DPP v Dumbrell
| Jurisdiction | Ireland |
| Judge | Denham C.J. |
| Judgment Date | 04 July 2014 |
| Neutral Citation | [2014] IECCA 22 |
| Court | Court of Criminal Appeal |
| Docket Number | Appeal No. 57/2011 and Appeal No. 58/2011 |
| Date | 04 July 2014 |
[2014] IECCA 22
THE COURT OF CRIMINAL APPEAL
Denham C.J., Edwards J., O”Malley J.
Appeal No. 57/2011 and Appeal No. 58/2011
Criminal Procedure – Appeal against conviction and sentence – Charge to Jury – Right to a fair trial – Joint Enterprise – Previous Convictions – s. 33 and s. 33(b) of the Criminal Procedure Act 2010 – Proclivity of Violence
Facts: The first and second named appellants in this case were convicted of murder by a jury in the Central Criminal Court and sentenced to life imprisonment. Both applied for leave to appeal against their conviction and sentence.
Notice of application for leave to appeal
The first named appellant”s grounds for leave to appeal were:
(i) That the learned trial judge erred in law or in a mixed question of law and fact in permitting the previous convictions of the first named appellant”s co- accused to be allowed into evidence without allowing the first named appellant the opportunity to adduce evidence of the deceased's previous convictions.
(ii) That the learned trial judge erred in law or in a mixed question of law and fact in failing to recharge the jury adequately on the issue of joint enterprise having being requisitioned on the issue on behalf of the first named appellant.
(iii) That the learned trial judge erred in law or in a mixed question, of law and fact in failing to recharge the jury adequately on the issue of joint enterprise having been asked by the jury to explain the principle of joint enterprise/common design.
(iv) That the learned trial judge erred in law or in a mixed question of law and fact in failing to recharge the jury on the general creditworthiness of certain prosecution witnesses in light of previous inconsistent statements made by such.
(v) That the learned trial judge erred in law or in a mixed question of law and fact in failing to properly direct the jury not to conduct their own enquiries in relation to the internet or other media sources.
(vi) That the learned trial judge erred in law or in a mixed question of law and fact in rendering the trial unsatisfactory by virtue of the fact that he failed to accede to the requisitions raised on behalf of the first named appellant.
Additional Grounds of Appeal
The Court granted the first named appellant permission to insert two additional grounds of appeal:
‘That the failure of the Court to stay the proceedings against the first named appellant pending the introduction into law of adequate protection in respect of the widespread availability of prejudicial material on the internet referable to the accused rendered his trial unfair.’
and
‘That the learned trial judge erred in law or in a mixed question of law and fact in failing to afford the first named appellant the opportunity to adduce the previous convictions of the deceased to show that he had a proclivity for violence and for carrying knives and thereby deprived the first named appellant the opportunity to put the previous convictions of the deceased to prosecution witnesses.’
The second named appellant”s grounds for leave to appeal were:-
(ii) The learned trial judge erred in law in directing that the previous convictions of the deceased man should not be mentioned or opened to the jury, pursuant to the Criminal Justice (Evidence) Act, 1924, as amended by s. 33 of the Criminal Procedure Act, 2010.
(iii) The learned trial judge erred in law and in fact in directing the jury in relation to the legal concept of common design and joint enterprise.
(iv) The learned trial judge erred in law and in fact in failing to provide any direction to the jury in relation to the offering into evidence of the second named appellant”s previous conviction.
Internet Issue
Counsel argued that there was a lot of prejudicial information available about the first named appellant on the Internet that impacted on his right to a fair trial. It was argued that the trial judge needed to issue a warning or stay the proceedings to allow the Oireachtas to enact legislation making it an offence for a juror to obtain information independently.
Proclivity of Violence Issue
The first named appellant planned to introduce evidence pertaining to the deceased”s character via s. 33(b) of the Criminal Procedure Act 2010. The purpose for doing this was to demonstrate the deceased”s propensity for violence. By virtue of s. 33, the prosecution could also introduce evidence of the first named appellant”s previous convictions to prevent any imbalance in the trial process. The second named appellant told the court during cross-examination that the deceased had 106 previous convictions. The prosecution responded by informing the court about the second named appellant”s previous convictions but did not call any further evidence. Counsel for the first named defendant was concerned about whether or not the jury would find the second named appellant credible. They were also dissatisfied with two further matters; firstly, not having an opportunity to cross-examine prosecution witnesses about the deceased”s convictions and secondly, the trial judge”s charge to the jury on the matter.
Joint enterprise Issue
This issue was the subject of the second and third ground of appeal of the first named appellant and related to the third ground of appeal for the second named appellant. The trial judge charged the jury in relation to the issue of common design/joint enterprise and the prosecution sought a requisition. The judge then charged the jury again incorporating a legal definition of joint enterprise and illustrated the principal with one practical example.
The second ground of appeal of the second named appellant
It was submitted that the trial judge failed to explain to the jury why the second named appellants previous convictions were admitted into evidence and failed to clarify that this evidence should not be relied upon as demonstrative of his propensity to commit crimes of this nature.
Fourth ground of appeal of the first named appellant”s appeal
The trial judge charged the jury and summarised the evidence of key witnesses. The trial judge was requisitioned because the defense counsel raised concerns about the inconsistencies in the evidence given by the deceased”s relatives.
Held by Denham C.J.
In relation to the Internet issue, the trial judge directed the jury to reach a decision based solely on the evidence put to them at the trial. The court dismissed this ground of appeal because there was nothing to suggest that the jury did anything other than follow the trial judge”s direction.
In relation to the proclivity of violence issue, the appellants did not request a requisition on the charge given by the trial judge in relation to the deceased”s convictions. Furthermore, the first named appellant”s previous convictions were not put before the jury. Therefore, the first named appellant had the benefit of the deceased being discredited without having to drop his shield to permit such information to go before the court. The court dismissed this ground of appeal because it could not be said that the first named appellant had suffered any unfairness.
The court said that the concept of joint enterprise and the relevant law were set out in the trial judge”s charge and recharge and therefore dismissed this aspect of the appeal. The criticism that no examples had been provided to explain the principles of joint enterprise did not affect the safety of the convictions or have any bearing on the fairness of the trial.
Neither appellant made a request for a requisition in respect of the trial judge”s charge to the jury about the second named appellant”s character. Counsel for the second named appellant had not provided an explanation as to why they did not raise this point at first instance. It was unclear whether this was as a result of an error or oversight or a conscious decision by the appellants counsel. The court would be more inclined to permit the argument if an error or oversight had been made but it did not believe this to be the case. As a result there was no basis to appeal on this point.
A broad discretion is afforded to judges on how they sum up a case to the jury and the court was satisfied in this instance that the trial judge had readdressed his summary to give a fair summary of the witness”s evidence. The court dismissed this ground of appeal also.
The Court dismissed the appeals of both appellants.
Before the Court are appeals by Warren Dumbrell, referred to as ‘the first named appellant’, and Jeffrey Dumbrell, referred to as ‘the second named appellant’, both together are referred to as ‘the appellants’, from the convictions and sentences imposed on the 22nd February, 2011, by the Central Criminal Court (Butler J.), for the offence of murder, for which they were sentenced to life imprisonment, to run from the 1st November, 2006.
This is an appeal against the convictions imposed following a retrial, the original convictions having being quashed by this Court on the 5th July, 2010, Murray C.J. presiding, with reasons stated on the 28th July, 2010.
This Court has received individual submissions filed by each of the appellants and in reply a joint submission filed by the Director of Public Prosecutions, referred to as ‘the DPP’.
The first named appellant was charged with murder contrary to common law as provided for by s. 4 of the Criminal Justice Act, 1964. The particulars of offence stated that the first named appellant on the 29th October, 2006, at Tyrone Place, Inchicore, Dublin 8, did murder Christopher Cawley. The...
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