DPP v Gerald McNeill

• Jurisdiction: Ireland
• Judge: Mr Justice Declan Budd
• Judgment Date: 31 July 2007
• Neutral Citation: [2007] IECCA 95
• Court: Court of Criminal Appeal
• Date: 31 July 2007

[2007] IECCA 95

THE COURT OF CRIMINAL APPEAL

Hardiman J.

Budd J.

Herbert J.

124/04

DPP v MCNEILL

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

And

GERALD McNEILL

Applicant

DPP v GILLIGAN 2004 3 IR 87 2003 16 3559

AG v JOYCE & WALSH 1929 IR 526

ARCHBOLD CRIMINAL PLEADING, EVIDENCE & PRACTICE 27ED 1927

R v BOND 1906 2 KB 389

R v M & ORS 2000 1 AER 148

R v T (M), P (M) & P A (M) 2001 1 CAR 49

R v PETTMAN UNREP COURT OF APPEAL 2.5.1985 (UK

R v STEVENS 1995 CLR 649

CANNON EVIDENCE 1ED 2002 209-211

CANADIAN CHARTER OF RIGHTS & FREEDOMS 1982

CHARLETON CRIMINAL LAW 1ED 1999 39

AG v KIRWAN 89 ILTR 120

DPP v G (L) 2003 2 IR 517 2003 16 3458

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 SCHED 1 RULE 4

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S1

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S4

CRIMINAL JUSTICE (EVIDENCE) ACT 1924 S1(e)

CRIMINAL JUSTICE (EVIDENCE) ACT 1924 S1(f)

MAKIN v AG FOR NEW SOUTH WALES 1894 AC 57

AG v FLEMING 1934 IR 166

HEALY IRISH LAWS OF EVIDENCE 1ED 2002 204

R v DOLAN 2003 CLR 41

R v CAMPBELL ENREP COURT OF APPEAL 20.12.1984 (UK)

R v FULCHER 1995 2 CAR 251

R v SIDHU 1994 98 CAR 59

R v SAWONIUK 2000 2 CAR 220

R v W 2003 EWCA CRIM 3024 (TRANSCRIPT NOT AVAILABLE)

R v PHILIPS 2003 AER (D) 218 (APR)

R v CAMPBELL UNREP 2005 EWCA CRIM 248

R v BOYLES UNREP 2004 NICA 2

LAW COMMISSION REPORT LAW COM NO 273 EVIDENCE OF BAD CHARACTER IN CRIMINAL PROCEEDINGS 2001 PARA 10.1

LOWERY v QUEEN 1974 AC 85

R v B 1997 CLR 220 (CA)

R v UNDERWOOD 1999 CLR 227

MCGRATH EVIDENCE 1ED 2005 200

DPP v BOARDMAN 1975 AC 421

R v STRAFFEN 1952 2 QB 911

PEOPLE (AG) v DEMPSEY 1961 IR 288

MCGRATH EVIDENCE 1ED 2005 480

R v ARP 1998 3 SCR 339

DPP v G (M) UNREP SUPREME 30.1.2007 2007 IESC 4

>MCGRATH EVIDENCE 1ED 2005 481

DPP v B (K) 20002 IR 199

DPP v P 1991 2 AC 447

LAW COMMISSION LAW COM NO 273 EVIDENCE OF BAD CHARACTER IN CRIMINAL PROCEEDINGS 2001 PARA 2.81

BLACKSTONE'S CRIMINAL PRACTICE 12ED 2002

R v BALL 1911 AC 47

R v SCARROTT 1978 1 AER 672

WALSH CRIMINAL PROCEDURE 1ED 2002 PARA 22.25

CRIMINAL LAW

Evidence

Admissibility - Background evidence - Evidence of misconduct other than charged - Relevance of evidence - Necessity for evidence - Whether probative value outweighed prejudice to accused - Proviso - Charge to jury - Corroboration - Credibility - R v Pettman (Unrep, CA, 2/5/1985), Reg v Boardman [1975] AC 421, R v Straffen [1952] 2 QB 911, People v Dempsey [1961] IR 288, R v Arp [1998] 3 SCR 339, People (DPP) v BK [2000] 2 IR 199, DPP v P [1991] 2 AC 447, Reg v Scarrott [1978] QB 1016, Reg v M (T) [2000] 1 WLR 421, R v Campbell (Unrep, CA, 20/12/1984), R v Fulcher (1995) 2 Cr App R 251, R v Stevens [1995] Crim LR 649, R v Sidhu (1994) 98 Cr App R 59 and R v Boyles [2004] NICA 2, [2004] NI 312 considered - Criminal Justice Evidence Act 1924 (No 37), s 1 - Leave to appeal refused (124/2004 - CCA - 31/7/2007) [2007] IECCA 95

People (DPP) v McNeill

1 JUDGMENT of the Court delivered by Mr Justice Declan Budd on Tuesday 31st July 2007

2 This case was heard in camera. One judgment of the Court was delivered pursuant to the provisions of Section 28 of The Courts of Justice Act 1924.

3 This is the applicant's application for leave to appeal against his conviction on seven out of eight counts for sexual offences against a young female neighbour who was aged between eight and seventeen years at the time of the alleged offences, while he was in his fifties. The counts with which he was charged were as follows:

"Count 1:-

Gerald McNeill on a date unknown between the 1st day of June, 1989, and the 31st day of August, 1989, outside the home of [the complainant] at Trien, Castlerea in the County of Roscommon indecently assaulted [the complainant].

Count 2:-

That on a date unknown, other than the date referred to in count number 1, between the 1st of June, 1989, and the 31st of September, 1989, at Trien Church, Castlerea in the County of Roscommon he indecently assaulted [the complainant].

Count 3:-

Gerald McNeill on a date unknown between the 1st of August, 1989, and the 31st of October, 1989, at Trien Church, Castlerea in the County of Roscommon had sexual intercourse with [the complainant] a female person who did not consent to it.

Count 4:-

That he a male person on a date unknown between the 1st of January, 1991, and the 31st of December, 1991, at the turf shed at the rear of the home of [the complainant] at Trien, Castlerea in the County of Roscommon sexually assaulted [the complainant] a female person by placing his penis into the mouth of the said [the complainant].

Count 5:-

That on a date unknown between the 1st of January, 1992, and the 31st of December, 1992, at the turf shed at the rear of the home of [the complainant] at Trien, Castlerea in the County of Roscommon he sexually assaulted [the complainant] a female.

Count 6:-

That on a date unknown between the 6th day of December, 1993, and the 5th day of December, 1994, at Trien Church, Castlerea in the County of Roscommon he sexually assaulted [the complainant] a female.

Count 7:-

That on a date unknown between the 1st of June, 1994 and the 31st day of August, 1994, at his home at Trien, Castlerea in the County Roscommon he had sexual intercourse with [the complainant] a female person who at the time of the intercourse did not consent to it.

Count 8:-

That on a date unknown between the 1st October, 1997, and the 31st day of October, 1997, at Trien Church, Castlerea in the County of Roscommon he had sexual intercourse with [the complainant] a female person who at the time of the intercourse did not consent to it."

4 There was no suggestion, on the hearing of this appeal, that these counts were put forward as "sample charges", as that phrase is used in DPP v. Gilligan (No. 2) [2004] 3 I.R. 87. Indeed, it is not clear whether the term "sample charges" has any meaning in law outside the context of a sentence hearing where the accused agrees that counts to which he pleads guilty may be regarded in that light.

5 The trial of the applicant commenced in the Central Criminal Court before Abbott J. and a jury on 19th April, 2004. On the 28th April, 2004, the accused was convicted by the jury on count number 4, count number 5 and count number 6 by unanimous verdict and then on 29th April, 2004, the accused was convicted on count number 1, count number 2, count number 3, of indecent assault and on count number 7 of sexual assault by a majority of 11:1. In two cases (count 3 and count 7) the accused was acquitted of the offence alleged but was convicted of indecent assault, in one instance, and of sexual assault, in the other. He was acquitted altogether on count 8.

6 The learned trial judge then imposed the following sentences:

7 Count number 1 - One years imprisonment to be served concurrently with the nine year sentence imposed on count 4.

8 Count number 2 - A sentence of two years imprisonment to be served concurrently with the nine year sentence imposed on count 4.

9 Count number 3 - Two years to be served concurrently with the nine year sentence imposed on count 4.

10 Count number 4 - Nine years.

11 Count number 5 - Two years to be served concurrently with the nine year sentence on count 4.

12 Count number 6 - Two years to be served concurrently with the nine years on count number 4.

13 Count number 7 - Two years to be served consecutively to the sentence on count number 4, making a total of eleven years imprisonment in all.

14 Against these orders the applicant has applied for leave to appeal. His grounds are as follows:

15 (1) That the learned trial judge erred in law 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". (Lest there be any ambiguity the crucial criticism is that the prosecution adduced evidence of incidents of prior sexual impropriety between the accused and the complainant despite such particular incidents not being the subject matter specifically of any count in the indictment.)

16 (2) Severity of sentence.

Misconduct Evidence.

17 At the trial, Edward Comyn S.C. for the prosecution straightforwardly made it clear that he intended to lead evidence of sexual misconduct on the part of the applicant with the complainant, other than the incidents which were the basis of the eight counts in the indictment. He stated that he was going to lead all of such evidence which was in the Book of Evidence. What he meant emerges clearly enough from the transcript of the argument which took place when Roger Sweetman S.C. for the defence objected to the leading of any evidence of such misconduct, amounting if accepted to a criminal offence, other than those which formed the content of the counts in the indictment. Mr. Comyn accepted, as a matter of first principle, that such prior misconduct evidence was generally not admissible. Nor did he contend at this stage that he was entitled to lead the evidence in order to establish a system, or to establish a propensity on the part of the accused, or to rebut some defence. Although it was implicit that this reason for admissibility could arise if it became necessary to refute some line of defence left open for lack of narrative background of the relationship developed between the accused and complainant. He stressed that a false and misleading impression would be given to the jury if the jury were not told of prior interaction between the accused and the complainant and how their human relationship had been instigated by this much older family friend with the young girl and how it had developed over nine years. He made it clear that he stood over the indictment, settled by himself and Junior Counsel after careful...