DPP v Dumbrell & Dumbrell

• Jurisdiction: Ireland
• Judgment Date: 28 July 2010
• Neutral Citation: [2010] IECCA 84
• Date: 28 July 2010
• Docket Number: 187/08 & 199/08
• Court: Court of Criminal Appeal

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

-v-

JEFFREY DUMBRELL AND WARREN DUMBRELL

APPLICANTS

[2010] IECCA 84

Murray C.J.

McKechnie J.

Dunne J.

187/08 & 199/08

COURT OF CRIMINAL APPEAL

Abstract:

Criminal law - Criminal procedure - Sentencing - Lecture delivered by judge extra-judicially - Publicity - Constitutional justice - Fair procedures - Reasonable apprehension of bias -Directions - Remedying unfairness -Whether verdicts unsafe by reasons of lecture of judge

Facts: The applicants were convicted of murder and the Central Criminal Court had imposed a mandatory life sentence on each of the applicants. The applicants applied for leave to appeal against conviction arguing that the verdict had to be set aside as unsafe. They argued that the trial judge erred in law and in fact in failing to discharge the jury during the course of trial where the possibility existed of the jury being biased against the accused due to adverse publicity attaching to a lecture delivered by the trial judge during the trial. The lecture had received much publicity and was circulated to the Press in advance of its delivery.

Held by the Court of Criminal Appeal per Murray CJ, that the Court was satisfied that the trial judge underestimated the possible impact on the jury and the trial. The statements made and published constituted material that could prejudice a jury in arriving at a verdict. The statements could not have been introduced at the trial but it had been brought to the minds of the jury in an unprecedented manner. The danger or real possibility of a juror being influenced could not have been avoided by a particular direction. A reasonable person would have a reasonable apprehension that jurors would be influenced by the contents of the address and that the applicants did not receive a fair trial. The verdict was rendered unsafe by reason of the breaches of constitutional justice. A retrial in each case would be ordered.

Reporter: E.F.

1 JUDGMENT of the Court delivered by Murray C.J. on the 28th day July, 2010

2 Jeffrey Dumbrell and Warren Dumbrell, the applicants, both of whom are brothers, were convicted of the offence of murder at the conclusion of a trial before a judge and jury at the Central Criminal Court. The trial lasted for 10 days and the Court imposed on each of them a mandatory sentence of life imprisonment.

3 The specific offence for which they were each convicted was that on the 29th day of October 2006 at Inchicore Dublin they did murder Christopher Cawley, contrary to common law as provided for by s. 4 of the Criminal Justice Act, 1964.

4 The second applicant, Warren Dumbrell had also been indicted on a charge of threatening to kill or cause serious harm to another person but was found not guilty of that charge.

5 The applicants applied to this Court for leave to appeal against conviction. On the 5th day of July 2010 the Court determined the application by granting leave to appeal, treating the application as the appeal and deciding that the verdict of the trial should be set aside on the grounds that it must be considered unsafe. The Court ordered that each of the applicants should be retried on the charges of murder against them.

6 This judgment sets out the reasons for the Court's decision on the determination of the application and the appeal.

7 The Application

8 Both applicants sought leave to appeal on essentially the same ground as reflected in the following ground of appeal:

9 "The trial judge erred in law and in fact in failing to discharge the jury during the course of the trial in circumstances where the possibility existed of the jury being biased as against the accused due to the adverse publicity attaching to a lecture delivered by the learned trial judge during the trial".

10 In essence the applicants submitted that statements made by the learned trial judge as aforesaid, at the time of the trial but at another venue, coupled with the ensuing publicity and the particular circumstances of the case, were such that there was a real risk or likelihood that the jury were prejudiced in the issues which they had to decide and that as a consequence the verdict must be considered as unsafe.

11 As is explained later in this judgment one of the issues upon which the jury had to decide was whether the case for the prosecution had proved beyond reasonable doubt that the accused were guilty of the crime of murder rather than manslaughter.

12 It is not necessary for the purpose of deciding the issue in this appeal to review or set out in any detail the evidence tendered at the trial. Solely for the purpose of setting matters in context the Court will refer to the general factual background to the case as emerges from the evidence at the trial.

13 Background Facts

14 The deceased lived in a block of flats in Inchicore, Dublin with his wife and children. His wife and two of his children were among a significant number of witnesses who gave direct evidence concerning the assault on the deceased by the applicants which led to his death. This occurred on 29th October 2006.

15 In his summing up of the evidence of the deceased's wife the learned trial judge told the jury that, inter alia, she saw the deceased, who was running towards the building in which they lived in a flat, being chased by the two accused one of whom had something long and wooden like a baseball bat or a hurley and the other had a knife which was between 9 and 12 inches long. The deceased did not make it to the tower, as it was described, in which he lived but fell to the ground. The accused were alleged to have started to hit the deceased "everywhere". The deceased was trying to scramble to his feet and get back to the tower but the accused were on top of him hitting him and using both their hands and whatever they had in their hands. According to the witness the attack seemed to last for ten minutes. When it was over the deceased was not moving any more and the accused started to walk away.

16 Other witnesses to these events, including two daughters of the deceased, and called by the prosecution gave evidence supporting the prosecution case that the fatal attack on the deceased had been carried out by the two appellants.

17 The deceased was found to have received multiple stab wounds as a result of which he died. The learned trial judge's summing up and citation of the evidence of the State Pathologist, Professor Marie Cassidy included her following statement:-

18 "This man died following a knife assault. There was superficial incise wounds to the face, hands and right wrist as well as six stab wounds to the back of his body. Only three of the stab wounds were deeply penetrating. There were two shallow wounds around the back of the left shoulder. The injuries to the back were large wounds which penetrated deeply into the tissue causing internal injury. As death was due to blood loss he may have been incapable of some activity after he was injured. All the injuries could have been caused by one knife although more than one knife or one assailant cannot be excluded. There were minor cuts on his hands which were probably of the defence type injuries consistent with there having been a struggle with his assailant or assailants …. I was of the opinion that his death was principally due to the stab wound to his left thigh."

19 She was cited as having said in cross-examination "the essential cause of death was the stab wound to the left thigh. He would have needed urgent surgical treatment."

20 There was evidence at the trial of an "encounter" on a CIE bus earlier that day between the deceased and a brother of the two appellants, Tommy Dumbrell. The evidence indicated that as a result of that encounter it had been intended that a fight would take place at the flats between the deceased and that brother. One of the appellants, Jeffrey Dumbrell, gave evidence at the trial in his defence. In his evidence he claimed that he, and his brother, his co-accused, Warren, had gone down to the flats because there was meant to be a fight so that they could "make sure that it did not get out of hand or that he was not jumped on by more than one". In fact the brother Tommy Dumbrell was at no time present at the scene of the fatal confrontation.

21 The learned trial judge's summing up of Jeffrey Dumbrell's evidence included the following:-

22 "There was meant to be a fight between Christoper Cawley and my brother Tommy Dumbrell. That is the man who was on the bus earlier". The trial judge continued "Warren and himself were going down to make sure that it did not get out of hand or he wasn't jumped on by more than one. Mr. Cawley ran away and I ran after him. We ran into the flats after him and he fell to the ground and jumped up. He had a knife in his hand. My brother smacked it out of his hand with a hurley. I was not armed with anything. Nothing. When his brother smacked the knife out of his hand with the hurley I grabbed the knife. Mr. Cawley dived on top of me to get the knife. He grabbed a hold of the blade. A struggle ensued and I ended up stabbing him once or twice. I am not sure how many times because I wanted to get him off me, leave me alone."

23 The learned trial judge continued his summing up in the following terms:-

24 "Now he accepted that these actions were responsible for the death of Mr. Cawley". The Judge quotes his evidence: "As far as I know he was stabbed in the legs. I went for his legs. I had no idea that a serious injury like this could lead to a man's death."

25 Further on the trial judge referred to his evidence in the following terms:-

26 "As far as we knew there was no serious damage done. We were not going to take part in any fight, just going to ensure that it was a fair fight between Mr. Cawley and his brother. Then he left."

27 The trial judge...