DPP v John James Kelly

• Jurisdiction: Ireland
• Judge: Kearns J.
• Judgment Date: 02 February 2006
• Neutral Citation: [2006] IECCA 2
• Date: 02 February 2006
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A. No. 92 of 2005]

[2006] IECCA 2

THE COURT OF CRIMINAL APPEAL

Kearns J.

Budd J.

O'Donovan J.

[CCA 92/05]

KELLY v DPP

BETWEEN

JOHN JAMES KELLY

APPLICANT

AND

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

CRIMINAL JUSTICE ACT 1984 S25(1)

DPP v KELLY UNREP CCA 9.2.1994 1998/15/5672

DPP v FINNAMORE UNREP MCCRACKEN 21.11.2005

R v MCKENNA 1960 QB 411 1960 44 CAR 63

R v ROSE 1982 1 WLR 614

DPP v REDDAN & HANNON 1995 3 IR 560

CRIMINAL PROCEDURE ACT 1993 S3(1)(a)

CRIMINAL LAW: Jury

Jury oppression - Deliberations - Length of deliberations -Timing of instructions to jury on entitlement to disagree - Trial judge's discretion - People (DPP) v Kelly (Unrep,CCA, 9/2/1994) and People (DPP) v Finnamore (Unrep, CCA, 21/11/2005)considered - Evidence - Fact that accused previously in prison revealed to jury -Whether prejudicial - People (DPP) v Reddan [1995] 3 IR 560 followed - Whether miscarriage of justice - Criminal Procedure Act 1993 (No 40), s 3(1)(a) - Appeal dismissed (92/2005 - CCA - 2/2/2006)[2006] IECCA 2, [2006] 4 IR 273 People (DPP) v Kelly

1 JUDGMENT delivered the 2nd day of February, 2006,by Kearns J.

2 The essential point raised in this appeal is to determine how long a trial judge should allow a jury continue its deliberations before instructing them that they may disagree.

3 The applicant was charged with the murder of Christopher Cybulla at a camp site at Curreeny, Co. Tipperary on 28 December, 1999. He was initially tried before O'Higgins J. and a jury in the Central Criminal Court between 14 March, 2002, and 22 March, 2002. He was convicted of murder on 22 March, 2002, and received a sentence of life imprisonment. He subsequently appealed his conviction to this court in February, 2004. His conviction was then quashed on the basis of the failure of the learned trial judge to allow the partial defence of provocation to go to the jury. A retrial was ordered and the applicant was subsequently released on bail.

4 The applicant's retrial was heard before Carney J. sitting with a jury in the Central Criminal Court between 18 April, 2005, and 28 April, 2005. At arraignment and in the presence of the jury, the applicant pleaded not guilty to murder but guilty to manslaughter. On 28 April, 2005, the applicant was convicted of murder by an 11 to 1 majority jury verdict.

5 In this case, the jury deliberated for a total period of 9 hours and 55 minutes. The jury had been sent out at 3:42pm on 26 April, 2005, and eventually returned with their majority verdict at 12:36pm on 28 April, 2005, having spent 2 nights in a hotel.

6 For case of reference, it is perhaps appropriate to set out the chronology and to make reference to one or two unusual features of what occurred after the jury had retired to consider their verdict:-

7 26 April 2005

8 3:36pm Jury retire to consider their verdict. Requisitions followed.

9 3:40pm Jury recharged following requisitions

10 3:42pm Jury retire

11 6:15pm One member of the jury returns to the courtroom and asks the registrar how long the jury were expected to remain in their room. The registrar informs this juror, who does not appear to have been the foreperson, that he must return to the jury room and remain there until such time as the jury had reached a verdict or until sent for by the judge. The registrar informed counsel of this exchange

12 7:12pm Jury brought back to court and given the majority direction pursuant to the provisions of s. 25(1) of the Criminal Justice Act, 1984. They are specifically told that they could not, under any circumstances, drop below 10 in reaching a verdict. Thereafter, the jury was sequestered in a hotel for the night.

13 27 April, 2005

14 11:08am The jury retire to recommence their deliberations.

15 1:01pm Jury return to court with a question in the following terms:-

"Could we have a re-reading of the law on the definitions of murder, self-defence, provocation and manslaughter?"

16 The redirection is left till after lunch at which point the same is given and the jury retired. Thereafter, further requisitions were raised in relation to the recharge.

17 2:31pm Jury brought back to court for further directions

18 2:35pm Jury retire. At this point, counsel for the applicant apprised the learned trial judge of the fact that at 6:15pm the previous evening a member of the jury, not the foreperson, came down to the courtroom and asked the registrar how long they were required to remain in their room. Ms. Deirdre Murphy, senior counsel for the appellant, advised the judge that she was not asking the judge "to do anything about it at this juncture", but simply wished to put the matter on the record. She alsoindicated that she would at some point invite the judge to consider whether or not the jury should be told they could disagree, but that this issue did not arise "at this moment".

19 4:53pm Jury returned and requested smoking break. They confirmed they had not reached a verdict upon which 10 had agreed. Their total deliberation time at this point was 7 hours and 46 minutes.

20 In the absence of the jury, counsel on behalf of the applicant invited the trial judge to consider telling the jury that they were entitled to disagree. In response the learned trial judge stated that he had mentioned that possibility twice during his charge but "ramming the notion of disagreement down their throats is something I am not prepared to do".

21 5:54pm Jury returned to court after a total deliberation time of 8 hours 32 minutes and indicated, in response to a question from the registrar, that they had reached a verdict on which at least 10 of them had agreed. However, before the issue paper was handed over to the registrar, other members of the jury indicated that the reply offered by the foreperson was incorrect. On being asked again by the registrar whether or not 10 of the jury had agreed to a verdict, the foreperson then replied in the negative. The judge then directed that the jury be sent to a hotel for a second night.

22 6:00pm After the learned trial judge rose, a juror returned to the courtroom and told the registrar that she could not go to a hotel for another night. The registrar requested that counsel remain in court while he telephoned the learned trial judge who had left the precincts. The trial judge made clear however that he had made his ruling that the jury go to a hotel and resume their deliberations the following morning. It appears that on being so advised the particular juror was able to resolve whatever difficulty she had.

23 28 April, 2005

24 11:00am The jury were instructed to resume their deliberations. However, the learned trial judge pointed out that another murder trial was about to commence before him and that counsel's speech to that other jury could not be interrupted. He therefore asked the jury not to come back before 12 noon but at whenever after that time they had arrived at a verdict. He did not direct the jury that they could disagree.

25 11:14am Jury retired. Counsel for the applicant then referred to the incident the previous evening where a member of the jury had come back and indicated she could not go to a hotel for another night. She then expressed her concern that there was now undue pressure one way or the other within the jury room and requested that the jury be now informed of their right to disagree. This application was refused.

26 12:36pm Jury returned with majority verdict (11-1) of guilty of murder. As already noted, the jury had deliberated for a total period of 9 hours and 55 minutes.

Submissions of the parties on behalf of the applicant

27 It was submitted that repeatedly sending the jury away to continue their deliberations in this case, with no end in sight unless or until they reached a verdict, amounted to the application of undue pressure upon them. Furthermore, it was submitted that the facts of the instant case were unusual because, it was submitted, the jury was having evident difficulties from quite an early stage. This could be seen in the fact that one juror had enquired as to how long the jury had to remain in their room on the first day of deliberation, and a second juror had protested vigorously about having to go to a hotel for a second night. There had been the further confusion surrounding the position as to whether or not the jury had actually reached a verdict when it was intimated to the court that they had done so, but following enquiry it emerged that the jury had not in fact reached any verdict. Against that background, it was submitted the learned trial judge erred in failing to inquire from the jury at any point as to any difficulties they were having. Once difficulties had become apparent, it was submitted, the learned trial judge should have informed the jury of their right to disagree. In this regard counsel placed reliance upon the judgment of this court in DPP v Eamonn Kelly ( unreported, 9 February 1994, Egan J.).

28 Counsel further submitted that if there was a real risk that the jury were under undue pressure with no end in sight before their obligations came to an end, then there was a real risk that any verdict delivered in such circumstances would render aconviction unsafe. Counsel further relied on the decision of this court in DPP v Ellen Finnamore ( unreported, 21 November 2005, McCracken J.) in which McCracken J. stated:-

"The basic principle in what we have to decide is was the conviction safe? Was a person convicted of a criminal offence in circumstances where we are satisfied that there was no real risk of a wrong verdict? That is a matter for each individual case. In this case we are quite satisfied that it would not be safe to allow this verdict to stand. We do not know of course whether the jury in fact felt themselves under pressure. We cannot know that...