Belfast Telegraph

Judge refuses to grant stay in proceedings against ex-principal facing historical sex abuse allegations

By John Cassidy

A judge on Monday refused to grant a stay in proceedings against a former Catholic school principal facing historical child sex abuse allegations.

Lawyers for Richard Duffin (78), formerly of Ballysallagh Road, Cargan, Ballymena, Co Antrim said he was too ill to stand trial on eight counts of indecent assault, two charges of cruelty to children under the age of 16 and two counts of common assault.

Judge Gordon Kerr QC said on Monday that although he was refusing to grant the abuse of process application, one remedy to the case instead of a trial could be to hold a "fact find hearing'' in which it would be decided if Duffin had committed the acts as alleged by three male complainants.

The offences are alleged to have taken place on dates between June 1975 and June 1981 against three males while he was principal of St Joseph's Primary School in Ballymena. He denies all the charges.

Last week, Duffin's legal team advanced an abuse of process application stating Duffin was not fit to stand trial due a number of medical conditions and asked for a stay in the proceedings against him.

Defence counsel Neil Connor QC said Duffin faced charges dating back 42 years and that the pensioner was interviewed five times by police in 2013 and said that for whatever reason "it has taken some time to get this case to court''.

"During the course of these interviews he was able to answer the questions and participate in the interviews,'' said Mr Connor.

When the accused appeared in court last September he was able to attend with the help of a walking aide.

"However, he is now confined to a wheelchair and remains in that wheelchair throughout the day until he goes to bed.''

Mr Connor said that according to medical reports, Duffin suffered from a number of medical conditions, including Parkinsons Disease "which is at an advanced stage'' and also epilespy.

The reports also stated that he suffered a stroke in 2014 and had previously suffered three heart attacks.

"He was hospitalised in 2016 and as a result he is incapable of looking after himself and has been in a nursing home ever since. His condition has deteriorated over the last three to four years.

"There are times when he is more articulate than others and it is very difficult to predict whether he will be able to take part in the court proceedings and instruct his lawyers with his defence.''

Mr Connor added: "His speech is almost intelligible. I can honestly say from the bar I can scarcely understand much of what he said to me this morning. Mr Duffin's conditions are both mental and physical but more physical than mental.

"I fail to see how the accused could give intelligible evidence to a jury given his condition and for those reasons we say he is not fit to stand trial.''

Prosecution counsel Tessa Kitson objected to any stay in the proceedings saying that measures could be put in place to assist Duffin with his trial, including a registered intermediary, his interviews could be played to the jury and he could be given regular breaks during the trial.

The prosecutor said that if was not able to attend court that a live video link could be provided from his nursing home so he could follow proceedings and give his oral evidence to the jury.

"He has given very robust answers to the questions at police interview. Over the period of five interviews he robustly denied every single allegation in very considerable detail, outlining where he was at the time the offences were alleged to have been committed.''

Giving his ruling today, Judge Kerr said that in a 1999 Court of Appeal judgement, the then Lord Chief Justice Carswell confirmed the principles that should be applied in dealing with abuse of process applications.

Firstly, that a "stay should be rarely granted and it would require exceptional circumstances for it to be appropriate''.

Secondly, there were only two grounds for a stay - where there was a delay and it would not be able to conduct a fair trial; and where a fair trial would be possible it would be "unfair to allow a trial to proceed as to do so would offend right thinking members of the public''.

The judge said that the appeal court ruling confirmed that judges had a "discretionary power'' on whether to stay proceedings which should be "exercised in the interests of justice''.

These included a fair trial for the defendant but that was to be balanced against the "undoubted public interest'' in cases involving allegations of historical sexual abuse which are brought to court.

Judge Kerr said that that main issue in this case was the defendant's capacity to stand trial given the medical evidence which he described as a "significant and substantial issue''.

"The difficulty, however, for the defence is that in the normal trial process there is a procedure under Article 49 of the Mental Health (NI) Order 1986 to deal with the issues that are raised by this case.

"In principle, were such a procedure is open to the defence as part of the regular trial process, a stay could not be considered an appropriate remedy.

"In considering the interests of justice, as I must in dealing with this discretionary remedy, I have to have regard to the fact that a stay would be an end to the proceedings leaving the complainants in this case practically without a voice.''

He said that there was a procedure under Article 49 of the Mental Health (NI) Order which allowed for either a trial or a "fact finding hearing'' to take place.

At a 'fact finding hearing' no guilt is apportioned to the accused. Instead, a jury would decide whether or not the accused had "committed the acts'' as alleged by the complainants.

Judge Kerr concluded: "In relation to this case, I consider a stay should be refused and note that the appropriate remedy could be made by way of an application under Article 49. Steps should now be taken to see if that can be achieved by the first week of term.''

The case was adjourned until next month when it will be mentioned at Antrim Crown Court.

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