Court of Criminal Appeal dismisses appeal against conviction for sexual assault and rape charges. The court upholds the admission of similar fact evidence despite subsequent acquittals on related charges. The jury's verdict remains valid as it was based solely on evidence presented at trial.

COURT OF CRIMINAL APPEAL

74A/01

McGuinness J.

Murphy J.

Abbott J.

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

and

D.O’S

APPLICANT/APPELLANT

Judgment of the Court delivered the 28th day of July 2004 by McGuinness J.

The applicant appeared before the Central Criminal Court on 16th May 2001 charged with four counts of sexual assault

contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990 and three counts of rape contrary to section 4 of

the same Act. All the counts related the alleged sexual abuse of D.C., then aged eleven years, between September 1997 and

February 1998. The said D.C. was at the time a pupil at a school in the Cork area; the applicant was a remedial teacher in

the same school.

Following a trial lasting thirteen days before O’Donovan J. and a jury the applicant was acquitted by the jury on count no. 7

(rape contrary to section 4). He was convicted by a majority verdict of eleven to one in respect of the four counts of sexual

assault, and by a majority verdict of ten to two in respect of the two remaining rape counts. On 26th July 2001 the applicant

was sentenced to four years imprisonment on each of the counts of sexual assault and ten years imprisonment on each of

the two counts of rape, all sentences to run concurrently.

Leave to appeal was refused. In this court the applicant sought leave to appeal against conviction and sentence. The

application for leave was treated as the appeal itself.

Summary of Evidence

The applicant was born on 8th July 1948 and qualified in 1967 as a national teacher. Since qualifying he had taught at the

school in question in the Cork area. Following on a heart attack he had a career break for one year in 1996 to 1997. During

this career break an incident occurred in which his house was broken into and he was stabbed. During his career break he

did a limited course in remedial studies and upon his return to work he took up a position as a remedial teacher in the

school. Both the headmaster of the school and another class teacher gave evidence of having known the applicant for many

years; both described him as an excellent teacher with a particular interest in marginalised children. The applicant was also a

leader in the Boy Scout movement from in or about 1972 until 1998.

The complainant, D.C. was born on 21st June 1986 in England. He is the eldest of five children. His family moved to

Ireland when he was about seven or eight years of age and came to live in the Cork area. He attended a local national school

in the area in which the family lived. Subsequent to a move of residence by the family D.C. started to attend the school in

question in these proceedings at the beginning of September 1997 when he was eleven years of age. He started in fourth

class; his class teacher was a Mr C. who subsequently gave evidence at the trial. D.C. suffered from dyslexia and it was

therefore decided with the consent of his mother that he would benefit from remedial teaching by the applicant. During the

period while D.C. attended the school the marriage between his mother and father broke down and his father left the family

home. During the Christmas holiday period in 1997 D.C.’s father came to stay for a short period at the family home but this

appears to have been an unhappy period when there was a degree of aggression between the parents. D.C.’s mother has

since formed a relationship with a new partner by whom she has a young child. In addition to his dyslexia, therefore, D.C.

had a somewhat troubled family background during the relevant period.

D.C. attended two types of remedial class with the applicant. There were regular classes, which might be described as the

“official” classes, which took place between 11.45 a.m. and 12.15 p.m.; there was some clash of evidence as to whether

these classes took place every day or three days a week. The classes took place in a dedicated room known as classroom

11. A number of young boys took part in these classes including P.B. and J.M., both of whom gave evidence at the trial. In

addition to these classes D.C. attended further remedial classes with the applicant during lunchtime every day. While some

other boys may have attended these classes to begin with the situation shortly developed into one where D.C. was the only

pupil involved. The classes were on a one to one basis. For some time it appears that neither the headmaster nor D.C.’s

mother was aware that these classes were on a one to one basis. From the evidence of the headmaster it appears that such a

practice was regarded with disapproval in the school.

In his evidence D.C. said that during these lunchtime classes the applicant used to bring other boys into the room with him

and then send them out after a while. He said that the applicant used to lock the door of the classroom while he was there

with him. He described the applicant leaning over his back correcting his work as he

sat at his desk and that he could feel the applicant’s penis against his back. He also told the jury that the applicant had on a

couple of occasions put his hand down the complainant’s trousers and rubbed his penis outside his underpants. In his

evidence he also described how the applicant on three or four occasions committed anal rape on him which he found very

painful. On one of these occasions the applicant had torn his trousers. He excused this to his mother by saying that there

were torn while playing in the playground but later explained to her how the damage to his trousers arose. D.C.’s mother

gave evidence at the trial of having to mend the trousers and they were produced as an exhibit in evidence. The complainant

also gave evidence that the applicant had forced him to take part in oral sex.

On 21st January 1998 D.C. told his mother that he did not want to be alone with the applicant again. There was some

discussion between his mother and the school authorities as to why he was not attending his remedial classes any longer.

The applicant telephoned his mother and offered to teach D.C. at home. The following day D.C.’s mother encouraged the

boy to speak to her new partner, P.G., and D.C. made complaints to him about sexual assault on him by the applicant. The

boy then spoke to his mother along the same lines and the matter was reported to the Garda Siochana who embarked on an

investigation.

During the investigation D.C. made three separate statements to the Gardai and it was not until his later statements that he

referred to the alleged rape episodes. It was not until the end of the investigation that he complained of the oral sex episode.

In fact the jury acquitted the applicant on this particular count.

During the course of the trial evidence was given by two other young witnesses who had been pupils at the school, P.D. and

J.M. Both of these boys had attended what are described as the “official” remedial classes given by the applicant. The

defence objected to this evidence and it was admitted only following a ruling by the learned trial judge. I shall refer to this

later in the context of the grounds of appeal. Both boys gave evidence that the applicant had lent over them assessing or

correcting their work and that they had felt his penis being rubbed against their backs.

Medical evidence was given for the prosecution by Dr. Elizabeth Brosnan of St. Finbarr’s Hospital in Cork. She had

examined the complainant some considerable time after the date of the alleged abuse. She made certain findings which she

accepted were not diagnostic of but were consistent with anal abuse. Medical evidence for the defence was given by Mr

Martin Corbally of Our Lady’s Hospital Crumlin who had not examined the complainant but had assessed Dr. Brosnan’s

report. His view was that Dr. Brosnan’s findings were not diagnostic of anal abuse.

Garda evidence was given in regard to the location and type of the classroom involved and in regard to the various aspects

of the Garda investigation. As far as the classroom was concerned evidence was given that it was divided from another

classroom by a thin partition which would allow noise made in the classroom to be heard in the next door classroom.

However evidence was also given that a number of the boys in the school were involved in the making of what was

described as “string pictures”, a task which involved a great deal of hammering noise and which at times was carried out

during the lunch hour break.

The applicant gave evidence in his own defence. He firmly and consistently denied all the allegations made by the

complainant and by P.B. and J.M. He gave evidence as to the presence of other boys in the classroom while he was

conducting the lunchtime class and also of the presence of the boys who were making “string pictures” in the corridor

outside. His evidence was that he only locked the door of the classroom on one occasion in order to keep out a disruptive

student. His evidence was that D.C. was very keen to go to the remedial classes until in or about January 1998 when some

kind of football league started in the school yard. The effect of his evidence was that D.C. attended only two lunchtime

classes after Christmas 1997 even though he had given evidence that three of the rapes and the oral sex incident had taken

place during that period. The applicant was cross-examined at length by Mr Sammon, senior counsel for the prosecution, in

regard to his general lifestyle and in particular his sexual history. He was also cross-examined at length in regard to his

connection with and role in the Boys Scout organisation.

Grounds of Appeal

At the outset of the hearing of the appeal before this court the defence brought a notice of motion seeking liberty to file an

amended notice of appeal. No objection was made by the prosecution to this amendment of the notice of appeal. The

grounds of appeal before this court therefore were as follows:

1. The learned trial judge erred in law in admitting the evidence of P.B. and J.M.

2. The learned trial judge erred in law in failing to discharge the jury on the application of counsel for the applicant after the

evidence of P.B. and J.M. had been given.

3. In charging the jury in respect of the evidence of P.B. and J.M. the learned trial judge failed to clearly or at all put the

defence case in relation to the dissimilarities between their evidence and that of the complainant.

4. In charging the jury in respect of this evidence of P.B. and J.M. the learned trial judge erred in law in commenting on the

defence case of conspiracy in such a way as to resolve the issue for them.

5. That the conviction is unsafe by reason of the fact that it was procured in part by allegations of offences against P.B. and

J.M. in respect of which the applicant has since been tried and acquitted by a jury.

6. The learned trial judge erred in failing to give a corroboration warning in respect of the evidence of P.B.

7. In charging the jury the learned trial judge erred in law in instructing them that the evidence of P.B. and J.M. constituted

corroboration of the evidence of the complainant.

8. The learned trial judge erred in law in failing to instruct the jury in respect of the presumption of innocence and onus of

proof in respect of the allegations made by P.B. and J.M.

9. The learned trial judge wrongly exercised his discretion in refusing to give a warning about the dangers of convicting in

the absence of corroboration.

10. The learned trial judge erred in law in failing to instruct the jury either properly or at all on the issue of the benefit of the

doubt.

11. In charging the jury the learned trial judge erred in law in failing to clearly, fully or fairly, put the defence case.

12. The learned trial judge erred in permitting cross-examination in respect of the applicant’s involvement in the Boy Scout

movement.

13. The learned trial judge erred in law in admitting Polaroid photograph number 4 taken by Detective Garda O’Sullivan

without making an inquiry as to its provenience (sic) or what it purported to show.

14. That the sentence imposed by the learned trial judge was an error of law and excessive.

Written legal submissions were filed both by the applicant and by the Director. I will refer to these, and to the oral

submissions made by counsel to this court, in the course of dealing with the various grounds of appeal.

As can be seen a large number of the grounds of appeal are related to the evidence given by the two young boys P.B. and

J.M. and it seems reasonable to deal with all these matters together in a later section of this judgment. Prior to dealing with

these grounds of appeal, however, it would seem reasonable to deal with the other grounds of appeal seriatim.

Benefit of the Doubt

On this ground of appeal senior counsel for the applicant submitted that the learned trial judge failed to instruct the jury that

where there was evidence capable of

two interpretations, one favourable to the prosecution and the other favourable to the accused, that they had to give the

benefit of the doubt to the accused and to draw the inference which was in his favour. The learned trial judge was

requisitioned on this aspect of his charge by counsel for the prosecution but refused the requisition in the belief that he has

already dealt with the matter. It was submitted that he had not in fact done so.

In reply counsel for the Director, Mr Sammon, pointed out that the trial judge expressly warned the jury about the benefit of

the doubt in his charge at page 8 of day 12 in the following terms:

“The accused man is innocent until he is proven guilty and the onus of proving his guilt rests on the State and they must

do so beyond reasonable doubt. The accused man is not obliged to prove anything. He has to prove nothing and he is

entitled to the benefit of any and every doubt.”

This reference to the benefit of the doubt by the learned trial judge is relatively brief, and a rather more detailed explanation

of the meaning of the phrase “the benefit of the doubt” is sometimes given by trial judges when charging the jury.

This passage in the learned trial judge’s charge must, however, be seen

in the context of clear and quite lengthy explanation given by the judge to the jury regarding the general principles of law

which should govern their consideration of their verdict. From page 3 of day 12 onwards the learned judge dealt with the

need to base their findings on evidence, the meaning of “drawing an inference”, the irrelevance of his own views on the

evidence, the onus of proof and the standard of proof. He laid particular emphasis on the presumption of innocence and the

fact that there was no requirement for the applicant to give evidence. In that context the learned trial judge said (at page 6

day 12):-

“And in that context may I say to you if you believe what he told you, well that is the end of it and he is entitled to be

acquitted without any more ado. Indeed, even if you do not believe what he said to you, that you think that it might have

happened the way he has described things, then you must also acquit him because in that event you will have had a

doubt.”

While the trial judge at this point did not use the specific phrase “benefit of the doubt” his direction to the jury encapsulated

the principle which is generally characterised by that phrase. When this passage is taken together with the passage at page 8

quoted earlier and the general context of the charge the principle of the benefit of the doubt would in the opinion of the court

be clear to the jury. Provided the principle is clear it is not necessary for the trial judge to use a particular form of words on

every occasion in charging the jury.

This ground of appeal therefore fails.

The case for the defence

A number of other grounds of appeal are also based in criticisms of the learned trial judge’s charge to the jury. Counsel for

the applicant submitted that in charging the jury in respect of the evidence of P.B. and J.M. the learned trial judge failed

clearly or at all to put the defence case in relation to the dissimilarities between their evidence and that of the complainant .

The jury were not reminded of the differences in the evidence between the complainant P.B. and J.M. In particular counsel

referred to the question as to whether the complainant was the lone pupil at the lunchtime classes, the differing evidence as

to the position adopted by the applicant when correcting the boy’s work, and the questions raised as to the possibility of the

applicant’s penis coming into contact with the boys backs due to the plywood backs on the chairs.

In the course of his lengthy charge to the jury the learned trial judge surveyed the evidence which had been led by both

prosecution and defence in some detail. He did not in specific terms summarise either the prosecution case or the defence

case for the jury; the jury had, after all, recently heard the speeches of both counsel. However, in his survey of the evidence

the learned trial judge was most careful to include the points made in cross-examination by the defence. He also drew the

jury’s attention to a number of inconsistencies in the evidence of the complainant and of other prosecution witnesses, and

highlighted clashes of evidence as between various witnesses. He gave a full account of the evidence of character favourable

to the applicant given by his colleagues Mr F. and Mr C. He drew attention to the inconsistencies between the evidence of

the complainant and that of the other two boys as to whether more than one boy was present at the lunchtime classes and as

to whether anything untoward occurred at the regular classes as opposed to the lunchtime classes. He also noted the clash of

evidence between the complainant and his mother (who was corroborated by Mr O’L) as to whether the complainant had

asked his mother for “a dirty book”.

On numerous occasions throughout his charge the learned trial judge stressed to the jury that it was for them, as judges of

the facts, to consider all these matters and to decide the facts of the case. In particular he pointed out that it was for the jury

to decide whether the complainant was telling the truth or lying.

It appears to this court on reading the learned trial judge’s survey of the evidence as a whole that he presented a fair and

balanced picture of the case made both by the prosecution and the defence. This ground of appeal therefore fails.

Excessive comment

The fourth and related ground of appeal is that in charging the jury in respect of the evidence of P.B. and J.M. the learned

trial judge erred in law in commenting on the defence case of conspiracy in such a way as to resolve the issue for them.

At book 12 page 13 of his charge the learned trial judge stated:

“In that regard the defendant has said that the evidence of P.B. and J.M. is not true. Indeed he has said that it is a

conspiracy, that the two lads have conspired with D.C. to make these unjustified and outrageous complaints against him.

Bu, ladies and gentlemen, it is a matter for you, is there any evidence of a conspiracy between these three boys? It is a

matter for you. I cannot find it.”

Counsel for the applicant submitted that having failed to put the defence case in respect of the dissimilarities between the

evidence of the complainant and the other two boys, that failure was compounded by excessive comment on the part of the

learned trial judge who told the jury that he could not find evidence of a conspiracy between the three boys. Counsel

submitted that a trial judge is entitled to comment on the evidence but can only do so after he has clearly and fairly put the

defence case to the jury and cannot do so in such a way as to resolve the issue of fact for the jury.

Counsel for the Director in reply points to the number of times during his charge that the learned trial judge made it clear

that all matters of fact were solely for the jury, using directions such as “your role, you are the Gods insofar as the facts of

the case are concerned” (book 12 page 2), “you are only entitled to find facts which

are supported by the evidence. You cannot speculate or go outside the evidence…” (Book 12 page 3), “if you think it is

important, it is important because you are the ones who decide the facts” (book 12 page 4).

At book 12, page 4, the learned trial judge stated by way of introduction to his charge to the jury:

“Now in the course of my charge to you I will be reviewing the evidence, but needless to remark I will not be able to

review every single word and in that context you should not be concerned if some matter, which you think is important, is

not mentioned by me. The fact I do not mention it does not mean that it is not important. If you think it is important it is

important because you are the ones who decide the facts. So if I did not refer to something or counsel did not refer to

something that you think is very important or significant, be influenced by it.

I hope in the course of what I am going to say to you not to convey to you any views that I might have on the

case because my views are irrelevant. But if in the course of what I do say to you you get an impression that I

have a view, if that view accords with your view, fine, but if it does not agree with what you think ignore it,

reject it. As I say my views are not important.”

This court accepts that the learned trial judge repeatedly laid stress on the jury’s role as the sole judges of the facts. Even in

the course of the passage complained of he twice told the jury that it was a matter for them. While a number of trial judges

deliberately refrain from making any comment, however mild, on the evidence before the court, this is by no means a

universal rule. Comment is permissible if it is made in the course of a fair and balanced charge. It appears to this court that

the learned trial judge’s brief comment, taken in the context of what we have already held was his fair and balanced charge,

would not have undue influence on the jury, who were free to reject it. This ground of appeal therefore also fails.

Corroboration

A number of the applicant’s grounds of appeal deal with the issue of corroboration. His sixth and ninth grounds refer to the

failure of the learned trial judge to give a corroboration warning in respect of the evidence of P.B. and J.M. and in respect of

the dangers of convicting in the absence of corroboration. Section 7 of the Criminal Law (Rape) (Amendment) Act 1990

abolished the compulsory warning on the danger of convicting for rape or indecent assault in the absence of corroboration

and replaced it with a judicial discretion to give a warning. Counsel for the applicant accepted that a warning would be

appropriate only where some factor was present which called into question the reliability or credibility of the complainant’s

evidence. However he submitted that there were a multitude of inconsistencies between the evidence of the complainant and

his earlier statements, his answers in interview to J.O’L, and also between his evidence and that of P.B. This would in the

ordinary course require the giving of a corroboration warning.

Counsel for the Director submitted that the issue of corroboration was a matter of discretion for the trial judge who was

entitled to take into account the nature of the evidence and the manner in which the witnesses gave their evidence, the trial

judge having the benefit of seeing and hearing that evidence at first hand.

Section 7(1) of the Criminal Law ( Amendment) Act 1990 provides:

“Subject to any enactment relating to the corroboration of evidence in

criminal proceedings, where at the trial on indictment of a person charged with an offence of a sexual nature

evidence is given by the person in relation to whom the offence is alleged to have been committed and, by

reason only of the nature of the charge, there would, but for this section, be a requirement that the jury be

given a warning about the danger of convicting the person on the uncorroborated evidence of that other

person, it shall be for the judge to decide in his discretion, having regard to all the evidence given, whether

the jury should be given the warning; and accordingly any rule of law or practice by virtue of which there is

such a requirement as aforesaid is hereby abolished.”

This section was fully considered by this court in a judgment delivered by Denham J. in the People (Director of Public

Prosecution) v J.E.M. (Unrep. Court of Criminal Appeal 1st February 2000). At page 400 of the report in her judgment

Denham J. commented:

“This section is quite clear in stating that it is for the judge to decide in his discretion, having regard to the evidence,

whether the jury should be given a warning about the danger of convicting the person on the uncorroborated evidence of

the other person.”

At page 401 of the report she goes on to refer to the guidance given by Lord Taylor of Gosforth C.J. in the English case of

R. v Makanjuola [1995] 1 WLR 1348. Among these guidelines were the following:

“….(2) It is a matter for the judge’s discretion what, if any, warning he considers appropriate in respect of such a

witness, as indeed in respect of any other witness in whatever type of case. Whether he chooses to give a warning and in

what terms will depend on the circumstances of the case, the issues raised and the content and quality of the witness’s

evidence.

(3) In some cases, it may be appropriate for the judge to warn the jury to exercise caution before acting upon the

unsupported evidence of a witness. This will not be so simply because the witness is a complainant of a sexual offence

nor will it necessarily be so because a witness is alleged to be an accomplice. There will need to be an evidential basis

for suggesting that the evidence of a witness may be unreliable. An evidential basis does not include mere suggestion by

cross-examining counsel.

(4) If any question arises as to whether the judge should give a special warning in respect of a witness, it is desirable

that the question be resolved by discussion with counsel in the absence of the jury before final speeches.

(5) Where the judge does decide to give some warning in respect of a witness, it will be appropriate to do so as part of

the judge’s review of the evidence and his comments as to how the jury should evaluate it rather than as a set-piece legal

direction.”

This court accepts that the issue of whether to give a corroboration warning in sexual cases is a matter for the discretion of

the learned trial judge. It does not appear to this court that the learned trial judge exercised his discretion wrongly in this

instance.

The applicant also submitted that in charging the jury the learned trial judge erred in law in instructing them that the

evidence of P.B. and J.M. constituted corroboration of the evidence of the complainant. The applicant draws attention to a

passage in the learned trial judge’s charge to the jury where he stated:

“Before you allow yourself to be influenced by the evidence of those two young boys you must be satisfied

beyond reasonable doubt, firstly, that one or other of those boys have told you the truth and secondly, that the

evidence satisfies you beyond reasonable doubt, not just that Mr O’S had a tendency to rub his penis against

the backs of his pupils but it is corroboration or support of the evidence of D.C. in that regard”.

Counsel for the Director submitted that the learned trial judge did charge the jury on this issue at (Book 12 page 142) as

follows:

“The last thing I want to say to you is that when I was referring to the evidence of P.B. and J.M. when I said it was

similar fact evidence. It is only relevant in this case insofar as D.C.’s allegation that while he was correcting his copy

book Mr O’S lent over him and put his penis against his back because those two boys describe similar incidents. But

their evidence is not at all relevant insofar as the allegations that D. made with regard to the rape or the alleged blow

job”.

Counsel for the Director submitted that this passage made clear the difference between similar fact evidence and actual

corroboration.

It seems to this court that both in this passage and in his charge as a whole the learned trial judge made clear to the jury both

the extent and the limitations of the similar fact evidence. This ground of appeal therefore fails.

In his eighth ground of appeal the applicant submitted that the learned trial judge erred in law in failing to instruct the jury in

respect of the presumption of innocence and onus of proof in respect of the allegations made by P.B. and J.M. Counsel for

the applicant drew attention to a reference in the trial judge’s charge to the evidence of P.B. and J.M. where he said (day 12

page 11):

“There is one other matter I wanted to mention to you and it is really a matter of law and that is with regard

to the evidence of the two young lads, P.B. and J.M. Their evidence, if you believed it, establishes that D.O’S

has committed criminal offences against them.”

Counsel submitted that the learned trial judge did not instruct the jury that the applicant was presumed by law to be innocent

of those offences or that the onus of proof to prove otherwise was on the prosecution.

Counsel for the Director drew attention to a subsequent passage in the judge’s charge (day 12 page 12) where the judge

again referred to the evidence of the two boys:

“I have to warn you that you should not draw an adverse inference against Mr O’S merely from the fact that the evidence

of those two boys, if you believe it, tends to show a disposition on Mr O’S’s part to commit offences similar to those

charged. Before you allow yourself to be influenced by the evidence of these two boys you must be satisfied beyond

reasonable doubt firstly, that one or other or both of these boys told you the truth and secondly that the evidence satisfies

you beyond reasonable doubt not just that Mr O’S had a tendency to rub his penis against the backs of his pupils but it is

support or corroboration of the evidence of D.C. in that regard.”

In this passage the learned judge referred directly to the evidence of the two boys when dealing with the standard of proof in

regard to their evidence. Throughout his charge, however, he made it clear that at all times and in respect of all the evidence

the applicant benefited from the presumption of innocence. The learned judge also dealt fully both with the onus and

standard of proof which had to be applied to the evidence as a whole. In the view of this court the trial judge’s instructions

to the jury in respect of the presumption of innocence and the onus and standard of proof both at the beginning of his

charge and throughout his charge were clear, emphatic and sufficient both in regard to the evidence as a whole and in regard

to the similar fact evidence.

This ground of appeal also fails.

The Applicant’s involvement in the Boy Scouts

In his evidence in chief the applicant stated that he was involved with the Boy Scouts of Ireland since 1972 (day 8 question

464). He had been involved both as a leader with the scout troop and also in the higher echelons of the administration of the

scouting organisation.

He was cross-examined at length by Mr Sammon for the prosecution about his involvement in scouting activities and in

particular about his commitment to contact with young boys in that organisation. It was, for example, put to the applicant

that he seemed to have a colossal appetite for engagements involving boys.

It was submitted on behalf of the applicant to this court that the purpose and effect of the cross-examination was to

insinuate that the applicant had an improper and irregular interest and involvement in the boy scout movement and that his

commitment to that movement was part of his predatory interest in young boys. It was further submitted that if the

necessary evidence to prove the truth of that insinuation was not available to the prosecution and was, therefore, omitted

from the book of evidence such matters ought not to have been put to the accused for the first time at his trial.

Counsel for the applicant referred to the judgment of this court (Gannon J.) in D.P.P. v James Cull 2 Frewen 36 and to this

court’s more recent judgment (McGuinness J. unreported 19th December 2003) in D.P.P. v Liam Campbell. In the latter

case this court stressed the need for the court of trial to be alert to preventing a cross-examination from subverting or

abusing the presumption of innocence. It was also submitted that the prosecution had led no evidence as to the applicant’s

involvement in the boy scouts or as to any sinister implications thereof. The applicant was taken by surprise by the extensive

and pointed cross-examination.

Counsel for the Director submitted that this portion of the cross-examination evidence arose from the evidence of the

accused in chief that he was a man who had enjoyed heterosexual relations. In that regard, evidence had been given by the

applicant of one particular and important heterosexual relationship to assure the jury that his sexual propensity was neither

homosexual nor inclined towards paedophilia. The prosecution was therefore entitled to cross-examine the accused on his

sexual propensities and to ask him to comment on the amount of time and manner in which he spent his time both free and

working almost exclusively in the company of young adolescent boys.

It is accepted by this court that the matter of the applicant’s considerable involvement in the boys scouting organisation first

arose in his own evidence in chief. It was, therefore, open to counsel for the prosecution to cross-examine him on this

evidence even in the absence of any evidence being led on this subject by the prosecution. The tone of this cross-

examination was not particularly attractive and it might have been thought wrongly to imply that any involvement in the

boys scouting organisation connoted a tendency to seek exclusively the company of young boys. Robust cross-examination

is not, however, impermissible. It does not seem to us that the situation in this case is on all fours to that which arose in

D.P.P. v Campbell. In that case the applicant was cross-examined about new matters which had not properly arisen either

in his own evidence or in the prosecution’s original case. It does not appear to us that the nature of the cross-examination of

the applicant on the subject of scouting was such as to render the trial unfair.

The photograph

A further ground of appeal was that the learned trial judge erred in aw in admitting Polaroid photograph no 4 taken by

Detective Garda O’Sullivan without making an enquiry as to its provenance or what it purported to show.

The Polaroid photograph in question was produced to this court. It appears to be connected with the making of “string

pictures” but neither its subject matter nor any implication therefrom was at all clear to the members of this court. This

ground of appeal was not pressed by counsel for the applicant.

The admissibility of similar fact evidence

The court now turns to what is in effect the applicants’ principle ground of appeal. In essence the applicants’ submission is

that firstly the evidence of P.B. and J.M. should not have been admitted at all and secondly, once that evidence had been

given, its nature was such that the learned trial judge should have acceded to the defence’s application to discharge the jury.

The evidence of two young boys, fellow pupils of the complainant was ruled to be admissible by the learned trial judge on

the grounds that it was “similar fact” or more properly “system” evidence.

The applicant had originally been returned for trial in respect of offences alleged against the complainant and others

including P.B. and J.M. The Director of Public Prosecutions had subsequently elected to prosecute the offences alleged by

the complainant separately and in isolation from the other alleged offences. On the fifth day of the trial and on the

application of the prosecution the learned trial judge exercised his discretion to admit the evidence of P.B. and J.M. of

extraneous acts of sexual assault alleged against the applicant. In his ruling as to its admissibility (Book 5 page 97) the

learned trial judge accepted that the proposed evidence was extremely prejudicial but nonetheless decided to admit it as

“evidence of a system of conduct which bears a striking resemblance to acts complained of by the victim D.C.” He went

on to say that the proposed evidence bore “a very striking resemblance” in respect of “one aspect of the complaints”

which the complainant made against the applicant and that it was in that regard evidence “of a high probative value”.

Counsel for the applicant submitted that the learned trial judge did not in fact state what the probative value of the evidence

was nor did he hold that the probative value of the evidence outweighed the prejudicial effect it would have on the accused.

P.B. and J.M. accordingly gave evidence at the trial. Subsequent to their evidence counsel for the defence made an

application to the learned trial judge to discharge the jury (Book 7 page 1 onwards). Counsel relied on an extract from

Richard May on Criminal Evidence at paragraph 6.21:

“If during the course of the case the probative value of the evidence is weakened to such an extent that the original ruling

as to admissibility has to be reconsidered it may become necessary to discharge the jury.”

Counsel went on to argue that such a re-consideration had to be made on account of the “striking dissimilarities” between

the evidence of P.B. and that of the complainant. He went on to list a number of dissimilarities. In reply to this application

the learned trial judge ruled as follows (Book 7 page 3):

“I accept that there are dissimilarities. There was a basic similarity between the three stories given by the three

witnesses, D .C., J.M. and P.B. That was that the accused was behind them and that he was putting his penis against

their backs. That is a striking similarity and that thread was through the evidence of all three of them.”

The learned judge went on to say that he believed that it was proper to admit the evidence and he still thought it was proper

that the evidence was admitted because of the similarity. In his view it was open to counsel to point out dissimilarities to the

jury and that might well influence them.

In submissions to this court the applicant through his counsel drew attention to the various inconsistencies and dissimilarities

between the evidence of the complainant and that of P.B. and J.M. He pointed out that the evidence of D.C. was that the

applicant abused him furtively, having isolated him in a locked room with no other boys being present. The evidence of P.B.

disclosed alleged criminal conduct which was engaged in openly in the presence of other boys both during the morning and

lunchtime classes. Moreover the complainant maintained that he attended the lunchtime classes on his own so that P.B.

could not have been there whereas P.B. gave evidence of being present. Furthermore the complainant had given evidence

that the applicant’s penis could not have touched the lower part of his back because of the plywood back on the chair

whereas P.B. said that he could feel the applicant’s penis on his back about half way up. The evidence of three boys was

also contradictory in regard to the attitude assumed by the applicant – whether he was standing, kneeling or genuflecting.

The evidence of J.M. also complained of alleged wrongdoing which was openly engaged in the presence of other boys.

The applicant submitted that the learned trial judge had failed to state what the probative value of the proposed similar fact

evidence was and how it is relevant to an issue to be tried by the jury since the defence had never raised the defence of

accidental touching. The learned trial judge had also failed to measure and to weigh the probative value and prejudicial effect

of the evidence.

Counsel for the Director submitted that in fact there were striking similarities in the evidence of the three boys. He listed a

number of specific similarities. The acts took place in the remedial classroom when a remedial class was in operation. The

applicant came behind the boy in the classroom upon the pretext of inspecting his homework or class work whilst the boy

pupil was sitting at his desk. The applicant lent up against the boy’s back so that the boy complained of feeling the

applicant’s penis in his back. The boys described that the applicant leant his hand or hands on the school table as this

happened. Mr Sammon conceded that ordinarily evidence of other misconduct is not permitted to go to the jury under the

general exclusionary rule as it is prejudicial. However he submitted that in this case the probative value of the proposed

evidence outweighed its prejudicial effect and thus it was correct to allow it under the exception to the rule. The learned trial

judge had correctly admitted the evidence of both boys. This court was referred by both counsel to the law on the admission

of similar fact evidence as set out in Makin v Attorney General for New South Wales [1894] A.C.57, Regina v Boardman

[1975] A.C. 421, D.P.P. v P. 2 A.C. 447 and The People (Director of Public Prosecutions) v B.K. [2000] 2 I.R. 199.

In delivering the judgment of this court in D.P.P. v B.K. Barron J. reviewed the earlier cases of Makin and Boardman and

fully considered the law on similar fact or system evidence.

In that case the applicant had been convicted on several counts of attempted buggery and indecent assaults against various

young males. The applicant sought leave to appeal against both conviction and sentence, his grounds for appeal being that

each of the counts, as far as they related to a different boy, should have been tried separately and he was thus prejudiced by

being charged by more than one offence in the same indictment. It was held by this court in allowing the appeal that the test

as to whether several counts should be heard together was whether the evidence in each count would be admissible on each

of the other counts. To be so admissible, it would be necessary for the probative value of such evidence to outweigh its

prejudicial effect. Similar fact evidence was inadmissible on the basis that just because a person might have acted in a

particular way on one occasion did not mean that such person acted in the same way on some other occasion. However,

system evidence was admissible because the manner in which a particular act has been done on one occasion suggested that

it was also done on another occasion by the same person and with the same intent.

In the judgment Barron J. made a careful distinction between “similar fact evidence” and “system evidence”. At page 203

of the report he stated:

“For such evidence to be so admissible, it would be necessary for the probative value of such evidence to

outweigh its prejudicial effect. In practice this test is applied where there is a similarity between the facts

relating to the several counts. On the one hand, there is system evidence which is so admissible; and on the

other hand, there is similar fact evidence, which is inadmissible. In the latter case, the reason is that, just

because a person may have acted in a particular way on one occasion does not mean that such person acted in

the same way on some other occasion. System evidence on the other hand is admissible because the manner in

which a particular act is being done on one occasion suggests that it was also done on another occasion by

the same person and with the same intent.

There is a clear line of division between these two types of evidence even though it may be difficult in an

individual case to say which side of the line the particular case falls. While the court uses the expression

‘system evidence’ and ‘similar fact evidence’ to distinguish the two types of evidence, in some of the

authorities to which we refer the words ‘similar facts’ are used to describe what we refer to as ‘system’. This

in itself does not affect the reality of the distinction.

The basic test is applied to ensure that the effect of the natural prejudice which will arise from similarity of

allegation is overborne by the probative effect of the evidence.”

Barron J. went on to quote with approval the judgment of Lord Hailsham of Marylebone in Regina v Boardman [1975]

A.C. 421. Lord Hailsham had quoted the judgment of Lord Herschell L.C. in Makin v Attorney General for New South

Wales. Barron J. went on to comment:-

“He (Lord Hailsham) then proceeded to refer to various cases which showed the circumstances in which the

second part of the quotation was applied. He made it clear that the categories of cases in which that rule

applied were not closed. As he put it at page 452: ‘the rules of logic and common sense are not susceptible of

exact codification when applied to the actual facts of life in its infinite variety.’”

Later in the judgment (at page 208 to 209) Barron J. goes on to quote with approval the judgment of Lord Mackay of

Clashfern in the House of Lords in D.P.P. v P. [1991] 2 A.C. 447. Lord Mackay had said (at page 460):

“As this matter has been left in Regina v Boardman [1975] A.C. 421 I am of opinion that it is not appropriate

to single out ‘striking similarity’ as an essential element in every case in allowing evidence of an offence

against one victim to be heard in connection with an allegation against another…

From all that was said by the House in Regina v Boardman I would deduce the essential feature of evidence

which is to be admitted is that its probative force in support of the allegation that an accused person

committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is

prejudicial to the accused intending to show that he was guilty of another crime.”

Lord Mackay had formulated the test at page 462 of his judgment as follows:

“When a question of the kind raised in this case arises I consider that the judge must first decide whether

there is material upon which the jury would be entitled to conclude that the evidence of one victim about what

occurred to that victim is so related to the evidence given by another victim, about what happened to that

other victim, that the evidence of the first victim provides stronger support for the evidence of the second

victim to make it just to admit it notwithstanding the prejudicial effect of admitting the evidence. This

relationship, from which support is derived, may take many forms and while these forms may include ‘striking

similarity’ in the manner in which the crime is committed, consisting of unusual characteristics in its

execution the necessary relationship is by no means confined to such circumstances. Relationships in time and

circumstances other than these may well be important relationships in this connection.”

The question of the admissibility of similar fact or system evidence was also referred to by Budd J. in his judgment in B. v

Director of Public Prosecutions [1997] 140. Following a survey of the law as expressed in Makin and Boardman and in

The House of Lords in D.P.P. v P. Budd J. went on to say (at page 157):

“In Director of Public Prosecutions v P. [1991] 2 A.C. 447, the evidence was admissible because each girl

independently described a prolonged course of conduct involving the general domination of the family by the

accused, who seemed obsessed with keeping the girls to himself. I should add that the mere existence of

multiple accusations of similar offences does not mean that the evidence will be admissible as it is still

essential that there should be a sufficient degree of probative force to overcome the prejudicial effect of such

evidence. Whether the accounts of each of several complainants are corroborative and also the risk of

collusion, either by conspiracy or where one witness has been unconsciously influenced by another, may well

be relevant factors at the trial. It seems that the underlying principle is that the probative value of multiple

accusations may depend in part on their similarity, but also on the unlikelihood that the same person would

find himself falsely accused on various occasions by different and independent individuals. The making of

multiple accusations is a coincidence in itself, which has to be taken into account in deciding admissibility.”

In the instant case the learned trial judge first considered the question of the admissibility of the evidence of P.B. and J.M.

on day 5 of the trial. Full submissions on the facts and on the law were made by counsel on both sides. The learned trial

judge made a clear statement of the test of admissibility which he would apply. On day 5 page 86 he stated:

“There is no doubt, Mr O’Carroll, it’s prejudicial evidence as far as Mr O’S is concerned, no doubt about

that at all. The question now is; does it, does its probative value, insofar as the allegations being made by

D.C. are concerned, exceed and outweigh its prejudicial value so as to render it admissible?...That is the

question I have to decide.”

Having heard further submissions from counsel the learned trial judge went in to make a ruling (day 5 page 98). Having

referred to the submissions of counsel and having accepted that the evidence, if given, would be extremely prejudicial, he

went on to say:-

“But insofar as sexual assault is concerned, the evidence of these two young men bears a striking resemblance

in respect of one aspect of D.C.’s complaints to the manner in which he described the accused’s behaviour

towards him. And the very striking resemblance between what they say and the evidence which D.C. gave, as I

say, in respect of one aspect of the complaints which he makes against Mr O’S. To that extent Mr Sammon

submits that that evidence is of probative value in this case and I have no doubt that that is so. But Mr

Sammon goes further and he says it is of high probative quality and so much so that its probative value

outweighs its admitted prejudicial effects insofar as the accused is concerned. And essentially what he is

saying is the interest of justice demand that the jury have available to them this evidence, otherwise they will

not be getting anything like the full picture. Now, I accept that there are various laws which limit evidence

which a jury may hear and to that extent a jury may in certain cases be asked to try a case in blinkers. And

perhaps it was inappropriate for him to use that phrase in the context of this application. However, it does

seem to me, and I accept the application of Mr Sammon, that this evidence is of a high probative value and I

think that it would be wrong and contrary to the interests of justice were I to allow this case to proceed in the

absence of that evidence. I take on board the submissions which have been made to me by Mr O’Carroll and it

may well be that he will be able to establish that there is a conspiracy between these boys. If so, well and

good, but that is as may be. And given, in particular, that Mr O’Carroll suggested and put to D.C. in the

course of cross-examination that he had invented the complaints against Mr O’S, it seems to me that this is

another reason why it is appropriate that I should admit this evidence. Accordingly, I will direct that P.B. and

J.M. may be called to give evidence in accordance with the statements which are included in the book of

evidence which has been served on the accused.”

The following day P.B. and J.M. gave their evidence. They were examined in chief and cross-examined. As has been set

out earlier in this judgment on day 7 of the trial counsel for the defence made an application to discharge the jury in the light

of the evidence given by P.B. and J.M. This was based on what he described as the dissimilarities between the evidence of

D.C. and the evidence given by P.B. and J.M. In the passage which has already been quoted earlier in this judgment the

learned trial judge refused to discharge the jury. He accepted that there were dissimilarities in the evidence but held that

there was a basic similarity between the three stories given by the three witnesses. He described that as a striking similarity.

The question before this court is whether the learned trial judge rightly exercised his discretion in admitting the evidence of

these two witnesses. The learned trial judge clearly identified the test which he had to apply. This test has been well

established in the earlier law and has been approved by this court in Director of Public Prosecutions v B.K. The learned

trial judge held that there were “striking similarities” between the evidence of P.B. and J.W. and that of D.C. In the view

of this court there were indeed strong similarities in the location, the timing and the manner in which the three witnesses

alleged that the applicant committed the particular offence of rubbing his penis against their backs while correcting their

work in the remedial classroom. In the course of their actual evidence a number of dissimilarities of detail emerge, for

example in regard to timing, in regard to the presence or absence of other persons and in regard to the exact position taken

up by the applicant while correcting their work. Such dissimilarities are not entirely surprising. The court is considering the

evidence of three young boys who at the time of the alleged offences were in or about eleven years of age, still attending

primary school. They were giving evidence at a trial which took place some three years later. Even in the case of adult

witnesses the recall of matters of detail may be difficult after a lapse of three years. If, indeed, the evidence of the three

witnesses concurred exactly in every detail it might well have given rise to a suspicion that they had conspired to concoct

their evidence or at least had contaminated their evidence by discussing it in advance between themselves.

The type of assault described by P.B. and J.M. was unusual as well as similar in nature to that described by D.C. and this

would add to the probative weight of the evidence of the two other boys in the context of the evidence of the complainant.

In the view of this court the evidence of P.B. and J.M., with its unusual and similar features, was indeed what was

described by Barron J. in the B.K. case as “system evidence”. As Barron J. said it is admissible “because the manner in

which a particular act has been done on one occasion suggests that it was also done on another occasion by the same

person and with the same intent.” (page 203).

It seems to the court that the evidence falls on the right side of the clear line of division between similar fact evidence and

system evidence. In the view of the court the learned trial judge was correct both in admitting the evidence of P.B. and J.M.

and in refusing to discharge the jury subsequent to their evidence. This ground of appeal also fails.

The remaining ground of appeal which is related to the similar fact evidence is Ground No. 5 – that the conviction is unsafe

by reason of the fact that it was procured in part by allegations of offences against P.B. and J.M. in respect of which the

applicant has since been tried and acquitted by a jury. In his written submissions counsel for the applicant argued that

evidence of the commission of alleged extraneous offences by an accused person should not be admissible where the trial of

those offences is pending against the accused. The admission of such evidence is anomalous and results in two trials of the

same issues before two juries who can return differing verdicts as in fact occurred in the instant case. No great emphasis

was put on this ground in oral argument before the court.

In our opinion the fact that the applicant was subsequently acquitted of charges in relation to alleged offences against P.D.

and J.M. cannot affect the issue of the admissibility of the similar fact evidence in the instant case. The issue of the

admissibility of the similar fact evidence was fully argued in the absence of the jury at the trial and proper warnings in regard

to it were given by the learned judge in his charge. The matter was fully argued on appeal before this court and has been

discussed earlier in this judgment.

The jury at the applicant’s trial were correctly instructed by the trial judge that they must decide the case solely on the

evidence that was before them. It must be presumed that they did so. It has not been suggested to this court that any new

evidence emerged subsequent to the conviction of the applicant which would ground an application to quash his conviction

as being unsafe and unsatisfactory (see for example The People (Director of Public Prosecutions) v Gannon [1997] 1

I.R. 40.)

The fact that a different jury reached a particular verdict on the evidence that was presented to that jury does not of itself

undermine the validity of the verdict in the present trial. This ground of appeal also fails.

The court therefore dismisses the applicant’s appeal against conviction. The court will hear counsel as to the hearing of the

applicant’s appeal against severity of sentence.

This judgment includes consideration and decisions in respect of certain submissions made by counsel to the court on 29th

June 2004. It replaces and extends the judgment delivered by the court on 27th May 2004.

DPP v DO’S