Court of Criminal Appeal dismisses appeal against conviction for sexual offences where prior misconduct evidence was properly admitted.

THE COURT OF CRIMINAL APPEAL

124/04

Hardiman J.

Budd J.

Herbert J.

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

GERALD McNEILL

APPLICANT

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

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.

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.”

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.

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.

The learned trial judge then imposed the following sentences:

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

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

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

Count number 4 – Nine years.

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

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

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.

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

(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.)

(2) Severity of sentence.

Misconduct Evidence.

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 consideration, and that to have included more counts would have been

unfair and burdensome to the accused. The jury could only convict of the specific counts and the Director is conscious of this but it

would be false, misleading and wrong so to confine the case being made to the jury that an unreal impression of events is given

thereby deceiving the jury. He submitted that this was not a ‘similar facts evidence’ type of case but rather a case for assessing

admissibility of certain background narrative misconduct evidence by weighing the probative value of the evidence in issue against the

putative prejudicial likely effect thereof. He put his case as follows:

“However, I do say… that there are cases where it is in the interests of justice [to lead such evidence]. And I think

justice includes that the jury understand what the case is about. And that the interests of justice require that there be a

breach of that principle. Perhaps I should say it’s not a matter of a breach of the principle but rather that the principle

shouldn’t be allowed to apply in certain particular cases…

Now here we have a case where from 1989 I think onwards, a period of eight years, over which the conduct alleged

against the accused occurred. Now, the indictment sought to represent that, on sample counts, by taking eight counts of

different types of behaviour and conduct on different occasions… [when] the complainant was nine years of age up to

the time she was sixteen. And that, as I say, is reflected in the indictment. Now, if I am confined to merely giving

evidence of those counts which occurred with, as is clear from the Book of Evidence, with such regularity – of course it is

very difficult to be precise as to when some of them occurred. It is very difficult to pick out a very particular time or

place. I think my friend understands that. But are the jury, I ask, and I ask this rhetorically, are the jury to hear only

evidence of eight counts over eight years? If they are, My Lord, it presents a situation of unreality as to what the real

relationship between or the alleged relationship by the prosecution as between the complainant and the accused person…

Now my submission is this, that to ask the jury to look at a situation that there are, as far as they would know if my

friend’s application is to succeed, that they would know that there was only one, approximately one or two a year, of

these counts, although in fact the first three relate to a very short period of time. The first three counts operate almost

within a matter of months of the beginning of this conduct. But nevertheless to ask the jury to assess the situation in

that context, particularly when the accused used to visit the house… is so unreal as to, shall I say, not beg, raise all

sorts of unanswered questions in the mind as to how these things could stretch out over such a period and yet only have

eight incidences of them…

… The point is, is it unfairly prejudicial as against what the jury must hear in order to understand the case? That is the

balance, of course, which has to be held in a case like this… the position is that the relationship between them has to be

explained, otherwise the jury are going to be left in a situation they will not be able to understand the case. It will raise

unanswered questions in their mind and it will in fact be presenting a false picture.”

Mr. Comyn then cited some cases. The first was the well known and very striking Irish case A.G. v. Joyce and Walsh [1929] IR 526.

There, a man and a woman were charged with the murder of the woman’s husband. The prosecution wished to adduce evidence that

the man, on an occasion other than that which led to the deceased’s death, and, in the presence and with the knowledge of the

woman, had put guano into the husband’s tea. This evidence was admitted, on the basis that it was evidence of mens rea and that it

“tended to show the existence of a conspiracy between the [two] accused”. The defence pointed out that the accused were not

indicted for conspiracy, but the evidence was admitted apparently on the basis of a statement in Archbold, Criminal Practice, 27th

Ed., to the effect that the mere fact that evidence adduced tends to show the commission of other crimes does not render it

inadmissible if it is relevant to an issue before the court. These points seem to be based substantially on the decision of the Court of

Crown Cases reserved in R. v. Bond [1906] 2 KB 389.

Another case relied on by Counsel for the Director was a decision of the English Court of Appeal (Criminal Division), R. v. M. and Ors.

[2000] 1 All E.R. 148 and [2000] Cr. App. R. 266 as R v TM, PM, PAM. This, indeed, is the authority which seems most clearly to

envisage what Counsel had in mind. It related to a part of the trial of a truly extraordinary case where nine members of a family,

including the father and mother, were charged on an indictment containing forty-three counts, alleging that between 1961 and 1974

the parents, their friends and their son T.M. had sexually abused five of their seven children. This was one of a series of cases

relating to the family. There were further allegations which are not relevant for present purposes. T.M was convicted of one offence,

a count of rape of his sister S. The appeal was based on the proposition that the trial judge had erred in allowing evidence of sexual

relations between T.M. and two other members of the family. The issue was summarised as follows in the prosecution’s written

submissions in that case:

“The prosecution do seek to rely on the evidence of ‘introduction incidents’ as essential background to the case against

TM, … There is a progression by age, TM, aged 10, watches the sexual abuse of DB. in 1964 and is ‘taught’ to sexually

abuse EA in 1965/66 at the age of 11/ 12. … The Crown’s case is that he has been ‘groomed’ into the family web of

abuse. At the age of about 16 he sets about the serious sexual abuse of his sister then aged about 10, well aware that

he is not her only abuser and well aware that she cannot complain of her treatment at his hands. The jury cannot

comprehend this unless they have the full background facts.”

The trial judge admitted the evidence on the basis that:

“The only relevance [of it], if you are sure that there was an earlier involvement with his sisters, and of his knowledge of

abuse within the family, is that he knew it was safe to abuse his sister S, secure in the knowledge that she would not

seek the protection of her own parents.”

This was upheld by the Court of Appeal on the basis that “… The evidence of conduct to which [the defence] objected was part of a

continuous family history relevant to the offences charged”.

The Court of Appeal held that evidence of that defendant’s previous misconduct was admissible against him, not because its

probative value outweighed its prejudicial effect, but on the alternative ground that it was background evidence. The court based

this ruling on the Pettman decision. The evidence was found to be admissible where the narrative before the jury would be incomplete

or incomprehensible, in this case of numerous sexual abuses, if the story of the abusive family’s background was not covered in

evidence so as to put it in context and to explain the peculiarities of the relationships and to give an explanatory depiction of the

otherwise inexplicable failure of the abused sisters to complain, such was the family atmosphere that had been created based on

years of sexual abuse of family members. The evidence was admissible on the basis referred to above that it was part of “a

continuous family history relevant to the offences charged”. This is the context in which the background misconduct evidence was

sought to be admitted. The jury would not have been able to understand this unusual scenario unless they had the full background of

the material facts. Perhaps the contrast between probative value against prejudicial effect on the one hamd and background

evidence simply is too stark and no court could be unmindful of the prejudicial effect of prior misconduct enidence on a jury. However

the learned trial judge put the matter also on the firm basis of the need for proof about consent or rather the lack of consent and

made crystal clear that he had considered and weighed up the counterbalancing concern about the prejudicial effect of the prior

misconduct evidence.

In reaching this conclusion the Court adopted an unreported decision of the English Court of Appeal, R v. Pettman (unreported, 2nd

May, 1985) as follows:

“Where it is necessary to place before the jury evidence of part of a continual background of 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.”

The Court of Appeal in R v M also quoted, with some measure of approval, a note by Professor D.J. Birch in [1995] Crim. L.R. 651 on

the case of R v Stevens [1995] Crim. L.R. 649. The Court of Appeal (Criminal Division) heard that Stevens had been convicted of the

murder of a woman with whom he had been living. He admitted that he had struck her hard once and she became unconscious. The

issues in the appeal concerned two pieces of evidence sought to be adduced which the judge admitted following submissions. Two

incidents had occurred some two and four months before her death when Stevens had been violent to her, and on one of these

occasions she required hospital treatment as a result of his assault. The prosecution relied on these incidents marginally to show

background and to help establish motive. The second piece of evidence was a letter written by the deceased to Stevens on the day

before she died referring to his violence and explaining why she was leaving him. This evidence was sought to be adduced as

establishing the state of mind of the deceased. On the appeal, the defence submitted that the judge wrongly allowed the two pieces

of evidence to be given and that their prejudicial effect outweighed their probative value. The Court of Appeal dismissed the appeal

as it was clear that background was relevant, notwithstanding the admission of evidence not charged: (Pettman unreported 2 May

1985, per Purchas L.J.; Archbold 1993 para 13.42). The legal issues are complex but the judge’s charge had been careful in that he

told the jury that the earlier incidents of violence were of limited significance and that the deceased’s letter, the contents of which

were highly prejudicial involved an important issue of fact as to whether stevens had seen the letter and the judge had stressed to

the jury that they mnust not accept the facts stated in the letter as being true. The Court held that the judge’s discretion to admit

the evidence of the surrounding events was rightly exercised. In her note Professor Birch wrote, in reliance on the Pettman decision,

that such background information 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… ‘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”.

This note would push out the frontier of relevant background evidence or prior misconduct evidence but does make clear that the

principles in respect of admissibility of relevant background evidence are to be applied to material in all types of cases and not just in

sexual abuse cases involving young persons, in which such issues are often stark and germane.

The trial Court seems to have had the case of R v M (above) opened to it by description of the treatment of this case in Cannon and

Neligan, Evidence (Dublin 2002) at pp209-211. In that book, the passage from Professor Birch’s note above is quoted at p. 210 as

though it were part of the judgment which it is not. However Professor Birch’s commentary was described by Kennedy L.J. as “a

useful note” in his judgment in R v M where the gist was that the account would be “incomplete or incomprehensible if not given in its

totality”, and thus on grounds of fairness and justice the background evidence was admissible.

Counsel, on behalf of the defendant, urged that the Court adopt the traditional attitude to the admissibility of evidence of prior

alleged misconduct as set out in such cases as R. v. Bond, cited above and which is further analysed below as it is actually authority

for the proposition that, while the general rule is that evidence of prior misconduct should be excluded, there are exceptions as the

Court held in allowing in the evidence of another young woman than the victim/complainant as to what Dr. Bond said to her about

performing an abortion on her and the Court of Crown Cases Reserved actually said that this evidence was rightly admitted and that

the conviction must be upheld. Counsel went on to submit further that the categories of admissibility of such evidence should not be

expanded. In particular, he doubted whether the recent English cases relied upon (M. and Pettman) were consistent with the

constitutional requirement of a trial “in due course of law”. This submission requires a consideration of Irish cases dealing with the

admission of which recognised “background evidence” and “prior misconduct evidence” as being developed exceptions to the former

exclusionary rule. Recent cases have referred to a previous line of authoritative Irish cases in respect of the circumstances in which

such prior misconduct evidence has been recognised as being admissible. This is augmented by reference to the clarification and

refinement of the issues in respect of this line of authority in other jurisdictions in the common law tradition, including Canada with its

Charter Rights.

Ruling of the trial judge.

The learned trial judge gave his ruling at pp. 43 to 45 of Book II of the transcript as follows:

“Mr. JUSTICE ABBOTT: I have considered the arguments of Mr. Sweetman in relation to the inclusion of evidence, the

admissibility of evidence in relation to actions, which could be offences which are not in the indictment, to be given by

the complainant.

And I accept the principles laid out in R-v-Bond and AG-v-Kirwan and the cases cited and the principles, which have been

touched upon in the judgment of the Court of Appeal in LG cited by him. I won’t give the references. And these are strong

principles indeed and 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.

And as I said during the course of the argument, it would seem to me that the consent to a greater or lesser extent is a

major element in the proof of the prosecution case and the account of the complainant in relation to the various matters.

If the lack of consent is not proven by the prosecution, then their case is set at naught and it would seem to me, that

the background of continuous engagement between the complainant and the accused involving offences not in the

indictment is necessary to attain justice.

And I have been influenced by the case cited in Cannon and Neligan’s book on page 209 and also in reference in Charleton

and McDermott at page 39 cited and the case Attorney-General v Joyce and Walsh, which is cited in the

Charleton/McDermott text.

However, the Trial Judge should be jealous to ensure that the balancing, between the requirements of justice and the

strict rule that the law does not require or permit similar fact evidence to be given in criminal trials, should be exercised in

this case.

And I consider that the counts in this case up to count 7 constitute, perhaps stretching the point as much as it can be

stretched with the practicalities, a set of continuous facts, which are related to the prepuberty years of the complainant

and which suggest themselves as a series of events, which allow of me as Trial Judge to exercise my discretion, against

the submissions of counsel for the Accused, to allow the complainant to give evidence, the State to lead evidence from

the complainant, in relation to the whole story as it happened then.

However, I consider that it might be stretching my discretion too far to apply it in the post-puberty years or the likely

post-puberty years of the complainant from ’94 to’97. By the time October, 1997 had come she was 15 or 16 and as I

have said, she was then a young woman and in the normal course one would expect a different person to be there rather

than the child, who was there in 1989.

And having respect to the principles set out in R-v-Bond and AG-v-Kirwan I consider that it would be dangerous to

exercise my discretion to include the period after the offence described in count no. 7. So that if evidence is given in

relation to the incident in count no. 8 it cannot be supported by any event, which happened after count no. 7.”

Thus the learned judge made clear his cautious approach to any exception to the general exclusionary rule and then gave coherent

and cogent reasons, grounded in fairness and the specific circumstances of this case, for admitting background evidence, while

acknowledging and clearly being conscious of the likely possible prejudicial effect in all the circumstances prevailing in the particular

case.

The reference to the judgment of the Court of Appeal in LG was to the judgment of Keane CJ, Lavan and Abbott JJ, in 2003 2 IR 517

which is a clear, concise yet comprehensive judgment in which the two complainants in the case accused their brother of one rape

and 4 indecent assaults. It covers a range of aspects usually germane in sexual assault cases and indicates matters which require

mention in the charge to the jury in respect of such matters as separate consideration of each count, delay, and corroboration. While

this judgment is instructive and helpful on a range of topics, circumstances differ from the present case notably that here there is

only one complainant not two and the situation on the run of the case also differs in that no point or submissions or requisitions

appear to have been made in respect of directions about the prior misconduct evidence. Such a desire for a low key dealing with that

aspect is perfectly understandable and practical from the applicant’s viewpoint as the less said about and probably the least attention

attracted to prior misconduct the better from the defence’s position.

The challenged evidence.

As a result of this ruling a comparatively small amount of evidence was admitted, though the defence says it is significant evidence.

The passages particularly objected to by the defence arose as follows:

The first two counts related to the summer of 1989. The complainant’s attention was drawn to that period and she made an

allegation against the defendant in respect of that period. She identified the location she was referring to with reference to a

photograph. She said the whole event had lasted “just a few minutes”. She was then asked whether the same thing or anything like it

had occurred again and she answered “It occurred again the next night and for a long time after”. Asked to repeat that answer she

said “It occurred again the next night… and continued on for a long time after that”. Asked what a long time meant she said “Years”.

She then described a further incident, corresponding to count 2 which allegedly occurred in the church. An assault was alleged in that

location. The complainant was then asked “And how long did that go on for that summer?” and answered “… It went on all summer”.

Asked where these events had taken place in the summer referred to, she answered “It was always in the church and sometimes at

home”. She then moved on to discuss the incident the subject matter of count 3.

The questioning then moved on to the subject matter of count 4 but in fact described conduct between the defendant and the

complainant which was alleged by the latter to be habitual. She was asked “How often would you go down to the church in the

evening time around that time?” and answered “Practically every night”. Describing a particular form of assault, the witness said “He’d

often get me to [behave in a particular way]” and said this would occur sometimes in the church and “sometimes in the seats”. This,

“happened on a lot of occasions”. Counsel then asked the complainant “Did that happen on occasions before 1994?” and (she)

confirmed that it did. She then had her attention directed to a particular occasion by the words: “and if you take an occasion (at)

the turf shed, say 1991, do you remember that?”. The witness then went on to describe the sort of thing she had previously been

describing as happening in that location in 1991.

All of these references are taken from Book Two of the transcripts, between pp. 58 to 70.

Statutory Provisions.

The Criminal Justice (Administration) Act, 1924, contains as its First Schedule a series of “Rules with respect to indictments”. By s.1

of the Act these rules “… shall have effect as if enacted by this Act…”. Rule 4 provides:

(1) A description of the offence charged in an indictment, or where more than one offence is charged in an indictment, of

each offence so charged, shall be set out in the indictment in a separate paragraph called a count.

(2) A count of an indictment shall commence with a statement of the offence charged, called the statement of offence.

(3) The statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use

of technical terms, and without necessarily stating all the essential elements of the offence, and if the offence charged is

one created by statute, shall contain a reference to the section of the statute creating the offence.

(4) After the statement of the offence, particulars of such offence shall be set out in ordinary language, in which the use

of technical terms shall not be necessary:

Provided that where any rule of law or statute limits the particulars of an offence which are required to be given in

an indictment, nothing in this rule shall require more particulars to be given than those so required.

It will thus be seen that each “offence charged” is to be set out in a separate paragraph or count and that the statement of the legal

nature of each offence and a statement of the particulars alleged is to be provided in the case of each count.

There is no statutory limit to the number of counts that may be preferred in an indictment though a judge may sever an indictment

for good reason.

Section 4 of the Criminal Justice [Administration] Act, 1924 provides:

Every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with

which the accused person is charged, together with such particulars as may be necessary for giving reasonable

information as to the nature of the charge.

Counsel for the Applicant agreed that in this type of case involving a young person there was understandable difficulty about giving

precise dates and times and there was no issue about this aspect.

Section 1 of the Criminal Justice (Evidence) Act, 1924, for the first time rendered the evidence of a defendant in criminal proceedings

and his or her spouse admissible at a criminal trial. Section 1(e) and 1(f) of that Section provide:

Section 1 of the Criminal Justice (Evidence) Act, 1924:

Section 1(e):

“a person charged and being a witness in pursuance of this Act may be asked any question in cross-

examination notwithstanding that it would tend to criminate him as to the offence charged.

Section 1(f):

“a person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall

not be required to answer, any question tending to show that he has committed or been convicted of or

been charged with any offence other than that wherewith he is then charged, or is of bad character,

unless –

(i) the proof that he has committed or been convicted of such other offence is admissible

evidence to show that he is guilty of the offence wherewith he is then charged; or

(ii) he has personally or by his advocate asked questions of the witnesses for the prosecution

with a view to establish his own good character, or has given evidence of his good character, or

the nature or conduct of the defence is such as to involve imputations on the character of the

prosecutor or the witnesses for the prosecution; or

(iii) he has given evidence against any other person charged with the same offence.

Here, the defendant did give evidence in his own defence and was not asked any question of the relevant kind so these provisions

have not been invoked. However, this Court was concerned that an issue arises as to whether it is to be implied from the prohibition

contained in s.1(f) of the Criminal Justice (Evidence) Act, 1924, that no evidence to the same effect may be led in direct evidence for

the prosecution.

The Admissibility of Background Evidence: Caselaw:

There are a number of English cases which are akin and comparable to the case at hand. Certainly, there have been some English

cases where “background evidence” or even “misconduct evidence” as it is also aptly called, has been accepted as having sufficient

probative force to overcome its prejudicial effect and accordingly has been admitted. In some of these cases it has been admitted as

it tended to prove the kind of relationship which subsisted between the complainant and the accused (i.e. whether the complainant

had been ‘groomed’ to be subservient to an abuser and to be compliant with improper demands) as tending to show the motive of the

accused as well as the preliminary modus operandi. Such background evidence may also be admissible.

The starting point of this case law is in the case of R. v. Bond [1906] 2 KB 389. Here an exception to the general rule was recognised.

The accused in this case was a medical man and the case involved the use of medical instruments to procure a miscarriage. The

defendant claimed these instruments were for a legitimate purpose, that of checking for venereal disease. At this trial, evidence of

another woman was allowed to the effect that, at an earlier date, he had used similar instruments on her to procure a miscarriage and

also to the effect that he had said to her that he had done this regularly previously. It had been argued by the defence that such

evidence was inadmissible, as these claims were the subject of other indictments awaiting trial, and that they had no relevance to

the case at hand and were not evidence of the intent with which the prisoner had used the instruments on this occasion.

The Court held by a majority of five to two that the evidence had been correctly admitted. Kennedy J., referring to the rule in the

case of Makin v. Attorney General for New South Wales, [1894] A.C. 57, stated as follows at p400:-

“The general rule [of exclusion of evidence of bad character] 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.”

Thus the Court held that the two distinct and separate incidents with two different women in R. v. Bond formed part of one entire

transaction under investigation by the jury and cast light on the relationship existing between the parties and hence should not be

exculded from their consideration.

The thinking in R. v. Bond was relied on in Ireland in the case of Attorney General v. Joyce and Walsh [1929] IR 526 (CCA). As noted

above, this case was relied on by the prosecution in the present case. A man and a woman were charged with the murder of the

woman’s husband. The defence objected that evidence was improperly admitted purporting to prove the commission of a separate

felony, that of conspiracy (i.e. a previous attempt to poison the deceased, in the presence and with the knowledge of the woman).

The Court held that the crucial evidence was rightly admitted, as falling within the principle of the passages cited from the judgment

of Kennedy J. in R. v. Bond. The fact that the accused man, to the knowledge of the accused woman “put guano into the milk which

was used by the deceased was admissible in evidence against them, as it formed part of the entire transaction which was under

investigation by the jury; and it presented one aspect of the relations existing between the two accused and the deceased, just as

the intrigue between the two accused and the attempts to conceal it illustrated another”. It “tended to show the existence of a

conspiracy between the accused”.

Healy comments that this evidence formed part of the background to the relationships of each party. The fact that a prior act

occurred some time in the past is, according to Sullivan P., a matter properly affecting the weight but not admissibility of the

evidence. The evidence that was allowed was not at any stage of the trial described as proving or intended to prove an attempt to

poison the deceased, but as evidence of an act indicating the attitude of hostility of the two accused towards the deceased.

Attorney-General v. Joyce and Walsh had been cited with approval in Attorney-General v. Fleming [1934] IR 166 CCA. The Court in

Fleming accepted the admissibility of evidence that the accused had previously tried to poison his wife, before, fifteen months later,

killing her by blows to the head. Although there was little similarity in the method and performance of each attack, the circumstantial

fact that the accused had promised to marry his mistress disclosed both a motive and design common to each assault. The evidence

of his prior attempt to kill his wife was admissible to show intention on his part. Thus this background of prior misconduct was so

inextricably bound up with the whole history of the relations between him and his wife that it could not be excluded from the

consideration of the jury.

It was also pointed out as a limitation that “there may be attempts or crimes so remote in time or so divorced by circumstances from

the particular crime which is the subject of investigation that a Judge, who is the sole judge of the admissibility of any evidence,

would be justified in excluding them from the consideration of the jury”.

However, in respect of Attorney-General v. Fleming, it seems there is a suggestion that it has been agreed in this present case that

Fleming was either a similar fact evidence case or a res gestae case. Despite this, the two assaults seem dissimilar and a fifteen

month lapse of time between attacks appears to be a rather long example of temporal elasticity for res gestae, indeed a singularly

lengthy stretched out transaction. John Healy in Irish Laws of Evidence 2004 at p204 states ‘In Attorney-General v. Fleming.

“background evidence” was similarly admitted (as in Attorney-General v. Joyce and Walsh) to show the accused’s previous attempt to

poison his wife’.

R. v. Pettman:

The case of R. v. Pettman sets out the principle that, exceptionally, evidence of background and motive can be placed before the

jury even where such evidence implicates a defendant in an offence other than that with which he is charged. The court felt it was

fair to admit this type of evidence if it were necessary in order for the account placed before the jury to be complete and

comprehensible.

Purchas LJ in this case outlined the purpose for admitting such evidence: this passage has been set our above but for ease of

reference and as it is at the kernel of this evolving refinement of the law as to admissibility of misconduct evidence, it bears

repetition.

“where it is necessary to place before the jury evidence of part of a continual background of 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.”

Firstly, therefore, the evidence must be necessary to make the account before the jury complete and comprehensible.

The Court also noted the need to weigh the probative value against the prejudicial effect. Purchas L.J. considered whether, in

exercising his discretion to admit this evidence, the learned judge had been wrong in principle, or had wholly failed to appreciate the

balance between the probative value and the prejudicial effect. He noted that the prejudicial effect was nullified by the careful

summing up and charge of the trial judge to the jury to the effect that the jury were to put out of their minds any evidence which

seemed to suggest that the accused was involved in other offences. The trial judge noted that the evidence was there only to form

part of the picture.

Secondly, it is clear, therefore, that the trial judge’s charge to the jury is very important in this regard. Normally it specifically needs

to assert that the evidence as to background is not direct evidence as to the charges in the indictment but is merely there for an

understanding as to the background to the offences charged. The Court in this case alluded again to the prerequisites of necessity

and relevance as discussed in R. v. Dolan, [2003] Crim. L.R. 41. C.A. This was an infanticide case in which a re-trial was ordered

because evidence should not have been admitted which showed the accused to have a violent temper - and a propensity to strike

inanimate objects. The evidence was not sufficiently probative and was too unduly prejudicial. At the present trial the judge stated

that he was allowing the evidence in as it was both relevant and necessary as the evidence was highly probative of the matters

which the jury have to decide.

On the appeal in Pettman the Court held that the background evidence was relevant to the extent that it was part of ‘a continuum of

observation’ tending to establish a conspiratorial association between the two accused. The court noted that the admissibility of the

whole of the evidence in order to provide a coherent account was supported by a ruling of the Court of Appeal in the case of R. v.

Campbell, (Unreported, Court of Appeal, 20th December, 1984). In this case the Court upheld a ruling by the trial judge, that

evidence relating to an incident some six months earlier than the date of the offence charged was necessary in order to give a

continuous and intelligible account of the relationship between the appellant and the victim. The Court stated that:-

“In a case such as this which depends upon the relationship between the parties as part of a continuum the excision of

one isolated part of the history would, in our judgment, inevitably have caused distortions of the account placed before

the Jury and would have prevented them from being in a position to judge the actions of the appellant in and about the

early days of October in their true setting. The exercise of balancing the importance of the evidence as being relevant to

an issue before the Jury, namely their consideration of the conduct of the accused in the immediate context of the

offence in October, is one that is essentially for the exercise of discretion by the trial Judge, who is necessarily in the

best position to judge.”

The passage cited from Pettman is also referred to in R v Fulcher [1995] 2 Cr App Rep 251, and in R v Stevens (above). As noted in

Archbold, Pettman was applied in R. v. Sidhu 98 Cr App Rep 59 and it was held that the evidence in this case “was evidence of a

continual background relevant to the applicant’s part in the conspiracy, without the totality of which the account placed before the

jury would have been incomplete…”

In R v Fulcher at p 257 Kennedy LJ said:

“The earlier injuries were also relevant as tending to show that right up to the time of the fatal injury the child would

have been in some pain, and so more liable to be fractious than a normal healthy baby. The prosecution was then, in our

judgment, entitled to lead evidence to show how on other occasions the appellant reacted to the crying baby, so that

they could invite the jury to infer that on the critical occasion the appellant was so irritated that he resorted to gross

violence. In other words, the evidence now challenged was evidence of motive. It went to the actus reus and the mens

rea. It was not intended as evidence of similar facts …”

Therefore it is clear in cases following R. v. Pettman, that for the principles set out therein, it would be necessary for the trial judge

to consider (a) relevancy and to what extent the proposed background evidence would be relevant to an issue or issues in the case

and (b) necessity: whether it was necessary for understanding of the issues in the case and (c) whether its probative value exceeds

the undoubted prejudice to the accused.

The Application of the Pettman principle in the UK Courts

The principles enunciated in Pettman have been applied in a number of cases, which are set out below, where the admissibility of

background evidence has been upheld, despite the fact that it includes allegations about previous offences or even contains

references to convictions for previous offences. These cases seem to assert that the Pettman principles provide enough guidance to

judges in relation to when such background evidence can be admissible.

The decision in Pettman was reaffirmed in the case of R. v. Sawoniuk [2000] 2 Cr App. R. 220 about which the authors of Archbold

remark:-

“…it was said that in order to make a rational assessment of evidence directly relating to a charge, it may often be

necessary for a jury to receive evidence describing, perhaps in some detail, the context and circumstances in which the

offence charged is said to have been committed.”

It is clear that necessity is essential or at least that there is a strong need for the critical evidence in contention to be assessed as

to whether it is to be admissible as part of the proofs, when weighed in the scales of the balance with probative value on the one

side and prejudicial influence and effect on the other, and that this is a matter of the balancing of fundamental principles.

Comprehensibility and understanding of the human reactions of the complainant are at stake, when this weighing in the balance

assessment and test is being done, with a sense of overall fairness and justice within the law involved and with the “weighing scales”

concept being strongly kept in mind during such a testing process.

The Court of Appeal in R v M also considered Professor D.J. Birch’s description of background evidence:-

“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 b,e 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.”

This passage was described by Kennedy L.J. as a “useful note”. While the court did not discuss the taking into account the balancing

of the probative value against the prejudicial effect of the prior misconduct evidence in this particular case, the Court, nevertheless,

did follow the principle set out in Pettman that the evidence was admissible as being necessary to put the jury in the general picture

and so that the narrative story put before them would not be incomplete and incomprehensible.

R. v. M or R. v. TM, PM, PAM is the authority which seems most clearly to envisage what the prosecution in the present case had in

mind. However, the evidence admitted in R. v. TM, PM, PAM was admissible on established principles rather than “helpfulness” which

was one suggested basis on which the prosecution sought to adduce the background evidence in the present case. There is nothing

in R. v. TM, PM, PAM which supports a general threshold of “helpfulness”. None of the English cases where background evidence has

been admitted have allowed it to be adduced merely on the basis of “helpfulness”. Rather admissibility has been soundly based on the

principles of relevance and necessity and a weighing of the prejudicial effect against the probative force (although this seems to be

taken for granted and is not always enunciated).

With regard to the second trial in R. v. TM, PM, PAM, the Court allowed evidence of previous offences committed by the parents of

the accused and previous offences committed by the co-accused to be adduced. The defence argued that this was prejudicial. The

court allowed the evidence on the ground that its admission was essential to enable the jury to understand the background to the

case and the fact that sexual abuse was rife in the family.

The principles of Pettman were again relied on in R. v. W. [2003] EWCA Crim 3024. The facts of this case are similar to the present

case and it also lays down some practical guidelines. The judge permitted in evidence a detailed account by a single complainant of

the events which occurred over several years up until the time when the accused was aged fourteen. The judge admitted this

evidence not under the similar fact principle, but as background facts to the counts charged in the indictment. Pill LJ, in deeming the

evidence to be admissible, was influenced by Purchas LJ’s comments in Pettman, and stated that it was because the complainant’s

account would be:-

“incomplete without them [the background facts], to the point of being incomprehensible”

and also because the complainant

“was conditioned from an early age to submit to sexual acts from PW and that explains what might otherwise be difficult

to explain, namely his submission to such acts right through his teens and up to the age of 16. Those are the reasons

why you hear about these earlier alleged incidents”.

There are obvious parallels here to the present case and the prosecution arguments tone in well with this judgment. In the present

case, there is a single complainant and events occurring over a time span of eight years, as adduced in evidence by the prosecution.

The prosecution argued that there was relevant and admissible background evidential material there and it would be false and

misleading to give the jury the impression that only the matters mentioned in the indictment took place and accordingly not to adduce

background evidence or to exclude it would lead to a lack of understanding of the true relationship and real situation on the part of

the jury. It is clear that, on the basis of the background material with regard to her younger years and, for example, her pavlovian

reaction to the turning on of the lights as a summons to the church, the complainant was groomed and conditioned to be compliant.

In addition, this judgment in R. v. W. is certainly very important on the gist of the directions which the trial judge should usually give

to a jury when summing up and directing the jury. Pill L.J. commended the trial judge’s directions to the jury, which emphasised that it

was important to consider the ‘quality of the witnesses’ and also stressed that there was no corroboration. It is important to consider

whether the trial judge’s directions in the present case covered these crucial aspects.

Another recent case, R. v. Philips [2003] All E.R. (D) 218 (Apr) applied and relied on the Pettman principles, in particular, the weighing

of the prejudicial effect against the probative value aspect of the Pettman principles following the test of relevance and necessity. It

was held that, in principle, relevant evidence was admissible unless fairness required a judge to exclude particular evidence. In R. v.

Philips the evidence was part of the continuing background of the relationship and without the totality of the evidence before the jury

the evidence would have been incomprehensible. Moreover, the fact that an offence emerged from the background facts was not a

ground to exclude it. This working out of the conflict of principles is also clearly applicable to the present case as the offence alleged

in the indictment also emerged from background facts. As argued in R. v. Philips, the prosecution in the present case similarly

submitted that without the totality of the evidence over the eight years, the jury would be unable to appreciate the realities and

nuances of the complete and entire transaction.

In the following cases the courts have held that “background misconduct evidence” was admissible to illuminate the relationship, to

establish motive and to rebut the defence of the accused that he had a normal relationship with the complainant.

R. v. Campbell [2005] EWCA Crim 248 related to admissibility of evidence of the defendant’s pattern of behaviour in relation to

teenage girls and the downloading of pornography. In this case it was asserted by the court, relying on the Pettman principle, that

background misconduct evidence was admissible to illuminate the relationship, to establish motive and to rebut the defence of the

appellant that he had a normal relationship with his 15 year old niece.

R. v. Boyles [2004] NICA 2 is an important case in this consideration of the law of background evidence. It is a Northern Ireland Court

of Appeal case in which background evidence as to a count admitted by the accused was sought to be adduced. The defence argued

that the accused was irredeemably prejudiced by the admission of this evidence. The single complainant alleged that there was “a

continuous pattern of abuse of a similar nature”. She alleged that the abuse occurred frequently and often on a weekly basis. The

applicant on the other hand only admitted that indecent behaviour happened on one single occasion and maintained the stance that

it was not repeated.

The Court held that this evidence, relating to the count on which the applicant had pleaded guilty, was relevant and admissible on

the basis that it was a “part of the same transaction” line of rulings and also constituted background evidence to the other counts

which he denied, because this piece of evidence of prior misconduct tended to show a guilty desire on the part of the accused in the

knowledge that she would keep their “secret” because of a threat which he had made to her that if she ever revealed that “secret”

he would shout at her, this being something of which he knew she had a fear. The Court stated also that it tended to show why she

did not disclose the secret. This case is again clearly based on the Pettman principles.

At the trial the judge stated:-

“To remove count 1 from the jury would be to render the evidence in the case artificial, and in particular prevent the

injured party from relating the whole of her evidence and prevent the defendant from fully attacking that evidence”.

On appeal, the Court of Appeal held that if this background evidence was omitted “her account would be incomplete and

unintelligible”. The Court went on to say:-

“We do not regard this evidence as “smuggled in because it would otherwise have been inadmissible similar fact

evidence”. The evidence about the first count was close in time, place and circumstances of the offences charged in

respect of the following Sunday and Sundays. It completed Miss H’s account of the circumstances of the offence alleged

to be committed on the following Sunday and the following Sunday, and this made it comprehensible to the jury. It tended

to establish a relationship with the victim of the offence committed on the following Sunday and the following Sundays

and the previous misconduct related to her. It assists in establishing the motive behind the offences charged”

The Court then noted the use of the four indicators set out by the Law Commission in their Consultation Paper and Report (CM 5257)

at para 10-1:-

“…If edited out, it would have made the rest of the evidence unintelligible and evidence of motive and of her reaction to

his threat would have been excluded. Avoiding cross-examination of the girl, defence counsel could have commented to

the jury in his closing speech: why did she not tell what happened?”

In his judgment Nicholson L.J. at para 42, dealing with the exercise of discretion referred to Lowery v. The Queen [1974[ AC 85 at p.

99 and quoted:

“In some circumstances evidence that may have some relevance is not admissible because its prejudicial effect [heavily]

overbalances its probative value and as a matter of fairness or of public policy a court will not allow the prosecution to

call such evidence.”

The Court also stated that the question of prejudice would have to be dealt with in the charge to the jury. Again, it should be

emphasised that this ruling deals with all of the principles as set out in Pettman, notably relevance, necessity and the weighing up in

the balance of fairness and justice of prejudicial influence and probative value.

In R. v. Boyles the Court of Appeal, Carswell L.J., Nicholson and Campbell L.J. asserted that any potential prejudice resulting from the

admission of background evidence could be dealt with in the charge to the jury.

In R v.W [2003] EWCA Crim 3024, cited above, Pill L.J. commended the trial judge’s directions to the jury, which emphasised that it

was important to consider the ‘quality of the witnesses’, the fact that there was no corroboration and that these were unproven

allegations which were questions of fact left to the jury.

The trial judge’s directions in R v.W had included as follows:-

“Those incidents are not charges on the indictment. You will obviously have to make up your mind about them because if

you find that they did not take place or may not have done, as described, that would undermine the Crown’s case on the

three counts that you have to concentrate on. But those incidents aren’t charges. You hear of them because W’s

account would be incomplete without them, to the point of being incomprehensible. But also, and more particularly,

because it is the prosecution’s case that Mr W was conditioned from an early age to submit to sexual acts from PW and

that explains what might otherwise be difficult to explain, namely his submission to such acts right through his teens and

up to the age of 16. Those are the reasons why you hear about these earlier alleged incidents. They’re relevant to the

Crown’s case that this was a coercive and manipulative relationship between these two young people, but they do not

themselves prove or go towards proving the specific charges in the indictment.

Because of this wider background that you’ve heard in this case, both of the earlier incidents and also, as it happens, of

the incidents that were the subject of counts 4 and 5, which you’ve also got to consider, when W was 16 years old, I

must give you a particular warning when you’re considering the particular three counts in the indictment and ingredients

of those counts and whether they’re proved. If, at the end of the case, you were to be of the view, and I’m certainly not

suggesting that you will or should be, but if you were to be of the view that at some stage there was sexual activity

between these two young people, but you did not know to what extent or in what circumstances or at what period, then

you must acquit. It’s only if, concentrating on each of the counts at a time, you’re sure, counts 1, 2 and 3, that you can

convict.”

The trial judge may also inform the jury of the danger of the complainant not being truthful about the allegations which make up the

background evidence or that a previous conviction does not prove the truth of any of the present allegations.

Present McN case

As noted above, the English courts have followed R. v. Pettman and applied it when assessing whether, and what type of,

background evidence should be admitted. Subsequent English cases have illustrated the factual circumstances where the Pettman

principle has been applied, and its boundaries. Counsel for the defence argued that this case does not fit within the traditional

exceptions. However, the case of R. v. TM, PM, PAM relies on the Pettman principle which the English courts have found to be of

sufficient guidance in deciding what should be admitted as background evidence. As discussed above, the threshold in the cases has

been significantly higher than merely ‘helpfulness’ and it is clear that Abbott J. was familiar with the recent cases on admissibility of

misconduct evidence and put his ruling on the solid basis of the need for proof in respect of the issue of the complainant’s lack of real

consent and hence the importance of the prior “grooming”, inducements, manipulation, threats and domination.

Abbott J. admitted the evidence on the basis that ‘the background of continuous engagement between the complainant and the

accused’ is necessary to explain and put in context the true circumstances surrounding and leading up to the genuine facts about the

issue of consent and this was vital for the purpose of the attainment of justice and fairness.

As set out above, in R. v. Campbell the Court, following the Pettman principles, upheld a ruling by the trial judge, that evidence

relating to an incident some six months earlier than the date of the offence charged, was necessary in order to give a continuous and

intelligible account of the relationship between the appellant and the victim. As argued by the prosecution in the present case, “the

excision of one isolated part of the history would, in our judgment, inevitably have caused distortions of the account placed before

the Jury and would have prevented them from being in a position to judge the actions of the [appellant].”

Counsel for the prosecution submitted that if the jury were to hear only evidence of eight counts over eight years, then it presented

a situation of unreality as to what had really been the nature of the cultivation and evolution of the relationship as between the

complainant and the accused. If the counts in the indictment were each to be considered individually and separately, as directed,

then the background evidence was necessary to put the jury in the picture about the reality of the general background situation and

how the relationship between the accused and the complainant had been initiated and developed.

The case of R. v. Boyles should also be noted in this context. This case involved “a continuous pattern of abuse of a similar nature”.

In R. v. TM, PM, and PAM, reference was made to “a continuous family history relevant to the offences charged” in order for the

evidence to be admitted.

R. v. B. [1997] Crim L.R. 220 (CA) is a case that was relied on by the prosecution in the present case. In this case the Court of

Appeal accepted that evidence of prior sexual assault or rape by the accused against the complainant was admissible to show the

background of their relationship. The Court relied on the Pettman principles in coming to this determination. This approach was

affirmed in R. v. Underwood [1999] Crim L.R. 227 (CA) where the context was that of showing the accused’s previous background of

a history of violence towards his partner.

The Irish Approach to Background Evidence:

Declan McGrath in his Evidence (2005) points out at page 200 that, in order for misconduct evidence to be admitted, it must be

evidence relating to some discreditable act committed by the accused, the admission must be necessary and there must be sufficient

proof of the commission by the accused of the acts of misconduct, to leave it to the jury. Once these threshold requirements are

met, then the trial judge may consider weighing in the balancing test of the probative force as against the prejudicial effect so as to

determine whether the misconduct evidence is admissible in the circumstances of the particular case.

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.

In DPP v Boardman 1975 AC 421 at 456 Lord Cross suggested a radical new approach by rejecting the concept that evidence could

never be relevant on the basis only of propensity and he made clear that circumstances could be such that the particular evidence

could be so material that it would be an affront to common sense to exclude such relevant evidence. He gave as an example of this

the case of R v Straffen 1952 2 QB 911 where misconduct evidence was allowed to be elicited “to show that Straffen was a man

likely to commit a murder of that particular kind”. He had been convicted of the murder of a little girl called Linda, by strangulation

with no sexual assault. He had been seen in the vicinity at the time of the killing and knew of her death before being told about it by

the police. The evidence of confessions by him to murder of two girls in very similar circumstances was held to have been correctly

admitted.

In People (AG) v Dempsey 1961 IR 288, as in Straffen, the evidence was tendered in order to establish the bad disposition of the

accused, that is, to show that the accused was the type of person who was capable of committing such an offence, namely unlawful

carnal knowledge of a girl between 15 and 17. Evidence of his past behaviour was admissible to rebut the defence of chaste

courtship. The risk of prejudice from evidence of prior misconduct in similar offences is obvious but the evidence was admitted and

refuted that the relationship was innocent and never went beyond “cuddling and kissing”.

According to Declan McGrath Evidence 2005 at p 480:

“the test of balancing the probative force of misconduct evidence against its prejudicial effect has now achieved

widespread acceptance in Commonwealth jurisdictions including Canada, Australia and New Zealand”.

The Canadian case of Arp v The Queen (indexed as R v Arp) came before the Supreme Court of Canada. The Court made clear that,

as regards categorisation of exceptions to the general exclusionary rule in respect of evidence of bad character, evidence of acts of

misconduct by an accused on occasions other than those charged may be admitted where the probative value of such evidence

outweights its prejudicial effect. Peter Cory J. in the judgment of the Court on 26th November 1998 at p 315 said

“It can be seen that in considering whether similar fact evidence should be admitted the basic and fundamental question

that must be determined is whether the probative value of the evidence outweighs its prejudicial effect. As well it must

be remembered that a high degree of deference must be given to the decision of a trial judge on this issue.”

The accused Arp was being tried on two counts of first degree murder in respect of two separate murders of women. The focus was

on similar fact evidence and DNA evidence in respect of each murder. It is necessary to bear in mind the distinction between R v Arp

where the emphasis was on similar fact evidence, and the situation in DPP v G.M. where the limelight is on prior misconduct evidence

which the prosecution sought to and did adduce to explain the background of a relationship and alleged grooming manipulation of a

nine to eighteen year old girl over a length of time by a dominating man in his fifties. In both cases the key point is: does the

probative value of the background evidence outweigh its prejudicial effect?

There is a string of cases dealing with this test in Canada, New Zealand and Australia. According to Declan McGrath in Evidence at

p481 in a series of decisions the Irish Courts have endorsed the balancing test, and it is clear that this is now the touchstone in

respect of the admissibility of misconduct evidence in this jurisdiction. The leading authority is the decision of the Court of Criminal

Appeal in People (DPP) v BK [2000 2 IR 199]. The appellant had been charged with a number of sexual offences involving boys in a

residential home for children. The appellant sought separate trials. Counts involving two of the boys were withdrawn and the trial then

proceeded on four counts involving each of three boys. He was convicted of attempted buggery against two boys, each of whom

gave evidence of sharing a bed in a caravan with the appellant and waking up to find the appellant molesting him. The Court

considered the principles governing the admission of misconduct evidence and engaged in a review of the relevant cases, including

DPP v Boardman 1975 AC 421 and DPP v P 1991 2 AC 447, and distilled the following principles at p 210, as follows:-

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 category of cases in which the evidence can be so admitted is not closed.

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;

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

In the latter case the evidence is admissible because:-

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

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

The Court of Criminal Appeal in BK clearly approved of the balancing test as the touchstone for assessing the admissibility of prior

misconduct evidence. Declan McGrath points out that by drawing a distinction between system evidence and similar fact evidence the

Court may have planted seeds of further difficulties in this area. The Court reversed the traditional terminology by applying the term

“system evidence” to describe misconduct evidence which is admissible and the term “similar fact evidence” to misconduct evidence

which is not admissible. However, be that prognosis as it may about the prospect of changing the meaning of old terms to create the

suggested new distinction, the vital point for the purpose of the present case is that the court in BK approved the merits of the

balancing test and, by diligently distilling the principles from the cases has followed the line of advance away from a “striking

similarities test” as pointed out by Scarman LJ in R v Straffen (supra). This line of path was explored by Lords Morris, Cross and

Wilberforce in Boardman in 1975 and this Court of Criminal Appeal has approved this pathway forward in DPP v BK in 2000.

This Court adopts and approves the concepts involved in the use of the balancing test and approves how it was applied in the

present case.

UK Law Commission Report: LAW COM No. 273 – Evidence of Bad Character in Criminal Proceedings (2001):

The UK Law Commission Report has stated that background evidence will be admissible where it is part of the res gestae, illustrates a

pre-existing relationship between the victim and the accused, proves motive or where the ‘totality of … the account would be

incomplete or incomprehensible.’ This is in line with the Pettmann principle.

The Commission identified, at paragraph 2.81, four indicators which will allow evidence to escape the normal exclusionary rule as it

forms background evidence:

(1) the evidence may be close in time, place or circumstances to the facts or circumstances of the offence charged;

(2) the evidence may be necessary to complete the account of the circumstances of the offence charged, and thus make

it comprehensible to the jury;

(3) the accused may have had a relationship with the victim of the offence charged, and the previous misconduct

evidence may relate to this victim rather than the victims of other offences;

(4) the evidence may assist in establishing the motive behind the offence charged.

In Blackstone’s Criminal Practice, 2002, there is a section entitled: “Previous Sexual Conduct and the Same Transaction Rule.” Here it

is stated that:-

“the prosecution may adduce evidence regarding discreditable conduct by the accused where such evidence is part of

the transaction under consideration. Under this rule evidence of sexual acts or advances, other than those which are the

subject of the charge, is frequently adduced to show the true nature of the relationship between the parties, a practice

which may be regarded as an acceptable and inevitable form of evidence of ‘guilty passion’. The case of R v Ball [1911]

AC 47 is referred to in this context as an example of an incest case in which evidence was admissible that a brother and

sister had previously indulged in unpunished prior acts of incest; certainly such evidence must have been strongly

probative to outweigh the risk of prejudicial influence.

It is also stated in Blackstone that where a complainant gives evidence of an earlier offence against an accused which is admissible

under the ‘same transaction’ rule, it has been held that evidence corroborating the earlier offence may go to support the

complainant’s testimony with regard to the offence charged (Hartley [1941] 1 KB 5).

In R v Scarrott [1978] 1 All E.R. 672 at 676 (C.A.) Scarman L.J. shortly after DPP v Boardman 1975 AC 421 (HL) stressed that:

“Hallowed though by now the phrase ‘strikingly similar’ is … it is no more than a label and is not to be confused with the

substance of the law which it labels … We therefore have to reach a judgment on the evidence of this particular case,

and to determine whether the evidence adduced, possesses such features that it is a proper exercise of judgment to say

that the evidence is logically probative, that it has positive probative value in assisting to determine the truth.”

Scarman L.J. was the pathfinder pointing the way to the preferable and appropriate test in respect of admissibility of evidence of

serious probative value especially involving misconduct evidence.

Charge:

The trial judge’s charge is a very important aspect in the admission of this type of evidence. The English and Northern Irish cases

mentioned above have balanced the element of prejudice such background evidence may cause to the defence’s case by dealing with

the question of prejudice in the charge to the jury and thereby warning the jury about this aspect and thus ensuring the redressing of

any imbalance and the restoring of a fair balance. It is of the utmost importance that the question of prejudice should be kept in mind

and, if necessary then dealt with in the charge to the jury. Many of the above cases address the issue of admission of such evidence

by framing the charge to the jury to deal specifically with the potential prejudice to the jury. As noted in R v Boyles the trial judge

should direct the jury not to rely on the background evidence to support the evidence on each of the specific counts.

Judge Abbott clearly took into account the prejudicial nature of the evidence. He noted the strong principles which have been set out

in a number of cases and noted that these principles and their application can be moderated only in circumstances where it is strongly

necessary to show the background and to ensure fairness and that justice is done in accordance with law.

On the run of this case once the judge had ruled on the admissibility of the prior misconduct evidence, this aspect was treated in a

low key manner and the prosecution did not cross-examine the accused about these incidents at all. This aspect was not in any way

emphasised during the case and, on the run of the case, one can understand why no further attention was drawn to this aspect by

submissions or requisitions from counsel to the Court. This was reasonable in the circumstances and in any event this Court could

have relied on the proviso, as described by Dermot Walsh at para. 22 -25 of his book on Criminal Procedure, if there was any

deficiency in the judge’s charge and no deficiency on this aspect was drawn to the Court’s attention. This Court is satisfied that the

jury acted on the basis of an overwhelming volume of proven evidence.

Accordingly the Court refuses leave to appeal against conviction.

One further aspect is that I note from Book 10 of the transcript that the complainant sent word that she wanted the accused to be

named and was prepared to waive her anonymity, accordingly there is no need for redaction of this judgment to ensure that the

complainant is not so easily identifiable in the light of her wish expressed through counsel for the Director of Public Prosecutions.