DPP v McNeill

• Jurisdiction: Ireland
• Judge: Denham J.,Mr. Justice Fennelly,O'Donnell J.
• Judgment Date: 08 April 2011
• Neutral Citation: [2011] IESC 12
• Date: 08 April 2011
• Court: Supreme Court
• Docket Number: [S.C. No. 375 of

DPP v McNeill

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

[2011] IESC 12

Denham J.

Fennelly J.

Macken J.

Finnegan J.

O'Donnell J.

[Appeal No: 375 of 2008]

THE SUPREME COURT

CRIMINAL LAW

Evidence

Admissibility - Background evidence - Evidence of misconduct other than that charged - Test to be applied - Relevance of evidence - Necessity - Direction to jury - Credibility - Framing of indictment - R v Pettman (Unrep, CA, 2/5/1985), Reg v M (T) [2000] 1 WLR 421 and R v W [2003] EWCA Crim 3024, (Unrep, CA, 15/10/2003) considered; People (Attorney-General) v Kirwan [1943] IR 279 applied - Criminal Justice (Evidence) Act 1924 (No 37), s 1(f) - Appeal dismissed (375/2008 - SC - 8/4/2011) [2011] IESC 12

People (Director of Public Prosecutions) v McNeill

Facts: The appeal raised the issue as to whether background evidence was admissible. The indictment contained eight counts of sexual abuse, relating to abuse over many years. The Court had to consider whether the background evidence of an on-going sexual relationship between the complaint and accused/appellant was admissible. The Court of Criminal Appeal granted certification of an appeal on a point of law on whether connected background history which was possibly prejudicial to the accused but which was essential or helpful to the jury could be admissible in a criminal prosecution. The issue arose inter alia as to whether the admissibility of the evidence breached his right to a separate trial on every count of the indictment and breached his constitutional entitled to the presumption of innocence.

Held by the Supreme Court per Denham J. (Fennelly, Macken, Finnegan, O' Donnell JJ. concurring); Fennelly J. dissenting), that background evidence which disclosed matters not laid down in the indictment but which may have been in the Book of Evidence was admissible if it was relevant to the facts to be proved by the prosecution or defence to render comprehensible facts. It was admissible if without the background evidence the facts would be incomplete or incomprehensible for a jury. The test was one of relevance and necessity. On the facts of the case the evidence was not wrongfully admitted. The absence of specific directions did not render the trial unsafe or infirm. The appeal would be dismissed. Per O' Donnell J.: that the matter would usefully be reviewed by the Law Reform Commission, taking into account the jurisprudence which had built up in Ireland and in other jurisdictions. Per Fennelly J. dissenting and allowing the appeal: That the Courts should be slow to adopt a new English line of case-law which would requirement abandonment of our existing caselaw. The test of helpfulness to the jury was much less strict than admissibility and relevancy. The contested evidence was not background evidence stricto senso.

Reporter: E.F.

COURTS OF JUSTICE ACT 1924 S29

CRIMINAL JUSTICE ACT 2006 S22

RSC O. 58 r25(3)

CRIMINAL LAW (RAPE) ACT 1981 S2

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S4

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2(1)

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S21

DPP v F (E) UNREP SUPREME 24.2.1994 1994/2/557

D v DPP 1994 2 IR 465 1994 1 ILRM 435 1993/11/3372

R v REARDEN 176 ER 473 1864 4 F & F 76

R v BOND 1906 2 KB 389

R v PETTMAN UNREP EWCA CRIM 2.5.1985 (EX TEMPORE)

R v M (T) & ORS 2000 1 WLR 421 2000 1 AER 148

BIRCH R v STEVENS COMMENTARY 1995 CRIM LR 651

R v WEST UNREP 15.10.2003 2003 EWCA CRIM 3024

R v CAMPBELL UNREP 9.2.2005 2005 EWCA CRIM 248

LAW CMSN CONSULTATION PAPER NO 141 EVIDENCE IN CRIMINAL PROCEEDINGS: PREVIOUS MISCONDUCT OF A DEFENDANT 1996 PARA 2.70

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

L (HM) & ORS v R 2007-08 235 CLR 334 245 ALR 204 2008 HCA 16

AG v JOYCE & WALSH 1929 IR 526

AG, PEOPLE v KIRWAN 1943 IR 279

R v BUTLER 1999 CRIM LR 835

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

DPP v K (B) 2000 2 IR 199 2000/7/2696

KING v AG & DPP 1981 IR 233

AG, PEOPLE v O'CALLAGHAN 1966 IR 501

MAKIN v AG OF NEW SOUTH WALES 1894 AC 57

AG v DUFFY 1931 IR 144

DPP v BOARDMAN 1975 AC 421 1974 3 WLR 673 1974 3 AER 887

R v BALL 1911 AC 47

CRIMINAL JUSTICE (ADMINISTRATION) ACT 19241924 SCHED 1 RULE 3

H (S) v DPP 2006 3 IR 575 2007 1 ILRM 401 2006/27/5802 2006 IESC 55

B v DPP 1997 3 IR 140

KING v AG & DPP 1981 IR 233

AG, PEOPLE v O'CALLAGHAN 1966 IR 501

MCGRATH EVIDENCE 2005 475-492

DPP v J (P) 2003 3 IR 550 2004 1 ILRM 220 2003/17/3710

DPP v C (C) 2006 4 IR 287 2006/17/3496 2006 IECCA 1

DPP v BAILY UNREP CCA 15.3.2010 2010/14/3266 2010 IECCA 25

HARRIS v DPP 1952 AC 694 1952 1 AER 1044

R v WYLIE & ANOR 127 ER 393 1804 1 BOS & PNR 92

R v UNDERWOOD UNREP 30.4.1998 1998 EWCA CRIM 1426

R v DOLAN 2003 1 CR APP R 18 2003 EWCA CRIM 1859

CRIMINAL JUSTICE ACT 2003 (UK)

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

2 JUDGMENT DELIVERED BY DENHAM, J. (MACKEN, J. CONCURRING), FENNELLY, J. (FINNEGAN, J. CONCURRING), & O'DONNELL, J. (FENNELLY, J. DISSENTING)

3 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.

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

5 3. On the 31 ^st 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?"

6 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".

7 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 21 ^st 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.

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

9 (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.

10 (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.

11 (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.

12 (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.

13 (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.

14 (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

15 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:-

16 a "(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."

17 The Court heard the application de bene esse.

18 8. The appellant was arraigned before the Central Criminal Court on the 19 ^th April, 2004, on the eight counts on Bill CC0064/01. He pleaded not guilty on all counts.

19 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...