Nevin v Nevin

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan,Ms. Justice Finlay Geoghegan
• Judgment Date: 07 March 2017
• Neutral Citation: [2017] IECA 63
• Date: 07 March 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 63 Article 64 Transfer App. No. 2014 771 (89/2013 SC) App. No. 2014 794 (131/2013 SC) Appeal. No. 2014/794 Appeal. No. 2014/771

[2017] IECA 63

THE COURT OF APPEAL

Finlay Geoghegan J.

Hedigan J.

Finlay Geoghegan J.

Irvine J.

Hedigan J.

Neutral Citation Number: [2017] IECA 63

Article 64 Transfer

App. No. 2014 771 (89/2013 SC)

App. No. 2014 794 (131/2013 SC)

Appeal. No. 2014/794

Appeal. No. 2014/771

BETWEEN

PATRICK NEVIN

AND

MARGARET LAVELLE (FORMERLY NORA NEVIN)

PLAINTIFFS/RESPONDENTS

AND

CATHERINE NEVIN

DEFENDANT/APPELLANT

Practice & procedure- Evidence – Civil litigation – Admission of certificate of conviction – Criminal proceedings

Facts: The appellant had been convicted of the murder of her husband. The deceased’s relatives had begun proceedings in the civil courts, seeking multiple declarations including inter alia that the appellant be precluded from taking any benefit from the deceased’s estate. The High Court had found that the conviction of murder was admissible as evidence in the civil proceedings, and the appellant now sought to appeal.

Held by Mr Justice Hedigan, that the appeal would be dismissed. Ms Justice Finlay Geoghegan also handed down a judgment. The Court was satisfied that the relevant jurisprudence demonstrated that the certificate of conviction was admissible in the civil proceedings. Jorgensen v News Media (Auckland) Limited [1969] NZLR 961 applied and In the Estate of Cunigunda (otherwise Cora) Crippen, Deceased [1911] P 108 considered.

JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 7th day of March

1 These are two appeals against orders made by the High Court (Kearns P.) on the 14th February 2013, in the defendant's motion and on the 1st March 2013, on the plaintiff's motion. The single judgment was given by the High Court on the 1st March 2013, which includes the reasons for which the order refusing the defendant's application was made and also for its determination on the plaintiffs motion that ‘the conviction of the defendant for her husband's murder is admissible in the within proceedings as prima facie evidence of the fact that she committed such murder’.

2 The order of 1st March 2013 was made on a motion brought by the plaintiffs on the 11th April 2012, seeking the preliminary trial of an issue of law on ‘the admissibility of the evidence of the defendant's trial and subsequent conviction for the murder of her husband, Thomas Nevin’.

3 The background to the proceedings is that the defendant's husband, Thomas Nevin, was killed on the 19th March 1996. The defendant was subsequently charged with the murder, and also soliciting the murder, of her husband. On the 11th April 2000, following a trial of 42 days before a judge and jury in the Central Criminal Court, the defendant was found guilty of:-

‘(i) Murder, contrary to common law and s. 4 of the Criminal Justice Act 1964 and s. 2 of the Criminal Justice Act 1990 of Thomas Nevin at Jack White's Inn aforesaid;

(ii) soliciting to murder, contrary to s. 4 of the Offences Against the Person Act 1861, one John Jones to murder Thomas Nevin;

(iii) soliciting to murder contrary to s. 4 of the Offences against the Person Act 1861, one Jerry Heapes, to murder Thomas Nevin;

(iv) soliciting to murder, contrary to s. 4 of the Offences against the Person Act 1861, one William McClean to murder Thomas Nevin.’

4 These plenary proceedings were commenced initially by the mother of the deceased, and subsequent to her death have been continued by two siblings of the deceased. The proceedings seek, primarily, declarations at common law and pursuant to s. 120 of the Succession Act 1965, (‘the 1965 Act’) that the defendant is disinherited or precluded from taking any share either as a legal right or otherwise in the estate of the deceased.

5 The plenary proceedings have had a protracted history. This was primarily caused by the criminal proceedings, appeals against the conviction, an application for a miscarriage of justice, an application for a certificate under s. 29 of the Courts of Justice Act 1924, and an application to the European Court of Human Rights, all of which had been dismissed or struck out by February 2013. The defendant has filed a full defence denying any involvement in the murder of the deceased.

6 These two appeals were initially made to the Supreme Court, and, in October 2014, transferred to this Court pursuant to Article 64 of the Constitution.

7 The appeal against the order of the 14th February 2013 was moot at the time of the hearing before the Court of Appeal. That order refused the defendant's application for a stay on the hearing of the plaintiffs' motion. The basis of the application was that there was an outstanding application to the Court of Criminal Appeal for leave to re-enter to apply for a certificate pursuant to s. 29 of the 1924 Act. That has since been refused. Notwithstanding that it is now moot, the defendant/appellant contended that it had a costs implication. Insofar as that is relevant, I would dismiss that appeal and uphold the decision of Kearns P. to refuse the application for a stay on the plaintiffs' motion for the reasons he set out in his judgment of 1st March, 2015.

8 The appeal to this Court was principally focused on the determination as a preliminary issue that the conviction of the defendant for her husband's murder is admissible in the plenary proceedings as prima facie evidence of the fact that she committed such murder.

The Issue in the High Court and on Appeal

9 Kearns P. in his judgment expressed the view that the issue ‘in the present proceedings’, by which I think he meant the application on the motion before him, was ‘a simple one’. I respectfully disagree. He identified the issue in the following terms:

‘The issue in the present proceedings is a simple one. Is a criminal conviction for murder admissible in a later civil proceeding brought against a person convicted of that murder? If not admissible, then it would follow that a defendant in a civil case would be in precisely the same position as a person who was acquitted or never charged with the offence in question. The conviction could not be used in any way whatsoever in the civil case.

If, on the other hand, the conviction is admissible, is it conclusive of the fact that the defendant murdered her husband or is it simply prima facie evidence of that fact, leaving to the defendant the right to argue that she should not have been convicted? In this regard, it is important to state at the outset that the plaintiffs do not contend that the conviction, if admitted, is conclusive against the defendant, nor do they any longer contend that evidence given at the criminal trial is in some way admissible in the civil proceedings.’

10 The reason for which the issue is complex, and for which it appears to me extremely important that this Court make clear the very limited issues with which it was dealing on appeal, is first, the fact that the plaintiffs indicated that the claim is being pursued both at common law and pursuant to s. 120(1) of the 1965 Act, which perhaps explains the general formulation of the issue as relating to the admissibility of the conviction ‘in civil proceedings’ as distinct from its admissibility in a claim pursuant to s. 120(1) of the 1965 Act. Second, is the approach taken by Counsel for the plaintiffs of only seeking an order of admissibility of the conviction as prima facie evidence, even in relation to the claim pursuant to s. 120(1) of the 1965 Act, which is likely to be the central issue in the full hearing of the proceedings.

11 The proper construction of s. 120(1) of the 1965 Act was not in issue before this Court. It is unclear to what extent it was argued in submissions before the High Court. Notwithstanding this, views were expressed by the trial judge in the course of his judgment and I am concerned that we might be taken to agree with them if they were left without comment. I therefore propose briefly considering them.

12 Kearns P. set out s. 120 of the 1965 Act, of which ss. (1) and (4) are principally relevant. These provide:-

‘(1) A sane person who has been guilty of the murder, attempted murder or manslaughter of another shall be precluded from taking any share in the estate of that other, except a share arising under a will made after the act constituting the offence, and shall not be entitled to make an application under s. 117.

…

(4) A person who has been found guilty of an offence against the deceased, or against the spouse or any child of the deceased (including a child adopted under the Adoption Acts 1952 and 1964, and a person to whom the deceased was loco parentis at the time of the offence), punishable by imprisonment for a maximum period of at least two years or by a more severe penalty, shall be precluded from taking any share in the estate as a legal right or from making an application under section 117.’

13 He then said:

‘In making his submissions to the effect that the criminal conviction was admissible as prima facie evidence in this case, Mr. Brady on behalf of the plaintiffs accepted that a significant difference in wording appears in subsection (4) of s. 120 from that contained in subsection (1). The former contains the words “found guilty”, whereas the wording of subsection (1) states only that the person be “guilty of the murder”.

It is far from easy to see why the legislature, when inserting the words “found guilty” in subsection (4), omitted the same term from subsection (1), given that the overall thrust of the section is to provide that certain forms of conduct should have particular consequences in terms of succession rights. In McGuire's commentary on the Succession Act, 1965 (2nd Ed., at 291) the author does not address this particular difficulty, noting merely that:-

“It was a rule of public policy at common law that a person should not be permitted to benefit from a crime. For that reason, where a sane person was guilty of...