DPP v Fitzpatrick

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Birmingham
Judgment Date31 Jul 2015
Neutral Citation[2015] IECA 233
Docket Number221/14

[2015] IECA 233

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Mahon J.

221/14

The People at the Suit of the Director of Public Prosecutions
Respondent
and
Niall Fitzpatrick
Appellant

Conviction – Possession of a firearm – Attempted aggravated burglary – Appellant seeking to appeal against conviction – Whether the trial judge erred in failing to discharge the jury on the application of the defence

Facts: The appellant, Mr Fitzpatrick, allegedly attempted to enter a building at Glanmire, Co. Cork at a time when he was in possession of a pump action shotgun. It was claimed that members of the Regional Support Unit who were present at the house which was expected to be the subject of the burglary recognised the appellant with a shotgun in his hand. The appellant allegedly succeeded in making an escape from the crime scene but was later arrested at his home. In October, 2014, the appellant was convicted in Cork Circuit Court of offences involving possession of a firearm, unlawful possession of ammunition and attempted aggravated burglary. Subsequently he was sentenced to a term of fourteen years imprisonment. The appellant appealed to the Court of Appeal against his conviction on the grounds that the trial judge erred in failing to: 1) discharge the jury on the application of the defence in circumstances where a member of the jury panel sought to be excused from the jury on the grounds that the jury were deliberating prior to the conclusion of the case and that jury members were acting in contravention of the judge”s directions; and 2) address the issue of the juror wishing to be excused, with that juror directly in open court and allowing the matter to be resolved through the court registrar in the jury room, thereby prejudicing the position of the applicant as to require the discharge of the jury.

Held by Birmingham J that, having considered Joseph O”Reilly v DPP [2015] IECA 111, when a situation arises where a juror seems to have felt that there was something inappropriate in the way in which fellow jurors were approaching the case, to the extent of wishing to be discharged, presumably because the juror did not wish to be associated with what was going on, the fact should be drawn to the attention of both sides and their views sought as to how to proceed. Birmingham J held that the way the issue was approached in this case meant that the parties were denied an opportunity to have any input. Birmingham J held that it was unsatisfactory that the defence only became aware of the fact that there was an issue at all, because junior counsel for the defence happened to overhear a conversation. Birmingham J held that the appellant was left with an understandable sense of grievance; the procedure that was adopted was not an appropriate one.

Birmingham J held that the appropriate way to deal with the situation was to quash the conviction and order a re-trial.

Appeal allowed.

Judgment of the Court delivered on the 31st day of July 2015 by Mr. Justice Birmingham
1

On the 31st October, 2014, the appellant was convicted in Cork Circuit Court of offences involving possession of a firearm, unlawful possession of ammunition and attempted aggravated burglary. Subsequently he was sentenced to a term of fourteen years imprisonment.

2

The prosecution allegation at trial was that the appellant attempted to enter a building at Glanmire, Co. Cork at a time when he was in possession of a pump action shotgun. The essential case made by it was that members of the Regional Support Unit who were present at the house which was expected to be the subject of the burglary recognised the appellant with a shotgun in his hand. The prosecution case then was that the appellant succeeded in making an escape from the crime scene but was later arrested at his home.

3

The applicant served an alibi notice and this defence was pursued at trial. No less than sixteen grounds of appeal have been formulated. Grounds 2 and 3 are advanced in these terms:-

‘(i) That the trial judge erred in failing to discharge the jury on the application of the defence in circumstances where a member of the jury panel sought to be excused from the jury on the grounds that the jury were deliberating prior to the conclusion of the case and that jury members were acting in contravention of the judge's directions.

(ii) The learned trial judge erred in failing to address the issue of the juror wishing to be excused, with that juror directly in open court and allowing the matter to be resolved through the court registrar in the jury room, thereby prejudicing the position of the applicant as to require the discharge of the jury.

4

The issue which gives rise to these grounds of appeal first surfaced in a somewhat oblique way on day fifteen, when, after the jury had been in and out of court a number of times to facilitate legal argument, the judge addressed the parties as follows:-

‘Judge: Now, Mr. Nix (defence counsel) Mr. Creed (prosecution counsel) the jury has been going in and out somewhat rapidly over the last while and it gave rise to some speculation as to what was going on, so that was just basically it, so we are now in a position to proceed.

Mr. Nix: Very good my Lord, thank you my Lord.’

5

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