DPP v (M)J

Judgment Date14 March 2008
Docket Number236/06
Date14 March 2008
CourtCourt of Criminal Appeal


Finnegan J.

Edwards J.

McCarthy J.


M. J.

Criminal law - Criminal procedure - Jury trial - Fair procedures - Amendment of indictment after close of prosecution case - Appeal from jury verdict - indecent assault trial - Jury deliberating until late - Risk of error on part of jury - Whether jury verdict unsafe as a result of tiredness

Facts: The applicant was convicted on counts of indecent assault by a jury. The applicant alleged that the trial judge had erred in law in amending the indictment after the close of the prosecution case and in allowing the jury to deliberate until 10pm when they had been sitting all day and deliberating since 5pm. The applicant alleged that a real risk of an unfair verdict existed.

Held by the Court of Criminal Appeal per Finnegan J. that it was clear from the transcript that the day had been hot, oppressive, clammy and draining. There was a real danger that the jury were extremely tired and that a real risk of error on their part arose. It would not be safe to allow the verdict to stand. It would not be safe to allow the verdict to stand.

Reporter: E.F.


Judgment of the Court delivered on the 14th day of March 2008 by Finnegan J.


On the 27th July 2006 the applicant was convicted on four counts of indecent assault contrary to section 6 of the Criminal Law (Amendment) Act 1935 before the Circuit Criminal Court sitting at Naas. On the application to this court two grounds are relied upon by the applicant:


1. That the learned trial judge erred in law and in fact in amending the indictment after the close of the prosecution case.


2. That the learned trial judge erred in allowing the jury to continue its deliberations until after 10 p.m. in circumstances where they had been sitting since 9.30 a.m. and deliberating since 5 p.m.


It is proposed to deal firstly with the second ground. At the conclusion of the first day of the trial in speaking to the jury the learned trail judge said:


"Come back please for half past ten in the morning. Go directly to your jury room. I have to deal with one or two other matters that are in the list for tomorrow and once I have disposed of that we will call you back and hear all the evidence. "


It seems that it was envisaged that the evidence would conclude on the second day.


On the following morning counsel agreed among themselves to dispense with a number of witnesses and counsel were able to tell the learned trial judge that they expected the matter to complete by midday on the third day. Good progress was made on the second day of the trial. At the conclusion of the day's proceedings the learned trial judge addressed the jury as follows:


"Ladies and gentleman, we will adjourn for further hearing in the morning and in the hope of making reasonable progress I am going to invite you to come earlier in the morning if that is possible and I am going to suggest half past nine. Will that create any difficulties for any of you?"


The jury agreed to this proposal. The learned trial judge continued as follows:


"Well, there is some suggestion the weather may turn. Who knows? I heard a report of the racing in Ballinrobe being cancelled yesterday because of a downpour. It is just hard to imagine. But nonetheless, I will be mindful of the fact that it is very, very clammy, it is very, very draining on all working through those conditions so that will shorten the day, as it were. "


The third day of the trial commenced promptly at 9.30 a.m. The first witness called was short, her examination and cross-examination consuming four and a half pages of the transcript. The second witness was slightly longer, his evidence consuming ten pages of the transcript with a very short interruption in the absence of the jury consuming one page of the transcript. That concluded the prosecution case. There was a short interlude during which the learned trial judge dealt with other matters. At that stage it was indicated that the defence would go into


evidence and would be calling two witnesses. The learned trial judge of his own motion considered the evidence which had been led in relation to each of the counts in the indictment and at 11.09 a.m. counsel asked for time to consider the learned trial judge's observations. Discussion of those observations with the learned trial judge resumed at 12.01 p.m. and continued until approximately 12.45 p.m. when the learned trial judge ruled that that there was no evidence to go to the jury in respect of eight counts and that the matter should proceed on the basis of six remaining counts on the indictment. The jury were then sent to lunch.


At this juncture the learned trial judge asked counsel if there was a prospect that the case might conclude that evening and counsel for the prosecution replied that he would like to think so. The learned trial judge before sending the jury to their lunch told them:


"The fair indications from counsel again, and I am not tying anyone to anything, is that we will conclude this case today. You will have the opportunity to get to your deliberations, considering your verdict in the case, later in the day, ladies and gentlemen. "


In the absence of the jury the following discussion took place between counsel for the applicant and the trial judge:


Counsel: Lest I have misled Your Lordship, when Your Lordship said that the case would conclude today, I was looking at it in terms of evidence. I am not sure we will get through all the speeches and charges in the normal working day.


Judge: Alright.


Counsel: I am sorry, judge. But certainly there is relatively two short witnesses and the prosecution's closing and my address and then Your Lordship's charge. It may still be possible but lest I was giving you a false indication. Judge: No, no, that is what I understood, that is what I asked, that we would conclude the case today. However we will work towards that event if we possibly can. The jury looked very pleased with that.


Counsel: They did. That does encourage me to be swift.


The hearing resumed at 2.08 p.m. and the two defence witnesses gave evidence. There followed a discussion with the learned trial judge in the absence of the jury in relation to his charge, specifically on the issues of delay and corroboration. Thereafter there were the prosecution's closing speech, which was very short consuming just two pages of the transcript, and counsel for the defence's closing speech, which again was short consuming seven pages of the transcript.


The jury retired at 5 p.m. There was one requisition and the jury, having been recharged in relation to that, retired at 5.06 p.m.


At 8 p.m. the learned trial judge discussed with counsel whether he should invite the jury to consider a majority verdict. The...

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