact evidence” at the trials of the allegations in relation to D.

There is, of course, a great deal of law on the topic of similar fact evidence, coming from many Common Law jurisdictions. However counsel on both sides of the present appeal agreed that there was no case from any jurisdiction which their considerable researches could find dealing with the precise factual situation which arises here.

Position of the parties.
For the appellant, counsel said that the significant issue which arose as a result of the subsequent acquittal on the allegations constituting the similar fact evidence related to the safety of the verdict. He was not seeking retrospectively to impugn the detailed exercise of the learned trial judge’s discretion to admit the evidence in the circumstances of the case: he was submitting that it should not have been admitted in principle because to do so offended the presumption of innocence. This presumption, he said, applied everywhere except in proceedings where the defendant was charged with these very offences. Only by a conviction in such proceedings would that presumption be displaced. In any event, he questioned whether evidence which was in some respects at variance with that which it was meant to support could be admitted as similar fact evidence.

Counsel submitted that it was not necessary to ask the Court retrospectively to review the learned trial judge’s discretion in admitting the evidence. The subsequent acquittal of the appellant was new evidence which of its nature was not available at the time of the trial and this was sufficient to allow the Court to review the safety of the conviction, bearing in mind the acquittals on the other charges and their legal consequence.

State Counsel adopted as her basic position the proposition that at the time of the trial the similar fact evidence was properly admissible in law. It was then for the jury to consider its credibility and its effect, if any, in support of the evidence of the complainant. She said that those two propositions were sufficient to determine the case in her client’s favour. Counsel was asked by the Court what the position in law would have been if the acquittals had taken place before the conviction. In that situation, would the evidence of B and M be available as similar fact evidence? State Counsel, on the instructions of her client, declined to take any position on this issue. However she said two things of significance. The first was that she believed that, in practise, the Director would not seek to rely on similar fact evidence which had itself been the subject of a trial leading to an acquittal. However she declined to commit her client to any view as to the admissibility in law of such evidence. Secondly, she said she would open certain English cases which might be of assistance to the Court. In further discussion counsel said that she was asking the Court to look at the exercise of discretion by the learned trial judge leading to the admission of the similar fact evidence, on the facts as they were when the judge exercised the discretion. Asked whether the subsequent acquittals were of any relevance on appeal she said that “Obviously the acquittal is relevant, but it can’t be relied on in this appeal”. She gave two reasons for this. The first was a repetition of her previous submission that the issue was to be looked at as of the time when the learned trial judge had made the decision to admit the evidence. The second was that a court could not be affirmatively satisfied that the evidence had, in fact, played any role at all in the jury’s decision to convict.

Decision on certain issues.
I am unimpressed by the two arguments just summarised. It is of course impossible to be sure what role any particular evidence played in the jury’s decision. In the present case, however, there was a very serious issue argued in order to have the similar fact evidence admitted. The evidence was then itself led and was the subject of the portion of the cross-examination of the accused, who gave evidence in his own defence. It therefore appears that the parties, on each side, regarded the evidence as significant.

Even apart from that, in a great many cases where evidence is wrongfully admitted it could be argued that the defendant might have been convicted anyway, if there was any other evidence at all. But this has never been regarded as amounting, in itself, to a reason to refrain from quashing the conviction if apparently significant evidence has been wrongfully admitted.

While it is clear that the learned trial judge must make decisions as to admissibility on the facts as known to him at the time, I do not accept that the Court is precluded from revisiting that decision in the light of new evidence, or information in the form of an order of a court.

Nor can I accept that the fact that the allegations by D and M were tried subsequent to the allegations by B makes it impossible for us to consider the effect of the acquittal on those allegations. The order of the trials was not chance: it was the decision of the Director of the Public Prosecutions firstly to sever the indictment and secondly to proceed with the trial of the counts representing D’s allegations first and to call the other evidence as similar fact evidence. No doubt this decision was taken in part for tactical reasons, and that is quite legitimate. Any rational prosecutor, it appears to me, would proceed with his strongest and most serious case first. A defendant has no such corresponding choice: he must proceed with the counts in the order selected by the prosecutor. All of the above appears to me to make it impossible to dispose of the case simply on the basis that the acquittals post-dated the conviction on the first counts to proceed. To regard the order in which the trials took place as determinative of this issue would be to disregard any concept of “egalité des armes” as that term features in the Strasbourg jurisprudence. In a very relevant way, though without using the terminology, this concept underlies the decision of Finlay P. in The State (O’Callaghan) v. OhÚaghaigh [1977] IR 42. There, the issue was as to whether the DPP could use his power of nolle to abort a trial which was going badly for him, and then start the case afresh. It was held that he could not since to allow this would, in the words of the learned former President, at page 54:

“… create such an extraordinary imbalance between the rights and powers of the prosecution and those of the accused respectively [as to be] a proposition of law which signally failed to import fairness and fair procedure”.

Accordingly, I conclude that the fact that the acquittals on the counts representing the similar fact evidence took place after the convictions on the counts in respect of which the same material was used as similar fact evidence does not prevent this Court or the Court of Criminal Appeal from taking the acquittals into account when considering if the convictions are unsafe or unsatisfactory.

A difficulty.
If this issue requires to be resolved, it is a considerable difficulty that the Director of Public Prosecutions has elected to make no submissions on it one way or the other. This decision deprives the Court of the assistance, essential in an adversarial system, of skilled advocacy on one side and on the other of a disputed point of law. The Court would be all the more reluctant to embark on this exercise in light of the notorious complexity of the area of similar fact evidence and the risk of giving a decision which would be binding in other courts without hearing proper argument on each side. The complexity of the topic is amply illustrated by the thirty cases from Ireland, England and Wales, Australia, Malaysia, and the United States which comprised the agreed Book of Authorities.

Fortunately, perhaps, it is not necessary to address those issues because another issue arose in the course of the appeal which is capable of determining the fundamental question in this case, as to whether the jury verdict should be allowed to stand.

A narrower issue.
Assuming, purely for the sake of this exercise, that the similar fact evidence was rightly admitted, did the use actually made of it on behalf of the Director at the trial, and the conduct of the prosecution generally, correspond to the purpose for which such evidence may be lawfully admitted, and the requirements of fairness generally? This topic was amply, indeed exhaustively, covered on the hearing of this appeal during the submissions of leading counsel for the Director, who conducted the cross-examination of the appellant at his trial.

Similar fact evidence and evidence of disposition.
For several centuries now the Courts have been alert to the distinction between evidence which is admissible because it is genuinely probative (even if it involves more general prejudice to the accused) on the one hand and evidence which is merely prejudicial as tending to show that the accused is a person of a disposition likely to commit the crime in question. In Cross on Evidence, 5th edition, this rule is stated as follows:

“Evidence of the misconduct of the accused on other occasions must not be given unless it goes beyond showing a general disposition towards wrong doing, or towards the commission of a particular type of crime, and has specific probative value in relation to the charge before the Court, due regard to being paid to the other evidence in the case, and to defences which may reasonably be supposed to call for rebuttal”.

The practical application of the proposition so simply stated has proved very difficult. It is usual now to begin a discussion of the judicial resolutions of these difficulties with the leading case of Makin v. Attorney General for New South Wales [1894] AC 57. The pedigree of the issue however is much longer see: R. v. Bond [1906] 2 QB 389 where the older cases are reviewed. There are, however, two basic propositions of universal application. Both of these are stated so well by Lord Herschell L.C. in Makin that much profusity of reference may be saved by quoting them. The learned judge said at page 65:

“It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely

from his criminal conduct or character

to have committed the offence for which he is being tried”. (Emphasis added)

That is the exclusionary aspect of the rule. It will be observed that it extends both to extrinsic “criminal conduct” such as that to which the similar fact evidence is directed and to character. The inclusionary aspect of the rule is then immediately stated as follows:

“On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged constitute the crime charged in the indictment were designed or accidental, or to rebut a defence that would otherwise be open to the accused.”

In the almost equally well known case of DPP v. Boardman [1975] AC 421, a case often regarded as having materially altered the law as to similar fact evidence, these propositions were again considered. Lord Hailsham of St. Marylebone carefully analysed the two paragraphs just quoted. Lord Hailsham comes to the conclusion that no more definite rule can be laid down because “The rules of logic and commonsense are not susceptible of exact codification when applied to the actual facts of life in its infinite variety”. He contends, therefore, for a case by case decision on admissibility, based on probative value and regarding rules “as guides, but not as shackles…”. He then goes on:

“What is important is not to open the door so widely that the second proposition merges in the first…”.

I take this to mean, simply, that the independent existence of the two contrasting propositions expressed in the first and second paragraphs quoted above from Lord Herschell must be recognised and maintained.
The relevance of this to the present case is that it was frankly admitted by counsel for the Director on the hearing of this appeal that the long and remarkable cross-examination of the appellant, recorded in volumes 9 and 10 of the transcript of the trial, was conducted to establish that the appellant was creating a false view of his sexual disposition and of testing his credibility. Counsel asserted that he was entitled “to get a fairly total view of [the appellant]”.

The cross-examination.
This cross-examination extended over forty-one pages of transcript on the 9th day of the trial and forty pages on the 10th day. Some 473 questions were asked.

Before embarking on an analysis of this cross-examination it is important to record that this Court has on a number of occasions emphasised the central and indispensable position in our system of justice held by what Henchy J. called the “truth eliciting” process of cross-examination. It is necessarily only to mention:
Kiely v. The Minister for Social Welfare [1967] I.R. 267;
Re Haughey [1971] I.R. 217;
Maguire v. Ardagh [2002] 1 IR 385;
O’Callaghan v. Mahon (Supreme Court, unreported, 9th March, 2005).
In proceedings such as the present where everything that makes life worth living may be at stake, it is to be expected that cross-examination on both sides will be hard, detailed, challenging and bruising. It is equally clear that much discretion must be left to the cross-examiner, for reasons indicted in my judgment in Maguire v. Ardagh. No topic can be taboo so long as it passes the criterion of having some proper use in the cross-examiner’s task.

With these things fully in mind, I have to say that I have never heard or read a cross-examination like that featured in this case. The appellant, the defendant in the criminal trial, was an unmarried man, a school teacher and a person who had held high office in a scouting organisation. On this basis a remarkable series of questions was put to him culminating in the last three pages of the cross-examination with suggestions that he “fitted the bill” of the type of person that “[the complainant] contends you are, a vicious sexual abuser…”. It was then put to him that he did so “in terms of profile”: the first aspect of this profile put by counsel was “this interest in scouting and boy scouts”. It was then put to him that:

“… The profile you have is the profile that one expects to find of a person who had a deviant interest or a perverted interest in terms of suffering from paedophilia”.

and that he had violated [the complainant].

It will be observed that this is plainly, openly, and in so many words cross-examination as to the defendant’s disposition to commit offences of this sort on the basis of his criminal conduct (the similar fact evidence) and criminal character (based on the matters to be discussed below).

Many questions, including a long sequence recorded over ten continuous pages of the cross-examination were directed to the appellant’s scouting involvement. This was alleged to represent “a colossal appetite for engagements involving boys”. When the defendant pointed out that most of his work in the high rank he had occupied for twelve years involved dealing with leaders, administration and building management this was misrepresented as a suggestion that “you wouldn’t have seen a boy at all”. The defendant was asked, apparently without any factual foundation, whether he had been involved in any form of investigation of an allegation that a person had failed to comply with the code in relation to the appropriate way of handling young children. Certainly, when he denied it, no instance was put to him. In the course of this facet of the cross-examination counsel, remarkably, conceded that he (counsel) was given to extravagant language. He moved on to put the similar fact evidence, or a substantial portion of it, to the defendant saying “[the witness] does not seem to have been challenged vigorously on that by your counsel”. Counsel then [Book 10, page 20] said that he:

“Would like to know from you what is your sexual make up in some detail?”.

The defendant said he was unmarried and at his current age was unlikely to marry.

Counsel responded:

“There is always Lisdoonvarna?”.

Counsel then asked him about a particular relationship with a woman and asked:

“Did you indulge in sexual intercourse?”.

He got a negative answer to this coupled with a statement that this would not be allowable for him, for religious reasons. He was asked in some detail about such intimacy as there may have been in this relationship, which seems to have taken place in the late 1970s, with counsel observing:

“Some people have very long sexual memories and if they had a really major and enjoyable smacker of the French variety they might even remember it up to their very grave if they were of the romantic type”.

The Garda inquiry was then recapitulated and counsel inquired (Book 10, page 23):

“You don’t seem to have many erections”.

Counsel then returned to the relationship previously mentioned and another and to the defendant’s assertion of his religious principles in relation to sexual activities. Counsel put:

“There are people, although they subscribe to certain codes, be they religious or ethical, they break them, do you understand what I mean?”

and

“It is open to one to actually sin against a code”

and

“Have you ever had sexual intercourse with a female person?”

A similar question followed, about a male person.

A little later counsel asked:

“Well what do you then, Mr. O, with your sexual urges?”

Two questions later (Book 10, page 25) he was asked:

“Do you masturbate?”

Two questions later counsel said:

“There are people who, with the passage of time can, can loose the capacity. I suppose there is Viagra and drugs of that nature apparently but are you saying that you have no sexual capacity anymore, no libido?”

There was then a discussion about an incident in which a relation of the complainant had stabbed the defendant, and about a heart attack he had separately suffered. Ten questions after the topic was first introduced counsel said:

“Now back to masturbation, when did you last masturbate?”

There was then a brief recapitulation of the reasons why the defendant “was frustrated in the great matrimonial stakes of life and it just never happened for you”. The defendant said he had not met the right person. It was then put to him (Book 10, page 27):

“But I am putting it to you Mr. O. that there is not for you any right person because of your make up and of a perversion you suffer from, you are fixated upon children because you are a paedophile”.

Both the conclusion and the component parts of this cross-examination appear to me plainly devoted, in the most explicit terms, to suggesting that the defendant was a “pervert” i.e. was sexually attracted to children. Extra curricular work at school, his scouting activities and his giving of extra tuition to children was suggested to be evidence of this proposition. The fact that he was unmarried, had not a relationship with a woman for a considerable period and had no obvious sexual outlet was also said to support this proposition. On this appeal, counsel expressly justified this approach. For example, he justified the very heavy emphasis on the scouting involvement on the basis that:

“Rather than being at the local tennis club or badminton club where he might find female company he was at boy scouts”.

Counsel did say that “Boy scouts was just one aspect of the cross-examination”, but it seems to me to account for eleven or twelve pages, ten of them continuous.

I have no doubt that this cross-examination is all of a piece and was all designed to lead up to the allegations expressly made in the last three pages: that the defendant “fitted the bill” and “had the profile” of a “vicious sexual abuser”. To express this in terms of the language of the cases on misconduct evidence, it expressly constituted allegations that the defendant should be seen, as a result of criminal conduct (in relation to the boys) and character (being unmarried, not pursuing relationships with women anymore, refraining from sexual intercourse as a matter of religious principle and, later, because of declining interest, and being involved in boy scouts, rather than going to some place where he might find female company), had a disposition to commit offences of the sort charged.

That is precisely the use of evidence relating to previous misconduct or character which has been regarded as inadmissible for centuries.

Quite apart from this the contents and, as far as one can judge from a transcript, the tone of the cross-examination was apt to belittle and oppress the defendant. Questions about whether he masturbated, what relationships he had and what he did with his sexual urges are not all probative and are manifestly prejudicial. Moreover, they were prejudicial no matter how answered if, as they were, they were negatively answered, it could be and was suggested that the defendant’s portrayal of himself was freakish. And if they had been answered in quite another sense, by the plaintiff claiming to have lots of sexual outlets of whatever kind no doubt these too would have been explored in some detail with requests to identify partners so on.

It must be said that the plain attempt to suggest that involvement in scouting on the part of a bachelor school teacher is remotely suggestive of paedophilia is insulting to a very reputable group of people, utterly lacking in logic, and an attempt to appeal, in a court of law, to pure impressionistic prejudice. Some of this may have arisen in the heat of the moment or may be attributable to counsel’s extravagance of language and of thought. But it is quite out of keeping with the proper practise of cross-examination as I have known it over a period of thirty years.

Justification for cross-examination.
Leading Counsel for the State, as we have seen, did not deny that the cross-examination was directed at showing the appellant’s disposition. He said however that this was justified in the circumstances of the present case by three matters which occurred in direct examination, on pages 86 and 87 of Book 8. These were firstly references to the appellant’s involvement in scouting, secondly reference to the fact that he was unmarried, and thirdly references to the fact that he was of a heterosexual orientation. No other part of the direct examination was relied on as opening the door to the cross-examination conducted. Counsel also said on several occasions that the complainant had been cross-examined at some length and about intimate matters.

The complainant was indeed cross-examined at some length. He was not present in the Court but appeared by video link. The nature of the allegations meant that a portion of the cross-examination was in relation to physical intimacies but these were limited to the ones he alleged against the defendant. The entire content of the cross-examination was clearly and obviously relevant to the allegations made and no attempt was made to impeach his character generally. As far as one can judge from a transcript the tone of the cross-examination was polite and gently but at times insistently probing. The cross-examination of the complainant was wholly and properly related to the matters at the centre of the case he was making against the appellant.

Counsel said in this Court that the significant amount of cross-examination directed to scouting was relevant in order to establish “If his scouting activities had brought to his attention questions of ‘appropriate behaviour’ in one to one dealings (with children)”.

Taking the broadest possible view of certain aspects of the cross-examination whose meaning is not clear, only a very small percentage of the large portion of it devoted to scouting could be regarded as having any bearing, even introductory, on that question. Assuming the issue defined by counsel to be relevant, it appears to me that some 90% of the cross-examination about scouting has no conceivable reference to it. The suggestion that the appellant’s scouting activities revealed a “colossal appetite for engagements involving boys”, for example, have no conceivable relevance to the topic which counsel said was the basis of the cross-examination about scouting. The fact that the appellant’s scouting involvement was the first item alleged by counsel as part of the “profile” of Mr. O. as a “vicious sexual abuser” entirely undermines the suggested basis of the cross-examination on this topic. Counsel’s suggestion on the hearing of this appeal (that the fact that the defendant did not go to the Tennis Club or the Badminton Club, where he might meet women, but instead to the Boy Scouts was a justification of the cross examination) is equally inconsistent with it. So is the plain suggestion made that it was particularly odd for a teacher, who dealt with young boys throughout his working day, to seek further involvement with them after hours.

The appellant said that he was unmarried and gave some details of an event in his earlier life, the sudden and tragic death of a sister in her twenties – which distracted him from normal social life at a vulnerable age. He also said, when asked, that his sexual orientation was heterosexual.

State Counsel justified large parts of the cross-examination by saying that they arose naturally out of the plaintiff’s assertion of heterosexuality. I cannot agree that this is so, quite apart from any question of whether such questions would otherwise be proper. In questions that were scornful, sometimes mocking, counsel caused the witness to admit that he had never had sexual intercourse either with a woman or with a man, suggested that he could have disregarded any religious based inhibitions he might have in that regard, that he could deal with any loss of inclination with Viagra or some other drug and could find a partner in Lisdoonvarna. Apart from flourishes like these whose purpose seemed to be more to mock than to extract information, he proceeded to suggest that the appellant had no sexual outlets and was unmarried because he was a pervert. His status, occupation, and scouting involvement and lack of sexual outlets were relied to ground the suggestion that he “fitted the bill” or the “profile” of a vicious sexual abuser. Asked on the hearing of this appeal what he meant by profile, leading counsel said that a profile was a drawing or painting or photograph of a person taken from the side. He then cited a number of dictionary definitions of the term, all equally without conceivable reference to the use he had himself made of the term in cross-examination. He eventually explained his question in relation to “profile” as meaning:

“Other aspects to your make up which would permit a person looking at you to come to a view of you in terms of your sexuality”.

This is plainly an attempt to establish a disposition.
I cannot agree that an assertion that the plaintiff is a bachelor of heterosexual orientation opens the door to cross-examination along the lines that he is, by disposition, a paedophile. Statements as to marital status are routinely made by witnesses, even in traffic accident cases. Moreover, the cross-examination was not directed at suggesting that the appellant was homosexual or bisexual: indeed the cross-examination elicited quite deliberately that the appellant had no full sexual experience with either sex. The cross-examination was directed at painting a picture of him as a pervert and a paedophile and at very little else.

State Counsel also submitted that the lengthy cross-examination in relation to scouting was directed at testing the assertion, attributed to the appellant, that he rarely saw boys, in the course of his scouting work. The appellant had not said this. He said that in the course of most of his involvement, including specifically the twelve years he had spent in high rank, he was operating in a managerial capacity. It was counsel’s mocking summary of this:

“You wouldn’t have seen a boy at all?”

which was contradicted by the appellant.

Conclusion on cross-examination.
At Book 5 of the transcript there is reported the elaborate argument on the basis of which the similar fact evidence was sought to be admitted by the prosecution. Counsel himself said that:

“If the evidence is being merely [introduced] to show propensity and it has been produced for that purpose then it ought not to be admitted”.

He went on to illustrate a number of aspects in common between the story of the complainant and the story of the two similar fact witnesses thereby making them relevant “…in such a way to negative any suggestion of accident and to place that conduct within terms of it being deliberate, designed conduct”. In my view the similar fact evidence and the evidence of character was used in cross-examination of the complainant deliberately and almost exclusively to establish his disposition. It was done in language which was, to use counsel’s own term, extravagant: in the words of the Court of Criminal Appeal the cross-examination was not particularly attractive in tone. I feel this is an understatement and at various aspects of the appellant’s life, not themselves of any probative value, were used to portray him as one who “fitted the bill” of a paedophile. This is in clear breach of the very long established rule of law summed up in the first paragraph quoted above from Lord Herschell. It was also unjustified by anything said in the course of the defence case.

An aberration.
Having thus criticised the cross-examination of the defendant at the trial, it is right to point out that cross-examining counsel is a barrister not merely in good standing but of considerable and deserved repute. He rightly enjoys the confidence of a large clientele and is habitually assiduous in their interest. The cross-examination in this case is an isolated incident and is in the nature of an aberration. It is right also to point out that it was not the subject of objection while it was in progress in the Court of trial, perhaps because opposing counsel feared that objection would add emphasis to the question. However that may be, criticism of this single cross-examination should not be seen as an attack on the advocate’s general competence, probity and indeed dedication.

Conclusion.
For the reasons given I would allow the appeal. In all the circumstances of the case, I feel that a retrial should not be ordered.

JUDGMENT of Mr. Justice Fennelly delivered the
8th day of March 2006

I fully agree with the order proposed by the Chief Justice and Hardiman J. and with the reasons given by the latter that the appeal should be allowed. I also agree with the judgment of the Chief Justice. In the circumstances, it is unnecessary to decide the first point certified by the Court of Criminal Appeal and I refrain from expressing any view on the question of whether the subsequent acquittal of the appellant on charges based on the evidence of complainants whose evidence was admitted in the instant case under the rubric of similar facts, is capable of having an effect on the appeal, whether in the guise of new evidence or otherwise.

D.O.