Supreme Court of Ireland Decisions

"The general rule 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."

"The relations of the murdered or injured man to his assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment, are properly admitted to proof as integral parts of the history of the alleged crime for which the accused is on his trial."

The issue of background evidence, what it is and its admissibility, was considered in R. v. Pettman (Unreported, 2nd May, 1985). The approach taken in that case has been referred to in many subsequent cases in England and Wales. Purchas L.J. stated:-

"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."

"As Professor Birch pointed out in a useful note in [1995] Crim LR 651, it is important to distinguish evidence of background, which is normally admissible, from 'similar facts' evidence. Her note continues:

'Similar fact evidence is employed as evidence which tends strongly to prove a particular fact (identity, intent, causal connection or whatever) which could be proved by other means but which the prosecution has chosen to establish by reference to other misconduct of the accused. As such, the evidence may need to be possessed of a high degree of probative value in order to buy its ticket to admissibility, for it involves "dragging up" material which is by definition prejudicial and which might have been left out. Thus it has been said that such evidence should be admitted in circumstances where it would be an "affront to common sense" to exclude it (per Lord Cross in Director of Public Prosecutions v. Boardman [1974] 3 All ER 887 at 908, [1975] AC 421 at 456). 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 be, as Purchas L.J. says in R. v. Pettman 2 May 1985, (unreported), '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."

…


The passage from R. v. Pettman which Professor Birch had in mind reads:

'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.'

We accept and gratefully adopt that definition of and approach to background evidence. When related to the particular facts of this case although separated in time by years, the evidence of conduct to which Mr. Meeke, counsel for the defence, objected was part of a continuous family history relevant to the offences charged. So, subject to s.78 [of the Police and Criminal Evidence Act 1984], it was admissible as background evidence for purposes wider than the restricted purpose envisaged by the trial judge. In our judgment there was no reason to exclude that evidence by reference to s.78. Its admission was not likely adversely to effect the fairness of the proceedings. The judge made it clear when directing the jury as to the limited use to which this evidence could be put that DB, EA and DM did not blame TM for what had happened in the 1960s; he like them was at that time a victim of his father. It is noteworthy that in the end TM was acquitted on count 18. Mr. Dunkels [for the Crown] suggested that the reason for that may have been that the complainant was not sure if there was actual sexual intercourse in the garage. Whatever the reason, the acquittal is a clear indication that, despite the tide of filth of which Mr Meeke was understandably afraid, the jury was able to handle the case against TM properly count by count, and in our judgment his conviction has not been shown to be unsafe. His appeal against conviction is therefore dismissed."

"There is a line of case law suggesting that evidence of the accused’s past conduct, even if it is evidence of a disposition or propensity to commit a certain type of offence and would otherwise be excluded by the similar fact evidence rule, can be adduced by way of exception to that rule if it either forms an integral part of the background to the offence charged or is “so closely entwined and involved with the evidence directly relating to the facts in issue that it would amount to distortion to attempt to edit [it] out”. (citing Cross and Tapper on Evidence (8th ed., 1995) at p.371)"

[Emphasis added]

"(i) the evidence may be close in time, place or circumstances to the facts or circumstances of the offence charged;
(ii) the evidence may be necessary to complete the account of the circumstances of the offence charged, and thus make it comprehensible to the jury;
(iii) 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;
(iv) the evidence may assist in establishing the motive behind the offence charged.

Irish Common Law
40. In Attorney General v. Joyce and Walsh [1929] I.R. 526, Sullivan P. addressed the issue of admitting evidence which shows the commission of crimes which are not in the book of evidence. C. Lavery K.C., as he was then, made submissions on behalf of the Attorney General. He opened a number of cases, including R. v. Bond [1906] 2 KB 389, at p.40. Sullivan P. held at p.539:-

"The passage from Archbold and the cases cited by Mr. Lavery are authorities for the propositions that the mere fact that evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the Court, and that it may be so relevant if it bears on the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence that would be otherwise open to the accused, and that former assaults by the prisoner on the deceased, or expressions of malicious feeling towards the deceased, or the existence of any motive likely to instigate the commission of the offence are receivable in evidence. These propositions are recognised by Kennedy J. in his judgment in R. v. Bond - the case relied on by Mr. Barry at the trial to support his objection to the evidence. In the course of his judgment, having referred to the general rule that in criminal as in civil cases the evidence must be confined to the point in issue, and having discussed Makin's Case and other cases cited, he says (p. 400): "The general rule 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."

"This Court is of opinion that the fact that the prisoner Joyce, to the knowledge of the prisoner Annie Walsh, put guano into the milk which was used by the deceased in his tea was admissible in evidence against the prisoners. It formed part of one entire transaction which was under investigation by the jury; it presented one aspect of the relations existing between the prisoners and the deceased, just as the intrigue between the prisoners and the attempts to conceal it illustrated another. The fact that it was stated to have occurred "a long time before the deceased met his death" would affect the weight to be attached to it by the jury, but is not sufficient to necessitate its exclusion from their consideration."

"(i) That evidence that the accused has committed offences, other than that charged in the indictment preferred against him, is never admissible for the purpose of leading the jury to hold that the accused is likely, by reason of his criminal conduct or character, to have committed the crime in respect of which he is being tried; and

(ii) The mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to some issue of fact which the jury is called upon to determine."

43. In R. v. W. [2003] E.W.C.A. Crim. 3024 the charge to the jury, in a case where background evidence had been admitted, was considered and suggestions were made. At para 15, it is stated:-

"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 the 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 convict."

Issues raised
46. I will address the issues raised on the certified question of law and paragraphs (a) to (h) together.

Background Evidence
47. While a general rule of evidence excludes from admission before a jury evidence of alleged offences which are not charged on the indictment, the rule is not an absolute rule. Over the years the courts have established in common law that there are circumstances where evidence of other alleged offences may be admitted before a jury.

Definition of "Background Evidence"
48. "Background evidence", in the context under consideration, has a specific meaning. It is evidence which is relevant and necessary to a fact to be determined by the jury. It may be admitted to render comprehensible the relationship between the complainant and the accused. Thus it may relate to such issues as consent, or the absence of a complaint over many years. These examples are not exhaustive of the circumstances where background evidence may be admitted. In such circumstances, even if the "background evidence" is of alleged criminal acts not charged on the indictment, such background evidence is not inadmissible and it should not be excluded as such.

49. Background evidence may be admitted to give a jury a relevant picture of the parties in the time prior to the offences charged. Background evidence may be admitted because if it were not admitted it would create an unreal situation. It arises in situations where if no background evidence was admitted, the evidence before the jury would be incomplete or incomprehensible. Background evidence is evidence which is so closely and inextricably linked to the alleged offences and/or the relations between the relevant persons so as to form part of the body of evidence to render it coherent and comprehensible.

Whether or not background evidence is to be admitted is a matter to be determined by the trial judge in all the circumstances of the case. The fact that the evidence tends to show the commission of other crimes does not render it inadmissible. The test to be applied is that of relevancy and necessity.

The Test
50. In considering whether background evidence may be admitted, relevant consideration may include:-

(i) Consideration of whether the background evidence is relevant to the offence charged.

(ii) Consideration of whether background evidence is necessary to make the evidence before the jury complete, comprehensible, or coherent. Whether without such background evidence the evidence may be incomplete, incomprehensible or incoherent.

(iii) Consideration of evidence of the commission of an offence with which the accused is not charged, but that is not of itself ground for excluding the evidence.

(iv) Consideration of whether the background evidence may be necessary to show the real relationship between relevant persons.

The test to be applied by the court is whether the background evidence is relevant and necessary. The test is not that it would merely be helpful to the prosecution to admit the evidence.

52. Whether the prosecution was correct to have eight counts only on the indictment is not an issue in this case. Counsel for the appellant did argue that by limiting the number of counts the prosecution created a situation where background evidence was required. However, in the situation complained of, there would always have had to be sample counts on an indictment, otherwise the indictment would have contained thousands of counts. Thus even if some further counts had existed on the indictment, the issue of background evidence would have arisen.

53. There is a difficulty in drafting an indictment in a situation where the complaints are of hundreds or thousands of alleged offences. The indictment should approach the reality of the situation. However, while there may be many counts on the indictment, there will not be sufficient counts to cover all the complaints. The reason why the indictment does not have thousands of counts is to protect a fair trial and not to have an oppressive indictment. However, if the complainant makes thousands of complaints but the indictment contains less, or many less, counts, then it may not reflect the reality of the situation of which the complaints were made.

54. The book of evidence, as here, may have evidence of the real relationship between the complainant and the accused described and thus of alleged offences over and above the sexual offences stated on the counts of the indictment.

55. The general rule is that evidence that an accused has committed offences other than those charged on the indictment is not admissible for the purpose of leading a jury to hold that an accused is likely, by reason of his criminal conduct or character, to have committed the crime/s with which he is charged. However, the mere fact that the evidence adduced tends to show the commission of other alleged offences does not render it inadmissible if it is relevant and necessary to some issue of fact upon which the jury is required to determine.

56. It is for a trial judge to decide whether or not to allow the admission of background evidence. In making that decision the trial judge has to determine whether such evidence is relevant and necessary to a fact upon which the jury is required to determine. For example, it may relate to the relationship of a complainant and an accused at the time of the commission of the crime/s as charged on the indictment. It may be relevant and necessary to explain the action or inaction of a complainant in the circumstances.

Answer
57. I would answer the question of law posed and the grounds of appeal (a) to (f) as follows. Background evidence, which might disclose matters not laid down in the indictment, but which may have been in the book of evidence, and which would be prejudicial to an accused, is admissible if it is so relevant to facts to be proved by the prosecution or defence and to be determined by the jury that it is necessary to render comprehensible such fact or facts. It is admissible if without such background evidence the facts would be incomplete or incomprehensible for a jury. The test is one of relevance and necessity, as described earlier in the judgment. I am satisfied that paragraphs (a) to (f) of the grounds of appeal do not raise any issue so as to bar the admission of background evidence in accordance with the legal principles described in this judgment. The test to be applied is one of relevance and necessity. In this case the evidence was not wrongly admitted as it was relevant and necessary to explain the relationship between the complainant and the appellant, and rendered comprehensible the actions of the complainant. There was no breach of the rights of the appellant in the application of this principle.

58. In this case the learned trial judge admitted the background evidence. This included evidence of behaviour by the appellant of other alleged offences against the complainant. However, it is clear that the jury were not overwhelmed by this evidence as they found the appellant not guilty of rape on counts no. 3 and 7, but guilty of indecent and sexual assaults. Also, the jury acquitted the appellant of the charge of rape on count no. 8.

59. Considering the facts of this case, it is quite apparent that the eight counts do not reflect the thousands of complaints which are evident from the statements of the complainant. The fact that there are eight counts only would be reflected in any sentence, and thus to the advantage of the appellant. However, it is very important to keep a trial fair to all parties. There is no doubt but that the eight counts do not reflect the numerous complaints of the complainant and the abusive relationship which developed between the accused and the complainant, which had an effect on the conduct of the complainant. But that is not a matter for determination. The question raised for the Court is as to background evidence. On that issue I am satisfied that the background evidence was relevant and necessary to render comprehensible the actions of the complainant in these eight instances. I would affirm the decision of the trial judge to admit the evidence.

60. While a warning is a matter for the discretion of the trial judge, in general it would be wise for a trial judge to give the jury a warning as to the nature of background evidence, as to why it is admitted, and for what it may or may not be used, as discussed earlier in this judgment.

61. In this case the trial judge gave no direction to the jury on the nature of background evidence. To determine whether the failure to give such a direction rendered the trial unsafe, it is necessary to look at the run of the trial. On careful consideration of the transcripts it is clear that the background evidence was treated in a restrained fashion. While counsel for the appellant sought to have it omitted, no requisitions were raised. Further, in considering the verdict of the jury, the fact that each of the eight counts was clearly considered separately and acquittals entered on some counts, with some alternative verdicts given, illustrates that the jury approached their verdict carefully in relation to each count. In all the particular circumstances of this case I would not intervene in the jury's decision.

62. I have considered each of the grounds of appeal (a) to (h) and dismiss the grounds as I am satisfied that the exception which allows the admission of background evidence was correctly applied in this case as that evidence was relevant and necessary to render comprehensible facts in the case. As to ground (g), which was not allowed by this Court on the 27th January, 2011, but which counsel sought to reopen on the hearing of the appeal, I would not allow that ground either, in the particular circumstances of the case. However, the issue has arisen in the analysis of the nature of background evidence. In general a trial judge may decide in the exercise of his or her discretion to give a warning to a jury about the nature of background evidence. However, such a general rule must be viewed in the particular circumstances of each case. In this case the circumstances include a lack of requisitions on the issue and the fact that it was not a ground of appeal to the Court of Criminal Appeal. Thus, as it was not an issue before the Court of Criminal Appeal, it was not an issue which this Court could consider under its appellate jurisdiction. However, even if it had arisen for decision, in the circumstances of this case, on the run of the trial, I am satisfied that the absence of such a direction did not render the trial unsafe or infirm.

63. I would dismiss the appeal for the reasons given.

64. As was stated in the judgment of the Court of Criminal Appeal, the complainant sent word that she wanted the appellant named and was prepared to waive her anonymity, accordingly there is not full redaction of this judgment, in light of her wish expressed through counsel for the Director of Public Prosecutions.

Judgment delivered by O’Donnell J. on the 8th day of April, 2011.

1 I gratefully adopt the statement of the facts in this case, as set out in the judgments delivered by Denham and Fennelly, J.J. I agree with the judgment and order proposed by Denham, J. I wish however to add my thoughts on some of the issues which have been raised in this case and which have troubled the Court.

2 There can be no doubt that the emergence of the phenomenon of sexual abuse occurring in the past but the subject of complaint in adulthood, has had a major impact on society both in Ireland and elsewhere, and has posed significant problems for the criminal justice system. The development of knowledge on the phenomenon in wider society, and the experience gained by the Courts from the explosion of litigation on this topic both by way of judicial review seeking to restrain prosecutions before they commence and through the trial and appeal process, has been already adverted to in the judgment of Murray, C.J. in the landmark case of S.H. v D.P.P. [2006] 3 IR 575. It would be foolish to think that further insights will not be gained over time, but enough has been learnt to demonstrate that the problems so acutely illustrated in this case are not by any means unique.

3 Counsel for the Respondent observed in this case without contradiction, that in most cases where an adult alleges that he or she has been the victim of prolonged sexual abuse while a child, the complainant would often be able to give an account of the repeated and persistent abuse, but will rarely be able to clearly distinguish separate incidents of that abuse. Instead, it is likely that a complainant will recall the first time an incident occurred at a particular location, or the first time when a particular activity took place or will recall an incident because of some extraneous event which acts as a hook for the person’s memory. The repeated and consistent acts of abuse become largely indistinguishable in the memory of the complainant. In many cases of documented and established child abuse, the abuse will have occurred when a child is very young and has little or no knowledge or understanding of the acts involved, and little appreciation of their legal or moral quality. It is rare that there is any contemporaneous record. The abuse is rarely varied or inventive. Mind numbing repetition is common. Accordingly, it is the case that many victims will genuinely say that all they can recall is that the same thing occurred repeatedly, every month or week or indeed every day in the same place and in the same way over a protracted period. Indeed it is noteworthy that in this case, the Appellant himself made a number of statements to the gardaí. Some of these were ruled inadmissible by the trial judge, but in the interview which was admitted in evidence, the Appellant admitted a significant amount of sexual contact with the complainant on a regular basis, his adult account of those events however, was no more detailed than that of the complainant.

4 Complaints such as these pose significant problems for the criminal justice system. The difficulty of defending a case where the principal evidence is of allegations of a general nature made in respect of conduct alleged to have occurred many years before, has been acknowledged in a number of cases. However, as was made clear in S.H. v D.P.P., if a complaint of serious sexual abuse is made to the gardaí, that agency must investigate the allegations, and if sufficient evidence is disclosed, the Director of Public Prosecutions will normally prosecute. When the case comes to Court, then there are further difficulties as to how the offences are to be fairly charged on indictment by reference to the evidence in the statement of the complainant.

5 In a case such as the present, the essential issue is whether the accused has been shown, beyond a reasonable doubt, to have repeatedly abused the complainant. However, as the law stands, that cannot be charged as a single offence. Each charge on an indictment must charge a single offence. Furthermore, as Fennelly, J. points out, Rule 3 of the First Schedule of the Criminal Justice (Administration) Act 1924 permits the joinder of individual charges in the same indictment if the charge is founded on the same facts or is part of a series of offences of a similar character. In the case of a complaint of repeated serious sexual abuse, the combination of these two rules could indicate an indictment containing hundreds, and even thousands of counts. However, it is accepted by both the defence and the prosecution that such an indictment would not be proper, and would be oppressive to the accused. This is not itself a product of the statutory rules in relation to indictments, but it appears is part of the Courts obligation to ensure a fair trial. A component of such a trial is to ensure that the indictment fairly charges the offences which are to be tried, and there is no doubt that in principle, an overwhelmingly lengthy indictment could be so oppressive as to preclude a fair trial of the individual on the charges, which are still to be regarded as individual and separate. (See B. v D.P.P. [1997] 3 IR 140).

How then should the offences be charged? In D.P.P. v E.F. (Supreme Court, unreported, 24th February, 1994) Egan, J. referred to what he described as the “large element of unreality in confining each count to one incident when the book of evidence indicates that K.B. has claimed that the events occurred roughly every day or second day and P.F. claims that it occurred about twice a week. It would have been infinitely preferable that the indictment should conform with the allegations which had been made but, unfortunately, if the suggested form with the words “on diverse dates” were used, there would then be duplicity”.

Egan, J. suggested that in the absence of a legislative solution to this problem, “an approach towards realism” would be to increase the number of counts so that each count made reference to a period of one month rather than one year. The Supreme Court was there dealing with the format of the charges. In the indictment in question an offence was alleged to have occurred between the 1st of January of one year and the same date on the following year. Nevertheless, this decision clearly endorses a practice of charging individual offences in respect of a defined period where the evidence is of repeated abuse and further recognises that it may not be possible to make the indictment conform perfectly to the allegations made.

6 It must be recognised however, that any such approach avoids the twin risks of duplicity and oppression at the cost of creating a disjunction between the case made on the indictment and the case contained in the evidence. At the trial, the prosecution will normally attempt to select distinct events in the account given by the complainant and charge those albeit identifying them as falling within a period of one month or, as here, three months, and will then seek to confine the evidence to the incidents chosen for the indictment. That however, gives rise to a separate difficulty. If the complainant then gives evidence of incidents other than those indicated in the indictment, it may lead to an application to discharge the jury on the grounds that evidence prejudicial to the accused has been introduced. This has the potential to become a particularly cruel catch-22 for genuine victims of child abuse. It must, for example, be bewildering to find that a trial has collapsed or an appeal been allowed and a retrial ordered, because in effect the victim has said in open court no more than he or she had found the courage to say to the gardaí and which has at all times been included in his or her statement and in the book of evidence. The evidence itself is not intrinsically inadmissible or otherwise offensive: if a charge had been framed in the indictment to refer to it, it could and would be admitted as evidence plainly and directly relevant to that issue.

7 Despite the observations of Egan, J. in D.P.P. v E.F., no legislative solution to this conundrum has been attempted. Faced with these difficulties, the prosecution here took the bold step of placing only eight counts on the indictment covering a period of eight years, but openly informing the defence and subsequently the Court, that the prosecution proposed to lead all the evidence (being in essence the complainant’s statement) which would necessarily involve inviting the complainant to give evidence of repeated offences of a similar nature not the subject of any individual charge in the indictment. The defence objected strenuously to this course and there was a preliminary argument before the trial judge as to the course the prosecution proposed to follow. Ultimately that has given rise to the certified question in this case. I should say perhaps at this stage that I do not consider that the course taken by the prosecution in this case, though novel, was by any means a perfect solution. It resulted in an almost studied process whereby the evidence of what might be described as the index offence was given, and then the complainant was asked questions which invited her to say that the same thing happened repeatedly thereafter. But the argument raised by the defence in this case is of more general application than the particular course adopted in this case. It is contended that what was offensive about the procedure adopted was that it contravened what is alleged to be a fundamental principle that evidence of bad character of the accused should not be admitted in a criminal trial. If correct, this proposition would have implications for many cases, particularly those of sexual abuse, no matter how the indictment was framed.

8 The general statement that evidence of previous bad character is inadmissible is perhaps unobjectionable as a rule of thumb, but it is potentially seriously misleading if it is treated as a comprehensive statement of a principle having supposed constitutional standing. Indeed, even if the alleged principle were to be restated as a general principle of exclusion subject to exceptions, those exceptions are so numerous and wide-ranging as to raise doubts as to the existence of any general principle, at least as so formulated. It is noteworthy that the two dicta cited to support the proposition that there exists an unqualified general principle against admission of evidence of bad character were the decision of the High Court in a constitutional challenge to the vagrancy laws in King v Attorney General [1981] IR 233 and the decision of the Supreme Court on the question of bail in People v O’Callaghan [1966] IR 501, neither of which involved a ruling in the course of a trial, or an appeal. Both Courts might have been surprised if it were suggested that they were laying down a broad principle of general application for criminal trials.

9 The statement that evidence of previous bad character is inadmissible, or inadmissible save in exceptional circumstances, has itself been the source of much confusion. I consider that the true position is that set out as long ago as 1894 in the landmark speech of Lord Herschell in Makin v Attorney General from New South Wales [1894] AC 54. That decision established that evidence of previous bad character is inadmissible if introduced for a particular purpose: that of showing that such bad character alone makes it likely that the accused committed the offence for which he is tried. At page 65 of the report Lord Herschell said:

“It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused had been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence upon which he is being tried. On the other hand the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.” (Emphasis added)

“The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other.”

“It is perhaps helpful to remind oneself that what is not to be admitted is a chain of reasoning and not necessarily a state of facts. If the inadmissible chain of reasoning is the only purpose for which the evidence is adduced as a matter of law, the evidence itself is not admissible.”

11 This much is perhaps unremarkable. But these considerations do point to something which in my view is of assistance in resolving this case. The reason evidence of previous conviction or wrongdoing is excluded is because of the prejudicial effect of such evidence on the reasoning process. It is not necessary here to consider whether the principle illustrated in Makin’s case is an example of a broad principle that evidence is excluded where the prejudicial effect outweighs its probative value (which appears to have been suggested in the speech of Lord Hailsham in R. v Boardman) or whether it is simply a separate rule against the admission of prejudicial evidence in certain circumstances. See McGrath, Evidence, Thompson Round Hall 2005 at pp475-492. Since that was not argued in this case in any detail (and Boardman was not referred to), I do not propose to come to any conclusion on that issue. I have some doubts about a balancing test where it is not very clear in advance what weight is being ascribed to factors which are not themselves measured in the same register. In any event, I consider that it is likely that an application of a balancing test in this case would produce the same result. In this case I have found it useful to consider whether the evidence sought to be excluded is being adduced for the purpose forbidden by the first limb of Lord Herschell’s rule.

12 It is easy to see that evidence of previous convictions by a court could be highly prejudicial in a subsequent trial. The jury would be tempted to find support for conviction in the fact that a previous court had itself been satisfied of the guilt of the accused. Where the evidence sought to be adduced is not of a conviction but rather an allegation made perhaps by another complainant (but which is itself not admissible as similar fact evidence), then such evidence is prejudicial because it may lead the jury to conclude that it would be beyond a coincidence that the accused should be charged with wrongdoing by two separate individuals. Furthermore, since the issue in such a case would be truly collateral, the Court would not be in a position to determine whether the second allegation was correct or false. If so, the allegation would remain in the case contaminating the reasoning and adjudication process of the jury. It is easy to see therefore why such evidence should be treated as prejudicial and inadmissible.

13 In my view it is clear that the evidence here is not being sought to be adduced for the purposes of inviting a jury to consider that the accused was guilty of the offences charged because of a predisposition to commit such offences alleged to be shown by the evidence of other acts of indecent assault in respect of the complainant. Indeed it is hard to see how the jury could come to such a conclusion. If the jury believes the complainant when she says that she was abused on the subsequent occasions, then it is likely they will convict the accused. But that is because they believe her in general, and therefore believe her when she says she was assaulted on the occasion charged. There is no sense in which the subsequent incidents become an illegitimate launching pad for a conclusion about the first. The evidence of further incidents is not being admitted for the purpose forbidden in the first limb of Lord Herschell’s speech: rather it is being admitted because it is an intrinsic part of the story necessary to understand the circumstances in which the complainant says she was abused over a protracted period by the accused.

14 It is of some relevance that in my view the evidence is of a somewhat different character to the evidence which is properly treated as prejudicial and precluded by the rule in Makin’s case. I must admit I have some difficulty in seeing how the evidence caused real problems for the defence, other than it was alleged to offend against a mischaracterised rule against the admission of evidence of bad character. Here, the essential issue was the credibility of the complainant. The evidence of acts of indecent assault/sexual assault on occasions other than those contained in the indictment is no better or worse than the evidence related, somewhat artificially, to the specific counts. The evidence of other incidents does not supply something lacking in the evidence in relation to the index offence. On the contrary, it has the same strength and, just as importantly, weakness. It is dependent almost entirely on the credibility of the complainant. Accordingly, if the admission of this evidence causes any prejudice to the plaintiff it is of a different order to the type of prejudice contemplated by Lord Herschell’s rule, for example where evidence of previous convictions is given, or evidence of separate allegations made by a different complainant.

15 Furthermore, while I am reluctant to suggest that evidence to which an accused objects is actually in ease of him or her, nevertheless it must be acknowledged that the position in this case is different from that which often applies in cases where a small number of offences are alleged. Since the emergence in recent decades of the phenomenon of child sex abuse, Courts have been acutely conscious of the difficulty that such claims pose for defendants and have sought to ensure that juries are instructed in relation to those dangers. Thus, it is often pointed out that a generalised allegation without any distinctive features and without a specific date may be very difficult to rebut. Lacking a firm date, an accused may be unable to give any evidence of an alibi or raise questions as to whether the complainant was there on the occasion in question. (See for example the discussions in D.P.P. v P.J. [2003] 3 IR 550 and D.P.P. v C.C. [2006] 4 IR 287). Here however, since the complainant alleges that the abuse occurred on an almost daily basis, the accused could raise doubts as to the credibility of the complainant if he was in a position to establish that either he, or the complainant, had not been around for a significant period of time during the period when the abuse was alleged to have occurred on a continuous basis.

16 The jury here was not being invited to accept that the Appellant was guilty of sexual assault on the rest of the occasions, and therefore guilty of the offence actually charged. There was no better reason to believe the complainant in respect of those other occasions, than in respect of the offence alleged. These considerations lead in my view to the conclusion that the evidence was not being adduced for the purposes forbidden by the rule formulated by Lord Herschell. However, if the evidence is to be admitted, it must not only fail the negative test in the first limb of Lord Herschell’s rule, but it must also satisfy the positive test of being relevant to the trial, as set out in the second limb of the rule.

17 Here the evidence in my view was being adduced first, because it was what the complainant says is what occurred, and any other account would be artificial and misleading. Furthermore, fairness to the accused has led to the reduction in the number of charges. But evidence which was strictly limited to the events somewhat arbitrarily chosen for those charges, could give rise to an impression which was positively misleading. A jury might naturally wonder how it was that incidents had only occurred on say eight separate occasions over a protracted period, and why no complaint was made by the girl, why it was she still went to the barn or the church as the case may be, and yet on only these eight occasions. This process of reasoning could lead to a jury entertaining doubts as to the credibility of the complainant which would be derived from the fact that the evidence had been straight-jacketed in ease of the accused. It is true that the evidence could be said to be relevant to issues which appeared to be live in the case, at least at the time the application in respect of the evidence as made, such as the absence of contemporaneous complaint by the complainant or some suggestion of consent contained in the accused’s statements, but it was also relevant by way of background.

18 A good example of the admission of such background evidence occurred in this case without complaint, in a separate context. The complainant had sought to explain the fact that she had not complained of the sexual abuse earlier, because she said she was in fear of the accused. She gave evidence that an incident had occurred in which the trough in the family farm had been vandalised and which she believed had been carried out by the accused because she said he had threatened her that if she disclosed the abuse he would do something to her family and subsequently had made some reference, which she interpreted as referring to the damage to the trough. This evidence was adduced and not challenged even though it could be characterised as evidence of other misconduct alleged against the accused, not itself the subject of any charge in the indictment. However, there was no debate at all on this at the trial. It was clear that the evidence was not being adduced for the purposes of inviting the jury to reason that if the accused had damaged the trough, it was evidence which would allow them to conclude that he must be the sort of person who would have abused the complainant. Such a thought process would be obviously implausible. The evidence was properly admitted because it was considered part of the background story and went to explain why the victim had not complained at any stage during her ordeal. However in my view, the same explanation applies to evidence of the other acts of sexual assault not covered by a charge in the indictment. It too is part of the overall story, and goes to explain why the victim did not complain earlier.

19 In my view, the admission of what is called background evidence is permissible and consistent with both principle and also precedent. Other than in this case and the subsequent case of D.P.P. v Jerome Baily [2010] IECCA 25 however, the Courts in this jurisdiction have not formally admitted evidence under this rubric. However, it is in my view a mistake to seek to determine the admissibility of evidence only on the basis that it is, or is not, included in an identified sub category sanctified by precedent. As Barron, J. observed in D.P.P. v B.K. [2000] 2 IR 199 (echoing in this regard the observations of Viscount Simon in Harris v D.P.P. [1952] AC 694) it is an error to attempt to draw up a closed list of the sort of cases in which the principle operates. Where what is important is the application of principle, the use of labels or definitive descriptions cannot be either comprehensive or restrictive. (See also Lord Morris of Borth-y-Gest in R. v Boardman (1975) AC 421.

20 In any event it is clear that in England evidence has been admitted under the heading of background evidence for some time. From a consideration of those cases it also appears that this category of case is very close to, and at times indistinguishable from, those categories in which it has long been accepted that evidence is admissible. Thus for example in R. v Ball [1911] AC 47, the trial judge, Scrutton, J. explained Makin itself on the basis that the evidence “must have been given to enable the jury to draw the proper inferences as to sort of business or transaction the persons were carrying on”. Ball’s case involved a charge of incest and the Court admitted evidence (which was upheld by the House of Lords) of a prior occasion when the accused had been living together and a child had been born, but which had occurred prior to the coming into force of the 1908 Act, and accordingly could not itself have formed the subject of a separate charge. The evidence was nevertheless held to be admissible to explain the relationship in which the two parties were found, and which had to be interpreted by the jury. In R. v Bond [1906] 2 KB 389 evidence of a prior operation with intent to procure an abortion was admitted on the grounds that:

“Evidence is necessarily admissible as to acts which are so closely and inextricably mixed up that the history of the guilty act itself has 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 thereby being rendered unintelligible”.

Kennedy, J. continued:

“Such prior acts formed, in point of historical and circumstantial connection, inseparable parts of the transaction which the jury had to investigate.”

“It formed part of one entire transaction which was under investigation by the jury; it presented one aspect of the relations existing between the prisoners and the deceased, just as the intrigue between the prisoners and the attempt to conceal it illustrated another. The fact that it was stated to have occurred “a long time before the deceased met his death” would affect the weight to be attached to it by the jury but is not sufficient to necessitate its exclusion from their consideration.”

22 I agree with Denham, J. that one useful case for present purposes is R. v West [2003] EWCA 3024. That case involved charges of indecent assault and buggery alleged to have been carried out by the appellant while himself a young boy on another boy some four years younger when they were both member of a judo club. The particular offences charged related to a period when the victim was between ten and sixteen years of age and the appellant between fourteen and twenty years of age. However, the prosecution case also involved references to earlier acts of indecency stretching as far back as when the complainant was six years of age. These activities could not form the part of any charge since at the relevant time the alleged perpetrator was himself under 14 and therefore presumed incapable of crime (doli incapax). The Court of Criminal Appeal (Pill, L.J., Rice and Edwards, JJ.) found that the evidence was admissible as background evidence and approved the direction given by the trial judge to the jury in the following terms:

“Those incidents are not charged 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 will 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 prosecutions case that Mr. W. was conditioned from an early age to submit to sexual acts from Mr. West and that explained what might otherwise be difficult to explain, namely his submissions to such acts right through his teens and up to the age of sixteen. Those are the reasons why you hear about those earlier alleged incidents. They are 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.”

23 There are a number of other English cases illustrating both applications of the principle (e.g. R. v Underwood [1998] EWCA Crim. 1426), and its limits (R. v Dolan (2003) 1 Cr. App. Rep. 18). The principle has now been put beyond doubt in the U.K. by its embodiment in legislative form in the U.K. Criminal Justice Act 2003. In my view, the disputed evidence was properly admitted in each of those cases as a matter of common law and I would be reluctant to endorse an approach which would lead to a different result in Ireland. With respect, I am not at all sure that these cases can be easily re-characterised as applications of the traditional categories of cases in which evidence of other misconduct is admitted, as Fennelly, J. suggests, but if that is possible, then it only illustrates the fact that the background evidence cases are entirely compatible with the principle identified so long ago by Lord Herschell.

24 It is not in my view a valid objection to the evidence in this case that it postdates the first offence. Although the rather studied manner in which the evidence was elicited may have given the impression that it was being adduced in respect of the first such offence in each case, in my view, the evidence was adduced as background to, and establishing habit repetition and conditioning in respect of, the subsequent offences.

25 Finally, I do not wish this decision to be seen as recommending that further prosecutions should follow the format adopted here. The experiment did not in my view succeed in providing any clear solution to this very difficult problem. In the absence of a legislative response, the Courts must continue to adopt the solution in any individual case at best ensures a fair trial of the matters charged. In my view however, this is an area which would benefit from a comprehensive review, perhaps by the Law Reform Commission, which could take account of the jurisprudence that has been built up here and in other jurisdictions, and also have access to the best contemporary learning in the field of psychology and sociology in relation to this troubled area. For the present however, I would dismiss the appeal.

JUDGMENT of Mr. Justice Fennelly delivered the 8th day of April 2011.

1. Where the prosecution alleges prolonged and repeated sexual abuse of a young person over a number of years, it is necessary to frame an indictment which reconciles the public imperative of bringing such cases to trial with the right of the accused person to a fair trial. Typically, the complainant is an adult who cannot recall with any degree of precision the dates and times of the acts of abuse perpetrated during childhood. As in the present case, he or she frequently alleges acts repeated on a large number, even countless, occasions.

2. In the present case, the female complainant was aged nine when the alleged abuse began and seventeen when it ended. The prosecution sought to strike a balance between confronting the accused with such a large number of counts as to be oppressive and unfair to the accused and the need to present what it said was the full background. The complainant often cannot be prevented from straying outside the framework of the counts charged. The prosecution has to steer a course between the danger of having the jury discharged and that of presenting the jury with an artificial and incomplete picture.

3. The case-law seems fairly consistent over more than a century. Subject to fairly well-defined exceptions, the prosecution may not lead evidence of criminal offences other than those charged. On the whole, the historic cases were not of the type with which the courts are now all too frequently confronted. The present section 29 appeal from the Court of Criminal Appeal requires the entire matter to be considered afresh.

4. The appellant was arraigned before the Central Criminal Court on 19th April 2004 on eight counts of indecent assault, sexual assault and rape alleged to have been committed between 1st June 1989 and 31st October 1997. Abbot J presided at the trial.

5. The complainant was born on 6th December 1979. Thus she was nine years of age on the date of the first count and seventeen at the date of the last. The appellant was a local farmer and a friend of her family. He was born on 6th February 1947 and thus was more than thirty years her senior.

6. After a trial lasting eight days, the jury convicted the appellant on seven counts: two of indecent assault; two of sexual assault; one of section 4 rape and, in two cases, where they acquitted on a charge of rape, they convicted of indecent assault and sexual assault respectively. The offence of indecent assault became know as sexual assault as from 21st January 1991 following the enactment of section 2(1) of the Criminal Law (Rape) (Amendment) Act, 1990 (see Egan J in Director of Public Prosecutions v E.F. (Supreme Court unreported 24th February 1994.) The charges will be considered in more detail in the context of the facts.

Ruling on admission of criminal misconduct not charged
7. The problem presented by this appeal can be traced back to an exchange which took place between counsel for the prosecution and the defence in the absence of the jury at the beginning of the trial, before any evidence was called. Counsel for the defence objected to the proposal of the prosecution to lead all the evidence outlined in the statements of the complainant in the book of evidence. This included multiple occasions of sexual activity by the accused with the complainant, which were not represented by counts in the indictment. In effect the defence were on notice that the complainant would allege that a particular act had taken place on several occasions, for example “several times each year from 1989 to 1997,” whereas there was only one count in the indictment referable to that particular type of act. Counsel objected that it would be highly prejudicial to the accused to lead evidence of that kind. He cited R v Bond [1906] 2 KB 389, People (Attorney General) v Kirwan [1943] I.R. 279 and Director of Public Prosecutions v L.G. [2003] 2 I.R. 517.

8. Counsel for the prosecution conceded that the basic rule remained that the jury should not hear any evidence of previous misconduct or criminal activity other than what was contained in the indictment or was associated with what was in the indictment. He made it clear to the learned trial judge that he was not relying on evidence of system. He cited People (Attorney General) v Joyce and Walsh [1929] I.R. 526 as a case of non-application of the rule. He submitted that, if the jury were to hear evidence of only eight counts over eight years, that would present a situation of unreality as to the real relationship between the complainant and the accused. He referred also to the decision of the Court of Appeal (Criminal Division) in England in R v M and others [2000] 1 W.L.R. 421. There was need, he said, to explain what had happened consistently over a period of eight years.

9. Counsel for the defence, in response, expressed concern about the introduction of R v M and others into Irish law, as being inconsistent with the judgment in Kirwan’s case.

10. The learned trial judge accepted the principles laid down in R v Bond and Kirwan’s case as “strong principles,” which “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.” He held that he was entitled to exercise his discretion in favour of admitting the evidence. While he acknowledged that he was “perhaps stretching the point as much as it can be stretched,” he thought the evidence constituted a set of “continuous facts…… related to the prepuberty years of the complainant.” He permitted “the State to lead evidence from the complainant in relation to the whole story as it happened.” However, he declined to permit similar evidence in respect of the “post-puberty years” of the complainant from 1994 to 1997. He considered that it would be dangerous to exercise his discretion to permit the evidence after the date of the offence charged in count number 7, i.e., after 31st August 1994. That was a single count of rape at the appellant’s home.

11. Following his conviction as already mentioned, on 14th June 1994, the appellant was sentenced to a term of nine years imprisonment on the count for section 4 rape (count 4), to two years consecutive to that in respect of count number 7 (sexual assault) and to terms of either one or two years to be served concurrently on the other counts

The evidence
12. The complainant lived with her parents and nine other children in a small country town. The appellant was a bachelor, a local farmer and a friend of her parents. He was a very frequent visitor to the complainant’s home. He was also sacristan in the local church.

13. Count No 1: The complainant placed the commencement of the alleged abuse by reference to the death of her grandfather in March 1989. She recalled a visit from the appellant in the summer of that year. She went outside the house when he was leaving. He put his arms around her and started feeling her through her clothes and inside her leg. He said that he knew the difference between right and wrong and that there was nothing wrong with what he was doing. This incident forms the subject matter of count number one which charged indecent assault contrary to common law between 1st June and 31st August 1989.

14. There then followed the first part of the evidence to which objection is taken. The complainant was asked: “did that ever occur again or anything like it?” she answered:

“it occurred again the next night and for a long time after……[it] continued on for a long time after that."

15. Count No 2: The complainant was then asked whether she remembered this taking place anywhere else and she said that the appellant had brought her down to the church, where he was sacristan. He had told her to go down to the church; he was already inside; nobody else was there. He put his arms around her and started kissing her and feeling her through her clothes; he kissed her on the lips, put his hands under her top, felt her breasts and inside her trousers. He said it was "our secret." He used to give her cigarettes and sometimes money. This incident forms the subject matter of count number two, which charges indecent assault in the church between 1st June and 30th September 1989.

16. The complainant was then asked how long that had gone on for the summer. She answered: "it went on all summer." She said it was "always in the church and sometimes at home."

17. Counts No 3 and 6: next the complainant was asked what had happened in the autumn of that year (1989). She said that it was "the first time he had intercourse with [her].” It happened in the church. He brought her to the top of the aisle, undressed her fully, put her lying on her back, pulled down his trousers, lay on top of her and had full intercourse. It was painful; she asked him to stop, but he would not; she was afraid. This incident forms the subject matter of count number three, rape contrary to section 2 of the Criminal Law (Rape) Act, 1981 between 1st August and 31st October 1989. There was a separate count, count number 6, alleging sexual assault in the church between 6th December 1993 and 6th December 1994, i.e., when the complainant was between 14 and 15 years of age.

18. She was asked how often she went down to the church in the evening around that time (1989). She said: "practically every night."

19. Counts Nos 4 and 5: Following her account referable to count number three, the complainant said that "once that started he'd often get me to masturbate him or have oral sex." She said that "sometimes he'd put his penis in her mouth." Asked if this happened anywhere else she said: "in the sheds at home." She was asked whether she remembered anything occurring in the turf shed in, say, 1991. She said that he "used to get [her] to masturbate him, have oral sex with him; he used to put his penis in [her] mouth. She was asked where in the shed this "used to happen." She said that it "happened at different parts of the shed." These incidents form the subject matter of count number four, rape contrary to section 4 of the Criminal Law (Rape) (Amendment) Act, 1990 between 1st January and 31st December 1991 and count number 5, sexual assault contrary to section 2(1) of the same Act between 1st January and 31st December 1992.

20. Count number 7 alleged a single event of rape contrary to the Act of 1981 as amended at the appellant’s home between 1st June and 31st August 1994.

21. The first six counts alleged sexual offences at three locations: outside the complainant’s home in summer 1989; three in the church: in summer and autumn 1989 and in 1994 and in the turf shed behind the complainant’s home one in 1991 and one in 1992.

22. The evidence was of more or less continual abuse during a period of “years.”

Court of Criminal Appeal
23. The appellant applied for leave to appeal to the Court of Criminal Appeal. The ground of appeal was that the learned trial judge had erred 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." The judgment of that Court was delivered by Budd J on 31st July 2007. It dismissed the application for leave to appeal.

24. The Court of Criminal Appeal conducted an extensive review of authority. In particular, it considered the English decisions in R. v Pettman, an unreported decision of the English Court of Appeal (Criminal Division) of 2nd May 1985 and R v M and others, cited above, which the prosecution had cited in the trial court. The Court cited extensively from subsequent English and Northern Ireland decisions. It suggested that 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 response to defence reliance on the traditional exceptions to the exclusionary rule, the Court referred to those cases as providing guidance “in deciding what should be admitted as background evidence.” It cited the decision of the Court of Criminal Appeal in People (Director of Public Prosecutions) v BK [2000] 2 I.R. 199 as authority for the proposition that the “balancing test [is] the touchstone for assessing the admissibility of prior misconduct evidence." It held that it had been correctly applied in the present case.

25. The Court of Criminal Appeal pursuant to section 29 of the Courts of Justice Act, 1929, as substituted by section 22 of the Criminal Justice Act, 2006, certified the following as a question of law of exceptional public importance:

“Is evidence of connected background history which might disclose matters not laid in the Indictment and, possibly prejudicial to the accused, but which is essential or helpful to the jury understanding the charges actually laid in the indictment admissible in a criminal prosecution?”

27. It is common case that the evidence presented by the prosecution at the trial of the appellant, if believed, was to the effect that he had committed a very large number of criminal offences against the complainant which did not form the subject matter of any count in the indictment. Counsel for the prosecution thought the indictment might have run to over 100 counts.

28. The common law has not historically permitted evidence to be given in a criminal trial that the accused person had committed offences other than those for which he was charged. McWilliam J, in the case of King v Attorney General [1981] I.R. 233 at 241 stated:

“One of the concepts of justice which the Courts have always accepted is that evidence of character or of previous convictions shall not be given at a criminal trial except at the instigation of the accused, as that could prejudice the fair trial of the issue of the guilt or innocence of the accused”.

30. The same thinking permeates the rules governing the admissibility of evidence which has the principal purpose of establishing a fact relevant to the charge laid but has the incidental but unavoidable effect of disclosing the fact of an earlier conviction. The well-established principle is, of course, more ancient than the decision of the Privy Council in Makin v Attorney General for New South Wales [1894] 54, but many modern decisions, including those of our own courts, are content to start with the statement of Lord Herschell, L.C. in that case:

“It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question of whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.”

32. R v Bond, cited above, was a decision of the Court for Crown Cases Reserved. A doctor was charged with the offence of feloniously using instruments on a woman with intent to procure a miscarriage. It was suggested that the instruments might be quite properly used by a medical man for a legitimate purpose. Another woman was tendered by the prosecution to prove intent by showing that, some time previously, the accused had used similar instruments upon her. It was held by a majority of 5 to 2 that the evidence was admissible and relevant. Alverstone CJ and Ridley J dissented, believing that the evidence should not have been admitted. The judgment of Kennedy J, one of the majority directly applied Makin. His judgment contains the following at page 398:

“Nothing can so certainly be counted upon to make a prejudice against an accused upon his trial as the disclosure to the jury of other misconduct of a kind similar to that which is the subject of the indictment, and, indeed, when the crime alleged is one of a revolting character…… and the hearer is a person who has not been trained to think judicially, the prejudice must sometimes be almost insurmountable."

“The general rule 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.”

35. People (Attorney General) v Kirwan was a decision of this Court on a certificate from the Court of Criminal Appeal. A man was charged with murder of his brother, whose dismembered remains had been found buried in a bog. Evidence was given from three staff from Maryborough prison where the accused had served a term of penal servitude. The evidence undoubtedly disclosed to the jury the fact that he was serving a sentence for another crime but it was incidental to its purpose. The medical evidence had been that the body of the deceased could only have been dismembered by a person with some anatomical skill and knowledge. The prison witnesses showed that the accused had performed relevantly similar operations on the carcasses of pigs.

36. O’Byrne J, having quoted the above passage from Makin, continued, at page 299:

“The rule, so enunciated, has been considered in a great number of subsequent cases in this country and in England, and I am not aware of any case in which its accuracy has been questioned.”

38. I believe that I should next refer to the decision of the Court of Criminal Appeal in People(Director of Public Prosecutions) v BK, since the Court of Criminal Appeal, in the present case, appears to have regarded it as establishing a simple balancing test between prejudicial and probative value for the admissibility of evidence.

39. That case was concerned with the joinder of counts, not, as here, the leading of evidence of the commission of offences not the subject of any count. Nonetheless, the judgment casts light on the latter issue. The applicant was charged with four counts of indecent behaviour with young boys: two were of indecent assault and buggery against one boy and two were of attempted buggery against two different boys. The applicant had applied unsuccessfully for separate trials, a decision whose correctness was the issue on appeal. Counsel submitted that allowing the counts to be tried together had the effect of providing corroboration, where there was none in law.

40. The judgment of the Court of Criminal Appeal was delivered by Barron J, who conducted a detailed review of case-law, including citation of Lord Herschhell’s dictum in Makin. He summarised the following principles as emerging from the cases:

“(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 categories of cases in which the evidence which can be so admitted, is not closed.

(4) 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; or

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

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

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

“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.”

“References to the jury seeing the full picture may be misleading. It means no more than that in those cases where the evidence is admissible to fail to admit it would mean that the jury would not get the full picture. It does not in any sense mean that inadmissible evidence should be admitted in particular circumstances.”

“Human nature, however, is too strong to have allowed the jury to disregard the cumulative effect of evidence given at the same trial in respect of four distinct offences of almost precisely the same character."

"When there is nothing to connect the accused with a particular crime except bad character or similar crimes committed in the past, the probative value of the evidence is nil and the evidence is rejected on that ground. When there is some evidence connecting the accused with the crime, in the eyes of most people, guilt of similar offences in the past might well be considered to have probative value … Nonetheless, in the absence of a statutory provision to the contrary, the evidence is to be excluded under the first rule in Makin v. Attorney-General for New South Wales [1894] AC 57 because its prejudicial effect may be more powerful than its probative effect, and thus endanger a fair trial.”

“The evidence on counts number 1 and 2 does not have the necessary nexus to justify their being heard at the same time as counts number 8 and 9. That evidence went no further than saying that because the applicant was charged with the offences against one boy, he was more likely to have committed the alleged offences against the other boys.”

47. The foregoing principle does not prevent evidence being admitted where it tends to prove that the accused committed the particular offence with which he is charged. Many of the cases speak of evidence to exclude accident or mistake or to prove intent. It is also legitimate to prove similarities between the manner of committing the instant offence and offences previously committed by the accused. As has been frequently said, these categories are not closed. What is required is that the evidence proffered be relevant, as tending to prove the commission of the particular offence, and therefore probative.

48. It is only at this point, i.e., where it is established that it is admissible, that the question arises of balancing the probative and prejudicial effects of evidence. Evidence may be admissible in principle but may, as a matter of discretion of the trial judge, be excluded because its prejudicial effect outweighs any probative value. This was what the Court of Criminal Appeal described as "the balancing test."

49. With these principles in mind, was the evidence to which objection has taken in this case admissible? In my view it was not. The complainant gave evidence of sexual assaults upon her in three different locations: outside her home; in the church; in the turf sheds. In each case, she gave an account of a sexual assault, including rape, amounting clearly to the commission of a criminal offence by the appellant. In each case, when she had given her evidence of the first such event, she was asked whether it had occurred again or had gone on again. She then proceeded, in each case, to swear to the repeated commission of the same offence on numerous subsequent occasions. None of that evidence would be admissible in accordance with the line of caselaw from Makin, through People (Attorney General) v Joyce and Walsh and People (Attorney General) v Kirwan to BK. It has not been suggested that it can be justified by reference to any of the matters which have been developed in many cases from Makin onwards.

50. Counsel for the prosecution expressly accepted, in the trial court, that the he was not offering any evidence of system. Before this Court, the respondent submits that evidence of motive is admissible and that motive can be established by previous words and acts notwithstanding that some or all of what is proved may reveal that the accused has committed other offences, citing Lord Atkinson’s judgment in R v. Ball [1911] AC 47. In that case, a brother and sister were convicted of incest committed in 1910. Evidence was given that, in 1907, they had lived together as man and wife, had a child and registered the child as theirs. The House of Lords, reversing the Court of Criminal Appeal, held the evidence to have been admissible in order to establish that the defendants had a guilty passion towards each other and to rebut the defence of innocent association as brother and sister. Though the case was concerned with a charge of incest, Lord Atkinson spoke of evidence in a murder case of “words of the accused to show that he entertained feelings of enmity towards the deceased…” This does not appear to me to advance matters. The proposition is entirely in accord with the judgment of the former Supreme Court in People (Attorney General) v Kirwan.

A new line of caselaw
51. The argument for the prosecution, as it was presented to the trial judge, was that to exclude the evidence of other and subsequent criminal misconduct by the appellant would present a situation of unreality as to the real relationship between the complainant and the accused. While the word "background" was used, in the course of argument, by reference to the English caselaw, it is not clear to me that the prosecution was contending that the relevant evidence was, in any sense, evidence of background. Indeed, there was no difficulty about presenting such evidence, to include an account of the age, relationships, family and social circumstances and respective occupations and places of residence of any of the participants. All that evidence was given and is and was uncontroversial. I cannot see that evidence that, after a first offence, the appellant committed the same offence on many subsequent occasions can, in any sense, be regarded as evidence of background.

52. The respondent relies before this court, as he did in the Court of Criminal Appeal on, the unreported decision of the English Court of Appeal (Criminal Division) of 2nd May 1985 in R. v Pettman, which the respondent presents as a notable development of the common law.

53. The evidence at stake in Pettman was admitted on one count of conspiracy to rob alleged against the appellant. The object of the conspiracy was to rob Securicor employees of money they were due to collect at Acton near London on certain Fridays. It was not carried into effect because there were labour pickets outside the building on each of the Fridays in question. But the alleged conspirators were observed by the police in the vicinity of the target buildings on the mornings in question. The key point is that one of the vehicles they used on those occasions had been observed by the police on an earlier date being driven from London to Brighton where a burglary was carried out and a Barclaycard stolen from a Mr Hayward. The same Barclaycard was used to purchase petrol for the same car on one of the Fridays of the alleged conspiracy at Securicor. This evidence linked the accused with the car and with the credit card.

54. At trial it was conceded by the defence that the evidence was admissible. Objection was made only on the basis that it was more prejudicial than probative, because it disclosed evidence of the commission of an earlier offence of burglary. Purchas L.J., delivering the judgment of the Court said:

“In our judgment, evidence of the use of the car…... on 2nd April 1981 by this appellant and one of his co-accused was relevant to the extent that it was part of a continuum of observation tending to establish a conspiratorial association between the two men in relation to this car, which itself was the receptacle for petrol obtained by the Barclaycard stolen from Hayward, although not on 2nd April 1981, and the use on 11th April 1981 of a cheque-book in the name of Hayward, which was stolen on 2nd April 1981……”

“Although the facts in R v Campbell were different from those in the instant case, in our judgment the principles remain the same, namely, that where it is necessary to place before the jury evidence of part of a continual background or a 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. In this case it would have been unrealistic and artificial to have stopped the evidence of the Brighton expedition as if it were at the door of [Securicor]. In our judgment, the whole of the evidence of the events of 2nd April 1981 were admissible in law.”

57. Leaving aside the generality of the statement of Purchas L.J., I would suggest that there could never have been any serious issue about the admissibility of the evidence in that case. It was a case of conspiracy. The evidence was highly probative and directly relevant to the behaviour of the conspirators.

58. R v M and others was a decision of the same court, which approved the dictum of Purchas L.J. It was a case of the most extreme kind of sexual abuse within a family, all organised, carried on and perpetrated by the parents. The appeal concerned one appellant, T.M., who was convicted of rape of his sister. The prosecution case was that the parents had created and maintained a culture of abuse in the home and that T.M. was taught, from an early age, to watch and take part in the most unspeakable and shocking behaviour imaginable. The evidence at issue, which the prosecution called “introduction incidents,” was that T.M. had been made to watch sexual abuse and taught to carry it out and that he had commenced to abuse his sister when she was nine or 10 years of age. T.M., it was said, had been "groomed" into the family web of abuse. Part of the prosecution argument was that, in order to understand the evidence of the complainant, the jury would need to know the background. That would help to explain why the complainant felt unable to seek help, and it could also help to explain why T.M. ever contemplated behaving in the way alleged, and why he felt able to behave in that way without fear of retribution from other members of the family.”

59. Kennedy L.J., giving the judgment of the court adopted a passage from an article by Professor Birch in [1995] Crim. L.R. 651. The first part deals with similar fact evidence and then distinguishes "background evidence." The passage continues:

“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 be, 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.”

61. Fortunately, it is not necessary to express any concluded view about the correctness of the decision to admit the evidence in that appalling and extraordinary case. Personally, I find it difficult to disagree with the result. This case calls to mind the facts in R v Ball, the incest case, cited above.

62. The impugned evidence in the present case is of an entirely different character. It is not evidence of what the prosecution in that case called “introduction incidents” or what Professor Birch described as “the run-up to the alleged offence…” We have not had any discussion of “ grooming” in the present case. For the avoidance of any possible doubt, I would wish to emphasise that such evidence must be admissible. In so far as the complainant gave evidence of preparations in advance of the appellants abuse of her in the church, the evidence was given without objection and rightly so.

63. As I have already said, the contested evidence cannot be described as "background evidence." It is evidence that a particular offence was committed on one occasion and then repeated on a large number of subsequent, not prior, occasions.

Another solution
64. It is surprising that neither party has referred to a decision of this Court which might be considered most relevant. It is presumably for that reason that it is not mentioned in the judgment of the Court of Criminal Appeal. It is Director of Public Prosecutions v E.F., (unreported 24th February 1994), where the unanimous judgment was delivered by Egan J. It was a case stated from the Circuit Court. There were nine counts of indecent assault on an indictment. Each count alleged the offence to have been committed on a date unknown in each of nine years from the beginning of 1979 to the end of 1988. One question asked whether the counts were duplicitous in form and another asked whether they were such as to deprive the accused of a fair trial in due course of law. Egan J held that there was no duplicity and continued:

“There is a large element of unreality in confining each count to one incident when the book of evidence indicates that [ one complainant] has claimed that the offence occurred roughly every day or a second day and [ another complainant] claims that it occurred about twice a week. It would have been infinitely preferable that the indictment should conform with the allegations which have been made but, unfortunately, if the suggested form with the words ‘on divers dates’ were used, there would then be duplicity…”

“The unreality referred to by me may hopefully be cured by legislation in the future. In the meantime it is my opinion that an approach to realism can be achieved by increasing the number of the counts so that each count were referred to a period of one month rather than one year.”

67. Rule 3 of the First Schedule to the Criminal Justice (Administration) Act, 1924 deals with counts in an indictment as follows:

“Charges for any offences, whether felonies or misdemeanours, may be joined in the same indictment if those charges are founded on the same facts, or form or are a part of a series of offences of the same or a similar character.”

69. In the present case, the giving of evidence to prove the commission of an offence on one occasion opened the door to evidence of repetition of that offence on a large number of subsequent occasions. It is not a question of preparatory or introduction acts, grooming or evidence of intent. It is simply of the repeated commission of the offence on an unspecified but obviously very large number of subsequent occasions. This defect in the trial affects all counts in the indictment. Even in the case of the single count, number seven, of rape at the appellant's own home, the jury may have been prejudiced by hearing evidence of the commission of a large number of other offences.

70. The final question is what can be done. Experience shows that, in the nature of things, it is quite impossible for complainants in these cases to give evidence of the commission of acts on particular dates and it is unreasonable to expect that they can do so. It is not even possible, in many cases, for the complainants to say how many times abuse has occurred. It has to be acknowledged that it is extremely difficult to reconcile the objectives of bringing a prosecution so as to enable justice to be done to the victim and the public with the imperative necessity of guaranteeing a fair trial.

71. The Oireachtas has not responded to the suggestion made in Director of Public Prosecutions v E.F. Egan J suggested a pragmatic approach, aimed at achieving a measure of reality. It has not been suggested that the decision in that case should be overruled. I do not think that, in the way the indictment was presented in the present case, the trial approached the level of fairness which would have been achieved even by an indictment containing month by month counts. I believe it is quite simply wrong to allow evidence of one offence to be given and then to allow evidence to be given that the same offence was committed on an indefinite number of other occasions. The procedure followed in the present case would represent a radical departure from existing practice and case-law. The English cases cited by the respondent have not, to date, been followed by our courts. The following passage from Professor Birch seems central to this new departure:

”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.”

Our courts are slow to depart from existing established precedent. The adoption of this new English line of case-law would, in effect, require abandonment of our existing case-law. I am not convinced that it is right or necessary to do so. I believe the decision in Director of Public Prosecutions v E.F. should be maintained as representing the best means of ensuring a fair balance between realistic presentation of the prosecution case and the right of the accused to a fair trial.

72. I would allow the appeal and set aside the conviction.