Court allows background evidence of past abuse to prove conditioning and habit in sexual assault cases.

THE SUPREME COURT

375/08

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:

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

GERALD MCNEILL

APPELLANT

Judgment delivered by O’Donnell J. on the 8th day of April, 2011.

1 I gratefully adopt the statement of the facts in this case, as set out in the judgments delivered by Denham and Fennelly, J.J. I

agree with the judgment and order proposed by Denham, J. I wish however to add my thoughts on some of the issues which have

been raised in this case and which have troubled the Court.

2 There can be no doubt that the emergence of the phenomenon of sexual abuse occurring in the past but the subject of complaint in

adulthood, has had a major impact on society both in Ireland and elsewhere, and has posed significant problems for the criminal

justice system. The development of knowledge on the phenomenon in wider society, and the experience gained by the Courts from

the explosion of litigation on this topic both by way of judicial review seeking to restrain prosecutions before they commence and

through the trial and appeal process, has been already adverted to in the judgment of Murray, C.J. in the landmark case of S.H. v

D.P.P. [2006] 3 IR 575. It would be foolish to think that further insights will not be gained over time, but enough has been learnt to

demonstrate that the problems so acutely illustrated in this case are not by any means unique.

3 Counsel for the Respondent observed in this case without contradiction, that in most cases where an adult alleges that he or she

has been the victim of prolonged sexual abuse while a child, the complainant would often be able to give an account of the repeated

and persistent abuse, but will rarely be able to clearly distinguish separate incidents of that abuse. Instead, it is likely that a

complainant will recall the first time an incident occurred at a particular location, or the first time when a particular activity took place

or will recall an incident because of some extraneous event which acts as a hook for the person’s memory. The repeated and

consistent acts of abuse become largely indistinguishable in the memory of the complainant. In many cases of documented and

established child abuse, the abuse will have occurred when a child is very young and has little or no knowledge or understanding of

the acts involved, and little appreciation of their legal or moral quality. It is rare that there is any contemporaneous record. The abuse

is rarely varied or inventive. Mind numbing repetition is common. Accordingly, it is the case that many victims will genuinely say that

all they can recall is that the same thing occurred repeatedly, every month or week or indeed every day in the same place and in the

same way over a protracted period. Indeed it is noteworthy that in this case, the Appellant himself made a number of statements to

the gardaí. Some of these were ruled inadmissible by the trial judge, but in the interview which was admitted in evidence, the

Appellant admitted a significant amount of sexual contact with the complainant on a regular basis, his adult account of those events

however, was no more detailed than that of the complainant.

4 Complaints such as these pose significant problems for the criminal justice system. The difficulty of defending a case where the

principal evidence is of allegations of a general nature made in respect of conduct alleged to have occurred many years before, has

been acknowledged in a number of cases. However, as was made clear in S.H. v D.P.P., if a complaint of serious sexual abuse is made

to the gardaí, that agency must investigate the allegations, and if sufficient evidence is disclosed, the Director of Public Prosecutions

will normally prosecute. When the case comes to Court, then there are further difficulties as to how the offences are to be fairly

charged on indictment by reference to the evidence in the statement of the complainant.

5 In a case such as the present, the essential issue is whether the accused has been shown, beyond a reasonable doubt, to have

repeatedly abused the complainant. However, as the law stands, that cannot be charged as a single offence. Each charge on an

indictment must charge a single offence. Furthermore, as Fennelly, J. points out, Rule 3 of the First Schedule of the Criminal Justice

(Administration) Act 1924 permits the joinder of individual charges in the same indictment if the charge is founded on the same facts

or is part of a series of offences of a similar character. In the case of a complaint of repeated serious sexual abuse, the combination

of these two rules could indicate an indictment containing hundreds, and even thousands of counts. However, it is accepted by both

the defence and the prosecution that such an indictment would not be proper, and would be oppressive to the accused. This is not

itself a product of the statutory rules in relation to indictments, but it appears is part of the Courts obligation to ensure a fair trial. A

component of such a trial is to ensure that the indictment fairly charges the offences which are to be tried, and there is no doubt

that in principle, an overwhelmingly lengthy indictment could be so oppressive as to preclude a fair trial of the individual on the

charges, which are still to be regarded as individual and separate. (See B. v D.P.P. [1997] 3 IR 140).

How then should the offences be charged? In D.P.P. v E.F. (Supreme Court, unreported, 24th February, 1994) Egan, J. referred to

what he described as the “large element of unreality in confining each count to one incident when the book of evidence indicates that

K.B. has claimed that the events occurred roughly every day 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 had been made but,

unfortunately, if the suggested form with the words “on diverse dates” were used, there would then be duplicity”.

Egan, J. suggested that in the absence of a legislative solution to this problem, “an approach towards realism” would be to increase

the number of counts so that each count made reference to a period of one month rather than one year. The Supreme Court was

there dealing with the format of the charges. In the indictment in question an offence was alleged to have occurred between the 1st

of January of one year and the same date on the following year. Nevertheless, this decision clearly endorses a practice of charging

individual offences in respect of a defined period where the evidence is of repeated abuse and further recognises that it may not be

possible to make the indictment conform perfectly to the allegations made.

6 It must be recognised however, that any such approach avoids the twin risks of duplicity and oppression at the cost of creating a

disjunction between the case made on the indictment and the case contained in the evidence. At the trial, the prosecution will

normally attempt to select distinct events in the account given by the complainant and charge those albeit identifying them as falling

within a period of one month or, as here, three months, and will then seek to confine the evidence to the incidents chosen for the

indictment. That however, gives rise to a separate difficulty. If the complainant then gives evidence of incidents other than those

indicated in the indictment, it may lead to an application to discharge the jury on the grounds that evidence prejudicial to the

accused has been introduced. This has the potential to become a particularly cruel catch-22 for genuine victims of child abuse. It

must, for example, be bewildering to find that a trial has collapsed or an appeal been allowed and a retrial ordered, because in effect

the victim has said in open court no more than he or she had found the courage to say to the gardaí and which has at all times been

included in his or her statement and in the book of evidence. The evidence itself is not intrinsically inadmissible or otherwise offensive:

if a charge had been framed in the indictment to refer to it, it could and would be admitted as evidence plainly and directly relevant

to that issue.

7 Despite the observations of Egan, J. in D.P.P. v E.F., no legislative solution to this conundrum has been attempted. Faced with

these difficulties, the prosecution here took the bold step of placing only eight counts on the indictment covering a period of eight

years, but openly informing the defence and subsequently the Court, that the prosecution proposed to lead all the evidence (being in

essence the complainant’s statement) which would necessarily involve inviting the complainant to give evidence of repeated offences

of a similar nature not the subject of any individual charge in the indictment. The defence objected strenuously to this course and

there was a preliminary argument before the trial judge as to the course the prosecution proposed to follow. Ultimately that has given

rise to the certified question in this case. I should say perhaps at this stage that I do not consider that the course taken by the

prosecution in this case, though novel, was by any means a perfect solution. It resulted in an almost studied process whereby the

evidence of what might be described as the index offence was given, and then the complainant was asked questions which invited

her to say that the same thing happened repeatedly thereafter. But the argument raised by the defence in this case is of more

general application than the particular course adopted in this case. It is contended that what was offensive about the procedure

adopted was that it contravened what is alleged to be a fundamental principle that evidence of bad character of the accused should

not be admitted in a criminal trial. If correct, this proposition would have implications for many cases, particularly those of sexual

abuse, no matter how the indictment was framed.

8 The general statement that evidence of previous bad character is inadmissible is perhaps unobjectionable as a rule of thumb, but it

is potentially seriously misleading if it is treated as a comprehensive statement of a principle having supposed constitutional standing.

Indeed, even if the alleged principle were to be restated as a general principle of exclusion subject to exceptions, those exceptions

are so numerous and wide-ranging as to raise doubts as to the existence of any general principle, at least as so formulated. It is

noteworthy that the two dicta cited to support the proposition that there exists an unqualified general principle against admission of

evidence of bad character were the decision of the High Court in a constitutional challenge to the vagrancy laws in King v Attorney

General [1981] IR 233 and the decision of the Supreme Court on the question of bail in People v O’Callaghan [1966] IR 501, neither of

which involved a ruling in the course of a trial, or an appeal. Both Courts might have been surprised if it were suggested that they

were laying down a broad principle of general application for criminal trials.

9 The statement that evidence of previous bad character is inadmissible, or inadmissible save in exceptional circumstances, has itself

been the source of much confusion. I consider that the true position is that set out as long ago as 1894 in the landmark speech of

Lord Herschell in Makin v Attorney General from New South Wales [1894] AC 54. That decision established that evidence of previous

bad character is inadmissible if introduced for a particular purpose: that of showing that such bad character alone makes it likely that

the accused committed the offence for which he is tried. At page 65 of the report Lord Herschell said:

“It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused had been

guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the

accused is a person likely from his criminal conduct or character to have committed the offence upon which he is being

tried. On the other hand the mere fact that the evidence adduced tends to shew the commission of other crimes does

not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the

question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to

rebut a defence which would otherwise be open to the accused.” (Emphasis added)

Lord Herschell went on to observe somewhat prophetically that:

“The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line

and to decide whether a particular piece of evidence is on the one side or the other.”

10 What renders the evidence inadmissible is the purpose for which it is adduced. Indeed as Lord Hailsham observed in R. v Boardman

[1975] AC 421, 453:

“It is perhaps helpful to remind oneself that what is not to be admitted is a chain of reasoning and not necessarily a state

of facts. If the inadmissible chain of reasoning is the only purpose for which the evidence is adduced as a matter of law,

the evidence itself is not admissible.”

The first limb of the rule in Makin’s case identifies what Lord Hailsham described as the “forbidden type of inference” namely, the

impermissibility of deciding on the guilt or innocence of the accused by a reasoning process that gives credence to the adage of

giving a dog a bad name. It is in my view important in analysing this area to keep in mind the critical qualification set out in Lord

Herschell’s speech. It is also worth considering why such evidence, and perhaps as importantly, such reasoning, is excluded. As Lord

Salmon pointed out in Boardman at page 461, this fundamental rule is not founded on logic but rather on policy. The forbidden

reasoning is not something which a logician or a behavioural psychologist would necessarily reject. A police investigation which did not

consider the criminal propensity of suspects would be rightly criticised. A school that employed a convicted, or indeed an alleged child

abuser would be regarded as culpably negligent. The reasoning is excluded therefore not because it does not have some value, but

rather because it is toxic to the forensic process of a fair trial. Evidence of propensity to commit an offence by reference , for

example, to previous convictions for the same offence, infects and corrupts the careful process of sifting of evidence by reference to

the standard of proof required in criminal cases. In some cases it will overwhelm that process. It is evidence, or perhaps more

correctly, reasoning which in every sense of the word is prejudicial. It deflects the jury from the task of considering the evidence to

allow it to determine whether it is satisfied beyond a reasonable doubt that the accused did the act alleged, and encourages it to

conclude instead that he must have done it because he was proved to have done something wrong on another occasion. This also

explains the second limb of the observation contained in Lord Herschell’s speech. In any case, evidence which tends to show bad

character on the part of the accused may nevertheless be adduced in a trial if it is adduced not for the purpose of proving guilt by

propensity, but rather for the purposes of tending to prove something that is an issue in the case. It follows that where such

evidence is admitted, the jury should be informed as to the true purpose for which such evidence is admitted and warned of the

danger of treating evidence of previous wrongdoing as itself proof of the wrongdoing charged.

11 This much is perhaps unremarkable. But these considerations do point to something which in my view is of assistance in resolving

this case. The reason evidence of previous conviction or wrongdoing is excluded is because of the prejudicial effect of such evidence

on the reasoning process. It is not necessary here to consider whether the principle illustrated in Makin’s case is an example of a

broad principle that evidence is excluded where the prejudicial effect outweighs its probative value (which appears to have been

suggested in the speech of Lord Hailsham in R. v Boardman) or whether it is simply a separate rule against the admission of prejudicial

evidence in certain circumstances. See McGrath, Evidence, Thompson Round Hall 2005 at pp475-492. Since that was not argued in

this case in any detail (and Boardman was not referred to), I do not propose to come to any conclusion on that issue. I have some

doubts about a balancing test where it is not very clear in advance what weight is being ascribed to factors which are not

themselves measured in the same register. In any event, I consider that it is likely that an application of a balancing test in this case

would produce the same result. In this case I have found it useful to consider whether the evidence sought to be excluded is being

adduced for the purpose forbidden by the first limb of Lord Herschell’s rule.

12 It is easy to see that evidence of previous convictions by a court could be highly prejudicial in a subsequent trial. The jury would

be tempted to find support for conviction in the fact that a previous court had itself been satisfied of the guilt of the accused. Where

the evidence sought to be adduced is not of a conviction but rather an allegation made perhaps by another complainant (but which is

itself not admissible as similar fact evidence), then such evidence is prejudicial because it may lead the jury to conclude that it would

be beyond a coincidence that the accused should be charged with wrongdoing by two separate individuals. Furthermore, since the

issue in such a case would be truly collateral, the Court would not be in a position to determine whether the second allegation was

correct or false. If so, the allegation would remain in the case contaminating the reasoning and adjudication process of the jury. It is

easy to see therefore why such evidence should be treated as prejudicial and inadmissible.

13 In my view it is clear that the evidence here is not being sought to be adduced for the purposes of inviting a jury to consider that

the accused was guilty of the offences charged because of a predisposition to commit such offences alleged to be shown by the

evidence of other acts of indecent assault in respect of the complainant. Indeed it is hard to see how the jury could come to such a

conclusion. If the jury believes the complainant when she says that she was abused on the subsequent occasions, then it is likely

they will convict the accused. But that is because they believe her in general, and therefore believe her when she says she was

assaulted on the occasion charged. There is no sense in which the subsequent incidents become an illegitimate launching pad for a

conclusion about the first. The evidence of further incidents is not being admitted for the purpose forbidden in the first limb of Lord

Herschell’s speech: rather it is being admitted because it is an intrinsic part of the story necessary to understand the circumstances

in which the complainant says she was abused over a protracted period by the accused.

14 It is of some relevance that in my view the evidence is of a somewhat different character to the evidence which is properly

treated as prejudicial and precluded by the rule in Makin’s case. I must admit I have some difficulty in seeing how the evidence

caused real problems for the defence, other than it was alleged to offend against a mischaracterised rule against the admission of

evidence of bad character. Here, the essential issue was the credibility of the complainant. The evidence of acts of indecent

assault/sexual assault on occasions other than those contained in the indictment is no better or worse than the evidence related,

somewhat artificially, to the specific counts. The evidence of other incidents does not supply something lacking in the evidence in

relation to the index offence. On the contrary, it has the same strength and, just as importantly, weakness. It is dependent almost

entirely on the credibility of the complainant. Accordingly, if the admission of this evidence causes any prejudice to the plaintiff it is of

a different order to the type of prejudice contemplated by Lord Herschell’s rule, for example where evidence of previous convictions is

given, or evidence of separate allegations made by a different complainant.

15 Furthermore, while I am reluctant to suggest that evidence to which an accused objects is actually in ease of him or her,

nevertheless it must be acknowledged that the position in this case is different from that which often applies in cases where a small

number of offences are alleged. Since the emergence in recent decades of the phenomenon of child sex abuse, Courts have been

acutely conscious of the difficulty that such claims pose for defendants and have sought to ensure that juries are instructed in

relation to those dangers. Thus, it is often pointed out that a generalised allegation without any distinctive features and without a

specific date may be very difficult to rebut. Lacking a firm date, an accused may be unable to give any evidence of an alibi or raise

questions as to whether the complainant was there on the occasion in question. (See for example the discussions in D.P.P. v P.J.

[2003] 3 IR 550 and D.P.P. v C.C. [2006] 4 IR 287). Here however, since the complainant alleges that the abuse occurred on an

almost daily basis, the accused could raise doubts as to the credibility of the complainant if he was in a position to establish that

either he, or the complainant, had not been around for a significant period of time during the period when the abuse was alleged to

have occurred on a continuous basis.

16 The jury here was not being invited to accept that the Appellant was guilty of sexual assault on the rest of the occasions, and

therefore guilty of the offence actually charged. There was no better reason to believe the complainant in respect of those other

occasions, than in respect of the offence alleged. These considerations lead in my view to the conclusion that the evidence was not

being adduced for the purposes forbidden by the rule formulated by Lord Herschell. However, if the evidence is to be admitted, it must

not only fail the negative test in the first limb of Lord Herschell’s rule, but it must also satisfy the positive test of being relevant to

the trial, as set out in the second limb of the rule.

17 Here the evidence in my view was being adduced first, because it was what the complainant says is what occurred, and any other

account would be artificial and misleading. Furthermore, fairness to the accused has led to the reduction in the number of charges.

But evidence which was strictly limited to the events somewhat arbitrarily chosen for those charges, could give rise to an impression

which was positively misleading. A jury might naturally wonder how it was that incidents had only occurred on say eight separate

occasions over a protracted period, and why no complaint was made by the girl, why it was she still went to the barn or the church

as the case may be, and yet on only these eight occasions. This process of reasoning could lead to a jury entertaining doubts as to

the credibility of the complainant which would be derived from the fact that the evidence had been straight-jacketed in ease of the

accused. It is true that the evidence could be said to be relevant to issues which appeared to be live in the case, at least at the

time the application in respect of the evidence as made, such as the absence of contemporaneous complaint by the complainant or

some suggestion of consent contained in the accused’s statements, but it was also relevant by way of background.

18 A good example of the admission of such background evidence occurred in this case without complaint, in a separate context. The

complainant had sought to explain the fact that she had not complained of the sexual abuse earlier, because she said she was in fear

of the accused. She gave evidence that an incident had occurred in which the trough in the family farm had been vandalised and

which she believed had been carried out by the accused because she said he had threatened her that if she disclosed the abuse he

would do something to her family and subsequently had made some reference, which she interpreted as referring to the damage to

the trough. This evidence was adduced and not challenged even though it could be characterised as evidence of other misconduct

alleged against the accused, not itself the subject of any charge in the indictment. However, there was no debate at all on this at

the trial. It was clear that the evidence was not being adduced for the purposes of inviting the jury to reason that if the accused had

damaged the trough, it was evidence which would allow them to conclude that he must be the sort of person who would have abused

the complainant. Such a thought process would be obviously implausible. The evidence was properly admitted because it was

considered part of the background story and went to explain why the victim had not complained at any stage during her ordeal.

However in my view, the same explanation applies to evidence of the other acts of sexual assault not covered by a charge in the

indictment. It too is part of the overall story, and goes to explain why the victim did not complain earlier.

19 In my view, the admission of what is called background evidence is permissible and consistent with both principle and also

precedent. Other than in this case and the subsequent case of D.P.P. v Jerome Baily [2010] IE CCA 25 however, the Courts in this

jurisdiction have not formally admitted evidence under this rubric. However, it is in my view a mistake to seek to determine the

admissibility of evidence only on the basis that it is, or is not, included in an identified sub category sanctified by precedent. As

Barron, J. observed in D.P.P. v B.K. [2000] 2 IR 199 (echoing in this regard the observations of Viscount Simon in Harris v D.P.P.

[1952] AC 694) it is an error to attempt to draw up a closed list of the sort of cases in which the principle operates. Where what is

important is the application of principle, the use of labels or definitive descriptions cannot be either comprehensive or restrictive. (See

also Lord Morris of Borth-y-Gest in R. v Boardman (1975) AC 421.

20 In any event it is clear that in England evidence has been admitted under the heading of background evidence for some time. From

a consideration of those cases it also appears that this category of case is very close to, and at times indistinguishable from, those

categories in which it has long been accepted that evidence is admissible. Thus for example in R. v Ball [1911] AC 47, the trial judge,

Scrutton, J. explained Makin itself on the basis that the evidence “must have been given to enable the jury to draw the proper

inferences as to sort of business or transaction the persons were carrying on”. Ball’s case involved a charge of incest and the Court

admitted evidence (which was upheld by the House of Lords) of a prior occasion when the accused had been living together and a

child had been born, but which had occurred prior to the coming into force of the 1908 Act, and accordingly could not itself have

formed the subject of a separate charge. The evidence was nevertheless held to be admissible to explain the relationship in which the

two parties were found, and which had to be interpreted by the jury. In R. v Bond [1906] 2 KB 389 evidence of a prior operation with

intent to procure an abortion was admitted on the grounds that:

“Evidence is necessarily admissible as to acts which are so closely and inextricably mixed up that the history of the guilty

act itself has 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 thereby being rendered unintelligible”.

In that case Kennedy, J. quoted with approval from the judgment of Lord Ellenborough in R. v Wylie (1804) 1 B and P (NR) 92, to the

effect that where “several and distinct offences do so intermix and blend themselves with each other, the detail of the parties whole

conduct must be pursued”.

Kennedy, J. continued:

“Such prior acts formed, in point of historical and circumstantial connection, inseparable parts of the transaction which

the jury had to investigate.”

Similarly in the Irish case of the Attorney General v Martin Joyce and Annie Walsh [1929] IR 526, a man and woman were tried jointly

on a charge of having murdered the husband of the woman. Evidence was admitted in relation to a separate attempt to poison the

deceased. Objection was taken on the grounds that such evidence purported to prove the commission of a separate felony. The

Court of Criminal Appeal (Kennedy, C.J., Sullivan, P. and Johnson, J.) admitted the evidence as:

“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 attempt 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.”

21 It is clear that evidence has been admitted in England as background evidence for some time now and that the admission of such

evidence is seen as consistent with precedent, which itself has been accepted and applied in Ireland. In the modern English case law,

it may be of some significance that just as in this case, a difficulty is created by decisions properly and fairly taken in relation to the

formulation of charges at the trial but which then gives rise to a contention that any evidence of wrongdoing other than that

explicitly made the subject of the charge, should be excluded. The earliest case appears to be R. v Pettman, (Unreported, 2nd May

1985, EWCA) where a burglary in Brighton had been one of the charges laid against a co-accused of the appellant. However, at a

pre-trial conference it was agreed that the main charge of conspiracy should proceed and that all other counts should await that

outcome and lie on the file. The evidence, such as it was in relation to the Brighton burglary, was however admitted on the

conspiracy charge avowedly in reliance on Makin and Boardman. The case of R. v M. [2000] 1 WLR 421, involved quite horrific abuse

within a family. In that case, the father of the family was the principal abuser of his daughters but he also encouraged his son (the

appellant) first to watch, and then to participate in the abuse. Later, the son separately abused his sisters. This latter abuse was the

basis of all the offences charged. It appears that the victims did not blame their brother for what he had done as a child when he

witnessed the abuse carried out by his father and participated himself, since their attitude was that he had in fact no real choice. It

appears that for this reason (and perhaps for others) no charges were laid in respect of those earlier incidents , but the evidence of

those earlier acts of abuse were sought to be adduced in reliance both on Pettman and the subsequent comments of a distinguished

academic, Professor Diane Birch recorded in 1995 Crim. L. Rev. 51 on the basis that background evidence is admissible evidence “to

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

22 I agree with Denham, J. that one useful case for present purposes is R. v West [2003] EWCA 3024. That case involved charges of

indecent assault and buggery alleged to have been carried out by the appellant while himself a young boy on another boy some four

years younger when they were both member of a judo club. The particular offences charged related to a period when the victim was

between ten and sixteen years of age and the appellant between fourteen and twenty years of age. However, the prosecution case

also involved references to earlier acts of indecency stretching as far back as when the complainant was six years of age. These

activities could not form the part of any charge since at the relevant time the alleged perpetrator was himself under 14 and therefore

presumed incapable of crime (doli incapax). The Court of Criminal Appeal (Pill, L.J., Rice and Edwards, JJ.) found that the evidence

was admissible as background evidence and approved the direction given by the trial judge to the jury in the following terms:

“Those incidents are not charged 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 will 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 prosecutions case that Mr. W. was conditioned from an early age to submit to sexual acts from Mr. West

and that explained what might otherwise be difficult to explain, namely his submissions to such acts right through his

teens and up to the age of sixteen. Those are the reasons why you hear about those earlier alleged incidents. They are

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.”

These observations could be applied with equal force to the evidence in this case.

23 There are a number of other English cases illustrating both applications of the principle (e.g. R. v Underwood [1998] EWCA Crim.

1426), and its limits (R. v Dolan (2003) 1 Cr. App. Rep. 18). The principle has now been put beyond doubt in the U.K. by its

embodiment in legislative form in the U.K. Criminal Justice Act 2003. In my view, the disputed evidence was properly admitted in each

of those cases as a matter of common law and I would be reluctant to endorse an approach which would lead to a different result in

Ireland. With respect, I am not at all sure that these cases can be easily re-characterised as applications of the traditional categories

of cases in which evidence of other misconduct is admitted, as Fennelly, J. suggests, but if that is possible, then it only illustrates the

fact that the background evidence cases are entirely compatible with the principle identified so long ago by Lord Herschell.

24 It is not in my view a valid objection to the evidence in this case that it postdates the first offence. Although the rather studied

manner in which the evidence was elicited may have given the impression that it was being adduced in respect of the first such

offence in each case, in my view, the evidence was adduced as background to, and establishing habit repetition and conditioning in

respect of, the subsequent offences.

25 Finally, I do not wish this decision to be seen as recommending that further prosecutions should follow the format adopted here.

The experiment did not in my view succeed in providing any clear solution to this very difficult problem. In the absence of a legislative

response, the Courts must continue to adopt the solution in any individual case at best ensures a fair trial of the matters charged. In

my view however, this is an area which would benefit from a comprehensive review, perhaps by the Law Reform Commission, which

could take account of the jurisprudence that has been built up here and in other jurisdictions, and also have access to the best

contemporary learning in the field of psychology and sociology in relation to this troubled area. For the present however, I would

dismiss the appeal.