DPP v Franey
 IECA 15
THE COURT OF APPEAL
Ryan J., Birmingham J., Edwards J.
Record No: 237/2012
Criminal law - Assault causing serious harm - s. 3 and s.4 Non-Fatal Offences against the Person Act 1997 - Injured a member of An Garda Siochána - Term of imprisonment of 10 years with 3 years suspended - Appeal against conviction
1. This is a case in which the appellant was convicted by a 10:2 majority verdict of a jury on the 28th of June 2012, following a six day trial in the Circuit Criminal Court, of the offence of assault causing serious harm, contrary to s.4 of the Non-Fatal Offences Against the Person Act 1997. The injured party was Helena Power, a member of An Garda Siochána. The appellant had earlier pleaded guilty on arraignment to a further offence of assault causing harm, contrary to s.3 of the Non-Fatal Offences Against the Person Act 1997, committed on the same occasion as the s.4 offence of which he was convicted by the jury. The injured party in this instance was Thomas O”Halloran, who was also a member of An Garda Siochána.
2. Following his conviction, the appellant was sentenced, on the 29th of June 2012, to imprisonment for a term of ten years from that date, for the s.4 offence, with the final three years thereof conditionally suspended. He also received a further sentence of three years for the s.3 offence, and the sentencing judge directed that both sentences were to run concurrently.
3. The appellant appeals against his conviction in respect of the s.4 offence.
4. The appellant initially contended in his Notice of Appeal that his conviction was unsafe and unsatisfactory on six grounds numbered (i) to (vi), respectively. However, some of these overlapped and so in written submissions filed on behalf of the appellant the six grounds initially advanced were very properly distilled down to three substantive complaints, which were designated a. b. and c., respectively in the appellant”s said submissions.
5. Then, at the commencement of the hearing before this Court, counsel for the appellant indicated that his client no longer wished to argue ground c., and that the appeal would be confined to the other two remaining grounds, i.e., those designated a. and b., respectively.
6. Grounds a. and b. are expressed in the following terms:
a. It is submitted the learned trial judge erred in law in adjourning the trial after three Days of hearing for a period of two weeks in the absence of exceptional circumstances to justify a suspension of the trial.
b. It is submitted that the learned trial judge erred in law in deliberately influencing and/or pressurising the jury into reaching its verdict.
7. The case concerned an incident that occurred on the 31st October, 2008, at Bianconi Drive, Clonmel where a Halloween bonfire was being held. The jury heard evidence that a number of Gardaí were present at the bonfire. Andrew Franey, then aged 21 was observed in an intoxicated state with a bottle of whiskey. He went off, but his brother Jamie then aged 16 came on the scene. He was intoxicated to the extent that there was concern that he would fall into the bonfire. The Gardaí proceeded to arrest Jamie. What was described as ‘a shomozzle’ then developed. During the course of it Andrew Franey came running and punched Garda Sergt. Thomas O”Halloran in the face with a closed fist. Garda Helena Power then sought to intervene in support of her colleague Sergt. O”Halloran and Andrew Franey turned on and towards Garda Power and kicked her directly into the face. He was subsequently charged with the s.3 and s.4 offences in respect of which he was before the Circuit Court.
8. There were two elements to the prosecution case. First, there was the account of eyewitnesses concerning what transpired at the bonfire. Secondly, the appellant was recorded as having made admissions while being taken from the garda van at Clonmel garda station. The admissions were in the nature of boasting of what he had done.
9. The appellant had sought without success to have the said admissions ruled inadmissible at avoir dire conducted by the trial judge on days 1, 2, and 3 of the trial. It is slightly surprising there was voir dire as the issue was not whether he was in lawful custody or anything like that, but whether the remarks alleged to have been made were in fact made. The admissions were ruled admissible and went before the jury.
10. Although the appellant did not give evidence on thevoir dire, he subsequently gave evidence in his own defence on day 5 of the trial, and in his evidence before the jury contended that he had not in fact made the alleged admissions that were being attributed to him, and that they were fabricated.
11. However, another issue, potentially bearing on this, had arisen on the 8th of June, which was day 3 of the trial. It emerged on that date that a garda witness who was on the book of evidence, a Garda Foot, was not available. He was in the USA. The defence indicated that they wanted the witness. In that regard, counsel for the appellant told the trial judge that the defence regarded him as important because:
One, he is a witness in relation to the opportunity to observe, and lighting and issues such as that at Bianconi Drive; and secondly, and perhaps more importantly, he is a witness in respect of what allegedly occurred when Mr Franey was removed from the garda van into the garda station in the yard.
12. The trial judge referred to the Book of Evidence and appeared to accept defence counsel”s submission. After further deliberation counsel for the prosecution accepted that it was not acceptable that the witness was unavailable, and indicated regret that the defence had only been notified of the witness”s unavailability on the previous evening. Moreover, he accepted that the trial judge had asked after the arraignment ‘are all the witnesses here?’, and that he had received an affirmative answer from prosecuting counsel, which answer, although given in good faith, was in fact incorrect.
13. All of that having been acknowledged, counsel for the prosecution posed the question ‘does the trial fall and have to start again?’, to which the trial judge immediately responded ‘The trial isn”t going to fall’, and suggested that the solution was an adjournment until the witness returned from the USA. It was subsequently established that the witness would be returning on the 16th of June, and so it was proposed to adjourn the trial until the 19th of June.
14. Counsel for the defence opposed any adjournment and requested that the jury be discharged, indicating that he was not comfortable that the jury would be sent away for a long period. Moreover, if the judge was not prepared to discharge the jury the defence would not be ready to resume the case until the 26th of June.
15. The trial judge ultimately ruled as follows:
‘[I]f there is to be a delay, I don't think that the issue of a delay of one week or two weeks really has any great bearing on it, because the prosecution are looking for a delay of one week, the defence are looking for a delay of an extra week because of the unavailability there, so I mean there can be no criticism of the -- of the delay being a two week delay because the second week's delay would be a defence delay rather than a prosecution delay, so you have to live with that. You're not available. I'm just thinking ahead, that if there were to be any other issues -- I'm inclined to adjourn the trial for two weeks, not to discharge the jury. If this were a difficult complex case with complex issues, I would say, "Yes, discharge the jury." But I think it is a fairly straightforward net point in this case. It's effectively down to whether or not the alleged confession was made, in essence. The rest is what took place up at the Green, and so on and so forth, there are differences in the -- in the evidence, of that there is no shadow of a doubt. But I don't think any of those differences are not something which cannot dealt with (a) by counsel in their speeches; and (b), by the judge's charge. And then the issue as to what took place down in the yard. And to a lesser extent, though no ruling has been made on that as to what took place by way of other statements in the station, and as I say, no ruling has been made on that. No, I think adjourn the matter until the 26th …’
16. The jury were then sent away until the 26th of June, when the trial resumed after a break of seventeen days. It then continued to a conclusion, the jury retiring late on the evening of the 28th of June, and returning with a 10:2 majority verdict of guilty after a total deliberation time of 3 hours and 30 minutes.
17. On day 5, the trial judge had addressed the jury in an attempt to provide them with an estimate as to how long the appellant”s trial was going to continue. He said that the trial would not finish that day but he went on to say that ‘It will finish tomorrow, I promise you. There is no shadow of doubt about it that it is going to finish tomorrow.’ The Court then proceeded to ask the jury members if they had any availability problems and where they had any problems to write them down and give them to the Registrar. The jury foreman duly passed a note to the registrar...
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