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Irish Court of Criminal Appeal
You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P.-v- Anton Mulder  IECCA 63 (20 July 2007)
Cite as:  IECCA 63,  4 IR 796
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Judgment Title: D.P.P.-v- Anton Mulder
Composition of Court: Geoghegan J., McKechnie J., Clark J.
Judgment by: Geoghegan J.
Status of Judgment: Approved
Outcome: Quash conviction & direct re-trial
Notes on Memo: Reasons stated
COURT OF CRIMINAL APPEALGeoghegan J.
THE PEOPLE AT THE SUIT OF THE
DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT of the Court delivered by Geoghegan J. on 20th day of July 2007
Because of inappropriate interaction with the jury at or in connection with the trial of the applicant for murder and of which he was convicted, this court, on hearing the applicant’s application for leave to appeal, treated the application as the hearing of the appeal itself, allowed the appeal and ordered a new trial. The court indicated that it would give its reasons later and this judgment now contains those reasons.
As I will be explaining, the reasons are effectively twofold. One was the cumulative effect of the incidents complained of taken in conjunction with the nature of exchanges which the trial judge had with the foreman of the jury and the relevant juror and secondly, but separately, on the grounds that the trial judge applied the wrong legal test in considering whether he should discharge the jury by reason of the interventions or not.
The relevant events commenced on the 2nd May, 2006 during the arraignment of the applicant in the presence of the jury panel from which the jury ultimately trying him was drawn. After the applicant had pleaded “not guilty to murder, but guilty to manslaughter” there was what is described in the transcript as “shouting from public gallery”. The presiding judge, Carney J., asked whether the people shouting could be identified and directed that anyone identified should be taken into custody and brought before him at a later stage. The judge then ordered a repeat arraignment and the applicant answered in the same way. The plea of guilty to manslaughter was not acceptable to the prosecution and the judge therefore proceeded to swear in a jury. However, before the actual swearing took place, a garda indicated that he had identified a person. The judge asked that person who was a male “in what capacity are you here?”. The question had to be repeated and the man then said the following, all in the presence of the jury panel.
“I’m a witness for my sister, so I do apologise for shouting …I here apologise in front of the court and I will stand outside in the foyer. It is just my reaction to seeing my sister’s husband who strangled her, it just came out of me.”
“Now, members of the jury, last chance saloon, are you all satisfied that you are going to be able to stick with this case until verdict, which could be about two weeks away? You are all satisfied with that? Very good. Now, the second thing I want to mention to you: the trial judge won’t be aware that an incident happened this morning in the presence of the jury panel, which I’ll be dealing with later. This is a trial in accordance with law; it is not a show trial. Accordingly, nothing at this stage has been proved for or against anybody. You will be trying the case on the evidence that is produced and cross-examined upon, and I want to know whether the incident took place in your presence is going to cause any of you difficulties?”
On the first day of the trial proper i.e. the 3rd May, 2006 a witness called Andrea Pollock was called on behalf of the prosecution. She confirmed in evidence that she was married to William Pollock, who was the youngest brother of the deceased lady alleged to have been murdered by the applicant. She turned out to be a witness who had to be kept under control so as to avoid breaching the hearsay rule. In fairness, any trespassing of that rule by her would appear to have been unconscious and in the context of her evidence it was difficult to keep within the rules. Be that as it may, from the tenor of her evidence the jury would have got the message that she did not have good relations with the applicant and that this was largely because of information coming from her sister-in-law. She then proceeded to give relevant circumstantial evidence against the applicant.
On day three of the trial i.e. 5th May, 2006 the following happened. When the court sat and in the absence of the jury, counsel for the prosecution informed the judge that the gardaí had some concerns as to the behaviour in court of the said Andrea Pollock and her brother William Pollock and he requested the judge to make an order excluding them from the court while the evidence continued. After some minor discussion with counsel for the applicant which it is not necessary to outline, the learned trial judge himself said the following:
“I will be drawing this to the attention of the jury but I may as well as we are dealing with the whole thing, I have a note from the foreman, Mr. Shortall saying:
“JUDGE: He is the gentleman in question, very good. I think it is proper, Mr. O’Hanlon, unless counsel agree that I should not do this, I think it would be proper for me, to, first of all, assure Mr. Shortall that I have received this note, taken it seriously, and perhaps ask him, discreetly perhaps, over lunch, to check with the members of the jury that they don’t feel in anyway affected unduly and incapable of discharging their function. Perhaps that is overreacting, I don’t know.
MR. CLARKE: No, I am very concerned. Could I enquire if the foreman explains what is meant by … (the transcript did not pick it up)
JUDGE: You could, certainly, of course. That’s all I have is a note to myself through the registrar.
MR. CLARKE: Then I am wondering if it might be more appropriate, just in case there is even the slightest possibility of anything untoward that Your Lordship could in fact make an order excluding William Pollock and Andrea Pollock from the court building entirely.
JUDGE: It may seem possible. You are shaking your head Mr. O’Hanlon. (Mr. O’Hanlon was counsel for the applicant).
MR. O’HANLON: It is not about that application, it is about, I was unaware until Your Lordship said it. Any interference with the jury, mid-trial, in my view, can only be dealt with in one way properly, and that is to discharge the jury and recommence. We don’t know what was said, we don’t know the extent of it. I think juries are – Judge Carney when he was swearing in the jury made reference to the fact that jury panels develop a shyness when they are being sworn in and very often you will find on a jury somebody who midway through a trial will, for example, certainly disclose that they are not able to stay for the extra week and they fail to bring this to the attention of the jury when they are being sworn in. There is a reluctance to bring matters of that kind up in public. Any inquiry in relation to this would suffer from the same danger, that there would be a reluctance on any juror, in my view, to ever say that they are not able to continue to act. But any intrusion into the jury function in that way, to the extent that it has resulted and has been brought to the attention of Your Lordship, in my view can only mean that the jury has, in that sense been interfered with in a way that is improper. So that the trial can be seen to run fairly the only proper course is to have a jury where this does not occur and hasn’t throughout the trial. I wouldn’t be happy that it could simply be cured by inquiring of the jury. The fact that it has happened is something which affects the ability, in my view, of this jury to continue.”
The judge then enquired were there any precedents which would help him in dealing with the situation. Nothing very helpful was conveyed to the judge except a vague reference to some other case. Mr. Clarke submitted that to request the jury to be discharged was an overreaction. He then proceeded to recount for the benefit of O’Sullivan J. the incident which occurred at the swearing in before Carney J. He explained that the person who shouted on that occasion was the William Pollock now being referred to. Mr. Clarke went on to encourage the trial judge to seek further particulars from the foreman. At that point, the judge made an order excluding William Pollock and Andrea Pollock from the court building and from the streets surrounding the building during the course of the trial. Mr. O’Hanlon then made a further submission to the judge in the following terms.
“I should say, Your Lordship is probably not familiar with this but the concern in relation to that witness goes simply beyond him being the brother of the deceased because the interviews were clarified by the gardaí, they were giving evidence in relation to this and there is specific concern about this particular gentleman which is referred to in the text of the interviews which the jury haven’t heard yet, which would again give concern about him having any contact or having had any contact whatsoever…”
The trial judge then proceeded to give a ruling. After referring to the well established principle that courts would be very slow to discharge a jury that has embarked on a trial, he concluded that on balance he should question the jury in relation to what had happened rather than decide at that stage to discharge them. The judge then addressed the jury referring expressly to the note which he received from the registrar. He suggested to the foreman, Mr. Shortall, that he would obtain the correct facts from the members of the jury as to what the nature of the contact was. He then allowed the jury retire for that purpose.
When the jury returned, the foreman said the following:
“I have established that … (unfortunately this did not come out on the transcript) I need to go back a little bit to Tuesday, to Mr. Carney’s court. When the indictment against the accused was read out there was a scuffle at the back and it turned out that the outburst was by the deceased’s brother, a Mr. William Pollock and he was brought before Justice Carney? The next day, which was Wednesday the 3rd of May, we assembled on the corridor outside Court 15 when one of the jurors was asked by the said Mr. William Pollock if he could borrow the newspaper of the day and he read out the article, referring to this trial, and made it clear that the reference to the person who gave the outburst was in fact himself. And there were other people in the neighbourhood in the courts who heard what he was reading out. But the feeling that the juror felt was that he was familiarising himself with the juror. At the end of the first session, which was Wednesday, 3rd May, he greeted the said juror – that is to say Mr. Pollock – greeted the said juror with a smile and a nod. The outcome of the whole thing is that the juror in question feels somewhat intimidated and uncomfortable. And that concludes what I have to say.”
“What I like to, this is an entirely open question, you tell me the juror feels somewhat intimidated and uncomfortable, what I really want to know is was there only one juror who …”
“JUDGE: Mr. O’Brien, what I am concerned to know is … you are aware of course that you have taken an oath to try the case in light of the evidence only without fear or favour and without any considerations, other than considerations of the evidence under my direction on the law. What I am interested to know is do you feel … first of all, do you agree with Mr. Shortall’s summary?
MR. O’BRIEN: I do
JUDGE: And do you feel intimidated or uncomfortable? He said I think ‘somewhat’.
MR. O’BRIEN: I think the word I am using and stressing was, the familiarity was wrong. That is about the extent of it. I don’t feel intimidated or … (it did not come out on the transcript) but the word I did use to the foreman was the familiarity that was drawn to me, I just felt that was wrong.
JUDGE: Well do you feel in anyway inhibited or uncomfortable, or in anyway curtailed or affected … your ability to discharge your duty as a juror in anyway affected, even if intimidated is too strong a word, do you feel in anyway that you would be compromised or inhibited in giving the full consideration to the case in a way that is entirely, as I described earlier by reference to the evidence and not by reference to anything else.
MR. O’BRIEN: No, I feel it is probably ok to carry on as it stands.”
At that point, the judge asked the jury to retire while he discussed the matter with counsel.
Mr. Clarke submitted to the judge that in view of Mr. O’Brien’s answers there was no justification for discharging the jury and that the complaint was merely “a slight familiarity”. When asked to expand on that, Mr. Clarke said the following:
“His complaint was that on Wednesday morning he thought there was a slight over-familiarity, and he has told Your Lordship that he has disagreed with Mr. Shortall’s use of the work ‘intimidated’ I think. He felt the familiarity was wrong. That was his …”
“The correct test to be applied in such cases was whether there was a real danger that the accused was or might have been prejudiced by what had gone on.”
In reply, Mr. Clarke claimed that all of this was a gross exaggeration. The witness was merely asking for a newspaper. And in so far as he was referring to a report of the case, he was merely repeating something that had already happened. The judge did not agree with Mr. Clarke’s summation in that he pointed out that there were two pieces of information that were new to Mr. O’Brien, first that it was William Pollock who had made the outburst on the previous occasion before Carney J. and secondly, that it was William Pollock who had saluted the juror and made himself known once again. Mr. Clarke, however, corrected the judge to the extent that he pointed out that William Pollock had been identified in the presence of the jury before Carney J.
The trial judge then gave a further ruling. Having referred to what Mr. Shortall, the foreman, had first told him, he then referred to his own questioning of Mr. O’Brien and he referred to the fact that Mr. O’Brien had felt that the familiarity was wrong and that that was the extent of it. The next sentence of the judge is quite important. He said the following:
“He didn’t quite agree with the foreman’s description that he was somewhat intimidated and he said he did not feel intimidated but he did feel that the familiarity was wrong. In response to my question, he felt confident that he could carry on as a juror.”
Before commenting further on the foregoing factual history it is appropriate to refer to what seems to be the most recent relevant Irish authority on the matters in issue. This is a decision of this court (Fennelly, Kinlen and Murphy JJ.) in The People (DPP) v. Tobin  3 I.R. 469. It is only necessary to refer to the conclusion arrived at in the judgment of Fennelly J. in that case on what the relevant Irish legal principle is. At p. 473 of the report, it is stated as follows:
“The court is of the opinion that the issue must be decided in the light of the right to a fair trial guaranteed by Article 38 of the Constitution. The right of an accused person to be tried by a jury free from any suspicion or taint of bias is one of the cornerstones of the criminal justice system.”
Returning to the facts, there was not just one single intervention by a juror in this case which could easily be cured by appropriate directions to the jury. There were a number of elements to which I have drawn attention as I went through the facts. The most important of all, of course, was the report by the foreman that Mr. O’Brien had said he was intimidated. The more the judge questioned the jurors and in particular Mr. O’Brien, thereafter the more likely would be the answer that they were unbiased and fully able to try the case. It was more important for him to draw the correct inferences from the original report of the foreman. No matter what Mr. O’Brien said after that, an objective observer knowing the facts would have had a reasonable doubt, putting it at its minimum, as to whether there was an element of intimidation which could at least subliminally affect the juror and, perhaps by extension, the jury as a whole. While courts should be reluctant to discharge a jury because of individual incidents involving communication with a juror the nature of this intervention and the cumulative effect of the incidents and the conflict to some extent in the reports given to the judge would have all led an observer to be concerned that there would be a risk of an unfair trial.
There may be cases where even if that were so, this court might be in a position to decide at the end that in actual fact there was a fair trial. However, in the nature of things that is not possible here. Having regard therefore to the factual history which I have given and having regard also to the fact that the judge applied the wrong legal test, the court took the view reluctantly that there must be a new trial. The appeal was, therefore, allowed.
DPP v. Mulder