DPP v CC (No. 2)

Factual and Procedural Background

This appeal concerns a former religious brother who taught in a national school in the west of Ireland during the 1960s and 1970s. Allegations of indecent assault were made against him by multiple complainants who were pupils in his classes during that period. The appellant faced an indictment initially containing 70 counts of indecent assault. Various counts were withdrawn or discontinued during the trial, resulting in 35 counts proceeding to the jury, who convicted the appellant on all such counts. The appellant was sentenced to 12 months imprisonment on select counts, but having already served ten months, no further custodial sentence was imposed.

This was the fourth trial related to these allegations. The appellant had previously been convicted on similar charges in 2005 but that conviction was quashed due to inadequate jury directions concerning delay. Two subsequent trials were aborted for procedural reasons. The present trial commenced in February 2010 and was conducted with noted fairness and sensitivity by the trial judge and counsel.

The evidence concerned acts alleged to have occurred in two classes taught by the appellant between 1968 and 1978, involving five complainants. The allegations generally involved acts of indecent assault at the teacher’s desk, often involving physical contact and coercion within a classroom environment characterized by corporal punishment and a large number of pupils.

Legal Issues Presented

1. Whether the trial judge erred in law by failing to withdraw certain counts due to the phenomenon of recovered memory and the absence of expert evidence on this issue.
2. Whether the trial judge improperly expressed his opinion on the honesty of a complainant, thus trespassing into the jury’s domain.
3. Whether the trial judge erred by considering the refusal of judicial review applications when deciding on directions to the jury.
4. Whether the trial judge erred in failing to properly address prejudice caused by delay and lapse of time in the investigation and trial.
5. Whether the trial judge improperly instructed the jury regarding the accused’s decision not to give evidence.
6. Whether the trial judge gave inadequate directions concerning corroboration and the admissibility of system evidence.
7. Whether the evidence relating to a particular complainant (DF) was insufficient and improperly corroborated.
8. Whether the cumulative effect of the identified errors undermined the safety of the convictions.

Arguments of the Parties

Appellant's Arguments

• The trial judge should have withdrawn counts related to a complainant who admitted to recovered memory without expert evidence explaining the phenomenon.
• The trial judge improperly expressed a personal view on the honesty of a complainant, potentially prejudicing the jury.
• The judge erred by relying on Superior Courts’ refusal of judicial review applications when refusing to direct an acquittal.
• The appellant was prejudiced by delay, including failure to produce available evidence such as school layout and uniform details, and the jury was not properly directed on these issues.
• The judge’s instructions regarding the accused’s failure to give evidence were inappropriate and could have prejudiced the jury.
• The directions on corroboration and system evidence were insufficiently clear and detailed, potentially confusing the jury and prejudicing the appellant.
• The evidence relating to the complainant DF was too general and contradictory, and the corroboration evidence was improperly admitted.
• The cumulative impact of these errors rendered the convictions unsafe and unjust.

Respondent's Arguments

• The recovered memory issue was a misnomer; the complainant had simply recalled events when questioned, not recovered memories through therapy, so no expert evidence was necessary.
• The trial judge’s comments on the honesty of a complainant were part of a broader charge emphasizing the jury’s role and did not amount to an improper expression of opinion.
• The refusal of judicial review was a relevant consideration and did not unduly influence the trial judge’s decision.
• The trial judge gave appropriate and extensive warnings regarding delay and its prejudicial effects, including cautioning the jury about the age of the case and loss of detail.
• The judge correctly instructed the jury that the accused was not obliged to give evidence and should not be prejudiced for not doing so.
• The directions on corroboration and system evidence were legally correct and sufficient, given the circumstances of the case.
• The evidence relating to complainant DF was admissible and supported by corroboration evidence.
• The appeal against conviction should be dismissed as the trial was fair and the convictions safe.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the inherent difficulties in prosecuting historical allegations of sexual abuse, particularly where evidence is generalized, and memories are recovered after significant lapse of time. The trial judge was commended for conducting the trial with fairness and sensitivity, including giving appropriate warnings about delay and corroboration.

Regarding recovered memory, the court found that the complainant’s memory lapse was not the product of controversial recovered memory therapy but a natural forgetting and later recollection when questioned. Therefore, no expert evidence or special jury direction was required. However, the trial judge’s analogy likening recovered memory to computer data recovery was considered a significant error as it may have misled the jury into believing the memories were reliable and intact.

The trial judge’s comment expressing belief in the honesty of a complainant who had initially denied abuse but later changed his account was found to be an improper judicial expression of opinion on credibility, infringing on the jury’s role.

The court held that reliance by the trial judge on the refusal of judicial review applications was questionable in theory but did not materially affect the fairness of the trial or the judge’s decision to refuse withdrawal of the case.

Directions on delay and lapse of time were thorough, cautioning the jury about the difficulties posed by the age of the case and loss of detail. The court rejected complaints that the judge failed to address prosecutorial default in producing evidence such as school plans, finding the issue conflated two distinct matters.

The judge’s instructions regarding the accused’s right not to give evidence were appropriate and did not prejudice the accused.

On corroboration and system evidence, the court found that while the judge’s directions were technically correct, they lacked sufficient clarity and detail for the jury to fully understand these complex concepts. The treatment of the evidence of a witness (CD) as potential corroboration for a complainant (DF) was particularly problematic due to contradictions and generality, rendering the evidence prejudicial rather than supportive.

The evidence related to the complainant DF was notably weak, with a charge alleging a single incident over a nearly five-year period without specificity. The court concluded that this count should have been withdrawn.

Finally, applying the cumulative effect principle, the court found that the combined impact of the errors concerning recovered memory, judicial expression of opinion, treatment of the DF count, and insufficient directions on system evidence and corroboration undermined the safety of the convictions.

Holding and Implications

The Court of Criminal Appeal QUASHED the convictions of the appellant on the 35 counts of indecent assault.

The decision directly affects the appellant by overturning the convictions and ending the prosecution on these counts. No broader precedent was established, but the judgment underscores the critical importance of clear jury directions, careful treatment of evidence involving memory, and the proper handling of system evidence and corroboration in complex historical sexual abuse trials.