Court of Appeal dismisses appeal against conviction for sexual assault where trial judge's delay warning was fair and balanced.

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Mahon J.

246/14

The People at the Suit of the Director of Public Prosecutions

Respondent

v

P.B.

Appellant

Judgment of the Court delivered on the 20th day of April 2015 by Mr. Justice Sheehan

Introduction

1. On the 11th July, 2014, the appellant was convicted on 59 counts of indecent or sexual assault which occurred between the 1st

September, 1964 and the 26th June, 1985, in respect of eleven different complainants. The appellant was sentenced to eleven years

imprisonment with the final five years suspended and appealed against both conviction and sentence.

2. This judgment is concerned solely with the appeal against conviction.

3. On the 2nd December, 2014, the appellant filed twelve grounds of appeal which are set out hereunder:

1. The learned trial judge erred in failing to require the prosecution to disclose to the appellant all relevant material within

its possession either prior to the trial starting or during the applications which were made throughout the trial and, having

regard to the failure to make full disclosure, including in respect of matters over which the complainants had control, the

trial was unsatisfactory and the verdicts are unsafe.

2. The trial was unsatisfactory and the verdicts were unsafe having regard to the various applications, submissions and

requisitions made on behalf of the appellant and the adverse rulings made by the learned trial judge in respect of same.

3. The learned trial judge erred in law and in fact in refusing to transfer the trial to Dublin having regard to the very large

number of complainants and witnesses and the very large number of persons in the Clare area who are former students of

the appellant and the risk that members of the jury drawn from that area could be influenced by the fact that they were

likely to have contact with such persons after delivering a verdict.

4. The learned trial judge erred in law in refusing an application during the cross examination of the second complainant to

give evidence that the prosecution should particularise what behaviour was included in the counts relating to the said

complainant in the indictment and in particular that the prosecution should be obliged to particularise the particulars of

the offence or the category of offending behaviour relating to each count on the indictment.

5. The learned trial judge erred in law in refusing to withdraw the charges at the conclusion of the prosecution case on

the basis that the appellant was prejudiced by the lack of specificity in the indictment in that it was impossible to

distinguish what complaint as to conduct alleged or to constitute sexual assault related to which count.

6. The learned trial judge erred in law in refusing an application for a direction on behalf of the appellant at the conclusion

of the prosecution case on the grounds of delay and breach of fair trial rights which prejudiced the appellant.

7. The learned trial judge erred in law in failing to charge the jury in sufficient terms on how the delay in the complaints

gave rise to specific prejudice to the appellant in particular by reason of unavailable evidence and deceased witnesses.

8. The learned trial judge erred in fact and in law in failing to charge the jury adequately as to the presumption of

innocence and reasonable doubt.

9. The learned trial judge erred in law in the part of his charge where he referred to the fact that the appellant had not

given evidence.

10. The learned trial judge failed to adequately put the nature of the defence case to the jury.

11. The learned trial judge erred in law in failing to recharge the jury adequately in response to the requisitions raised by

counsel for the appellant.

12. Having regard to all the circumstances relating to the learned trial judge’s charge to the jury, the trial was

unsatisfactory and the verdict unsafe.

4. Written submissions in support of ground 1 and grounds 3 to 12 inclusive were filed on behalf of the appellant and the respondent

filed written submissions in reply.

5. In order to consider these grounds of appeal it is necessary to set out the background to the offences.

Background

6. The appellant was a primary teacher in a national school in County Clare which was a small, mixed, two teacher school in a rural

area. He is presently eighty years of age and has hearing difficulties.

7. Eleven complainants alleged that when they were young girls in fifth or sixth class they were indecently assaulted by him at school.

8. The indecent assaults alleged against the appellant arose either when he would sit down beside the girls at their desks and touch

them indecently or when he would call them to the front of the class and make them stand between his legs while he was pressed

against them, sometimes bringing their hands up and down his legs and making some of them touch his clothed genital area.

9. The first complainant stated that in addition to being indecently assaulted in the classroom she was also kept back on occasions

after school and the same offending behaviour occurred. The tenth complainant also stated that she had been indecently assaulted in

the hallway between the classroom and the toilet. Apart from these particular complaints all other offences occurred in the classroom

in the presence of other pupils between thirty and fifty years ago.

10. The prosecution called four former pupils in support of the eleven complainants. The first witness stated that the appellant had

been a very strict teacher and he remembered him bringing fifth and sixth class girls to the front of the class and getting them to sit

on stools to read stories. The appellant had been his teacher from 1981 to 1983.

11. The second supporting witness who was married to one of the complainants said he had been a pupil at the school from 1964 to

1972. He gave evidence that there were six boys and four girls in his class and he remembered girls being brought to the front of the

class and the appellant making them stand between his legs while he had his hands around them whispering and nuzzling them. The

third witness was a pupil of the appellant from 1972 to 1976. He was a brother of one of the complainants. He said that there were

occasions when the appellant would have a girl between his legs at the front of the classroom and he witnessed him run the girl’s

hand up and down his legs. He gave evidence that the appellant would also sit down beside the girls at their desks and put his arms

around them.

12. The fourth witness called in support of the complainants had been a pupil of the appellant between 1974 and 1979. He stated

that there were four boys and three girls in his class and that the appellant used to sit between the girls and put his arms around

their shoulders and his hands down onto their breast area. This witness also remembered the appellant having girls on his lap behind

the desk but that he thought nothing of it at the time.

13. Detective Garda Downes, who had taken over the investigation from Garda Wrenn, said that he had interviewed over 160 past

pupils and approximately 150 of these had been categorised as having “nothing to say”. Detective Garda Downes gave evidence that

these former pupils were asked if they had ever noticed inappropriate behaviour and statements were taken from people who were

willing to make them. He took no notes of any of the interviews that he conducted with the former pupils who did not make

statements and he also told the Court that Garda Wrenn, who had spoken to some of the complainants, had taken no notes of her

interviews with them. When Detective Garda Downes was challenged on his evidence, he reiterated that each pupil had been asked to

make a statement.

14. The appellant did not give evidence but called seven witnesses on his behalf. The first defence witness had been a pupil in the

school from 1963 to 1971. She said there were eight pupils in her class and she never saw anything inappropriate about the

appellant’s behaviour. She gave evidence that the appellant would invite pupils up to where he was sitting on the high stool for

reading and she had done so when she was older.

15. The second defence witness was a pupil of the appellant’s from 1967 to 1971. In his evidence, he stated that the appellant was a

nice man and that he never saw him engage in any inappropriate behaviour. The third and the fourth defence witnesses were brothers

who lived in the same general area as the appellant. Both were past pupils of the appellant from 1964 to 1969. Neither recollected

any inappropriate behaviour by the appellant.

16. The fifth defence witness was a pupil of the appellant from 1967 to 1971. She gave evidence that she had never had any

problems with the appellant and that he had never engaged in any inappropriate behaviour.

17. The sixth and seventh defence witnesses were brother and sister. She gave evidence that she never saw anything inappropriate

happening. She remembered being called up once in front of the class. She had no recollection of the appellant sitting at desks. She

was not challenged on any matter by the prosecution. However, she was subsequently recalled and asked whether the gardaí had

contacted her about speaking to the defence solicitor, she said that they had not contacted her. Arising out of this answer, the

witness was cross examined at some length about how she came to give evidence in the case. She told the trial court that her

brother queried whether she would speak about her time at school if she was needed and she said she would.

18. The final defence witness gave evidence that he had never seen the appellant behave inappropriately and he had told the gardaí

that he was prepared to make a statement. He said it was not true to say that the appellant had used corporal punishment

excessively. He never saw the appellant touching a girl on the chest but confirmed that he had witnessed pupils being called up to

the high stool at the top of the class once or twice.

Ground 1

19. This ground of appeal relates to two separate matters. The first relates to the refusal by the prosecution to give the defence

contact details of approximately 135 past pupils who were refusing to allow these details to be released to the defence solicitor. The

second matter relates to a refusal to compel two of the complainants to release their counselling notes.

20. The appellant contends that the trial judge erred in failing to require the Director of Public Prosecutions to disclose to him all

relevant material within her possession either prior to the trial or in the course of the applications made during the trial and that

having regard to this failure the trial was unsatisfactory and the verdicts unsafe.

21. Originally the Director of Public Prosecutions had refused to disclose the details of the 150 pupils who had been interviewed but

who had not made statements. Each of these past pupils was again contacted and 15 of them agreed to speak to the defence

solicitor.

22. The defence contended that this failure to disclose the contact details of the remaining 135 former pupils breached the

appellant’s constitutional right to fair procedures and also breached his right to a fair trial under Article 6 of the European Convention

on Human Rights.

23. The respondent submitted that the prosecution had complied with its disclosure obligations and contended that the defence had

been given appropriate assistance in this matter. The respondent stated that the appellant had not been prejudiced by the State’s

refusal to give contact details of those who did not want their contact information to be disclosed.

24. The respondent further contended that the trial judge was correct in law and in fact in not withdrawing the case from the jury on

this ground.

25. This matter did not arise for consideration in the trial until the fourth day when the investigating garda gave evidence. At one

point the trial judge intervened to suggest that it might have been possible for the defence to follow up on the information in the

school roll book. However, counsel for the appellant said at the time that the Legal Aid certificate did not extend to this type of

investigation. The matter was left there.

26. There was no application for an adjournment on the grounds that the defence wanted further time to ascertain the whereabouts

of one, some or all of the 135 past pupils who told the gardaí that they did not want the defence solicitor to have their contact

details. There was no evidence before the Court of any attempt by the defence to contact any of those people whose names had

been entered on the school roll book by the appellant himself. In fact, the suggestion to this Court was that, as the Legal Aid

certificate did not provide for this type of investigative work, a further onus rested on the prosecution to disclose the relevant

information. The defence maintained that it was prejudiced by the lack of this contact information. This line of argument appears to

be speculative. There was no failure to disclose relevant information, the defence was not prevented from making contact with the

former past pupils and, accordingly, this Court agrees with the finding of the trial judge that the failure to supply the contact

information to the defence did not result in a breach of fair procedures, nor did it breach the appellant’s right to a fair trial.

27. The second aspect relates to two of the complainants who had been in counselling. They had been asked to authorise the

handing over of their counselling notes to the defence, but refused to give such authorisation.

28. The defence maintains that they were prejudiced by this failure of the prosecution to make disclosure of these notes and, in the

course of his oral submissions in this appeal, counsel argued that it might well have been helpful to have had this material, especially

as it might have provided a basis for cross examination. Counsel for the appellant sought to rely on the unreported judgment of the

Court of Criminal Appeal in The People (at the suit of the Director of Public Prosecutions) v. Kavanagh (Unreported, O’Flaherty J. in

the Court of Criminal Appeal, 6th February, 1996).

29. In that case, following the defendant’s conviction, it emerged that the gardaí were in possession of a statement by a social

worker which contained an account of material events by the complainant which differed from the evidence she had given in court.

The Court of Criminal Appeal held that the statement ought to have been disclosed and directed a re-trial. This case is different in a

number of respects. First, the social worker was involved in a parallel investigation. Secondly, his statement was in the possession of

gardaí and thirdly, counsel for the Director of Public Prosecutions conceded at the appeal hearing that the statement ought to have

been disclosed to the defence.

30. As Professor O’Malley points out in his book ‘Sexual Offences’, 2nd Ed., (Dublin, 2013) at paragraph 16.12:- “Disclosure of

counselling, therapeutic and medical records of complainants in sexual offence cases raises an acute ethical dilemma.” The Court

recognises in particular that counselling records may include intensely private and personal information, much or all of which may be

irrelevant to the issue for determination by the jury or court as the case may be. The defence had asked for counselling notes of

each of the complainants in the event that any of them had attended counselling in respect of the subject matter of the allegations.

31. Notwithstanding the fact that the prosecution was not in possession of this information, a further inquiry was carried out and the

defence were told, on the 14th February, 2012, that two complainants had received counselling in respect of the incidents they

complained about and were not consenting to their notes being released. The height of the appellant’s case in respect of these notes

was that they might have assisted the defence in the cross examination of the complainants. Accordingly, the Court holds that the

trial judge was correct in refusing to order that these notes be produced. Accordingly, this Court rejects this ground of appeal.

Ground 3

32. The next ground of appeal was that the trial judge erred in law and in fact in refusing to transfer the trial to Dublin, having regard

to the large number of complainants and witnesses in the County Clare area and the fact that the appellant had taught hundreds of

pupils at the school from 1964 to 1985 and lived locally throughout that period.

33. The appellant submitted that the substantial dangers of injustice could be eliminated if the trial was transferred to Dublin.

34. During the oral submissions on this ground, it emerged that the Circuit Court in County Clare also sat in Kilrush, a town much

closer to the townland where the offences in this case were alleged to have occurred. The offences occurred in what can be

described as a small two teacher school that was geographically isolated and which was also a considerable distance from Ennis

where the trial was held.

35. The Court notes the careful way in which the trial judge addressed potential members of the jury stating as follows:-

“Each of you will have received a jury summons and presumably have read it which sets out whether you are eligible or

disqualified to participate in this important role or in respect of incapacity or whether you are excused as of right. Now

prosecution counsel will give you the name of the accused that is before the court today with details of the charges

which have been read out on which the accused had been indicted along with the names of the proposed witnesses

which the DPP proposes to call to give evidence. Now I would like to point out that this information about the case is

given to you for the reason that the interests of justice demands that neither you nor I should act in a case in which we

have an interest. Now the word interest in that sense is to be widely interpreted as including for example, knowledge of

or concerning the people who were involved in the case or knowledge of or concerning the circumstances of the case

itself. If you know any of the parties or feel you could not approach this case in a fair and open manner, then you might

tell me when selected and I will make a decision for you as to whether or not you can act as a juror in the case.”

36. Section 32(1) of the Courts and Court Officers Act 1995 provides:-

“Where a person (in this section referred to as “the accused”) has been sent forward for trial to the Circuit Court,

sitting other than within the Dublin Circuit, the judge of the Circuit Court before whom the accused is triable may, on

the application of the prosecutor or the accused, if satisfied that it would be manifestly unjust not to do so, transfer the

trial to the Circuit Court sitting within the Dublin Circuit and the decision to grant or refuse the application shall be final

and unappealable.”

37. Having carefully considered the submissions of the appellant and the replies of the respondent in relation to this matter, this Court

concludes that the trial judge exercised his discretion properly and acted in accordance with his statutory obligation.

Grounds 4 & 5

38. The fourth and fifth grounds of appeal both relate to the alleged failure by the prosecution to sufficiently particularise the counts

on the indictment. The appellant contends that this failure to particularise the counts renders the trial unfair and the verdict

therefore unsafe.

39. Each of the 67 counts on the indictment under the heading ‘Particulars of Offence’ allege that the appellant, on a date unknown

within a time band of four months or less at an identified rural national school in County Clare, indecently assaulted a named

complainant being a female.

40. As can be seen from the summary of the complainants’ evidence, most of them alleged they were indecently assaulted at their

desks or on occasions when the appellant brought them to the front of the class and made them stand between his legs. In a small

number of cases, complainants alleged that they were indecently assaulted at or near the school toilet.

41. In support of his submission on this ground, the appellant relied primarily on the judgment of the Court of Criminal Appeal in The

People (at the suit of the Director of Public Prosecutions) v. E.D. [2006] IECCA 3, as well as on the remarks of Mr. Justice Rougier in

R. v. Evans [1995] Crim. L. R. 245, which were cited with approval in the E.D. case.

42. Professor O’Malley, in his book ‘Sexual Offences’, 2nd Ed., (Dublin, 2013), at para. 14.37, helpfully summarises the appellant’s

authorities when he says:

“It is a principle of law that an indictment should be so drafted or exemplified as to put the defendant on notice, with as

much particularity as the circumstances will admit, of the case against him. As Rougier J. said in R v Evans: ‘[Although]

the prosecution are not obliged in every case to give detailed particulars of times and places, at least they should be

obliged to specify the type of conduct which it is alleged constitutes the particular offence which is the subject of a

count in the indictment. Otherwise, not to do so would leave the defendant at a disadvantage in not knowing what it

was he was supposed to have done and being unable to marshal his mind on more important evidence to counter those

allegations. It is as if the prosecution merely said: ‘Well, let us see the evidence of the complainant, see how it turns

out, and then decide afterwards’. That clearly is impermissible. The defendant is, at least, entitled to know the conduct

alleged. We remain, however, somewhat doubtful, whether in this particular case, the appellant did, in fact, suffer any

prejudice thereby.”

43. Professor O’Malley went on to say that this principle also applies in Ireland, especially following The People (at the suit of the

Director of Public Prosecutions) v E.D., where the relevant English authorities were cited and where the Court of Criminal Appeal held

that the trial judge should have ordered an amendment of the indictment so that each count indicated, with as much particularity and

specificity as the circumstances of the case would allow, the nature of the misbehaving charged.

44. The respondent submitted that the indictment was in accordance with law, that the appellant could not have been in any doubt

about the nature of the allegations he faced and that he was not prejudiced in respect of his defence. The respondent also sought to

distinguish the present case from E.D., where the allegations concerned indecent assault occurring at five very specific and very

separate locations during specific periods of time while in the instant case, all allegations were alleged to have occurred at one

location during specific time periods.

45. At one point during the course of submissions by the parties at the trial, counsel for the prosecution offered to amend the

indictment by further particularising counts, but explained that this could lead to an indictment containing up to 300 counts. Counsel

for the defence rightly refused to be drawn into negotiations on this matter and the matter was left there.

46. Section 4 of the Criminal Justice (Administration) Act 1924 states as follows:-

“(1) Every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences

with which the accused person is charged, together with such particulars as may be necessary for giving reasonable

information as to the nature of the charge.

(2) Notwithstanding any rule of law or practice, an indictment shall, subject to the provisions of this Act, not be open to

objection in respect of its form or contents if it is framed in accordance with the rules under this Act.”

47. Following the judgment of Egan J. in The People (at the suit of the Director of Public Prosecutions) v E.F. (Unreported, Supreme

Court, 24th February, 1994), indictments in all sexual assault cases have been laid in a form similar to the one in the present case.

48. Framing an indictment in old cases involving serious child sexual abuse is often fraught with difficulty. In particular, when the

drafter is attempting to ensure, on the one hand, that the indictment reflects the behaviour complained of and, on the other,

ensuring that the indictment does not become so unwieldy that it contains numerous counts resulting in unnecessary difficulties for a

jury.

49. In this case, where the defence was that no wrongdoing occurred and where there was also a degree of consistency between

the wrongdoing alleged by all the complainants, this Court considers that the appellant was not hampered in his defence by the failure

of the prosecution to further particularise counts on the indictment.

50. Accordingly, the Court holds that the trial judge was right in refusing to direct the prosecution to amend the indictment and that

he was also right in holding that the manner in which the indictment was drawn constituted neither unfair procedures nor did it lead to

an unfair trial.

Ground 6

51. In the sixth ground of appeal the appellant contends that the trial judge erred in refusing an application for a direction on his

behalf at the conclusion of the prosecution case on grounds of delay and breach of the appellant’s right to a fair trial which gave rise

to prejudice.

52. In the course of lengthy submissions, the appellant reviewed much of the delay jurisprudence and contended that by virtue of the

delay in this case, he was seriously prejudiced. The appellant identified the unavailability of Mr. A, whose complaint initiated the garda

investigation, as an area of particular prejudice as well as the deaths of two teachers who at different times had taught in adjacent

classrooms at times when the alleged wrongdoing was taking place. Again, under this ground of appeal, the appellant contended that

he was prejudiced by the absence of 135 witnesses whose contact details had been refused and also prejudiced by the fact that

desks from the school had been destroyed. In this regard, a question concerning the size of the desks was an issue in the case,

particularly in the context of the complainants alleging that they were assaulted at various times by the appellant sitting beside them

at their desks.

53. In refusing this application, the trial judge dealt with each area of specific prejudice alleged by the appellant and concluded that

any unfairness could be dealt with by him in his charge to the jury at the conclusion of the trial.

54. In the case of H. v The People (at the suit of the Director of Public Prosecutions) [2006] IESC 55, the Supreme Court conducted

a review of delay cases and in the course of its conclusions held:-

“In this case, the developing jurisprudence as to delay in bringing a prosecution for offences of child sexual abuse was

considered by the Court. The Court is satisfied that in general there is no necessity to hold an inquiry into, or to

establish the reasons for, delay in making a complaint. The issue for a court is whether the delay has resulted in

prejudice to an accused so as to give rise to a real or serious risk of an unfair trial. The Court does not exclude wholly

exceptional circumstances where it would be unfair or unjust to put an accused on trial.

In this case the Court is satisfied, as the learned High Court Judge found, that the delay has not resulted in prejudice to

the applicant so as to give rise to a real or serious risk of an unfair trial. Further, no wholly exceptional circumstances

arise in this case whereby it would be unfair to put the applicant on trial. Consequently, the Court would affirm the order

of the High Court and dismiss the appeal of the applicant.”

The court therefore holds that the trial judge was correct in refusing to grant a direction because of delay and accordingly rejects

this ground of appeal.

Grounds 7, 8, 9, 10, 11 & 12

55. The final grounds of appeal all seek to demonstrate inadequacies in the trial judge’s charge to the jury and ground twelve is

essentially a summary of grounds seven to eleven inclusive.

56. The appellant contends that the trial judge failed to contextualise the manner in which the delay gave rise to specific difficulties

for the appellant, particularly in light of deceased witnesses and unavailable evidence. He further contends that when requisitions

were raised on this matter, the trial judge failed to direct the jury to the specific prejudice to the appellant caused by the absence of

garda notes, the unavailability of Garda Wrenn and the unavailability of Mr. A, whose original complaint led to the garda investigation.

57. The trial judge gave a detailed delay warning and partially contextualised the present case by referring to the fact that the jury

had to consider events alleged to have occurred between 30 and 50 years ago. On being requisitioned by the defence to further

contextualise and emphasise the delay warning because of the number of complainants, the trial judge pointed out that the degree of

prejudice to a defendant was greater where there were multiple complainants and the fact that teachers from the adjoining classroom

were deceased.

58. It is the Court’s view that the trial judge was correct in refusing to direct the jury that specific prejudice was caused to the

appellant by the death of Mr. A, the unavailability of Garda Wrenn and the absence of garda notes.

59. The absence of garda notes and the unavailability of Garda Wrenn were unrelated to the question of delay and there was no

evidential basis for suggesting that the appellant was specifically prejudiced by the death of Mr. A.

60. This Court finds no fault with the trial judge’s charge on delay, nor for that matter does this Court find any fault with the said

charge insofar as it related to the presumption of innocence and an explanation as to what constitutes reasonable doubt. The trial

judge’s charge in respect of these latter matters was fair and balanced, as also was the part of the charge where he explained to the

jury that no adverse inference could be drawn from an accused person’s decision not to give evidence.

61. The appellant also complained that the trial judge had failed to state that there are reasons why an accused may decide not to

give evidence at his trial. This Court is of the view that not only is there no obligation on the trial judge to point to possible

explanations as to why an accused person might not give evidence, but that it would be wrong for a trial judge to speculate in the

manner contended for by the appellant.

62. A review of the transcript confirms that the trial judge reviewed the evidence in detail and the appellant’s case, which was a

straightforward denial of all the allegations, was abundantly clear.

63. In his final submission, the appellant again complains about the adequacy of the trial judge’s re-charging concerning the

contextualising of the delay warning and in particular that the trial judge should have explained to the jury how the deceased

teachers might have helped the appellant. This was something that did not require a further explanation and the trial judge’s charge in

this matter was entirely satisfactory.

64. The final complaint of the appellant is that the trial judge failed to re-charge the jury on the absence of an explanation for the

delay in making complaints. It was clear from the evidence that the complaints were made as a result of a garda inquiry following a

complaint by Mr. A. Were it not for that inquiry, it is possible that no complaints would have been made. Therefore, no explanation

was required and, accordingly, the Court holds that there is no merit in this final ground of appeal.

65. Accordingly, the appeal against conviction is dismissed.