Patrick Nevin and Another v Catherine Nevin

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 01 March 2013
• Neutral Citation: [2013] IEHC 80
• Court: High Court
• Date: 01 March 2013

[2013] IEHC 80

THE HIGH COURT

[No. 13003 P/1997]

Nevin & Lavelle v Nevin

BETWEEN

PATRICK NEVIN AND MARGARET LAVELLE

PLAINTIFFS

AND

CATHERINE NEVIN

DEFENDANT

SUCCESSION ACT 1965 S120

SUCCESSION ACT 1965 S27(4)

CRIMINAL JUSTICE ACT 1964 S4

CRIMINAL JUSTICE ACT 1990 S2

OFFENCES AGAINST THE PERSON ACT 1861 S4

COURTS OF JUSTICE ACT 1924 S29

CRIMINAL PROCEDURE ACT 1993 S2

SUCCESSION ACT 1965 S120(4)

SUCCESSION ACT 1965 S120(1)

MCGUIRE & PEARCE SUCCESSION ACT 1965 2ED 1986 291

SPIERIN & FALLON THE SUCCESSION ACT 1965 & RELATED LEGISLATION: A COMMENTARY 3ED 2003 PARA 757

ESTATE OF CRIPPEN (DECEASED), IN RE 1911 P 108

CRIMINAL EVIDENCE ACT 1898 (GB)

HOLLINGTON v F HEWTHORN & CO LTD 1943 KB 587 1943 2 AER 35

EVIDENCE ACT 1851

EVIDENCE AMDT ACT 1853

MCILKENNY v CHIEF CONSTABLE OF THE WEST MIDLANDS & ANOR 1980 QB 283 1980 2 WLR 689 1980 2 AER 227

CLIFFORD v TIMMS 1907 2 CH 236

HUNTER v CHIEF CONSTABLE OF THE WEST MIDLANDS 1982 AC 529 1981 3 WLR 906 1981 3 AER 727

JORGENSEN v NEWS MEDIA (AUCKLAND) LTD 1969 NZLR 961

GOODY v ODHAMS PRESS LTD 1967 1 QB 333 1966 3 WLR 460 1966 3 AER 369

BARCLAYS BANK LTD v COLE (NO 1) 1967 2 QB 738 1967 2 WLR 166 1966 3 AER 948

CIVIL EVIDENCE ACT 1968 S11(2) (UK)

EVIDENCE ACT 1843

HARVEY v R 1901 AC 601

LUNACY ACT 1890

CROSS EVIDENCE 3ED 1967 49

MYERS v DPP 1965 AC 1001 1964 3 WLR 145 1964 2 AER 881

KELLY v IRELAND & AG 1986 ILRM 318 1986/3/1027

BREATHNACH v IRELAND & ORS 1989 IR 489 1989/4/907

MADDEN v DOOHAN & ORS UNREP IRVINE 9.10.2012 2012/24/6910 2012 IEHC 422

CIVIL LIABILITY ACT 1961 PART IV

CRIMINAL JUSTICE ACT 1993 S2

EVIDENCE

Admissibility

Wife convicted of murdering husband - Intestate - Probate proceedings - Admissibility of evidence of trial and conviction for murder - Trial of issue - Whether a criminal conviction for murder admissible in later civil proceedings - Whether admissible conviction would be conclusive of fact of murder or simply prima facie evidence of fact of murder - Whether defendant would have right to argue that she should not have been convicted - Exclusion of persons from succession - Statutory interpretation - Strict construction - Issue estoppel - Abuse of process - Whether reasoned decision prerequisite for admissibility - Beyond all reasonable doubt - Exception to hearsay rule - Justice and fairness - Crippen, In the Estate of [1911] P 108; Hollington v F Hewthorn & Co Ltd [1943] 1 KB 587; McIlkenny v Chief Constable of West Midlands Police Force [1980] 2 All ER 227; Hill v Clifford [1907] 2 Ch 236; Hunter v Chief Constable of the West Midlands Police [1982] AC 529; Jorgensen v News Media (Auckland) Ltd [1969] NZLR 961; Goody v Odhams Press Ltd [1967] 1 QB 333; Barclays Bank Ltd v Cole [1967] 2 QB 738; Harvey v The King [1901] AC 601; Hill v Clifford [1907] 2 Ch 236; Myers v Director of Public Prosecutions [1965] AC 1001; Kelly v Ireland [1986] ILRM 318; Breathnach v Ireland [1989] IR 489 and Madden v Doohan & Ors [2012] IEHC 422, (Unrep, Irvine J, 9/10/2012) considered - Succession Act 1965 (No 27), ss 27(4) and 120 - Civil Liability Act 1961 (No 41) - Conviction found to be admissible as prima facie evidence of guilt (1997/13003P- Kearns P - 1/3/2013) [2013] IEHC 80

Nevin v Nevin

Facts: This matter concerned the administration of the estate of Thomas Nevin (the ‘deceased’) who was murdered on the 19th March 1996 intestate. He and the defendant were married and jointly registered as owners of Jack White”s Inn in Co. Wicklow from 1986 until the time of his death. The defendant continued to operate the business until it was sold in 1997 for €620,000. The deceased”s mother initiated proceedings on the 4 ^th November 1997 seeking a declaration that the defendant was disinherited from taking any share in the estate of the deceased on the basis of her involvement in his wrongful death. The matter was adjourned until criminal proceedings issued against the respondent were concluded. In the interim, the deceased”s mother was replaced by the plaintiffs, the deceased”s brother and sister, following her death in September 1999.

On the 11 ^th April 2000, the defendant was found guilty of murder and sentenced to life imprisonment with the resulting appeal of conviction being refused. The defendant continued to protest her innocence and made a number of unsuccessful applications to appeal the decision in various courts. On the 11th April 2010, the plaintiff brought a motion to consider the admissibility of the evidence and subsequent conviction of the defendant in the criminal proceedings in support of their claim in the adjourned proceedings. It was the defendant”s contention that the evidence was not admissible and therefore she should be treated as if she had never committed the offence in question, relying on the English case of Hollington v F. Hewthorn & Co. Ltd. and Another [1943] 1 KB 587 and the vagueness of the rules of exclusion of beneficiaries in s. 120 of the Succession Act 1965.

Held by Kearns J that s. 120 of the Succession Act 1965 stated that ‘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’. The fact that the words ‘guilty of the murder’ were used instead of ‘found guilty of the murder’ was determined to be an omission that created confusion as to the effect of the section. Due to the fact that the section had to be subjected to strict interpretation, and without a conclusive decision as to its effect, it could not be enforced against the defendant on its own.

However, whilst it was clear that Hollington v F. Hewthorn & Co. Ltd. and Another had ruled that a criminal conviction should be deemed inadmissible evidence in subsequent civil proceedings; subsequent cases in the United Kingdom had overruled this decision. Further, there were no Irish authorities that supported this direction. The starting point for cases of this type was In the Estate of Cunigunda (otherwise Cora) Crippen, deceased) [1911] P. 108, an English case which unlike Hollington was made prior to Irish independence. On that basis, it was held the defendant”s criminal conviction was prima facie evidence of the fact that they committed the murder. Such an approach was compatible with the public policy considerations and aims of the Succession Act 1995. As prima facie evidence, the defendant would have the opportunity to convince the court that she did not murder the deceased.

Direction made.

1 JUDGMENT of Kearns P. delivered on the 1st day of March, 2013

2 Thomas Nevin, late of Jack White's Inn, Brittas Bay, County Wicklow was murdered on 19 ^th March, 1996 on the said licensed premises. The said Thomas Nevin was married to Catherine Nevin, the defendant herein. There were no children of the marriage and he died intestate. Thomas Nevin and Catherine Nevin were jointly registered as full owners of Jack White's Inn and jointly operated and managed the premises from the date of purchase in 1986 until the time of his death. Following her husband's death, the defendant re-opened Jack White's Inn and operated same for a period of time before the premises were sold in 1997 for £620,000.

3 These proceedings were commenced by plenary summons issued on 4 ^th November, 1997 wherein Nora Nevin, mother of the late Thomas Nevin, claimed against the defendant as follows:-

4 (a) a declaration that the defendant is disinherited at common law from taking any share in the estate of the deceased;

5 (b) a declaration that by virtue of s. 120 of the Succession Act 1965 the defendant is precluded from taking any share either as a legal right or otherwise in the estate of the deceased;

6 (c) a declaration that the defendant is not entitled to any share in the public house premises known as Jack White's Inn, Brittas Bay, Co. Wicklow or to any other assets of the deceased;

7 (d) damages pursuant to the Civil Liability Act 1961 against the defendant for the wrongful death of the deceased;

8 (e) a declaration that the said licens ed premises and other assets form part of the estate of the deceased;

9 (f) a declaration that the plaintiff is the sole person entitled to share in the deceased's estate;

10 (g) an order pursuant to s. 27(4) of the Succession Act 1965 appointing the plaintiff personal representative of the estate of Thomas Nevin deceased;

11 (h) an injunction restraining the defendant from disposing of any assets of the deceased or any part of the said licensed premises or other assets.

12 On 23 ^rd January, 1998 upon motion of counsel for the defendant, the High Court (Geoghegan J.) made an order, on the undertaking by the plaintiff through her counsel, that "no further steps of any sort will be taken in these proceedings pending the final determination of the criminal proceedings now pending against the defendant arising from the death of Thomas Nevin" and ordered, inter alia, that the motion do stand adjourned to the trial of the action and gave liberty to the defendant to apply for an order staying the proceedings in the event of there being any breach of the foregoing undertaking by the plaintiff.

13 The said Nora Nevin died on 10 ^th September, 1999, intestate, following which Patrick Nevin and Margaret Lavelle, being the brother and sister of Thomas Nevin, extracted letters of administration intestate to her estate on the 18 ^th July, 2000. By order of the High Court dated 5 ^th March, 2001, they were joined as plaintiffs in these proceedings.

14 The defendant was charged with various offences as set out below arising from the death of the said Thomas Nevin and after a hearing lasting some 42 days before a judge and jury in the Central Criminal Court was found guilty on 11 ^th April, 2000 of:-

15 (i) Murder, contrary to common law and s. 4 of the Criminal...