Supporting Documents:

THE SUPREME COURT

DETERMINATION

BETWEEN

RESULT: The Court grants leave to the applicant to appeal to the Supreme Court.

REASONS GIVEN:

Jurisdiction

1. This is an application by the defendant, Catherine Nevin, for leave to appeal against a decision of the Court of Appeal (Finlay Geoghegan J., Irvine J., Hedigan J.), delivered on the 7th March, 2017, and an order perfected there under of the same date. (Nevin v. Nevin [2017] IECA 63,[2017] 1 I.L.R.M. 441). In that order the Court of Appeal dismissed an appeal brought by the defendant/applicant, Catherine Nevin, against a judgment and order of the President of the High Court, (Kearns P.), delivered on the 1st March, 2013. ([2013] I.E.H.C. 80. [2013] 2 I.L.R.M. 427)

2. As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment, it is necessary, in order for the Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interests of justice necessary that there should be an appeal to this Court.

3. The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

Background

4. Thomas Nevin was murdered on the 19th March, 1996 in his licensed premises, Jack White’s in Brittas Bay, County Wicklow. Thomas Nevin was married to Catherine Nevin, the defendant/applicant 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 owned and operated the premises. Following her husband’s death, the defendant/applicant re-opened Jack White’s and operated same for a period of time before the premises were sold in 1997 for Ir.£620,000.

5. The instant proceedings were commenced by plenary summons on the 4th November, 1997. In them, Nora Nevin, the mother of the late Thomas Nevin claimed against the defendant/applicant, Catherine Nevin:

(a) A declaration that the defendant be disinherited by common law from taking any share in the estate of the deceased;

(b) A declaration that by virtue of s.120 of the Succession Act, 1965, the defendant be precluded from taking any share, either as legal right or otherwise, in the estate of the deceased;

(c) A declaration that the defendant be not entitled to any share in the public house premises known as Jack White’s Inn, or any other assets of the deceased;

(d) Damages pursuant to the Civil Liability Act 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 was 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.

7. The applicant, Catherine Nevin, was charged with a series of offences, including murder contrary to common law under s.4 of the Criminal Justice Act, 1964, and s.2 of the Criminal Justice Act, 1990, of Thomas Nevin at Jack White’s Inn. She was convicted of murder and a number of other charges, including that of soliciting the murder of Thomas Nevin. She was sentenced by the Central Criminal Court to imprisonment for life on the charge of murder, and 7 years on the remaining counts, to run concurrently. Catherine Nevin has, at all times, denied any involvement in the death of Thomas Nevin.

8. These proceedings lay in abeyance for the many years during the processing of the criminal case involving Catherine Nevin, and the appeals there from.

9. There follows a description of what occurred in the High Court and Court of Appeal. For simplicity, Patrick Nevin and Margaret Lavelle will hereinafter be referred to simply as “the plaintiffs”; Catherine Nevin as “the defendant”, although she is the applicant to this Court.

10. In advance of the full hearing of the plaintiffs’ claim, to which the defendant has delivered a full defence, the plaintiffs, by Notice of Motion dated the 11th April, 2012, sought the trial of a preliminary issue as to the “admissibility of the evidence of the defendant’s trial and subsequent conviction for the murder of her husband, Thomas Nevin”. The application was based on the premise that the criminal proceedings were complete, and that the plaintiffs, being brother and sister of the late Thomas Nevin, were entitled to a hearing and determination of the claims advanced by them in the plenary summons. This application was heard as a preliminary issue, although other legal issues regarding admissibility of evidence could also foreseeably arise at the plenary hearing.

11. A number of unusual events occurred during the hearing of the motion, which are described in the judgment delivered in the High Court by the then President, Kearns P. They are not relevant to this application. A copy of that judgment is, however, to be found on the Courts Website.

The Law

12. Section 120 of the Succession Act, 1965 introduced a new legal provision intended to effect “the exclusion of persons from succession”. It provided:

“(1) A sane person who has been guilty of the murder, attempted murder or manslaughter of another shall be precluded from taking any share in the estate of that other, except a share arising under a will made after the act constituting the offence, and shall not be entitled to make an application under section 117.

…

(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 in 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.”

13. The issue in this case derives in significant measure from the decision of the Court of Appeal of England and Wales in Hollington v. Hewthorn [1943] KB 587. This persuasive authority has been analysed and considered in the United Kingdom, Canada and South Africa. That issue is whether a simple conviction for murder was admissible evidence in a later civil proceeding brought against a person convicted of that murder?

14. In his judgment in the High Court, Kearns P. held at p. 433 - 434 that if the evidence was not admissible, then it would follow that the defendant in the civil case would be in precisely the same position as a person who was acquitted or never charged with the offence in question. The conviction could not be used in any way whatsoever in the civil case. If on the other hand the conviction was admissible, the question arose as to whether it was conclusive of the fact that the defendant murdered her husband or simply prima facie evidence of that fact, leaving to the defendant the right to argue that she should not have been convicted.

15. Before the High Court, the plaintiffs, for their part, did not contend that the convictions, if admitted, were conclusive evidence against the defendant, nor did they contend that the evidence given at the criminal trial was in some way admissible in the civil proceedings. Kearns P. held at p. 454 that the defendant’s conviction for murder was admissible as prima facie evidence she had committed the murder. He based his conclusion on the judgment in In the Estate of Cunigunda (otherwise Cora) Crippen (Deceased) [1911] 1 P. 108. He held the conviction was an exception to the hearsay rule.

16. In the Court of Appeal, Finlay Geoghegan J., with whom Irvine J. concurred, observed that the issue was complex, and that it was necessary to make clear at the outset the limited issue with which the Court of Appeal was dealing on the appeal.

17. Finlay Geoghegan J., held that the decision of the High Court should be upheld, and that insofar as it may be considered that the admission of the conviction in the present proceedings involved an extension of the common law exception to the rules against hearsay, it was justified, both upon grounds of necessity and relevance. But, Finlay Geoghegan J. pointed out, on behalf of the majority, that she was not expressing any concluded view on the proper statutory interpretation of s.120 (1) of the Succession Act, and that such issue remained to be considered by the High Court, and was not an issue which should be considered as already determined, either by the judgment of the High Court or of the Court of Appeal. Hedigan J., concurring, held that the certificate of conviction of the appellant for the murder of her husband would be admissible, even though it was technically hearsay, and further held that the certificate of conviction of the appellant was also admissible at common law as a public document. He held that it was not necessary to address the issue raised concerning the wording of s.120(1) of the Succession Act, 1965, as opposed to s.120(4) thereof.

The Applicant’s Case

18. On behalf of the applicant, Catherine Nevin, it is said that the Court of Appeal erred in law in finding that a certificate of conviction of the defendant for the offence of murder was admissible, as prima facie evidence of the applicant having committed the murder. It is said this would be an unjustified and unwarranted extension of the exception to the rule against hearsay. It is also said the Court of Appeal erred in law in finding that a certificate of conviction of the applicant for the offence of murder was admissible, as an exception to the hearsay rule, by virtue of being a public document in the within civil proceedings, as prima facie evidence of the applicant having committed the murder. It is submitted the Court of Appeal erred in law in failing to have any, or any adequate, regard to the provisions of s.120(1) and s.120(4) of the Succession Act, when determining the question before it. The defendant/applicant contends that the Court of Appeal wrongly found that the true construction of s.120 (1) was not relevant to the question before it. It is said these are points of law of general public importance.

The Respondents’ Case

19. On behalf of the respondent, it is said the decision upon which leave to appeal is sought does not involve a point of law of exceptional public importance. It is said the judgments of the Court of Appeal were not decided on the interpretation of the relevant sections of the Succession Act, but were, rather, based on the common law, and the law of evidence. It is said the judgments of the Court of Appeal simply dealt with the admissibility of evidence in civil proceedings, namely, the certificate of conviction of Catherine Nevin in the Central Criminal Court. It is said this did not interfere with a right to call such evidence as might be deemed fit, or to cross-examine witnesses, as the respondent might call to give evidence. The respondents/plaintiffs emphasise that Finlay Geoghegan J. pointed out that to fail to extend the exception, as to exclude admission of the conviction as evidence would be contrary to logic and common sense, and offend any reasonable person’s sense of justice and fairness. It is further said the applicant did not serve a notice of appeal on the respondents within 7 days of filing the Notice of Application for leave to appeal to the Supreme Court. If necessary, the Court will extend the time for appeal, subject to any submission that may be made thereon by the respondents at the appeal.

Discussion

20. As was pointed out by Finlay Geoghegan J. at par 21 of her judgment, the issue which arises in this case is far from simple ([2017] 1 I.L.R.M 441 at 447). As she also pointed out, the manner in which the motions were brought before the Court of Appeal was undesirable, especially in light of the fact that the Court was invited to assess the issues prior to, and not in the context of, evidence. These observations are as valid to the application to this Court. The law and procedure requires clarification.

21. It might be said, there would be much to be said for refusing the application on the basis that the matter should be remitted for plenary hearing, and that, thereafter, the unsuccessful party, or parties, be permitted to bring whatever appeal might be desired, again to the Court of Appeal, or if necessary, ultimately, to this Court.

22. However, on balance, this Court is persuaded that the issues raised are of general public importance in order to clarify the law, and that it is desirable and necessary that the issues be resolved. Accordingly, the following issues fall for determination:

(a) Whether, in the circumstances, the plaintiffs’ procedure in bringing a pre-emptive motion of this type was appropriate, and what principles should be applied by the courts to such application;

(b) Whether the decision of the Court of Appeal was correct, in particular, but not confined to, the question as to whether the law, as found, places an onus on the defendant, (whose conviction for murder may be admitted as being prima facie evidence against her), to adduce evidence seeking to impugn her criminal conviction, or to impugn the proposition that the conviction establishes their guilt, as such, compelling a plaintiff to establish a matter which is already a matter of record. As such, it forces the defendant, if they are to have any defence, to launch a collateral attack on their criminal conviction, which is prima facie undesirable in the public interest.

(c) Whether a collateral challenge to the conviction would constitute an abuse of process;

(d) Whether Hollington v. Hewthorn [1943] KB 587 remains good law in Ireland.