DPP v Hearns

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 06 July 2020
• Neutral Citation: [2020] IECA 181
• Date: 06 July 2020
• Court: Court of Appeal (Ireland)
• Docket Number: [2020] IECA 181/2020

BETWEEN/

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPODNENT

-AND-

DEREK HEARNS

APPELLANT

[2020] IECA 181

President

McCarthy J.

Donnelly J.

[2020] IECA 181/2020

Record No: 2020/84

THE COURT OF APPEAL

Conviction – Production of a knife while committing the offence of false imprisonment – Perverse verdict – Appellant seeking to appeal against conviction – Whether the verdict was perverse

Facts: The appellant, Mr Hearns, was convicted by a jury at the Dublin Circuit Criminal Court on the 28th February, 2020 of robbery, theft and an offence contrary to s. 11 of the Firearms and Offensive Weapons Act 1990 against the victim. The particulars of the s. 11 offence were that he “did, while committing an offence, to wit, false imprisonment, produce in a manner likely to unlawfully intimidate another person an article capable of inflicting serious injury, to wit, a knife”. He was acquitted on three other counts and the jury disagreed on two other counts: on these, the respondent, the Director of Public Prosecutions, entered a nolle prosequi. He was acquitted on a count of falsely imprisoning the victim. It was the apparent inconsistency of the acquittal on the offence of false imprisonment with the conviction for the offence of the production of a knife while committing the offence of false imprisonment that formed the basis of his appeal to the Court of Appeal against conviction. His submission centred on what he submitted was a perverse verdict.

Held by the Court that a reasonable jury who were properly charged could not properly have reached a decision to convict him of an offence of producing a knife unlawfully to intimidate another in the course of committing an offence of false imprisonment when they in fact, by their verdict on another count acquitted him of that very offence; that was certainly a prima facie inconsistency.

The Court held that the appeal would be allowed against the conviction on count 2 of the indictment.

Appeal allowed.

JUDGMENT of the Court delivered by Ms. Justice Donnelly on the 6 ^th day of July, 2020

1 This appeal presents an unusual conundrum. The appellant was convicted by a jury at the Dublin Circuit Criminal Court on the 28 ^th February, 2020 of three counts arising from a continuous incident that occurred at a given place and time concerning a certain person. The appellant was acquitted or had a nolle prosequi entered in respect of certain counts related to the same continuous incident and referring to the same person. For ease of understanding, this judgment will refer to the person against whom all counts were alleged to have been committed, as the victim.

2 The appellant was convicted of robbery, theft and an offence contrary to s. 11 of the Firearms and Offensive Weapons Act. 1990 (hereinafter, “the 1990 Act”) against the victim. The particulars of the s. 11 offence were that he “did, while committing an offence, to wit, false imprisonment, produce in a manner likely to unlawfully intimidate another person an article capable of inflicting serious injury, to wit, a knife.” He was acquitted on three other counts and the jury disagreed on two other counts (on these, the DPP entered a nolle prosequi). Of importance to this appeal was that he was acquitted on a count of falsely imprisoning the victim during this continuous incident. It is the apparent inconsistency of the acquittal on the offence of false imprisonment with the conviction for the offence of the production of a knife while committing the offence of false imprisonment, that forms the basis of this appeal.

3 The appellant has not appealed the robbery (of cash) or the theft (of an iPhone) convictions. He was sentenced to three years imprisonment with one year suspended in respect of the robbery offence. Concurrent sentences of two years imprisonment with one year suspended in respect of the theft and the s. 11 offence. The trial judge specifically stated that he would not be prejudiced when sentencing on the s. 11 offence.

Issue on Appeal

4 The appellant's submission centres around what he submits is a perverse verdict. Pursuant to the indictment, at count 2, the appellant stood indicted that he “did, while committing an offence, to wit false imprisonment, produce in a maimer likely to unlawfully intimidate another person an article capable of inflicting serious injury, to wit, a knife.” [Emphasis added]. Although we do not have sight of the issue paper, it appears from a comment made by the trial judge after the verdicts were delivered, that the issue paper reflected the wording of the indictment. The parties do not contest this position. Furthermore, the trial judge read to the jury from the counts on the issue paper and told them that they would receive the issue paper in writing. We are therefore satisfied to proceed on the basis that count 2, as worded above, was the count that was left to the jury.

5 The appellant submits that count 2 is manifestly inconsistent and perverse in conjunction with the jury returning a not-guilty verdict in respect of count 3, i.e. in respect of the offence of false imprisonment. The appellant submits that to have committed an offence of false imprisonment was a necessary ingredient of count 2. The appellant submits that these findings of the jury, namely, that the appellant is not guilty of false imprisonment but is guilty of producing a knife while committing an offence of false imprisonment, are perverse.

6 The appellant submits that while the appeal is one that is partially based on the proposition that the trial judge failed to properly direct the jury, the binary nature of counts 2 and 3 in and of themselves was not something that was alluded to in the course of the trial. On this basis, the appellant states that it is fundamentally unfair and contrary to the proper administration of justice to allow the conviction on count 2 to stand where it is manifestly unsafe given the appellant's acquittal of false imprisonment in count 3.

7 The respondent submits that there is no perversity in the verdicts. The trial judge had reminded the jury of their duty to consider each count separately. There were no requisitions by the appellant on the judge's charge. The jury were not confused as they asked no questions in relation to this count, but they did have questions on the other counts.

8 The respondent's main submission is that the knife was produced in the course of committing another offence, namely the offence of robbery. In those circumstances, and in accordance with the provisions of s. 11 and having regard to the judge's charge, he was correctly convicted. The respondent made the following submission:

“The Learned Trial Judge carefully outlined to the jury the legal concepts required by Count 2 namely Production of an Article capable of inflicting serious injury while committing an offence contrary to Section 11 of the Firearms and Offensive Weapons Act 1990 directing them that the charge required” the production of an article in a manner likely to unlawfully to intimidate another person to wit a knife” while committing, an offence.” ( Underlining added)

Finding that a jury verdict is perverse requires exceptional circumstances

9 The parties to this appeal are in agreement that a finding that the jury verdict was perverse requires exceptional circumstances and a strong basis for so holding. Both parties refer to The People (DPP) v. Nadwodny [2015] IECA 307 and The People (DPP) v. Tomkins [2012] IECCA 82 to this effect. In Tomkins, MacMenamin J. stated that “this court has repeatedly emphasised that it has no power to substitute its own subjective view of a case for that of the jury […] A decision that a verdict was perverse is a very exceptional one”. MacMenamin J. referred to (The People) DPP v. Egan [1990] I.L.R.M. 780 where the Supreme Court held that “[s]ave where a verdict may be identified as perverse, if credible evidence supports the verdict, the Court of Criminal Appeal has no power to interfere with it.”

10 The appellant relies on (The People) DPP v. Alchimionek [2019] IECA 49 whereby the Court of Appeal overturned the rejection by the jury of a verdict of not guilty by reason of insanity. The Court of Appeal held that while the verdict of the jury has primacy, in certain rare situations, an appellate court would overturn such a verdict. In Alchimionek, the Court held that the jury's verdict “was not supported by any evidence in the case, was against all of the evidence in the case, and in those circumstances, has to be regarded as perverse.” That case is not a perfect analogy with the present case as there was simply no evidence to support the verdict. In the present case, there was undoubtedly evidence upon which a jury could have found him guilty of the offence as charged in the indictment. The main issue is that the verdict of guilty in respect of this count, in so far as it incorporates the offence of false imprisonment, was inconsistent with the acquittal on the latter.

Inconsistent verdicts

11 The jurisprudence in this area would suggest a marked reluctance on the part of appellate courts to intervene in response to complaints of inconsistent verdicts. Walsh, Criminal Procedure, (2 ^nd Ed., Round Hall. 2016) comments:

“It does not follow, however, that an apparently inconsistent verdict cannot stand. If the intention of the jury to convict is clear, the Court of Appeal may decide that no miscarriage of justice has occurred and decline to quash the conviction. On the other hand, if the verdict is such that no judgment can properly be entered, a retrial may be ordered.”

12 O'Malley, Criminal Procedure (1 ^st Ed., Round Hall, 2009) having recited relevant US law, states: -

“Irish law. which follows English law in this respect, is somewhat more flexible in dealing with inconsistent verdicts, and it is guided by two fundamental principles. First, the...