Supreme Court allows appeal where evidence of repeated abuse prejudices fair trial on all counts.

THE SUPREME COURT

Record No: 375/2008

Denham J.

Fennelly J.

Macken J.

Finnegan J.

O’Donnell J.

IN THE MATTER OF A CERTIFICATE PURSUANT TO SECTION 29 OF THE COURTS OF JUSTICE ACT, 1924 AS SUBSTITUTED BY

SECTION 22 OF THE CRIMINAL JUSTICE ACT, 2006

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

GERALD McNEILL

APPELLANT

JUDGMENT of Mr. Justice Fennelly delivered the 8th day of April 2011.

1. Where the prosecution alleges prolonged and repeated sexual abuse of a young person over a number of years, it is necessary to

frame an indictment which reconciles the public imperative of bringing such cases to trial with the right of the accused person to a

fair trial. Typically, the complainant is an adult who cannot recall with any degree of precision the dates and times of the acts of

abuse perpetrated during childhood. As in the present case, he or she frequently alleges acts repeated on a large number, even

countless, occasions.

2. In the present case, the female complainant was aged nine when the alleged abuse began and seventeen when it ended. The

prosecution sought to strike a balance between confronting the accused with such a large number of counts as to be oppressive and

unfair to the accused and the need to present what it said was the full background. The complainant often cannot be prevented from

straying outside the framework of the counts charged. The prosecution has to steer a course between the danger of having the jury

discharged and that of presenting the jury with an artificial and incomplete picture.

3. The case-law seems fairly consistent over more than a century. Subject to fairly well-defined exceptions, the prosecution may not

lead evidence of criminal offences other than those charged. On the whole, the historic cases were not of the type with which the

courts are now all too frequently confronted. The present section 29 appeal from the Court of Criminal Appeal requires the entire

matter to be considered afresh.

4. The appellant was arraigned before the Central Criminal Court on 19th April 2004 on eight counts of indecent assault, sexual

assault and rape alleged to have been committed between 1st June 1989 and 31st October 1997. Abbot J presided at the trial.

5. The complainant was born on 6th December 1979. Thus she was nine years of age on the date of the first count and seventeen at

the date of the last. The appellant was a local farmer and a friend of her family. He was born on 6th February 1947 and thus was

more than thirty years her senior.

6. After a trial lasting eight days, the jury convicted the appellant on seven counts: two of indecent assault; two of sexual assault;

one of section 4 rape and, in two cases, where they acquitted on a charge of rape, they convicted of indecent assault and sexual

assault respectively. The offence of indecent assault became know as sexual assault as from 21st January 1991 following the

enactment of section 2(1) of the Criminal Law (Rape) (Amendment) Act, 1990 (see Egan J in Director of Public Prosecutions v E.F.

(Supreme Court unreported 24th February 1994.) The charges will be considered in more detail in the context of the facts.

Ruling on admission of criminal misconduct not charged

7. The problem presented by this appeal can be traced back to an exchange which took place between counsel for the prosecution

and the defence in the absence of the jury at the beginning of the trial, before any evidence was called. Counsel for the defence

objected to the proposal of the prosecution to lead all the evidence outlined in the statements of the complainant in the book of

evidence. This included multiple occasions of sexual activity by the accused with the complainant, which were not represented by

counts in the indictment. In effect the defence were on notice that the complainant would allege that a particular act had taken

place on several occasions, for example “several times each year from 1989 to 1997,” whereas there was only one count in the

indictment referable to that particular type of act. Counsel objected that it would be highly prejudicial to the accused to lead

evidence of that kind. He cited R v Bond [1906] 2 K.B. 389, People (Attorney General) v Kirwan [1943] I.R. 279 and Director of Public

Prosecutions v L.G. [2003] 2 I.R. 517.

8. Counsel for the prosecution conceded that the basic rule remained that the jury should not hear any evidence of previous

misconduct or criminal activity other than what was contained in the indictment or was associated with what was in the indictment.

He made it clear to the learned trial judge that he was not relying on evidence of system. He cited People (Attorney General) v Joyce

and Walsh [1929] I.R. 526 as a case of non-application of the rule. He submitted that, if the jury were to hear evidence of only eight

counts over eight years, that would present a situation of unreality as to the real relationship between the complainant and the

accused. He referred also to the decision of the Court of Appeal (Criminal Division) in England in R v M and others [2000] 1 W.L.R.

421. There was need, he said, to explain what had happened consistently over a period of eight years.

9. Counsel for the defence, in response, expressed concern about the introduction of R v M and others into Irish law, as being

inconsistent with the judgment in Kirwan’s case.

10. The learned trial judge accepted the principles laid down in R v Bond and Kirwan’s case as “strong principles,” which “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.” He held that he was entitled to exercise his discretion in favour of admitting the evidence. While he

acknowledged that he was “perhaps stretching the point as much as it can be stretched,” he thought the evidence constituted a set

of “continuous facts…… related to the prepuberty years of the complainant.” He permitted “the State to lead evidence from the

complainant in relation to the whole story as it happened.” However, he declined to permit similar evidence in respect of the “post-

puberty years” of the complainant from 1994 to 1997. He considered that it would be dangerous to exercise his discretion to permit

the evidence after the date of the offence charged in count number 7, i.e., after 31st August 1994. That was a single count of rape

at the appellant’s home.

11. Following his conviction as already mentioned, on 14th June 1994, the appellant was sentenced to a term of nine years

imprisonment on the count for section 4 rape (count 4), to two years consecutive to that in respect of count number 7 (sexual

assault) and to terms of either one or two years to be served concurrently on the other counts

The evidence

12. The complainant lived with her parents and nine other children in a small country town. The appellant was a bachelor, a local

farmer and a friend of her parents. He was a very frequent visitor to the complainant’s home. He was also sacristan in the local

church.

13. Count No 1: The complainant placed the commencement of the alleged abuse by reference to the death of her grandfather in

March 1989. She recalled a visit from the appellant in the summer of that year. She went outside the house when he was leaving. He

put his arms around her and started feeling her through her clothes and inside her leg. He said that he knew the difference between

right and wrong and that there was nothing wrong with what he was doing. This incident forms the subject matter of count number

one which charged indecent assault contrary to common law between 1st June and 31st August 1989.

14. There then followed the first part of the evidence to which objection is taken. The complainant was asked: “did that ever occur

again or anything like it?” she answered:

“it occurred again the next night and for a long time after……[it] continued on for a long time after that."

Asked what she meant by a long time, she said: "years."

15. Count No 2: The complainant was then asked whether she remembered this taking place anywhere else and she said that the

appellant had brought her down to the church, where he was sacristan. He had told her to go down to the church; he was already

inside; nobody else was there. He put his arms around her and started kissing her and feeling her through her clothes; he kissed her

on the lips, put his hands under her top, felt her breasts and inside her trousers. He said it was "our secret." He used to give her

cigarettes and sometimes money. This incident forms the subject matter of count number two, which charges indecent assault in the

church between 1st June and 30th September 1989.

16. The complainant was then asked how long that had gone on for the summer. She answered: "it went on all summer." She said it

was "always in the church and sometimes at home."

17. Counts No 3 and 6: next the complainant was asked what had happened in the autumn of that year (1989). She said that it was

"the first time he had intercourse with [her].” It happened in the church. He brought her to the top of the aisle, undressed her fully,

put her lying on her back, pulled down his trousers, lay on top of her and had full intercourse. It was painful; she asked him to stop,

but he would not; she was afraid. This incident forms the subject matter of count number three, rape contrary to section 2 of the

Criminal Law (Rape) Act, 1981 between 1st August and 31st October 1989. There was a separate count, count number 6, alleging

sexual assault in the church between 6th December 1993 and 6th December 1994, i.e., when the complainant was between 14 and 15

years of age.

18. She was asked how often she went down to the church in the evening around that time (1989). She said: "practically every

night."

19. Counts Nos 4 and 5: Following her account referable to count number three, the complainant said that "once that started he'd

often get me to masturbate him or have oral sex." She said that "sometimes he'd put his penis in her mouth." Asked if this happened

anywhere else she said: "in the sheds at home." She was asked whether she remembered anything occurring in the turf shed in, say,

1991. She said that he "used to get [her] to masturbate him, have oral sex with him; he used to put his penis in [her] mouth. She

was asked where in the shed this "used to happen." She said that it "happened at different parts of the shed." These incidents form

the subject matter of count number four, rape contrary to section 4 of the Criminal Law (Rape) (Amendment) Act, 1990 between 1st

January and 31st December 1991 and count number 5, sexual assault contrary to section 2(1) of the same Act between 1st January

and 31st December 1992.

20. Count number 7 alleged a single event of rape contrary to the Act of 1981 as amended at the appellant’s home between 1st June

and 31st August 1994.

21. The first six counts alleged sexual offences at three locations: outside the complainant’s home in summer 1989; three in the

church: in summer and autumn 1989 and in 1994 and in the turf shed behind the complainant’s home one in 1991 and one in 1992.

22. The evidence was of more or less continual abuse during a period of “years.”

Court of Criminal Appeal

23. The appellant applied for leave to appeal to the Court of Criminal Appeal. The ground of appeal was that the learned trial judge

had erred in permitting the prosecution to lead “evidence of sexual misconduct between him and the complainant, notwithstanding

that such conduct was not the subject of any count in the indictment." The judgment of that Court was delivered by Budd J on 31st

July 2007. It dismissed the application for leave to appeal.

24. The Court of Criminal Appeal conducted an extensive review of authority. In particular, it considered the English decisions in R. v

Pettman, an unreported decision of the English Court of Appeal (Criminal Division) of 2nd May 1985 and R v M and others, cited

above, which the prosecution had cited in the trial court. The Court cited extensively from subsequent English and Northern Ireland

decisions. It suggested that the “test to adopt might be that leave to adduce evidence of the bad character or prior misconduct of

an accused should be given if the evidence has substantial explanatory value and the interests of justice require it to be admissible,

even taking account of its potentially prejudicial effect.” In response to defence reliance on the traditional exceptions to the

exclusionary rule, the Court referred to those cases as providing guidance “in deciding what should be admitted as background

evidence.” It cited the decision of the Court of Criminal Appeal in People (Director of Public Prosecutions) v BK [2000] 2 I.R. 199 as

authority for the proposition that the “balancing test [is] the touchstone for assessing the admissibility of prior misconduct evidence."

It held that it had been correctly applied in the present case.

25. The Court of Criminal Appeal pursuant to section 29 of the Courts of Justice Act, 1929, as substituted by section 22 of the

Criminal Justice Act, 2006, certified the following as a question of law of exceptional public importance:

“Is evidence of connected background history which might disclose matters not laid 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?”

Established case law

26. I referred, at the outset of this judgment, to the well-known difficulties in ensuring a fair and balanced trial in cases of prolonged

and repeated sexual abuse. The state, representing the people, has an interest and a duty to see to it that people are prosecuted in

response to legitimate complaints from victims. The victims themselves, as is increasingly recognised, have an interest in seeing that

justice is done. The accused person is entitled under the Constitution to a fair trial.

27. It is common case that the evidence presented by the prosecution at the trial of the appellant, if believed, was to the effect that

he had committed a very large number of criminal offences against the complainant which did not form the subject matter of any

count in the indictment. Counsel for the prosecution thought the indictment might have run to over 100 counts.

28. The common law has not historically permitted evidence to be given in a criminal trial that the accused person had committed

offences other than those for which he was charged. McWilliam J, in the case of King v Attorney General [1981] I.R. 233 at 241

stated:

“One of the concepts of justice which the Courts have always accepted is that evidence of character or of previous

convictions shall not be given at a criminal trial except at the instigation of the accused, as that could prejudice the fair

trial of the issue of the guilt or innocence of the accused”.

29. O’Dálaigh C.J. in the case of People (AG) v O’Callaghan [1966] I.R. 501 at 509, in the different context of a bail application,

remarked that he "could not see how a fair trial could be assured to an accused person if, before his trial, there was a discussion in

public Court of this topic." (referring to the record of past convictions of an applicant). There are rules governing the exceptional

circumstances in which such evidence may become admissible, most notably when the accused chooses to put his own character or

that of prosecution witnesses in issue. None of them arise here.

30. The same thinking permeates the rules governing the admissibility of evidence which has the principal purpose of establishing a

fact relevant to the charge laid but has the incidental but unavoidable effect of disclosing the fact of an earlier conviction. The well-

established principle is, of course, more ancient than the decision of the Privy Council in Makin v Attorney General for New South

Wales [1894] 54, but many modern decisions, including those of our own courts, are content to start with the statement of Lord

Herschell, L.C. in that case:

“It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has 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 for which he is being

tried. On the other hand, 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 an issue before the jury, and it may be so relevant if it bears upon the

question of 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.”

31. Thus, there is a general rule and there are exceptions or, rather, there are cases where the rule does not apply. In the case of

Makin, the disputed evidence was held, in fact, to have been admissible. The charge was one of murder of an infant whom the

appellants had undertaken to adopt. There was evidence that the accused parsons had received other infants from their mothers on

similar representations and terms and their buried bodies had been found.

32. R v Bond, cited above, was a decision of the Court for Crown Cases Reserved. A doctor was charged with the offence of

feloniously using instruments on a woman with intent to procure a miscarriage. It was suggested that the instruments might be quite

properly used by a medical man for a legitimate purpose. Another woman was tendered by the prosecution to prove intent by showing

that, some time previously, the accused had used similar instruments upon her. It was held by a majority of 5 to 2 that the evidence

was admissible and relevant. Alverstone CJ and Ridley J dissented, believing that the evidence should not have been admitted. The

judgment of Kennedy J, one of the majority directly applied Makin. His judgment contains the following at page 398:

“Nothing can so certainly be counted upon to make a prejudice against an accused upon his trial as the disclosure to the

jury of other misconduct of a kind similar to that which is the subject of the indictment, and, indeed, when the crime

alleged is one of a revolting character…… and the hearer is a person who has not been trained to think judicially, the

prejudice must sometimes be almost insurmountable."

33. Addressing himself to the cases in which the rule did not apply, Kennedy J proceeded at page 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.”

34. These passages from Makin and Bond were adopted and applied by Kennedy CJ in giving the judgment of the Court of Criminal

Appeal in People (Attorney General) v Joyce and Walsh, cited above. In that case the question related to the admissibility, in a

murder trial, of evidence that, on an earlier occasion, the accused had put guano into milk to be drunk by the deceased. Kennedy CJ

cited the passage from Bond, cited above, before concluding that the evidence regarding the guano “formed part of one entire

transaction…: it presented one aspect of the relations existing between the prisoners and the deceased…..” (page 540 of the report).

35. People (Attorney General) v Kirwan was a decision of this Court on a certificate from the Court of Criminal Appeal. A man was

charged with murder of his brother, whose dismembered remains had been found buried in a bog. Evidence was given from three staff

from Maryborough prison where the accused had served a term of penal servitude. The evidence undoubtedly disclosed to the jury

the fact that he was serving a sentence for another crime but it was incidental to its purpose. The medical evidence had been that

the body of the deceased could only have been dismembered by a person with some anatomical skill and knowledge. The prison

witnesses showed that the accused had performed relevantly similar operations on the carcasses of pigs.

36. O’Byrne J, having quoted the above passage from Makin, continued, at page 299:

“The rule, so enunciated, has been considered in a great number of subsequent cases in this country and in England, and

I am not aware of any case in which its accuracy has been questioned.”

37. He also cited the passages from Bond, quoted above. All the judges were agreed that the evidence from the staff at the prison

was correctly admitted. It is important to note that the disclosure that the accused had committed another offence was merely an

incidental, although inevitable consequence of the production of the evidence, which was, in itself, directly relevant to the crime of

murder with which he was charged.

38. I believe that I should next refer to the decision of the Court of Criminal Appeal in People(Director of Public Prosecutions) v BK,

since the Court of Criminal Appeal, in the present case, appears to have regarded it as establishing a simple balancing test between

prejudicial and probative value for the admissibility of evidence.

39. That case was concerned with the joinder of counts, not, as here, the leading of evidence of the commission of offences not the

subject of any count. Nonetheless, the judgment casts light on the latter issue. The applicant was charged with four counts of

indecent behaviour with young boys: two were of indecent assault and buggery against one boy and two were of attempted buggery

against two different boys. The applicant had applied unsuccessfully for separate trials, a decision whose correctness was the issue

on appeal. Counsel submitted that allowing the counts to be tried together had the effect of providing corroboration, where there was

none in law.

40. The judgment of the Court of Criminal Appeal was delivered by Barron J, who conducted a detailed review of case-law, including

citation of Lord Herschhell’s dictum in Makin. He summarised the following principles as emerging from the cases:

“(1) The rules of evidence should not be allowed to offend common-sense.

(2) So, where the probative value of the evidence outweighs its prejudicial effect, it may be admitted.

(3) The categories of cases in which the evidence which can be so admitted, is not closed.

(4) Such evidence is admitted in two main types of cases:-

(a) to establish that the same person committed each offence because of the particular feature common to each;

or

(b) where the charges are against one person only, to establish that offences were committed.

In the latter case the evidence is admissible because:-

1. (a) there is the inherent improbability of several persons making up exactly similar stories;

2. (b) it shows a practice which would rebut accident, innocent explanation or denial.”

41. This is the passage quoted by the Court of Criminal Appeal in the present case as having “clearly approved the balancing test as

the touchstone for assessing the admissibility of prior misconduct evidence." This statement appears at the end of a part of the

judgment which also contains the suggestion that

“Perhaps the test to adopt might be that leave to adduce evidence of the bad character or prior misconduct of an

accused should be given if the evidence has substantial explanatory value and the interests of justice require it to be

admissible, even taking account of its potentially prejudicial effect.”

42. I do not think that any of the cases, including BK, supports the application of such a test. Several passages in BK, including the

citation from Makin, show that the court did not intend any departure from existing principles. Immediately following the summary of

principles, just cited, the court said in BK:

“References to the jury seeing the full picture may be misleading. It means no more than that in those cases where the

evidence is admissible to fail to admit it would mean that the jury would not get the full picture. It does not in any sense

mean that inadmissible evidence should be admitted in particular circumstances.”

43. Numerous other passages and citations in BK show that evidence of criminal misconduct on other occasions is regarded as

essentially prejudicial and is to be admitted only if shown to be relevant to the count charged. For example, the judgment in BK cites

the following from Kennedy C.J. in Attorney General v. Duffy [1931] I.R. 144, at 149, dealing with the joint trial of four separate

counts of gross indecency and indecent assault against four different male persons:

“Human nature, however, is too strong to have allowed the jury to disregard the cumulative effect of evidence given at

the same trial in respect of four distinct offences of almost precisely the same character."

44. Similarly, the judgment, at page 206, cites Lord Hailsham of Marylebone in R. v Boardman [1975] A.C. 421 at page 451:

"When there is nothing to connect the accused with a particular crime except bad character or similar crimes committed

in the past, the probative value of the evidence is nil and the evidence is rejected on that ground. When there is some

evidence connecting the accused with the crime, in the eyes of most people, guilt of similar offences in the past might

well be considered to have probative value … Nonetheless, in the absence of a statutory provision to the contrary, the

evidence is to be excluded under the first rule in Makin v. Attorney-General for New South Wales [1894] A.C. 57 because

its prejudicial effect may be more powerful than its probative effect, and thus endanger a fair trial.”

45. Most tellingly, so far as the present case is concerned, the Court of Criminal Appeal in BK allowed that appeal and quashed the

conviction, holding that the joinder of the first two counts, respectively for indecent asault and buggery on one male person with two

other counts of attempted buggery against two different male persons had been incorrect because (see page 211):

“The evidence on counts number 1 and 2 does not have the necessary nexus to justify their being heard at the same time

as counts number 8 and 9. That evidence went no further than saying that because the applicant was charged with the

offences against one boy, he was more likely to have committed the alleged offences against the other boys.”

46. This review of what I call the established case law convinces me that evidence that the accused person has committed other

crimes is not, in principle, admissible in evidence. The reason is that it is obviously prejudicial. A jury which learns that an accused

person has committed the particular type of crime on other occasions is inevitably going to treat his defence with scepticism.

Although we generally speak of previous convictions, the principle applies to evidence of any criminal acts whether committed before

or after the matters with which he is now charged.

47. The foregoing principle does not prevent evidence being admitted where it tends to prove that the accused committed the

particular offence with which he is charged. Many of the cases speak of evidence to exclude accident or mistake or to prove intent.

It is also legitimate to prove similarities between the manner of committing the instant offence and offences previously committed by

the accused. As has been frequently said, these categories are not closed. What is required is that the evidence proffered be

relevant, as tending to prove the commission of the particular offence, and therefore probative.

48. It is only at this point, i.e., where it is established that it is admissible, that the question arises of balancing the probative and

prejudicial effects of evidence. Evidence may be admissible in principle but may, as a matter of discretion of the trial judge, be

excluded because its prejudicial effect outweighs any probative value. This was what the Court of Criminal Appeal described as "the

balancing test."

49. With these principles in mind, was the evidence to which objection has taken in this case admissible? In my view it was not. The

complainant gave evidence of sexual assaults upon her in three different locations: outside her home; in the church; in the turf

sheds. In each case, she gave an account of a sexual assault, including rape, amounting clearly to the commission of a criminal

offence by the appellant. In each case, when she had given her evidence of the first such event, she was asked whether it had

occurred again or had gone on again. She then proceeded, in each case, to swear to the repeated commission of the same offence

on numerous subsequent occasions. None of that evidence would be admissible in accordance with the line of caselaw from Makin,

through People (Attorney General) v Joyce and Walsh and People (Attorney General) v Kirwan to BK. It has not been suggested that

it can be justified by reference to any of the matters which have been developed in many cases from Makin onwards.

50. Counsel for the prosecution expressly accepted, in the trial court, that the he was not offering any evidence of system. Before

this Court, the respondent submits that evidence of motive is admissible and that motive can be established by previous words and

acts notwithstanding that some or all of what is proved may reveal that the accused has committed other offences, citing Lord

Atkinson’s judgment in R v. Ball [1911] AC 47. In that case, a brother and sister were convicted of incest committed in 1910.

Evidence was given that, in 1907, they had lived together as man and wife, had a child and registered the child as theirs. The House

of Lords, reversing the Court of Criminal Appeal, held the evidence to have been admissible in order to establish that the defendants

had a guilty passion towards each other and to rebut the defence of innocent association as brother and sister. Though the case was

concerned with a charge of incest, Lord Atkinson spoke of evidence in a murder case of “words of the accused to show that he

entertained feelings of enmity towards the deceased…” This does not appear to me to advance matters. The proposition is entirely in

accord with the judgment of the former Supreme Court in People (Attorney General) v Kirwan.

A new line of caselaw

51. The argument for the prosecution, as it was presented to the trial judge, was that to exclude the evidence of other and

subsequent criminal misconduct by the appellant would present a situation of unreality as to the real relationship between the

complainant and the accused. While the word "background" was used, in the course of argument, by reference to the English

caselaw, it is not clear to me that the prosecution was contending that the relevant evidence was, in any sense, evidence of

background. Indeed, there was no difficulty about presenting such evidence, to include an account of the age, relationships, family

and social circumstances and respective occupations and places of residence of any of the participants. All that evidence was given

and is and was uncontroversial. I cannot see that evidence that, after a first offence, the appellant committed the same offence on

many subsequent occasions can, in any sense, be regarded as evidence of background.

52. The respondent relies before this court, as he did in the Court of Criminal Appeal on, the unreported decision of the English Court

of Appeal (Criminal Division) of 2nd May 1985 in R. v Pettman, which the respondent presents as a notable development of the

common law.

53. The evidence at stake in Pettman was admitted on one count of conspiracy to rob alleged against the appellant. The object of

the conspiracy was to rob Securicor employees of money they were due to collect at Acton near London on certain Fridays. It was

not carried into effect because there were labour pickets outside the building on each of the Fridays in question. But the alleged

conspirators were observed by the police in the vicinity of the target buildings on the mornings in question. The key point is that one

of the vehicles they used on those occasions had been observed by the police on an earlier date being driven from London to Brighton

where a burglary was carried out and a Barclaycard stolen from a Mr Hayward. The same Barclaycard was used to purchase petrol for

the same car on one of the Fridays of the alleged conspiracy at Securicor. This evidence linked the accused with the car and with

the credit card.

54. At trial it was conceded by the defence that the evidence was admissible. Objection was made only on the basis that it was more

prejudicial than probative, because it disclosed evidence of the commission of an earlier offence of burglary. Purchas L.J., delivering

the judgment of the Court said:

“In our judgment, evidence of the use of the car…... on 2nd April 1981 by this appellant and one of his co-accused was

relevant to the extent that it was part of a continuum of observation tending to establish a conspiratorial association

between the two men in relation to this car, which itself was the receptacle for petrol obtained by the Barclaycard stolen

from Hayward, although not on 2nd April 1981, and the use on 11th April 1981 of a cheque-book in the name of Hayward,

which was stolen on 2nd April 1981……”

55. Purchas L.J proceeded to cite both from Makin and Boardman v DPP. The passage most relied upon in the present case was the

following:

“Although the facts in R v Campbell were different from those in the instant case, in our judgment the principles remain

the same, namely, that where it is necessary to place before the jury evidence of part of a continual background or a

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. In this case it would have been unrealistic and artificial to have stopped the evidence of the Brighton

expedition as if it were at the door of [Securicor]. In our judgment, the whole of the evidence of the events of 2nd April

1981 were admissible in law.”

56. Purchas L.J. further emphasised that the “ highly probative value cannot be disputed, because it connected the appellant with

the car…... and with the stolen cheque-book, both of which were used on other occasions in furtherance of the alleged

conspiracies…”

57. Leaving aside the generality of the statement of Purchas L.J., I would suggest that there could never have been any serious issue

about the admissibility of the evidence in that case. It was a case of conspiracy. The evidence was highly probative and directly

relevant to the behaviour of the conspirators.

58. R v M and others was a decision of the same court, which approved the dictum of Purchas L.J. It was a case of the most extreme

kind of sexual abuse within a family, all organised, carried on and perpetrated by the parents. The appeal concerned one appellant,

T.M., who was convicted of rape of his sister. The prosecution case was that the parents had created and maintained a culture of

abuse in the home and that T.M. was taught, from an early age, to watch and take part in the most unspeakable and shocking

behaviour imaginable. The evidence at issue, which the prosecution called “introduction incidents,” was that T.M. had been made to

watch sexual abuse and taught to carry it out and that he had commenced to abuse his sister when she was nine or 10 years of age.

T.M., it was said, had been "groomed" into the family web of abuse. Part of the prosecution argument was that, in order to

understand the evidence of the complainant, the jury would need to know the background. That would help to explain why the

complainant felt unable to seek help, and it could also help to explain why T.M. ever contemplated behaving in the way alleged, and

why he felt able to behave in that way without fear of retribution from other members of the family.”

59. Kennedy L.J., giving the judgment of the court adopted a passage from an article by Professor Birch in [1995] Crim. L.R. 651. The

first part deals with similar fact evidence and then distinguishes "background evidence." The passage continues:

“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…………’ 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.”

60. Purchas LJ considered the evidence to have been admissible as background evidence and not likely adversely to affect the

fairness of the proceedings. He emphasised that the judge had made it clear to the jury that T.M. was not being blamed for what had

happened in the 1960s, i.e., the earlier period, because “ he, like them, was at that time a victim of his father.” In effect, the

evidence was to a large extent in ease of the appellant.

61. Fortunately, it is not necessary to express any concluded view about the correctness of the decision to admit the evidence in

that appalling and extraordinary case. Personally, I find it difficult to disagree with the result. This case calls to mind the facts in R v

Ball, the incest case, cited above.

62. The impugned evidence in the present case is of an entirely different character. It is not evidence of what the prosecution in that

case called “introduction incidents” or what Professor Birch described as “the run-up to the alleged offence…” We have not had any

discussion of “ grooming” in the present case. For the avoidance of any possible doubt, I would wish to emphasise that such evidence

must be admissible. In so far as the complainant gave evidence of preparations in advance of the appellants abuse of her in the

church, the evidence was given without objection and rightly so.

63. As I have already said, the contested evidence cannot be described as "background evidence." It is evidence that a particular

offence was committed on one occasion and then repeated on a large number of subsequent, not prior, occasions.

Another solution

64. It is surprising that neither party has referred to a decision of this Court which might be considered most relevant. It is

presumably for that reason that it is not mentioned in the judgment of the Court of Criminal Appeal. It is Director of Public

Prosecutions v E.F., (unreported 24th February 1994), where the unanimous judgment was delivered by Egan J. It was a case stated

from the Circuit Court. There were nine counts of indecent assault on an indictment. Each count alleged the offence to have been

committed on a date unknown in each of nine years from the beginning of 1979 to the end of 1988. One question asked whether the

counts were duplicitous in form and another asked whether they were such as to deprive the accused of a fair trial in due course of

law. Egan J held that there was no duplicity and continued:

“There is a large element of unreality in confining each count to one incident when the book of evidence indicates that [

one complainant] has claimed that the offence occurred roughly every day or a second day and [ another complainant]

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…”

65. At a later point, Egan J said:

“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 were referred to a

period of one month rather than one year.”

66. Strictly speaking, the decision dealt only with the issue of duplicity. However, the Court did address the intractable problem of

how to frame indictments in cases of prolonged and repeated sexual abuse. As I understand it, the practice there advocated has

generally been followed for many years. It was not followed in the present case.

67. Rule 3 of the First Schedule to the Criminal Justice (Administration) Act, 1924 deals with counts in an indictment as follows:

“Charges for any offences, whether felonies or misdemeanours, may be joined in the same indictment if those charges are

founded on the same facts, or form or are a part of a series of offences of the same or a similar character.”

68. As can be seen from the decision of the Court of Criminal Appeal in BK, that rule may not be used to join counts which have the

effect of prejudicing a fair trial on one count through the evidence given on others.

69. In the present case, the giving of evidence to prove the commission of an offence on one occasion opened the door to evidence

of repetition of that offence on a large number of subsequent occasions. It is not a question of preparatory or introduction acts,

grooming or evidence of intent. It is simply of the repeated commission of the offence on an unspecified but obviously very large

number of subsequent occasions. This defect in the trial affects all counts in the indictment. Even in the case of the single count,

number seven, of rape at the appellant's own home, the jury may have been prejudiced by hearing evidence of the commission of a

large number of other offences.

70. The final question is what can be done. Experience shows that, in the nature of things, it is quite impossible for complainants in

these cases to give evidence of the commission of acts on particular dates and it is unreasonable to expect that they can do so. It is

not even possible, in many cases, for the complainants to say how many times abuse has occurred. It has to be acknowledged that it

is extremely difficult to reconcile the objectives of bringing a prosecution so as to enable justice to be done to the victim and the

public with the imperative necessity of guaranteeing a fair trial.

71. The Oireachtas has not responded to the suggestion made in Director of Public Prosecutions v E.F. Egan J suggested a pragmatic

approach, aimed at achieving a measure of reality. It has not been suggested that the decision in that case should be overruled. I do

not think that, in the way the indictment was presented in the present case, the trial approached the level of fairness which would

have been achieved even by an indictment containing month by month counts. I believe it is quite simply wrong to allow evidence of

one offence to be given and then to allow evidence to be given that the same offence was committed on an indefinite number of

other occasions. The procedure followed in the present case would represent a radical departure from existing practice and case-law.

The English cases cited by the respondent have not, to date, been followed by our courts. The following passage from Professor Birch

seems central to this new departure:

”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 test of helpfulness to the jury is much less strict than admissibility and relevancy.

Our courts are slow to depart from existing established precedent. The adoption of this new English line of case-law would, in effect,

require abandonment of our existing case-law. I am not convinced that it is right or necessary to do so. I believe the decision in

Director of Public Prosecutions v E.F. should be maintained as representing the best means of ensuring a fair balance between

realistic presentation of the prosecution case and the right of the accused to a fair trial.

72. I would allow the appeal and set aside the conviction.