Background evidence of ongoing sexual relationship admissible to explain complainant's conduct in multiple abuse counts.

THE SUPREME COURT

[Appeal No: 375 of 2008]

Denham J.

Fennelly J.

Macken J.

Finnegan J.

O'Donnell J.

In the matter of a Certificate pursuant to s.29 of the Courts of Justice Act, 1924, as substituted by s.22 of the Criminal

Justice Act, 2006

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR/RESPONDENT

AND

GERALD MCNEILL

APPELLANT

Judgment delivered on the 8th day of April, 2011 by Denham J.

1. This appeal raises the issue of whether or not background evidence is admissible. In this case the indictment contains eight counts

of sexual abuse. However, the situation described by the complainant was one of multiple occasions of sexual abuse over many years.

Thus an indictment of eight counts does not reflect the reality of the situation described by the complainant. The essential issue is

whether the background evidence of the ongoing sexual relationship between the complainant and the accused/appellant is

admissible.

2. This is an appeal from the Court of Criminal Appeal on a certified question of law, and on several grounds of appeal.

3. On the 31st October, 2008, the Court of Criminal Appeal, when granting the appellant's application for a certificate pursuant to

s.29 of the Courts of Justice Act 1924, as substituted by s.22 of the Criminal Justice Act 2006, certified the following point of law:-

"Is evidence of connected background history, which might disclose matters not laid down in the indictment and, possibly

prejudicial to the accused, but which is essential or helpful to the jury understanding the charges actually laid in the

indictment, admissible in a criminal prosecution?"

4. A notice of appeal against conviction, pursuant to that certificate for leave to appeal granted by the Court of Criminal Appeal

under the terms of s.29 of the Courts of Justice Act 1924, as amended, was filed on behalf of Gerald McNeill, the appellant, who is

referred to as "the appellant".

5. A motion was brought to this Court for an order pursuant to Order 58 Rule 25(3), as amended, of the Rules of the Superior Courts,

seeking to permit the appellant argue grounds as set out at (a) to (h) in the notice of appeal, in addition to the certified point of law.

On the 21st January, 2011 this Court (Macken J., Finnegan J., McKechnie J.) ordered that the grounds of appeal as set out at (a) to

(f) be allowed and that those as set out at (g) and (h) be refused.

6. The grounds of appeal which were permitted are:-

(a) The admission of evidence of criminal conduct not referable to counts on the indictment in a criminal trial constituted

an attenuation of the constitutional guarantee of the presumption of innocence outside the existing exceptions permitting

the same.

(b) The admission of evidence of criminal conduct not referable to counts on the indictment breaches the accused’s right

to a separate trial on every count in an indictment.

(c) The adducing of non-specific evidence of criminal misconduct not charged in the indictment constitutes a breach of

fair procedures by depriving the accused of the capacity to know the exact allegations against him and the possibility of

rebutting the same.

(d) It is not in accordance with the constitutional principle of trial in due course of law for the prosecutor to unilaterally

decide on the composition of the bill of indictment thereby causing a potential difficulty for a jury in understanding the

nature of the prosecution case and to thereafter seek to use the said difficulty to justify the leading of evidence of

criminal misconduct not specified in the indictment.

(e) Evidence of criminal misconduct was incorrectly admitted in a misapplication of the probative value versus prejudicial

effect test: the aforesaid evidence had no probative value as it lacked the independent nature necessary for the same.

(f) Evidence of criminal misconduct was wrongly admitted in circumstances where such evidence had no relevance to the

issue at trial by the jury and where the effect of the same was merely prejudicial.

History of the Case

7. At the commencement of the hearing of this appeal, counsel for the appellant renewed the application that ground (g) be

considered by this Court. Ground (g) states:-

"(g) The learned trial judge, in deciding to admit evidence of criminal misconduct not laid in the indictment, failed to

ensure that adequate warnings and safeguards were put in place when charging the jury."

The Court heard the application de bene esse.

8. The appellant was arraigned before the Central Criminal Court on the 19th April, 2004, on the eight counts on Bill CC0064/01. He

pleaded not guilty on all counts.

9. The counts allege that on several dates between June, 1989 and October, 1997 at various locations in County Roscommon, the

appellant indecently or sexually assaulted or raped C.C.. C.C. was born in 1979. The appellant was a farmer, and friend of the family

of C.C. and he acted as sacristan for the local church.

10. There were eight charges against the appellant. They were:-

Count No.1

STATEMENT OF OFFENCE

Indecent Assault contrary to Common Law

PARTICULARS OF OFFENCE

Gerald McNeill on a date unknown between the 1st of June 1989 and the 31st of August 1989 outside the home of C.C. … in the

County of Roscommon, indecently assaulted C.C.

Count No.2

STATEMENT OF OFFENCE

Indecent Assault contrary to Common Law

PARTICULARS OF OFFENCE

Gerald McNeill on a date unknown other than the date referred to in Count No.1 between the 1st of June 1989 and the 30th

September 1989 at … Church … in the County of Roscommon indecently assaulted C.C.

Count No.3

STATEMENT OF OFFENCE

Rape contrary to Section 2 of the Criminal Law (Rape) Act, 1981

PARTICULARS OF OFFENCE

Gerald McNeill on a date unknown between the 1st day of August 1989 and the 31st day of October 1989 at … Church … in the

County of Roscommon had unlawful sexual intercourse with C.C., a female person, who at the time of the intercourse did not consent

to it and at the time knew that she did not consent to intercourse or were reckless as to whether she did or did not consent to it.

Count No.4

STATEMENT OF OFFENCE

Rape contrary to Section 4 of the Criminal Law (Rape)(Amendment) Act, 1990

PARTICULARS OF OFFENCE

Gerald McNeill, a male person, on a date unknown between the 1st day of January 1991 and the 31st of December 1991 at the turf

shed at the rear of the home of C.C. in … in the County of Roscommon sexually assaulted one C.C., a female person, by placing his

penis into the mouth of the said C.C.

Count No.5

STATEMENT OF OFFENCE

Sexual Assault contrary to Section 2(1) of the Criminal Law (Rape) (Amendment) Act, 1990

PARTICULARS OF OFFENCE

Gerald McNeill, on a date unknown between the 1st day of January 1992 and the 31st of December 1992 in a turf shed at the rear of

the home of C.C. at … in the County of Roscommon sexually assaulted one C.C., a female.

Count No.6

STATEMENT OF OFFENCE

Sexual Assault contrary to Section 2(1) of the Criminal Law (Rape) (Amendment) Act, 1990

PARTICULARS OF OFFENCE

Gerald McNeill, on a date unknown between the 6th day of December 1993 and the 5th day of December 1994 at … Church … in the

County of Roscommon, sexually assaulted one C.C., a female.

Count No.7

STATEMENT OF OFFENCE

Rape contrary to Section 2 of the Criminal Law (Rape) Act, 1981 as amended by section 21 of the Criminal Law (Rape)(Amendment)

Act, 1990

PARTICULARS OF OFFENCE

Gerald McNeill on a date unknown between the 1st day of June 1994 and the 31st day of August 1994 at Gerald McNeill's home at …

in the County of Roscommon had sexual intercourse with C.C., a female person, who at the time of the intercourse did not consent to

it and at the time knew that she did not consent to intercourse or were reckless as to whether she did or did not consent to it.

Count No.8

STATEMENT OF OFFENCE

Rape contrary to Section 2 of the Criminal Law (Rape) Act, 1981 as amended by Section 21 of the Criminal Law (Rape)(Amendment)

Act, 1990

PARTICULARS OF OFFENCE

Gerald McNeill on a date unknown between the 1st day of October 1997 and the 31st day of October 1997 at … church … in the

County of Roscommon had sexual intercourse with C.C., a female person, who at the time of the intercourse did not consent to it and

at the time knew that she did not consent to intercourse or were reckless as to whether she did or did not consent to it.

11. The appellant was tried before a jury in a trial commencing on the 19th April, 2004.

12. Verdicts were brought in on each count. The jury convicted the appellant on the counts of indecent and sexual assaults, as laid

in counts no.1, 2, 5 and 6. On counts no.3 and 7, rape counts, the verdicts were not guilty of rape but guilty of indecent and sexual

assault respectively. The jury convicted the appellant on count no.4 of section 4 rape, and acquitted the appellant on the charge of

rape on count no.8.

13. At the outset of the trial, Mr. E. Comyn S.C., counsel for the prosecution, indicated that he intended to lead all the evidence of

criminal misconduct of the appellant as set out in the book of evidence, despite the fact that it would involve evidence which was not

the subject matter of counts in the indictment. Counsel stated further that the counts in the indictment had been limited, after

consultation between himself and prosecuting junior counsel, on the basis that to include all counts in the indictment would be unfair

and burdensome to the appellant. This approach was objected to by senior counsel for the appellant, who maintained that only

evidence of misconduct relating to a count on the indictment should be admissible. Furthermore, that the misconduct evidence which

the prosecution was seeking to introduce did not come within the exceptions to the rule against misconduct evidence provided for by

Irish law. This matter was argued in a voir dire in the absence of the jury.

14. The learned trial judge ruled that, as consent was to be a significant issue in the case, evidence of a background of continuous

engagement between the appellant and the complainant should necessarily be included in the interests of justice. The learned trial

judge stated that he had reached his conclusion having balanced the requirements of justice against the strict rule that the law does

not permit similar fact evidence to be given in criminal trials.

15. The learned trial judge (Abbott J.) stated:-

"I have considered the arguments of Mr. Sweetman in relation to the inclusion of evidence, the admissibility of evidence in

relation to actions, which could be offences which are not in the indictment, to be given by the Complainant.

And I accept the principles laid out in R-v-Bond and AG-v-Kirwan and the cases cited and the principles, which have been

touched upon in the judgment of the Court of Appeal in LG cited by him. I won’t give the references. And these are strong

principles indeed and can be countervailed and their application moderated only in circumstances where it is absolutely

necessary to show the background and to ensure that justice is done.

And as I said during the course of the argument, it would seem to me that the consent to a greater or lesser extent is a

major element in the proof of the Prosecution case and the account of the complainant in relation to the various matters.

If the lack of consent is not proven by the Prosecution, then their case is set at nought and it would seem to me, that

the background of continuous engagement between the Complainant and the Accused involving offences not in the

indictment is necessary to attain justice.

And I have been influenced by the case cited in Cannon and Neligan’s book on page 209 and also in reference in Charleton

and McDermott at page 39 cited and the case Attorney General v Joyce and Walsh, which is cited in the

Charleton/McDermott text.

However, the Trial Judge should be jealous to ensure that the balancing, between the requirements of justice and the

strict rule that the law does not require or permit similar fact evidence to be given in criminal trials should be exercised in

this case.

And I consider that the Counts in this case up to Count 7 constitute, perhaps stretching the point as much as it can be

stretched with the practicalities, a set of continuous facts, which are related to the prepuberty years of the complainant

and which suggest themselves as a series of events, which allow of me as Trial Judge to exercise my discretion against

the submissions of counsel for the Accused to allow the Complainant to give evidence, the State to lead evidence from

the Complainant in relation to the whole story as it happened then.

However, I consider that it might be stretching my discretion too far to apply it in the post-puberty years or the likely

post-puberty years of the Complainant from ’94 to’97. By the time October, 1997 had come she was 15 or 16 and as I

have said, she was then a young woman and in the normal course one would expect a different person to be there rather

than the child, who was there in 1989.

And having respect to the principles set out in R-v-Bond and AG-v-Kirwan I consider that it would be dangerous to

exercise my discretion to include the period after the offence described in Count No. 7. So that if evidence is given in

relation to the incident in Count No. 8 it cannot be supported by any event, which happened after Count No. 7.”

So, there may be some adjustment to be required in relation to how the case would be presented and I would allow you,

Mr. Comyn, some time to re-plan your approach in relation to that."

16. The trial proceeded and evidence relating to sexual misconduct by the appellant, which was in the book of evidence, was led by

the prosecution up until the offence described in count 7 of the indictment, which was the limit set by the learned trial judge. The

judge gave no special warning to the jury relating to dangers of misconduct evidence not related to a count on the indictment, no

requisition was raised by the prosecution, nor was any requisition raised by the defence.

17. The jury convicted the appellant on counts 4, 5, and 6 by unanimous verdict on the 19th April, 2004. On the 29th April, 2004, the

appellant was convicted on count 2 of the indictment and acquitted of the offence in counts 3 and 7, but convicted of the

alternative offence of indecent and sexual assault respectively. He was acquitted, on the same date, of the offence alleged on count

8. The appellant was refused leave to appeal by the learned trial judge.

18. The appellant appealed the refusal of leave to appeal his conviction to the Court of Criminal Appeal. The application for leave to

appeal was argued on the 25th day of April, 2005. Judgment was delivered on the 31st July, 2007, by Mr Justice Budd on behalf of

the Court. The Court of Criminal Appeal found that the misconduct evidence had been correctly admitted by the learned trial judge on

the basis that it was necessary to give a complete and comprehensible account to the jury and that its probative value outweighed

its prejudicial value.

Having reviewed the case law on the issue of background evidence, the Court of Criminal Appeal stated:-

"The trial judge’s charge is a very important aspect in the admission of this type of evidence. The English and Northern

Irish cases mentioned above have balanced the element of prejudice such background evidence may cause to the

defence’s case by dealing with the question of prejudice in the charge to the jury and thereby warning the jury about this

aspect and thus ensuring the redressing of any imbalance and the restoring of a fair balance. It is of the utmost

importance that the question of prejudice should be kept in mind and, if necessary then dealt with in the charge to the

jury. Many of the above cases address the issue of admission of such evidence by framing the charge to the jury to deal

specifically with the potential prejudice to the jury. As noted in R v Boyles the trial judge should direct the jury not to rely

on the background evidence to support the evidence on each of the specific counts.

Judge Abbott clearly took into account the prejudicial nature of the evidence. He noted the strong principles which have

been set out in a number of cases and noted that these principles and their application can be moderated only in

circumstances where it is strongly necessary to show the background and to ensure fairness and that justice is done in

accordance with law.

On the run of this case once the judge had ruled on the admissibility of the prior misconduct evidence, this aspect was

treated in a low key manner and the prosecution did not cross-examine the accused about these incidents at all. This

aspect was not in any way emphasised during the case and, on the run of the case, one can understand why no further

attention was drawn to this aspect by submissions or requisitions from counsel to the Court."

19. The appeal against sentence was heard on the 25th April, 2005 and on the 22nd October, 2007.

20. The appellant applied for a certificate of appeal pursuant to s.29 of the Courts of Justice Act 1924, as amended, which was

granted by the Court of Criminal Appeal. The order of the Court certifying the existence of a point of law of exceptional public

importance was perfected on the 31st October, 2008, and it has been set out earlier in this judgment. A notice of appeal was served

by the appellant, and, as previously stated, grounds (a) to (h) were allowed by order on the 21st January, 2011, and counsel for the

appellant made further submissions on the issue of ground (g) before this Court.

21. The matter was heard by this Court on the 27th January, 2011. Written and oral submissions were made on behalf of the

appellant. It was submitted that the correct answer to the question posed should be in the negative. Further, that if the question is

answered in the affirmative that the conditions in which such evidence may be led, outside the existing similar fact or system

evidence exceptions, do not include the leading of so called "background evidence" of the type led in the trial of the appellant. It was

submitted that the conviction of the appellant was unsafe on a number of grounds, being that:-

(i) evidence was led against the appellant in breach of his constitutional right to the presumption of innocence and

a trial in due course of law;

(ii) evidence of uncharged criminal misconduct was led against him which did not come within the existing

exceptions to the exclusionary rule prohibiting the admission of such evidence;

(iii) the prosecution was permitted to manufacture a situation such that the misconduct evidence led was

considered necessary in order that the Jury not be confused, thereby breaching the appellant’s right to a trial in

due course of law;

(iv) the trial judge failed to properly direct the jury on the correct use of the misconduct evidence as led.

22. Written and oral submissions were before the Court on behalf of the Director of Public Prosecutions. It was submitted that the

answer to the question posed should be in the affirmative and that the convictions were safe and should not be set aside.

The Indictment

23. One of the issues to be addressed in a prosecution where there have been numerous complaints of sexual assault by an accused

over many years is the framing of the indictment, and the determination of the number of counts which should be placed on the

indictment.

24. In The Director of Public Prosecutions v. E.F. (Unreported, Supreme Court, 24th February, 1994) this Court considered the

growing phenomenon of prosecutions brought on foot of many complaints made of sexual abuse over a long period of time. The

difficulty of framing such an indictment was addressed. Egan J. gave a judgment, with which Finlay C.J., Flaherty J., Blayney J. and

Denham J. agreed. The indictment in that case had been framed as follows:-

"Statement of Claim

Count No.1 Indecent assault, contrary to common law and as provided for by section 10 Criminal Law (Rape) Act, 1981.

E.F. on a date unknown between the 1st day of January, 1979 and the 1st day of January, 1980

in the County of Laois indecently assaulted one K.B., a female.

Count No.2 Indecent assault, contrary to common law and as provided for by section 10 Criminal Law (Rape) Act, 1981.

E.F. on a date unknown between the 1st day of January, 1980 and the 1st day of January, 1981

in the County of Laois indecently assaulted one K.B., a female."

There were nine counts in all, identical in format except that each referred to a different year. As regards this type of indictment,

with the counts referable to a single year, Egan J. stated:-

"I can find no duplicity in the counts as drafted. The particulars given in each count refer to "a date" (singular) in the

relevant years. There is a large element of unreality in confining each count to one incident when the book of evidence

indicates that K.B. has claimed that the offence occurred roughly everyday or second day and P.F. claims that it occurred

about twice a week. It would have been infinitely preferable that the indictment should conform with the allegations

which have been made but, unfortunately, if the suggested form with the words "on divers dates" were used, there would

then be duplicity. The rules contained in the First Schedule to the Criminal Justice (Administration) Act, 1924 include Rule

4(1) which provides as follows:-

"A description of the offence charged in an indictment or where more than one offence is charged in an indictment,

of each offence so charged, shall be set out in the indictment in a separate paragraph called a count."

Although this is described as a "Rule" s.(1) of the Act itself provides:-

"The rules contained in the First Schedule to this Act with respect to indictments shall have effect as if enacted in

this Act, but those rules may be added to, varied, or annulled by further rules made under this Act."

It seems clear, therefore, that each count can only refer to one offence. I do not consider the "embezzlement" case of R.

v. Tomlin 1954 2 Q.B. p.270 to be reconcilable with the instant case which, in any event, is governed by the 1924 Act.

The unreality referred to by me may hopefully be cured by legislation in the future. In the meantime it is my opinion that

an approach to realism can be achieved by increasing the number of the counts so that each count will refer to a period

of one month rather than one year."

The difficulty of the situation was acknowledged by Egan J.. The unreality of having each count refer to a single incident, given the

history, was noted. As an approach to realism it was his judgment, with which the other members of the Court agreed, that each

count should refer to a period of one month rather than one year.

25. In the above case the Court was considering the difficulty of drafting an indictment for a fair trial when the reality was that it

was a situation where there were thousands of complaints. Facing into these types of prosecutions, which were becoming more

common, the courts sought to achieve a fair trial with justice for all concerned. Those concerned include the People of Ireland for

whom the prosecution is brought, the accused who has the fundamental right of a fair trial, and the victims.

26. I remain in agreement with the judgment of Egan J.. However, it is not an absolute rule that each count should refer to a period

of one month, rather than one year. In this case E. Comyn, S.C. explained that the counts were chosen to represent different

offences, in different locations, at different times. It may not have been the most perfectly drafted indictment. However, it is not the

kernel of the issue before the Court. The appeal raises the issue of background evidence. It is true that there may be a relationship

between the perceived need for background evidence and the form of the counts on an indictment. However, even if there were

counts referring to a one month period of time that would not reflect the statement of the complainant and the history of continuous

sexual abuse over years. Thus the issue of background evidence would arise even if the counts referred to a single time of one

month.

27. The courts seek to protect a fair trial. As I stated in D. v. Director of Public Prosecutions [1994] 2 I.R. 465 at p.474:-

"The applicant's right to a fair trial is one of the most fundamental constitutional rights afforded to persons. On a

hierarchy of constitutional rights it is a superior right.

A court must give some consideration to the community's right to have this alleged crime prosecuted in the usual way.

However, on the hierarchy of constitutional rights there is no doubt that the applicant's right to fair procedures is superior

to the community's right to prosecute."

It is in that context that the issue of background evidence is addressed.

Background Evidence

28. Several cases were opened to the Court to illustrate exceptions to the general rule which excludes evidence other than the

offence or offences on the counts of the indictment.

29. However, I am satisfied that there were even earlier cases where the issue of relevant background evidence was in issue.

Other Common Law Jurisdictions

30. While the number of prosecutions for child sexual abuse has increased dramatically in recent years, it was not unknown in earlier

times. One of the earliest cases identifying the issue of background evidence in sexual offences cases was R. v. Rearden (1864) 176

E.R. 473. That case was about the rape of a child. Evidence that the accused raped the victim on subsequent occasions was held to

be admissible evidence on the grounds that it constituted virtually one offence. Willis J. stated at p.476 that:-

"It has repeatedly appeared to me in cases of this sort, that the man, by a threat of violence, deters the child from

complaining, and thus acquires a species of influence over her by terror, which enables him to repeat the offence on

subsequent occasions, and this seems to me to give a continuity to the transaction, which makes such evidence properly

admissible."

This was an early case which recognised "the grooming" of a victim by an abuser and its relevance in evidence.

31. The issue of background evidence has arisen also in murder trials. In R. v. Bond [1906] 2 K.B. 389 at p.400, Kennedy L.J. stated:-

"The general rule cannot be applied where the facts which constitute distinct offences are at the same time part of the

transaction which is the subject of the indictment. Evidence is necessarily admissible as to acts which are so closely and

inextricably mixed up with the history of the guilty act itself as to form part of one chain of relevant circumstances, and

so could not be excluded in the presentment of the case before the jury without the evidence being thereby rendered

unintelligible."

He stated further, at p.401:-

"The relations of the murdered or injured man to his assailant, so far as they may reasonably be treated as explanatory of

the conduct of the accused as charged in the indictment, are properly admitted to proof as integral parts of the history

of the alleged crime for which the accused is on his trial."

The issue of background evidence, what it is and its admissibility, was considered in R. v. Pettman (Unreported, 2nd May,

1985). The approach taken in that case has been referred to in many subsequent cases in England and Wales. Purchas L.J.

stated:-

"Where it is necessary to place before the jury evidence of part of a continual background of history relevant to the

offence charged in the indictment and without the totality of which the account placed before the jury would be

incomplete or incomprehensible, then the fact that the whole account involves including evidence establishing the

commission of an offence with which the accused is not charged is not of itself a ground for excluding the evidence."

33. A leading case in England and Wales is R. v. M. [2000] 1 All E.R. 148. That case concerned a "web of abuse" involving members of

an extended family and their friends. It was decided to hold two trials, the first involving the first generation of children, and the

second involving the grandchildren. In the first generation trial, the issue of background evidence was central. The court accepted

and adopted the approach of Professor Birch [1995] Crim. L.R. 651. The court stated clearly that the only relevance of the

background evidence was to show that T. knew that he could safely abuse S, as he was "groomed".

34. In R. v. M., M. and his co-accused were charged with a number of serious sexual offences against members of their family,

including his sister S.. The prosecution wished to adduce evidence that M. had been taught by his co-accused from an early age to

abuse his sisters sexually. Those matters were not charged. The prosecution argued that the evidence would assist the jury in

understanding S.'s evidence by explaining why she had not sought help and why M. had felt able to carry out the alleged offences

without fear. The court permitted the evidence to be admitted, but directed the jury that the evidence could be of value only in

relation to M.'s perception of S.'s likely reaction to his abuse. Kennedy L.J. in giving judgment, distinguished between similar fact

evidence and background evidence and referred to some previous authorities at p.152:-

"As Professor Birch pointed out in a useful note in [1995] Crim LR 651, it is important to distinguish evidence of

background, which is normally admissible, from 'similar facts' evidence. Her note continues:

'Similar fact evidence is employed as evidence which tends strongly to prove a particular fact (identity, intent,

causal connection or whatever) which could be proved by other means but which the prosecution has chosen to

establish by reference to other misconduct of the accused. As such, the evidence may need to be possessed of a

high degree of probative value in order to buy its ticket to admissibility, for it involves "dragging up" material which

is by definition prejudicial and which might have been left out. Thus it has been said that such evidence should be

admitted in circumstances where it would be an "affront to common sense" to exclude it (per Lord Cross in Director

of Public Prosecutions v. Boardman [1974] 3 All ER 887 at 908, [1975] AC 421 at 456). Background evidence, on

the other hand, has a far less dramatic but no less important claim to be received. It is admitted in order to put the

jury in the general picture about the characters involved in the action and the run-up to the alleged offence. It may

or may not involve prior offences; if it does so this is because the account would be, as Purchas L.J. says in R. v.

Pettman 2 May 1985, (unreported), 'incomplete or incoherent' without them. It is not so much that it would be an

affront to common sense to exclude the evidence, rather that it is helpful to have it and difficult for the jury to do

their job if events are viewed in total isolation from their history."

…

The passage from R. v. Pettman which Professor Birch had in mind reads:

'Where it is necessary to place before the jury evidence of part of a continual background of history relevant to the

offence charged in the indictment and without the totality of which the account placed before the jury would be

incomplete or incomprehensible, then the fact that the whole account involves including evidence establishing the

commission of an offence with which the accused is not charged is not of itself a ground for excluding the evidence.'

We accept and gratefully adopt that definition of and approach to background evidence. When related to the particular

facts of this case although separated in time by years, the evidence of conduct to which Mr. Meeke, counsel for the

defence, objected was part of a continuous family history relevant to the offences charged. So, subject to s.78 [of the

Police and Criminal Evidence Act 1984], it was admissible as background evidence for purposes wider than the restricted

purpose envisaged by the trial judge. In our judgment there was no reason to exclude that evidence by reference to s.78.

Its admission was not likely adversely to effect the fairness of the proceedings. The judge made it clear when directing

the jury as to the limited use to which this evidence could be put that DB, EA and DM did not blame TM for what had

happened in the 1960s; he like them was at that time a victim of his father. It is noteworthy that in the end TM was

acquitted on count 18. Mr. Dunkels [for the Crown] suggested that the reason for that may have been that the

complainant was not sure if there was actual sexual intercourse in the garage. Whatever the reason, the acquittal is a

clear indication that, despite the tide of filth of which Mr Meeke was understandably afraid, the jury was able to handle

the case against TM properly count by count, and in our judgment his conviction has not been shown to be unsafe. His

appeal against conviction is therefore dismissed."

35. In R. v. W. [2003] E.W.C.A. Crim. 3024, the trial judge permitted in evidence a detailed account by a single complainant of events

which occurred over several years. The trial judge followed Pettman stating that it would be false and misleading to give the jury the

impression that only the events on the indictment took place. Not to adduce background evidence, it was held, would lead to a lack

of understanding of the true relationship and real situation by the jury.

36. R. v. Campbell [2005] E.W.C.A. Crim. 248 related to the admissibility of evidence of the defendant's behaviour in relation to

teenage girls and the downloading of pornography. The court held, relying on Pettman, that background misconduct was admissible to

illuminate the relationship, to establish motive, and to rebut the defence of the defendant that he had a normal relationship with his

15 year old niece.

37. The Law Commission of England and Wales Consultation paper on Evidence in Criminal Proceedings: Previous Misconduct of a

Defendant, (LCCP 141 – 1996)(London, 1996) stated at para 2.70:-

"There is a line of case law suggesting that evidence of the accused’s past conduct, even if it is evidence of a disposition

or propensity to commit a certain type of offence and would otherwise be excluded by the similar fact evidence rule, can

be adduced by way of exception to that rule if it either forms an integral part of the background to the offence charged

or is “so closely entwined and involved with the evidence directly relating to the facts in issue that it would

amount to distortion to attempt to edit [it] out”. (citing Cross and Tapper on Evidence (8th ed., 1995) at p.371)"

[Emphasis added]

38. In considering what test is to be applied when the issue of the admission of background evidence arises, the approach described

by the Law Commission of England and Wales in its Report on Evidence of Bad Character in Criminal Proceedings (LC273 – 2001)

(London, 2001) is of interest. A number of indicators are suggested to enable evidence avoid the exclusionary rule on the basis that it

is background evidence. These indicators, at para. 10.1, are:-

"(i) the evidence may be close in time, place or circumstances to the facts or circumstances of the offence

charged;

(ii) the evidence may be necessary to complete the account of the circumstances of the offence charged, and thus

make it comprehensible to the jury;

(iii) the accused may have had a relationship with the victim of the offence charged, and the previous misconduct

evidence may relate to this victim rather than the victims of other offences;

(iv) the evidence may assist in establishing the motive behind the offence charged.

The High Court of Australia has held that evidence of sexual misconduct against a complainant, other than the subject of the charges

brought against the accused, may be given in sexual assault trials for limited purposes and with appropriate directions from trial

judges: HML v. The Queen, SB v. The Queen, O.A.F. v. The Queen [2008] HCA 16.

Irish Common Law

40. In Attorney General v. Joyce and Walsh [1929] I.R. 526, Sullivan P. addressed the issue of admitting evidence which shows the

commission of crimes which are not in the book of evidence. C. Lavery K.C., as he was then, made submissions on behalf of the

Attorney General. He opened a number of cases, including R. v. Bond [1906] 2 K.B. 389, at p.40. Sullivan P. held at p.539:-

"The passage from Archbold and the cases cited by Mr. Lavery are authorities for the propositions that the mere fact that

evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an

issue before the Court, and that it may be so relevant if it bears on the question whether the acts alleged to constitute

the crime charged in the indictment were designed or accidental, or to rebut a defence that would be otherwise open to

the accused, and that former assaults by the prisoner on the deceased, or expressions of malicious feeling towards the

deceased, or the existence of any motive likely to instigate the commission of the offence are receivable in evidence.

These propositions are recognised by Kennedy J. in his judgment in R. v. Bond - the case relied on by Mr. Barry at the trial

to support his objection to the evidence. In the course of his judgment, having referred to the general rule that in criminal

as in civil cases the evidence must be confined to the point in issue, and having discussed Makin's Case and other cases

cited, he says (p. 400): "The general rule cannot be applied where the facts which constitute distinct offences are at the

same time part of the transaction which is the subject of the indictment. Evidence is necessarily admissible as to acts

which are so closely and inextricably mixed up with the history of the guilty act itself as to form part of one chain of

relevant circumstances, and so could not be excluded in the presentment of the case before the jury without the

evidence being thereby rendered unintelligible."

The Court held at p.540:-

"This Court is of opinion that the fact that the prisoner Joyce, to the knowledge of the prisoner Annie Walsh, put guano

into the milk which was used by the deceased in his tea was admissible in evidence against the prisoners. It formed part

of one entire transaction which was under investigation by the jury; it presented one aspect of the relations existing

between the prisoners and the deceased, just as the intrigue between the prisoners and the attempts to conceal it

illustrated another. The fact that it was stated to have occurred "a long time before the deceased met his death" would

affect the weight to be attached to it by the jury, but is not sufficient to necessitate its exclusion from their

consideration."

Thus this case identifies a situation where there was an entire transaction which was under investigation by a jury, it presented an

aspect of the relations between relevant parties.

41. It has been established in Irish law that the admission of evidence which shows that an accused committed an offence, other

than that on the indictment, is permissible if it is relevant to the issue which the jury has to decide: see The People (Attorney

General) v. Kirwan [1943] I.R. 279. In that case the accused was convicted of the murder of his brother. There were a number of

matters raised on appeal in the case, one issue was that evidence had been given by the prosecution which disclosed that previous

to the alleged murder the accused had served a term of penal servitude for another offence. There was an appeal to the Court of

Criminal Appeal, inter alia, on the ground that the trial judge was wrong in law in admitting evidence which disclosed to the jury that

the accused had been previously convicted of a criminal offence. The Court of Criminal Appeal refused the application for leave to

appeal but granted a certificate to the Supreme Court. One of the questions on the certificate stated: "Was evidence which disclosed

that the accused had served a term of penal servitude for another offence admissible at the trial?" Murnaghan J. analysed the facts

at issue and held that the trial judge had a discretion and that he was justified in admitting the evidence. O'Byrne J. considered

previous case law and held (at p.303) that two propositions had been established, viz:-

"(i) That evidence that the accused has committed offences, other than that charged in the indictment preferred against

him, is never admissible for the purpose of leading the jury to hold that the accused is likely, by reason of his criminal

conduct or character, to have committed the crime in respect of which he is being tried; and

(ii) The mere fact that the evidence adduced tends to show the commission of other crimes does not render it

inadmissible if it be relevant to some issue of fact which the jury is called upon to determine."

I would adopt and apply these propositions. It is noteworthy that the test to be applied is whether the evidence is relevant to some

issue of fact which the jury is required to decide.

Direction

42. The issue of a direction has been addressed in England. In R. v. Butler [1999] Crim. L.R. 835, it was stated that a direction should

be given by a judge as to how a jury should approach background evidence.

43. In R. v. W. [2003] E.W.C.A. Crim. 3024 the charge to the jury, in a case where background evidence had been admitted, was

considered and suggestions were made. At para 15, it is stated:-

"Those incidents are not charges on the indictment. You will obviously have to make up your mind about them because if

you find that they did not take place or may not have done, as described, that would undermine the Crown's case on the

three counts that you have to concentrate on. But those incidents aren't charges. You hear of them because W's

account would be incomplete without them, to the point of being incomprehensible. But also, and more particularly,

because it is the prosecution's case that Mr W was conditioned from an early age to submit to sexual acts from [PW] and

that explains what might otherwise be difficult to explain, namely his submission to such acts right through his teens and

up to the age of 16. Those are the reasons why you hear about these earlier alleged incidents. They're relevant to the

Crown's case that this was a coercive and manipulative relationship between these two young people, but they do not

themselves prove or go towards proving the specific charges in the indictment.

Because of this wider background that you've heard in this case, both of the earlier incidents and also, as it happens, of

the incidents that were the subject of counts 4 and 5, which you've also got to consider, when W was 16 years old, I

must give you a particular warning when you're considering the particular three counts in the indictment and the

ingredients of those counts and whether they're proved. If, at the end of the case, you were to be of the view, and I'm

certainly not suggesting that you will or should be, but if you were to be of the view that at some stage there was sexual

activity between these two young people, but you did not know to what extent or in what circumstances or at what

period, then you must acquit. It's only if, concentrating on each of the counts at a time, you're sure, counts 1, 2 and 3,

that you convict."

This is a clear warning to a jury of the nature of the evidence of the incidents in issue, of the admission to make the account

complete and comprehensible, and to explain the "grooming" of the young person. The warning describes the relevance of the

background evidence to explain the coercion and manipulative relationship. It is a useful precedent.

44. In this case the Court of Criminal Appeal referred to the above direction and made some additional suggestions. The Court of

Criminal Appeal stated that the trial judge may also inform the jury of the danger of the complainant not being truthful about the

allegations which make up the background evidence or that a previous conviction does not prove the truth of any of the present

allegations. I would endorse that approach. These cases are all of assistance in contemplating the form of a direction.

45. It would be best practice for a trial judge, in most circumstances, to exercise his or her discretion, if admitting background

evidence, to give a special warning to the jury as to the nature of background evidence, and of the issue to which it was relevant in

the particular case. This would include a warning that such evidence is not admitted to prove, and may not be used to hold, that an

accused is likely, by reason of his criminal conduct or character, to have committed the offences upon which he is charged. Rather,

that such evidence is relevant to some specified issue of fact upon which the jury is required to determine. This should be

particularised to the facts of a case, and may relate to issues such as consent or a relationship. The advice as to the charge to the

jury set out in R. v. W. [2003] E.W.C.A. Crim. 3024 at para. 15 is helpful.

Issues raised

46. I will address the issues raised on the certified question of law and paragraphs (a) to (h) together.

Background Evidence

47. While a general rule of evidence excludes from admission before a jury evidence of alleged offences which are not charged on the

indictment, the rule is not an absolute rule. Over the years the courts have established in common law that there are circumstances

where evidence of other alleged offences may be admitted before a jury.

Definition of "Background Evidence"

48. "Background evidence", in the context under consideration, has a specific meaning. It is evidence which is relevant and necessary

to a fact to be determined by the jury. It may be admitted to render comprehensible the relationship between the complainant and

the accused. Thus it may relate to such issues as consent, or the absence of a complaint over many years. These examples are not

exhaustive of the circumstances where background evidence may be admitted. In such circumstances, even if the "background

evidence" is of alleged criminal acts not charged on the indictment, such background evidence is not inadmissible and it should not be

excluded as such.

49. Background evidence may be admitted to give a jury a relevant picture of the parties in the time prior to the offences charged.

Background evidence may be admitted because if it were not admitted it would create an unreal situation. It arises in situations

where if no background evidence was admitted, the evidence before the jury would be incomplete or incomprehensible. Background

evidence is evidence which is so closely and inextricably linked to the alleged offences and/or the relations between the relevant

persons so as to form part of the body of evidence to render it coherent and comprehensible.

Whether or not background evidence is to be admitted is a matter to be determined by the trial judge in all the circumstances of the

case. The fact that the evidence tends to show the commission of other crimes does not render it inadmissible. The test to be

applied is that of relevancy and necessity.

The Test

50. In considering whether background evidence may be admitted, relevant consideration may include:-

(i) Consideration of whether the background evidence is relevant to the offence charged.

(ii) Consideration of whether background evidence is necessary to make the evidence before the jury complete,

comprehensible, or coherent. Whether without such background evidence the evidence may be incomplete,

incomprehensible or incoherent.

(iii) Consideration of evidence of the commission of an offence with which the accused is not charged, but that is not of

itself ground for excluding the evidence.

(iv) Consideration of whether the background evidence may be necessary to show the real relationship between relevant

persons.

The test to be applied by the court is whether the background evidence is relevant and necessary. The test is not that it

would merely be helpful to the prosecution to admit the evidence.

This Case

51. In this case the background evidence of the appellant's actions to the complainant over the years explains her reaction to his

abusive offences. The evidence of his "grooming" of the complainant, the classic relationship that developed, his warning of their

"little secret", his abusive demands of her, are all relevant to understanding the relationship between the complainant and the

appellant when the offences charged were committed. The abuse of the complainant, over and above the counts charged, is part of

the relevant picture. Without background evidence the account is incomplete. The picture described in the book of evidence, and

then in the trial, is typical of long running sexual abuse of a minor by an adult, where a special relationship is developed by the abuser

of the abused. This relationship between the appellant and the complainant, which was developed over the years, is a key part of the

evidence to render the actions of the appellant and the reactions of the complainant comprehensible, and may be relevant to issues

of consent and/or the absence of complaints over the years.

52. Whether the prosecution was correct to have eight counts only on the indictment is not an issue in this case. Counsel for the

appellant did argue that by limiting the number of counts the prosecution created a situation where background evidence was

required. However, in the situation complained of, there would always have had to be sample counts on an indictment, otherwise the

indictment would have contained thousands of counts. Thus even if some further counts had existed on the indictment, the issue of

background evidence would have arisen.

53. There is a difficulty in drafting an indictment in a situation where the complaints are of hundreds or thousands of alleged offences.

The indictment should approach the reality of the situation. However, while there may be many counts on the indictment, there will

not be sufficient counts to cover all the complaints. The reason why the indictment does not have thousands of counts is to protect

a fair trial and not to have an oppressive indictment. However, if the complainant makes thousands of complaints but the indictment

contains less, or many less, counts, then it may not reflect the reality of the situation of which the complaints were made.

54. The book of evidence, as here, may have evidence of the real relationship between the complainant and the accused described

and thus of alleged offences over and above the sexual offences stated on the counts of the indictment.

55. The general rule is that evidence that an accused has committed offences other than those charged on the indictment is not

admissible for the purpose of leading a jury to hold that an accused is likely, by reason of his criminal conduct or character, to have

committed the crime/s with which he is charged. However, the mere fact that the evidence adduced tends to show the commission of

other alleged offences does not render it inadmissible if it is relevant and necessary to some issue of fact upon which the jury is

required to determine.

56. It is for a trial judge to decide whether or not to allow the admission of background evidence. In making that decision the trial

judge has to determine whether such evidence is relevant and necessary to a fact upon which the jury is required to determine. For

example, it may relate to the relationship of a complainant and an accused at the time of the commission of the crime/s as charged

on the indictment. It may be relevant and necessary to explain the action or inaction of a complainant in the circumstances.

Answer

57. I would answer the question of law posed and the grounds of appeal (a) to (f) as follows. Background evidence, which might

disclose matters not laid down in the indictment, but which may have been in the book of evidence, and which would be prejudicial to

an accused, is admissible if it is so relevant to facts to be proved by the prosecution or defence and to be determined by the jury

that it is necessary to render comprehensible such fact or facts. It is admissible if without such background evidence the facts would

be incomplete or incomprehensible for a jury. The test is one of relevance and necessity, as described earlier in the judgment. I am

satisfied that paragraphs (a) to (f) of the grounds of appeal do not raise any issue so as to bar the admission of background evidence

in accordance with the legal principles described in this judgment. The test to be applied is one of relevance and necessity. In this

case the evidence was not wrongly admitted as it was relevant and necessary to explain the relationship between the complainant

and the appellant, and rendered comprehensible the actions of the complainant. There was no breach of the rights of the appellant in

the application of this principle.

58. In this case the learned trial judge admitted the background evidence. This included evidence of behaviour by the appellant of

other alleged offences against the complainant. However, it is clear that the jury were not overwhelmed by this evidence as they

found the appellant not guilty of rape on counts no. 3 and 7, but guilty of indecent and sexual assaults. Also, the jury acquitted the

appellant of the charge of rape on count no. 8.

59. Considering the facts of this case, it is quite apparent that the eight counts do not reflect the thousands of complaints which are

evident from the statements of the complainant. The fact that there are eight counts only would be reflected in any sentence, and

thus to the advantage of the appellant. However, it is very important to keep a trial fair to all parties. There is no doubt but that the

eight counts do not reflect the numerous complaints of the complainant and the abusive relationship which developed between the

accused and the complainant, which had an effect on the conduct of the complainant. But that is not a matter for determination. The

question raised for the Court is as to background evidence. On that issue I am satisfied that the background evidence was relevant

and necessary to render comprehensible the actions of the complainant in these eight instances. I would affirm the decision of the

trial judge to admit the evidence.

60. While a warning is a matter for the discretion of the trial judge, in general it would be wise for a trial judge to give the jury a

warning as to the nature of background evidence, as to why it is admitted, and for what it may or may not be used, as discussed

earlier in this judgment.

61. In this case the trial judge gave no direction to the jury on the nature of background evidence. To determine whether the failure

to give such a direction rendered the trial unsafe, it is necessary to look at the run of the trial. On careful consideration of the

transcripts it is clear that the background evidence was treated in a restrained fashion. While counsel for the appellant sought to

have it omitted, no requisitions were raised. Further, in considering the verdict of the jury, the fact that each of the eight counts was

clearly considered separately and acquittals entered on some counts, with some alternative verdicts given, illustrates that the jury

approached their verdict carefully in relation to each count. In all the particular circumstances of this case I would not intervene in

the jury's decision.

62. I have considered each of the grounds of appeal (a) to (h) and dismiss the grounds as I am satisfied that the exception which

allows the admission of background evidence was correctly applied in this case as that evidence was relevant and necessary to

render comprehensible facts in the case. As to ground (g), which was not allowed by this Court on the 27th January, 2011, but which

counsel sought to reopen on the hearing of the appeal, I would not allow that ground either, in the particular circumstances of the

case. However, the issue has arisen in the analysis of the nature of background evidence. In general a trial judge may decide in the

exercise of his or her discretion to give a warning to a jury about the nature of background evidence. However, such a general rule

must be viewed in the particular circumstances of each case. In this case the circumstances include a lack of requisitions on the

issue and the fact that it was not a ground of appeal to the Court of Criminal Appeal. Thus, as it was not an issue before the Court of

Criminal Appeal, it was not an issue which this Court could consider under its appellate jurisdiction. However, even if it had arisen for

decision, in the circumstances of this case, on the run of the trial, I am satisfied that the absence of such a direction did not render

the trial unsafe or infirm.

63. I would dismiss the appeal for the reasons given.

64. As was stated in the judgment of the Court of Criminal Appeal, the complainant sent word that she wanted the appellant named

and was prepared to waive her anonymity, accordingly there is not full redaction of this judgment, in light of her wish expressed

through counsel for the Director of Public Prosecutions.