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High Court of Ireland Decisions
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Judgment Title: Patrick Nevin & Anor -v- Catherine Nevin
Neutral Citation:  IEHC 80
High Court Record Number: 1997 13003 P
Date of Delivery: 01/03/2013
Court: High Court
Composition of Court:
Judgment by: Kearns P.
Status of Judgment: Approved
Neutral Citation  IEHC 80
THE HIGH COURT
[1997 No. 13003 P]
PATRICK NEVIN AND MARGARET LAVELLE
JUDGMENT of Kearns P. delivered on the 1st day of March, 2013
Thomas Nevin, late of Jack White’s Inn, Brittas Bay, County Wicklow was murdered on 19th March, 1996 on the said licensed premises. The said Thomas Nevin was married to Catherine Nevin, the defendant herein. There were no children of the marriage and he died intestate. Thomas Nevin and Catherine Nevin were jointly registered as full owners of Jack White’s Inn and jointly operated and managed the premises from the date of purchase in 1986 until the time of his death. Following her husband’s death, the defendant re-opened Jack White’s Inn and operated same for a period of time before the premises were sold in 1997 for £620,000.
These proceedings were commenced by plenary summons issued on 4th November, 1997 wherein Nora Nevin, mother of the late Thomas Nevin, claimed against the defendant as follows:-
(b) a declaration that by virtue of s. 120 of the Succession Act 1965 the defendant is precluded from taking any share either as a legal right or otherwise in the estate of the deceased;
(c) a declaration that the defendant is not entitled to any share in the public house premises known as Jack White’s Inn, Brittas Bay, Co. Wicklow or to any other assets of the deceased;
(d) damages pursuant to the Civil Liability Act 1961 against the defendant for the wrongful death of the deceased;
(e) a declaration that the said licensed premises and other assets form part of the estate of the deceased;
(f) a declaration that the plaintiff is the sole person entitled to share in the deceased’s estate;
(g) an order pursuant to s. 27(4) of the Succession Act 1965 appointing the plaintiff personal representative of the estate of Thomas Nevin deceased;
(h) an injunction restraining the defendant from disposing of any assets of the deceased or any part of the said licensed premises or other assets.
The said Nora Nevin died on 10th September, 1999, intestate, following which Patrick Nevin and Margaret Lavelle, being the brother and sister of Thomas Nevin, extracted letters of administration intestate to her estate on the 18th July, 2000. By order of the High Court dated 5th March, 2001, they were joined as plaintiffs in these proceedings.
The defendant was charged with various offences as set out below arising from the death of the said Thomas Nevin and after a hearing lasting some 42 days before a judge and jury in the Central Criminal Court was found guilty on 11th April, 2000 of :-
(ii) soliciting to murder, contrary to s. 4 of the Offences Against the Person Act 1861, one John Jones to murder Thomas Nevin;
(iii) soliciting to murder contrary to s. 4 of the Offences against the Person Act 1861, one Jerry Heapes, to murder Thomas Nevin;
(iv) soliciting to murder, contrary to s. 4 of the Offences against the Person Act 1861, one William McClean to murder Thomas Nevin.
At all times during her trial and thereafter, the defendant denied any involvement in the said offences and gave evidence at her trial before the Central Criminal Court to that effect.
The defendant appealed her various convictions to the Court of Criminal Appeal, but in a written judgment delivered on 14th March, 2003 that appeal was refused. Leave to bring an appeal to the Supreme Court on a point of law of exceptional public importance pursuant to s. 29 of the Courts of Justice Act 1924 was also refused by the Court of Criminal Appeal on 14th May, 2005. A separate application brought by the defendant in November 2003 to the European Court of Human Rights was also rejected by that court.
Subsequently the defendant brought a further application to the Court of Criminal Appeal pursuant to s. 2 of the Criminal Procedure Act 1993, contending that additional or new information had come to light such as to constitute a miscarriage of justice. The Court of Criminal Appeal did direct further disclosure but thereafter rejected the application by judgment delivered on 22nd November, 2010.
The defendant thereafter lodged a further notice of application to the Court of Criminal Appeal under s. 29 of the Courts of Justice Act 1924 for a certificate granting leave to appeal to the Supreme Court on the basis that its decision involved a point of law of exceptional public importance.
That last-mentioned application appeared in the “for mention” list of the Court of Criminal Appeal in July, 2012. However, submissions had not been filed on behalf of the defendant. The matter re-appeared in the same list on 17th December, 2012 at which point, in the absence of submissions having been filed on behalf of the defendant, the said application was struck out.
This application was brought on the basis of the plaintiff’s contention that the criminal proceedings were over and that the plaintiffs, being the brother and sister of the late Tom Nevin, were now entitled to a hearing and determination of the claims advanced by them in the plenary summons herein.
Trial of the issue was fixed for hearing before Murphy J. in the High Court at the end of November, 2012 and was heard by him without any application being made for a stay on the proceedings.
It is of some importance to record what then actually occurred. It appears that the defendant’s present solicitor, Ms. Ann Fitzgibbon, had prepared a notice of motion seeking a stay on the hearing of the issue on the basis that the undertaking given to the High Court in 1998 some fourteen years previously was still extant in circumstances where an application to the Court of Criminal Appeal remained outstanding. However, the notice of motion seeking such stay was not before the court on the day fixed for the hearing before Murphy J. and in fact had a later return date. The trial of the issue proceeded. At that hearing the defendant was represented in court by Séamas Ó Tuathail, S.C. and the plaintiffs were represented by Mr. George Brady, S.C. The matter was heard in full and judgment was reserved by Murphy J. However, before judgment was delivered, it was ascertained that Murphy J. had sat on some prior division of the Court of Criminal Appeal which had dealt with some aspect of the defendant’s appeal many years previously. He thereupon recused himself from the matter and never delivered judgment.
The matter came back therefore into the Chancery list where Laffoy J., on Thursday, 7th February, 2013 arranged through the registrar of the High Court that the hearing of the issue would take place before this Court on the following Thursday, 14th February, 2013. Both sides were appraised of this listing and indeed a report that the said hearing would take place on the 14th February, 2013 appeared in national newspapers on 8th February, 2013.
However, on 14th February, 2013, the day fixed for the commencement of the hearing, the defendant’s solicitor made application to this Court that the trial of the issue be stayed, contending that the criminal proceedings were not yet at an end because she had relodged the application together with submissions with the Court of Criminal Appeal which had been struck out on 17th December, 2012. The Court rose to permit inquiries to be made, whereupon it transpired that the application in question had only been made on the preceding day, 13th February, 2013.
Quite apart from the last-second nature of this particular application, both as regards the application for a stay and the further application to the Court of Criminal Appeal, the Court was informed by Mr. Brady, counsel for the plaintiffs, that the hearing of the issue before Murphy J. had proceeded by consent because he and Mr. Ó Tuathail had agreed that the issue itself, notwithstanding the existence of an outstanding application under s. 29, could proceed and indeed was heard by Murphy J. on that basis.
Ms. Fitzgibbon challenged the correctness of the statement by Mr. Brady, whereupon the Court invited Mr. Brady to give evidence of what had transpired between himself and Mr. Ó Tuathail and he gave evidence in accordance with the information he had already given to the Court. It was suggested to him in cross-examination by Ms. Fitzgibbon that her client had given no such authorisation to her legal representatives, but did not call Mr. Ó Tuathail in support of that somewhat surprising contention. The Court accepted as truthful and correct the account of the discussion which passed between Mr. Brady and the defendant’s senior counsel and was satisfied that the issue should proceed both for that reason and for the other reasons indicated in its ex tempore ruling delivered on 14th February, 2013. In summary, the reasons included the interval of time which had elapsed since the giving of the undertaking to the High Court in January 1998, the fact that there had been a concluded trial in the Central Criminal Court and the dismissal of subsequent appeals and applications by the Court of Criminal Appeal. The Court held, quite apart from the agreement between counsel at the time of the hearing before Murphy J, that the undertaking could now be seen as discharged. In this context the Court had regard to the entitlement of the plaintiffs to exercise their rights of access to the Court after such a lengthy delay and also to the fact that determination of the issue would not – on the basis of the plaintiffs’ submissions – be dispositive in any event of the plaintiffs’ overall claim against the defendant.
The Court adjourned the hearing of the issue until the following day to enable the defendant’s solicitor to make any additional preparations that might be necessary for the hearing, noting that full written legal submissions had already been filed on behalf of the defendant in relation to the issue on 21st November, 2012.
THE ISSUE: IMPLICATIONS
If on the other hand the conviction is admissible, is it conclusive of the fact that the defendant murdered her husband or is it simply prima facie evidence of that fact, leaving to the defendant the right to argue that she should not have been convicted? In this regard it is important to state at the outset that the plaintiffs do not contend that the conviction, if admitted, is conclusive against the defendant nor do they any longer contend that evidence given at the criminal trial is in some way admissible in the civil proceedings.
THE SUCCESSION ACT 1965
(2) A spouse against whom the deceased obtained a decree of divorce a mensa et thoro, a spouse who failed to comply with a decree of restitution of conjugal rights obtained by the deceased and a spouse guilty of desertion which has continued up to the death for two years or more shall be precluded from taking any share in the estate of the deceased as a legal right or on intestacy.
(3) A spouse who was guilty of conduct which justified the deceased in separating and living apart from him shall be deemed to be guilty of desertion within the meaning of subsection (2)
(4) A person who has been found guilty of an offence against the deceased, or against the spouse or any child of the deceased (including a child adopted under the Adoption Acts 1952 and 1964, and a person to whom the deceased was loco parentis at the time of the offence), punishable by imprisonment for a maximum period of at least two years or by a more severe penalty, shall be precluded from taking any share in the estate as a legal right or from making an application under section 117.
(5) Any share which a person is precluded from taking under this section shall be distributed as if that person had died before the deceased.
It is far from easy to see why the legislature, when inserting the words ‘found guilty’ in subsection (4), omitted the same term from subsection (1), given that the overall thrust of the section is to provide that certain forms of conduct should have particular consequences in terms of succession rights. In McGuire’s commentary on the Succession Act, 1965 (2nd Ed., at 291) the author does not address this particular difficulty, noting merely that:-
It seems to me the defendant must be the beneficiary of this ambiguity so I am satisfied that the issue before the Court cannot be resolved by reference to the specific provisions of section 120 (1). I am satisfied that, as presently worded, the section cannot be invoked in aid by the plaintiffs to determine the issue in the conclusive way provided for by its terms. Indeed counsel for the plaintiffs, in arguing only that the criminal conviction is admissible as prima facie evidence in the civil case, implicitly accepts that this is the correct approach. It seems to me that s.120 (1) only goes so far as to be declaratory of a public policy which is that the perpetrator of the crime of murder should not be its beneficiary.
Cunigunda (otherwise Cora) Crippen died on February 1st, 1910 leaving Crippen, her lawful husband, her surviving. On 22nd October, 1910, Crippen was found guilty of the wilful murder of his wife and sentenced to death. He appealed to the Court of Criminal Appeal which dismissed his appeal on 5th November, 1910. On 8th November, 1910, he made his will wherein he appointed Ethel Le Neve as sole executrix and universal legatee of his will. She was his secretary and mistress, with whom he had been arrested while trying to flee to Canada after his wife’s dismembered body was found in the cellar of his home. Crippen was hanged on 23rd November, 1910. A caveat was entered in the Probate Office in Crippen’s estate, but, on the same being warned, no appearance was entered to the warning.
The wife’s next of kin included a sister, Theresa Hunn, whose attorney moved for a grant of letters of administration in respect of the estate of the wife. This was served on the solicitors for Crippen’s executrix.
While the court’s immediate focus was on who should be entitled to extract letters of administration to the estate of Crippen’s wife, the court president, Sir Samuel Evans in the course of his judgment stated as follows at p. 112:-
In another Court, she might bring an action to recover the estate from the administrator whom I now appoint.
It is exactly the same as the case of the felon himself making the claim, or bringing the action. Would not the fact of his conviction be evidence against him? Would it be right to treat it as res inter alios acta, and to say it was not admissible at all in a civil action brought by him?
The complete maxim is ‘Res inter alios acta alteri nocere non debet’. (a thing between others should not injure a third party) There is no question of ‘alteri nocere’ here.”
This last mentioned right did not exist in the United Kingdom until the passing of the Criminal Evidence Act in 1898 or in Ireland until some years later. In Crippen’s case the court concluded that the presumption should be applied on the facts of the case before it, stating at p.115:-
In my opinion, where a convicted felon, or the personal representative of a convicted murderer who has been executed, brings any civil proceeding to establish claims, or to enforce rights, which result to the felon, or to the convicted testator from his own crime, the conviction is admissible in evidence, not merely as proof of the conviction, but also as presumptive proof of the commission of the crime.”
A more extensive review of legal commentaries and cases was subsequently undertaken by the Court of Appeal in the United Kingdom in Hollington v. F.Hewthorn & Co. Ltd. and Anor.  1K.B. 587. As this authority stood as the law on this topic in the United Kingdom for the next 25 years, it is clearly a case which requires careful consideration, not least because it is the authority upon which the defendant principally relies in this case also.
The plaintiff in that case was the owner of a motor car driven by his son who died after proceedings were brought claiming damages in respect of an accident which occurred between the plaintiff’s car and a car owned by the first named defendant. Owing to the death of the plaintiff’s son, the plaintiff was unable to adduce any direct evidence of the accident and tendered in evidence, in addition to evidence as to the position and condition of the two vehicles after the collision, the conviction of the defendant’s driver for careless driving at the time and place of the collision. The court held that, both on principle and authority, evidence of the conviction was inadmissible in the subsequent civil proceedings, thereby overruling Crippen’s case on this point. Before considering the ratio of that decision, it is interesting to look at the arguments for and against which were deployed before the Court of Appeal where the plaintiff was represented by Denning K.C. (later, of course, Lord Denning, Master of the Rolls). He noted that the trial judge had ruled that the conviction was inadmissible as res inter alios acta and accepted that the conviction would create no estoppel by way of issue estoppel for that reason. He contended however that the conviction was admissible as prima facie evidence of the defendant’s negligence, arguing that, from the beginning of the 18th century, a conviction was regarded as admissible in subsequent civil proceedings so long as it was not founded on the evidence of the party suing. To admit the conviction in such a case would have been an indirect way of circumventing the disability of the party as a witness.
Considerable emphasis was placed on the fact that the older authorities and commentaries which tended to hold against the admissibility of a criminal conviction derived from the disability of parties and their spouses to give evidence in criminal cases so that to allow in the conviction in subsequent civil proceedings could be characterised as unfair in those circumstances. However, those disabilities had been progressively removed by the Evidence Acts 1851 and 1853, and more particularly by the Criminal Evidence Act 1898 which finally permitted an accused person to give evidence on his own behalf in a criminal cause. Denning K.C. thus contended that a decision of a judicial tribunal, which had gone thoroughly into the evidence in a hearing which provided a full opportunity for an accused person to give evidence, must be admissible in evidence in subsequent civil proceedings.
For its part, the defence argued that the issue which had been before the magistrates who convicted the defendant driver was a different issue from that before the trial judge in the civil proceedings. Any principle laid down for the admission of evidence ought not to cover a case where the res is different. If a conviction is to be admissible, the best evidence of it must be given. That would consist of the evidence of each magistrate who would indicate his view or opinion, thereby arrogating to himself the very decision which the civil court had to decide. The principle enunciated in Crippen’s case amounted merely to a doubtful relaxation of the ordinary rule in a special class of case.
The Court of Appeal held with the defendants’ submissions, stating at p.594:-
Later, in Hunter v. Chief Constable of the West Midlands Police & Ors.  AC 529, the rationale of Hollington was again criticised by the Court of Appeal, Lord Diplock stating as follows at p. 543:-
However, a more comprehensive analysis of the flaws inherent in the Hollington v. Hewthorn decision was undertaken by the Court of New Zealand in Jorgensen v. News Media (Auckland) Ltd.  N.Z.L.R. 961, which, in its comprehensive treatment of this topic may fairly be characterised as the best common law authority on this particular topic.
In that case the plaintiff Jorgensen was tried for a murder in Auckland and following a trial lasting eight days was convicted. An appeal against conviction was subsequently dismissed. The defendant publishers printed an article in the Sunday News on 9th July 1967 which contained the following words:-
The trial judge, faced with the necessity of deciding such an important issue in the course of the trial, concluded he should follow the rule laid down in Hollington v. Hewthorn and accordingly ruled that the defendant was not entitled to rely on the conviction. The jury in the libel action disagreed and were discharged. The judge thereupon informed the parties that prior to a second trial it was his opinion that a ruling should be sought from the Court of Appeal and the question was duly submitted in the following terms:-
‘But, if a conviction does not tend to prove anything except that the person has been convicted then it is difficult to justify the admission of such a question much less to explain the direct encouragement given to it by statute.’ It may also be mentioned that in the same year a critical article appeared in the Canadian Bar Review in which the learned contributor (Mr. C.A. Wright) pointed out that the decision of the English Court of Appeal in Hollington v. Hewthorn was of paramount importance not only because of the wide sweep of the principle it laid down but because it overruled at least three cases which had been followed in Canada and because it manifested an attitude on the subject of evidence which was not as necessary or inevitable as the Court made it appear.”
The second case considered by the New Zealand Court was Barclays Bank Ltd. v. Cole  2 Q.B. 738. In that case the defendant Cole had been found guilty of robbery in a branch of the plaintiff’s bank and had been sentenced to 15 years imprisonment. His appeal was rejected. The bank then sued Cole seeking to recover the money it had lost and in its statement of claim alleged that the defendant had wrongfully entered their branch and robbed a large sum of money. The defendant denied the allegation, wishing to have his guilt or innocence of the robbery retried. In discussing the rule in Hollington v. Hewthorn, Lord Denning M.R. said at p. 743:-
North P. noted in Jorgensen that the outspoken views expressed by these eminent judges undoubtedly persuaded the Lord Chancellor to refer the rule in Hollington v. Hewthorn to the Law Reform Committee in the United Kingdom. North P. then set out in some detail the introductory section to the report which I replicate here as follows:-
(a) he shall be taken to have committed that offence unless the contrary is proved.”
North P. commenced his analysis by distinguishing the case before the court from the type of road accident case with which the Court of Appeal in Hollington was concerned. In noting that little or no inconvenience was experienced by rejecting this class of evidence in road traffic cases it was “plain that outside this limited field very grave problems indeed arise if this rule of rejection is rigorously applied to all classes of cases. As the two recent English cases show, the rejection of evidence of a conviction as providing evidence that the plaintiff had in fact committed the acts which gave rise to his conviction may well result in a denial of justice and leave a defendant amazed that English law should be so irrational. To take the present case, Jorgensen was convicted of murder after a trial lasting eight days. Now, nearly five years later, the defendant in order to succeed in a plea of justification is placed in the difficult position of having to call once again the evidence called by the Crown in the criminal charge, otherwise it is obliged to rely on the commonsense of the jury to award nominal or small damages.”
He took the view that historic cases were of little assistance, because prior to the passing of the Evidence Act 1843 any person who was or could be interested in the question in issue in a civil action was regarded as an incompetent witness and therefore the fact that he gave evidence in the criminal charge rendered evidence of the conviction inadmissible.
He did however note that in Harvey v. The King  AC 601 the Privy Council took the view that an order made under the Lunacy Act 1890 was admissible as prima facie evidence and, having been made by a competent tribunal in a matter within its jurisdiction, could not be rejected as inadmissible or as no evidence of the truth of the facts recited in them which are essential to their validity. Similarly, in Hill v. Clifford  2 C.H. 236, the Court of Appeal found that an order of the Medical Council striking the Clifford’s names off the Register of Dentists on the grounds that they had been guilty of conduct “which was infamous or disgraceful in a professional respect” was, unless or until evidence to the contrary was given, sufficient to prove that the Cliffords were guilty of statutory misconduct.
North P. stated (at p. 972) that this particular decision had been “referred to by a number of legal writers as having been unaccountably overlooked in Hollington v. Hewthorn”. North P. was equally dissatisfied with the manner in which the Court of Appeal in Hollington “swept to one side” the decision in Crippen’s case: “In my opinion the judgment of Sir Samuel Evans makes good sense and should not lightly be put to one side”.
He disagreed strongly with the principal ground upon which the Court of Appeal in Hollington relied in rejecting the conviction of the driver of the defendant’s vehicle for the purpose for which it was sought to be used when it held that the opinion of the Criminal Court was “irrelevant” and no better than the opinion of a bystander to the accident. In rejecting this characterisation he stated at p. 976:-
He thus concluded that the principle ground upon which Hollington was decided should not be accepted. He was equally unimpressed by the second ground relied on in Hollington, namely, that evidence of the conviction should be excluded in that it offended the “best evidence rule”. The son of the driver in Hollington had died and accordingly could not give such evidence. Thus, the question as to whether evidence of a conviction should be rejected or admitted in no way depended on whether the plaintiff’s son was dead or alive. On the ground that a conviction was inadmissible as offending the Latin maxim res inter alios acta, he accepted that a stranger should not be prejudiced by a judgment in personam between other parties, but noted, that as had been pointed out by Sir Samuel Evans in Crippen’s case, there is a difference between the position of a stranger and the position of a person who was a party to the criminal proceedings. Accepting that mutuality or reciprocity was an essential feature of an estoppel, he stated that he could not see what application it had when coming to consider the question of admissibility of evidence of a conviction, noting that Professor Cross (Cross on Evidence, 3rd Ed., 49) felt that objections on this ground should not apply where a party to the earlier judgment is also a party to the later proceedings. On the point that evidence of a conviction if admitted should mean that evidence of an acquittal should also be admitted, North P. (at p. 978) saw “no parallel between a conviction and an acquittal, for acquittal on a criminal charge establishes no more than that the Crown failed to prove the accused’s guilt beyond reasonable doubt whereas a conviction must be interpreted to mean that the charge was established beyond reasonable doubt”.
He finally considered whether, notwithstanding its relevancy, evidence of a conviction was nonetheless inadmissible on the ground that it did not come within one or other of the recognised exceptions to the hearsay rule. North P. in this regard accepted the majority view of the Court of Appeal in Myers v. Director of Public Prosecutions  A.C. 1001 that exceptions to that rule were permissible where common sense and the pursuit of truth demanded it, citing (at p. 979) Lord Pearce who said:-
In so far as onus of proof considerations were concerned, North P. stated:-
In my opinion then the question submitted to this court should be answered thus: in the present case proof of the conviction of the plaintiff Jorgensen of the murder of Speight, while not conclusive of his guilt, is evidence admissible in proof of the fact of guilt. Whether such evidence discharges the evidentiary burden of proof at any stage of the trial will be for the court to decide on the evidence tendered.”
Finally, on the hearsay point he stated as follows (at p. 990):-
The law in this jurisdiction in my view may be taken to be that laid down in Harvey v. The King and in Crippen’s case, cases decided in 1901 and 1911 respectively, unless subsequent Irish authority may be shown to have taken a different course.
In dismissing the plaintiff’s action, O’Hanlon J. held that where a clearly identifiable issue has been decided against a party in a criminal trial, by means of a judgment explaining how the decision was reached, such decision may give rise to issue estoppel in subsequent civil proceedings in which that party is involved and in the absence of special circumstances, an effort by a party to challenge by means of civil proceedings a decision made against him by a court of competent jurisdiction is an abuse of the process of the court.
However, I believe Mrs. Nevin’s solicitor is correct in saying that no question of abuse of process can be said to arise in the instant case for the very simple reason that Catherine Nevin is a defendant and not a plaintiff who, by initiating proceedings, might be characterised as mounting a collateral attack on a final decision made by another court of competent jurisdiction. Further, Kelly’s case was concerned with the admissibility or otherwise of a statement only. O’Hanlon J. specifically resiled from deciding the issue of whether a conviction in a criminal offence could be proved in later civil proceedings. He stated as follows at p. 327:-
In reaching that conclusion, however, the court found it necessary to overrule a number of earlier decisions which had stood unchallenged for many years. In one of these, In the Estate of Crippen  P. 108, the President of the Probate, Divorce and Admiralty Division admitted evidence of the conviction of Crippen, and also concluded that it amounted to prima facie proof that he had murdered his wife.
While the law in England, as declared by the Court of Appeal in Hollington, was altered by the enactment of the Civil Evidence Act 1968, the correctness of that decision was also seriously challenged by Lord Denning in McIlkenny, when he said at p. 237 (a): ‘beyond doubt, Hollington v. Hewthorn was wrongly decided. It was done in ignorance of previous authorities. It was done per incuriam. If it were necessary to depart from it today, I would do so without hesitation’.
Having regard to the great diversity of judicial opinion as between the Court of Appeal which decided Hollington and that which decided McIlkenny I would prefer to leave open the question whether evidence of previous conviction may be given in civil proceedings in this jurisdiction where it is clearly relevant to the issue the court has to try, and as to whether it can be relied on to establish the guilt of the accused as well as the fact of his conviction. For the purposes of the present case it is sufficient to decide whether evidence can be given as to the decision of a particular issue in the course of the criminal proceedings, other than the issue as to whether the accused was guilty of the offence charged, and to consider the effect of such decision if the evidence is admissible.”
On the question of issue estoppel, he was satisfied in that case that the requisite privity for an issue estoppel arose, because the Director of Public Prosecutions in the criminal proceedings acted on behalf of the people of Ireland, and in defending a civil claim against the State, the Attorney General also acted on behalf of the people.
That consideration does, I think, also distinguish Kelly’s case from the instant case. It is of course true to say that the present plaintiffs represent Thomas Nevin in the sense that they are his legal personal representatives. However, neither they or Nora Nevin (who first extracted letters of administration to Thomas Nevin’s estate) could be characterised as pursuing anything other than a private claim of their own in suing Catherine Nevin and cannot in law be equated with “the people” generally or even with the Director of Public Prosecutions who performs a specific, separate and independent function in our criminal law system.
Accordingly, I do not find that this case provides a comprehensive answer to the question which this Court must address, though clearly O’Hanlon J. was sympathetic to the kind of arguments being advanced by Mr. Brady in this case, given that at p. 328 he stated:-
A similar view to that taken by O’Hanlon J. in Kelly’s case was taken by Lardner J. in Breathnach v. Ireland and the Attorney General & Ors.  I.R. 489, a case arising out of the same facts as in Kelly’s case and concerning a similar issue with regard to the admissibility of a statement in evidence in civil proceedings which had been earlier admitted in criminal proceedings. Lardner J. was satisfied (at p. 9) that:
‘… I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again.’”
While both authorities may to that extent be seen as supportive of the plaintiffs’ case in these proceedings, both relate to cases where the accused in the criminal case sought, as plaintiff in civil proceedings, to bypass the earlier adverse finding, whereas Catherine Nevin, the defendant in this case, raises it by way of shield or defence only.
The final Irish authority opened to the Court in this matter was the judgment of Irvine J. in Madden v. Doohan & Ors.  IEHC 422. In that case Terence Madden was shot dead outside his home in Co. Sligo by the second named defendant, Michael Herron. The plaintiff, the widow of the deceased, brought proceedings under Part IV of the Civil Liability Act 1961 on her own behalf and on behalf of the other statutory dependants of the deceased. Judgment in default of appearance was obtained against the second named defendant and only the first named defendant appeared in person at the trial of the proceedings. In the course of the proceedings which occurred before Irvine J. the court received evidence that the first, second and fourth named defendants were charged and convicted of the murder of the deceased, together with other offences. The criminal trial had taken place before the Special Criminal Court and the judgment of that court was delivered by Morris P. on 26th July, 2000. That judgment fully set forth the court’s conclusions in relation to the evidence and submissions of the parties.
In the course of the hearing, counsel on behalf of the plaintiff relied on the decision of O’Hanlon J. in Kelly’s case. Irvine J construed the decision in Kelly’s case as meaning that where a clearly identifiable issue is decided against a party in a criminal trial by means of a judgment explaining how the decision was reached, that decision gives rise to an issue estoppel in subsequent civil proceedings in which that party is involved. She stated as follows at p. 5:-
The learned trial judge in that case did not appear to draw a distinction between the position of a convicted person who thereafter appears as a plaintiff, rather than a defendant, in civil proceedings. Can abuse of process be laid at the door of a defendant as well as a plaintiff? I see no principled reason why it should not be possible but that point was not decided by either O’Hanlon J or Lardner J. No argument appears to have been made in the case before Irvine J. that a necessary requirement for issue estoppel, namely, privity of parties, may not have been fulfilled in that case. It will be remembered that in the Hollington case, when he appeared as king’s counsel for the plaintiff, Lord Denning did not rely on issue estoppel as the critical legal principle warranting admissibility.
In any event, I am satisfied that none of these three Irish authorities specifically address the issue which this Court is called upon to determine in the present proceedings, and indeed O’Hanlon J. expressly resiled from going further than he felt was required of him in Kelly’s case.
Finally, while I was referred in a general to contrasting views on admissibility in a number of authorities from various states in the U.S., none provided the detailed reasoning elaborated in Jorgensen’s case and were of little or no assistance.
I have already adverted to the further application to the Court of Criminal Appeal which was re-lodged with the Court of Criminal Appeal the day before this issue was due to be heard. That application was not of course an appeal per se, but rather an application to that court for a certificate for leave to appeal to the Supreme Court on the basis that some exceptional point of public importance arose in the section 2 proceedings.
Quite apart from my finding that there was an agreement between counsel that the legal issue be dealt with, I am satisfied that now, nearly thirteen years after her conviction, the undertaking given on behalf of the plaintiffs in January 1998 to take no further steps in these proceedings pending final determination of the criminal proceedings has been discharged following the conviction of the defendant and the rejection by the Court of Criminal Appeal of two subsequent appeals. I believe the plaintiffs are entitled to have adjudication upon the issue raised in this case after such a long interval of time having regard to their entitlement to an adjudication within a reasonable time on the matters contended for in these proceedings.
It is argued for all the reasons outlined above that the defendant’s conviction for murder is admissible in these civil proceedings brought against her. The defendant’s position on the issue is encapsulated in the simple proposition that this court should follow the ‘traditional’ rule established in the Hollington v. Hewthorn case in the United Kingdom to rule out as inadmissible a criminal conviction in subsequent civil proceedings. However, I am satisfied that no convincing case, based on Irish case law, has been made out to support that proposition. Indeed, the Irish authorities evince a strong inclination in the other direction.
To start with, the courts in this jurisdiction were, in the years following independence, spared the consequences and confusion created by the decision in Hollington’s case which gave rise to the passing of the Criminal Law Evidence Act in the United Kingdom in 1968. It is clear that the Act in question was necessitated by that unsatisfactory decision of the Court of Appeal.
I am satisfied that counsel for the plantiff is correct in stating that this Court can, like the Court of Appeal in New Zealand, take as its starting point the law as enunciated in Crippen’s case. Sir Samuel Evans remarked in Crippen’s case on the extended rights which an accused person enjoyed by the time Crippen came to trial. It can hardly be said that since 1910 the rights of an accused person in this jurisdiction have in any way diminished. Indeed, the opposite is the case and any accused person, such as the defendant herein at the time of her trial, has every opportunity to participate fully in their case, challenge witnesses, give evidence and call witnesses. I am satisfied, for all the reasons adumbrated in Jorgensen’s case, that the conviction of the defendant for her husband’s murder is admissible in these civil proceedings as prima facie evidence of the fact that she committed such murder.
The identification of the precise legal principle upon which such a conclusion is arrived at has taken different forms over the years. In Crippen’s case it lay in the application of the principle omnia praesumuntur rite esse acta combined with public policy considerations. There are also good grounds for taking the view, as has been taken in the Irish cases, that an issue estoppel arises where the party affected was a party in the criminal proceedings. Equally, the view that for the convicted person to again put in issue the correctness of a conviction in the criminal courts amounts to an abuse of process which the courts will restrain, an approach which has also found favour in the Irish decisions to which I have referred. I have indicated in the course of this judgment some of the slight reservations I have about deciding the issue on the basis of either issue estoppel or abuse of process. In circumstances where several legal principles can be invoked in aid, I prefer to base my view ultimately on the proposition that the admissibility of the murder conviction is either authorised on foot of the decision in Crippen’s case or comes within an exception to the hearsay rule as suggested and found by the Court of Appeal in New Zealand in Jorgensen’s case. The reasons for so holding were set out with particular clarity in the judgment of Turner J. in that case and they are (a) that there can be no real doubt that a certificate of conviction constitutes unimpeachable evidence not only of the fact that a person was convicted, but also that the court did in fact consider the person guilty of the crime (in other words any of the usual objections to hearsay – that the version given in court may be unsatisfactory as false, unreliable, biased, untested by cross-examination etc – simply do not arise) and (b) any objection that the court may have been wrong is more than addressed by the requirement that the court before convicting must be satisfied beyond all reasonable doubt that the person was guilty of the crime charged.
This legal principle sits most comfortably with the view that the conviction should be seen as prima facie evidence only of guilt.
To rule out the conviction as completely inadmissible would, in my view, be contrary to logic and common sense and offend any reasonable person’s sense of justice and fairness. An alternative interpretation whereby it is admitted as prima facie evidence is clearly open on the authorities in this jurisdiction. There is the clearest public policy consideration for so holding and it is set out starkly and unambiguously in s. 120 of the Succession Act 1965. That policy consideration may be characterised as being no more and no less than that the perpetrator of the crime of murder should not be the beneficiary of it.
However, having concluded that evidence of the conviction of Catherine Nevin for murder is admissible in the plaintiff’s various civil claims against her, I would go no further than did the Court of Appeal in New Zealand to say that the conviction is prima facie evidence only that Catherine Nevin murdered her husband. It is still open to Catherine Nevin on the trial of the civil proceedings to contend that she did not murder Tom Nevin and that she should not have been convicted. While the interval of time which has elapsed since her conviction may create certain difficulties for both sides in these proceedings, such delay has arisen as a result of the full exercise by the defendant of her rights under our criminal law system and I think it would be most unfair to the plaintiffs if they were now locked out from seeking a remedy for that reason.
In conclusion, it would be of considerable assistance if a suitable amendment of s. 120 (1) of the Succession Act 1965 could be effected so as to address the anomaly referred to in the earlier part of this judgment.