The Supreme Court allowed Gerald McNeill’s appeal and set aside his convictions, ruling that the trial judge should not have admitted evidence that alleged offences had been repeated on numerous unspecified occasions.
The judgment, delivered by Mr Justice Fennelly on 8 April 2011, addressed a certificate appeal under section 29 of the Courts of Justice Act 1924. The certified question concerned whether connected background history that might reveal uncharged and prejudicial matters was admissible if it helped the jury understand the indictment charges.
McNeill had been convicted by a Central Criminal Court jury on seven counts of indecent assault, sexual assault and rape. The complainant testified that alleged abuse began when she was nine and continued until she was 17. The indictment contained eight counts covering alleged offences between June 1989 and October 1997. The trial judge allowed evidence that conduct described in relation to particular counts had happened repeatedly, but limited some evidence concerning the later years. McNeill received a nine-year sentence on a rape count and a consecutive two-year sentence on another count, with other terms concurrent.
The Court of Criminal Appeal refused leave to appeal. It certified the legal question for the Supreme Court after considering whether such evidence could be admitted as background to help explain the charges.
Justice Fennelly said the prosecution could not use a general appeal to “the full picture” to introduce evidence of other crimes. Evidence of uncharged conduct had to be relevant to proving the particular offence charged; only after that threshold was met could the court weigh probative value against prejudice. In this case, the disputed testimony was that offences had first occurred and then been repeated many times. The prosecution had not relied at trial on evidence of a system, and the Supreme Court found the repetition evidence was not admissible as background or on another established basis.
The Court distinguished preparatory evidence, which had been admitted without objection, from testimony describing repeated commission of the same offences. It also noted that an earlier Supreme Court decision, Director of Public Prosecutions v E.F., had suggested using more counts covering shorter periods to address the difficulty of dating prolonged abuse allegations.
The Court held that the admission of repetition evidence affected all counts, including a count alleging a single rape at McNeill’s home, because the jury could have been prejudiced by hearing about numerous other alleged offences. The Court did not determine the certified question as a broad rule for every case; it concluded that the procedure used in this trial departed from established Irish authority and was wrong. It allowed the appeal and set aside the convictions.