DPP v Anton Mulder

JurisdictionIreland
CourtCourt of Criminal Appeal
JudgeGeoghegan J.
Judgment Date20 July 2007
Neutral Citation[2007] IECCA 63
Docket Number[C.C.A. No. 90 of 2006]
Date20 July 2007
DPP v MULDER
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
v.
ANTON MULDER
Applicant

[2007] IECCA 63

Geoghegan J.

McKechnie J.

Clark J.

90/06

COURT OF CRIMINAL APPEAL

CRIMINAL LAW

Jury

Fair trial - Interference - Failure to discharge jury - Test to be applied - Whether test objective or subjective - Whether nature of interference with jury would lead to risk of unfair trial - D v DPP [1994] 2 IR 465, Bula Ltd v Tara Mines Ltd (No 6) [2000] 4 IR 41 and People (DPP) v Tobin [2001] 3 IR 469 applied; R v Sawyer [1980] 71 Cr App R 283 not followed - Appeal allowed, retrial ordered (90/2006 - CCA - 20/7/2007) [2007] IECCA 63

People (DPP) v Mulder

there was inappropriate interaction with the jury at or in connection with the trial of the accused. Issues arose when at the arraignment stage of the accused trial and on pleading not guilty to murder but guilty to manslaughter, shouting from the public gallery was heard. Before the swearing of the jury, a Garda identified a man who was the brother of the victim who said in the courtroom that he reacted on seeing his sister's husband who strangled her. The judge asked the jury after empanelment, whether the incident would cause any difficulties. One of the jurors reported that the deceased's brother made himself familiar with him on two occasions. The judge drew attention to this matter and excluded the deceased brother and his wife from the court building and from the streets surrounding the building during the course of the trial.

Held The cumulative effect of the incidents involved would have led to an unfair trial. The appeal was allowed and a re-trial ordered.

Reporter: E.C.

2007 20 4152 2007 IECCA 63

DPP v TOBIN 2001 3 IR 469 2002 1 ILRM 428 2001/8/2198

BULA LTD v TARA MINES LTD (NO 6) 2000 4 IR 412

D v DPP 1994 2 IR 465

1

JUDGMENT of the Court delivered by Geoghegan J. on 20th day of July 2007

2

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.

3

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.

4

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."

5

The judge ordered that he be "put in the cells" until he was ready to deal with him and he then proceeded with the swearing in of the jury giving the required directions and explanations etc. After the jury was sworn, the judge said the following.

"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?"

6

The jurors answered in the negative and the judge then went on to explain that the case would be starting the following day before Mr. Justice O'Sullivan. No application was made by counsel for the applicant to have the jury discharged.

7

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.

8

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:"

9

'Colleen Mulder's brother is making himself a small bit familiar with some members of the jury'.

10

Now I am going to draw that to the attention, I'm doing it now, to the parties concerned ...".

11

Counsel for the prosecution, Mr. Clarke, made it clear to the judge that the brother of Colleen Mulder referred to was the William Pollock whom he was asking to have excluded. The following dialogue then took place between judge and counsel.

"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...

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