The Supreme Court dismissed Gerald McNeill’s appeal in a case concerning evidence of repeated sexual abuse that was not individually charged in the indictment.
In a judgment delivered on 8 April 2011, O’Donnell J said he agreed with the judgment and order proposed by Denham J. The judgment excerpt does not set out the certified question or the full terms of the order, so the scope of the dismissal is reported here only as stated in O’Donnell J’s conclusion.
The prosecution had placed eight counts on the indictment covering eight years, while informing the defence and the court that it intended to lead the complainant’s evidence of repeated offences of a similar nature, including incidents not covered by individual charges. The defence objected. O’Donnell J described the approach as novel and said it was not a perfect solution.
O’Donnell J rejected the argument that the evidence was barred by a general rule against admitting evidence of an accused’s bad character. He said the key question was the purpose for which evidence of other wrongdoing was introduced. Evidence should not be used to invite a jury to conclude that an accused committed a charged offence because he was disposed to commit that kind of offence. But, he said, evidence may be relevant when it forms part of the account needed to understand the alleged events and the circumstances in which they occurred.
In this case, O’Donnell J considered the additional incidents part of the complainant’s overall account and relevant background, including to explain why she had not complained earlier. He said the jury was not being asked to treat the other incidents as proof of the specific offences charged. He also noted that the evidence depended substantially on the complainant’s credibility, as did her evidence about the charged incidents.
The judge said evidence admitted for a relevant purpose must be accompanied by directions explaining that purpose and warning jurors against treating prior wrongdoing itself as proof of the charges. The excerpt does not state what directions were given at trial.
O’Donnell J cautioned that the prosecution’s chosen format should not be taken as a recommendation for future cases. He said the experiment had not produced a clear solution to the difficulties in charging allegations of repeated abuse and suggested that the area would benefit from comprehensive review, perhaps by the Law Reform Commission.