DPP v M R

• Jurisdiction: Ireland
• Judgment Date: 29 July 2009
• Date: 29 July 2009
• Docket Number: [C.C.A. No. 157 of
• Court: Court of Criminal Appeal

[2009] IECCA 87

Court of Criminal Appeal

[C.C.A. No. 157 of 2008]

The People (Director of Public Prosecutions) v. M.R.

The People (at the suit of the Director of Public Prosecutions)

Prosecutor

and

M.R. Accused

Cases mentioned in this report:-

R. v. Carr [2000] 2 Cr. App. R. 149.

R. v. Brown (1984) 79 Cr. App. R. 115.

Criminal law - Trial - Verdict - Particularisation of count - Jury - Juror in personal difficulty - Separation of jury - Whether jury under pressure to reach verdict - Whether separation of juror irregular - Prosecuting counsel commenting on matter of fact in closing speech - Whether count sufficiently particularised - Whether necessary for jury to reach verdict on agreed basis of fact - Whether permissible for prosecuting counsel to comment on credibility of complainant - Criminal Law (Rape) (Amendment) Act 1990 (No 32), s. 2 - Sex Offenders Act 2001 (No. 18), s. 37.

Application for leave to appeal

The facts have been summarised in the headnote and are more fully set out in the judgment of the court delivered by Denham J.,infra.

The accused was convicted on the 12th February, 2008 (Judge White and a jury). Notice of an application seeking leave to appeal was lodged on the 12th May, 2008. A notice of motion seeking leave to extend the grounds of appeal was filed and leave was granted on the 23rd March, 2009.

The application for leave to appeal was heard before the Court of Criminal Appeal (Denham, McKechnie and O'Keeffe JJ.) on the 18th May, 2009, where the application for leave was treated as the hearing of the appeal.

The accused was charged with two counts of sexual assault and was tried in the Circuit Criminal Court before a judge and jury. In the course of the trial, the complainant gave evidence that she had been touched on both the breast and vagina by the accused. The accused gave evidence that he had only touched the complainant on the breast. The first count alleged simply that the accused had sexually assaulted the complainant. The second count alleged that he had sexually assaulted her otherwise than as set out in the first count.

Following the judge's charge the jury commenced their deliberations at 2.23 p.m. At 5.15 p.m. they were recalled by the judge. At that stage they indicated that they had reached a unanimous verdict in relation to the first count. The jury were then given a majority direction in relation to the second count.

At this point, it became apparent that one of the jurors was in personal difficulty in that she had to collect her son from a crèche at 6 p.m. The judge made inquiries of this juror and the remainder of the jury were sent back to the jury room and told to suspend their deliberations. An arrangement was then reached whereby two gardaí collected the child in question after a request by the juror to accompany the gardaí was refused.

The jury resumed their deliberations at 5.31 p.m. and returned at 5.53 p.m. with a unanimous verdict of guilty on count one and a majority verdict of guilty on count two.

The accused appealed to the Court of Criminal Appeal. He argued,inter alia, that the counts were insufficiently particularised, that the trial judge had erred in failing to direct the jury that they had to be unanimous as to the conduct which had occurred, that the jury had been put under undue pressure to reach a verdict, that their deliberations were irregular in so far as they had not remained together for the entire period of their deliberations, that the short period of deliberation before delivering the majority verdict rendered that verdict unsafe and that counsel for the prosecution, in the course of his closing speech, had commented inappropriately on the credibility of the complainant.

Held by the Court of Criminal Appeal (Denham, McKechnie and O'Keeffe JJ.), in quashing the convictions and in not ordering a retrial, 1, that to achieve a decision on facts, a jury should reach a unanimous decision or, after direction, a majority decision on the fact or facts in issue such that there was agreement on the fundamental facts of the case.

• R. v. Carr [2000] 2 Cr. App. R. 149 and R. v. Brown (1984) 79 Cr. App. R. 115 considered.

2. That the counts were insufficiently particularised in that the complaints in relation to the touching of the various parts of the body were not specified. It was important to particularise charges, especially where one set of facts was admitted. The lack of particularisation had led to a confused charge and the trial judge had erred in failing to direct the jury that it was necessary for them to be unanimous as to the act which had occurred.

• R. v. Carr [2000] 2 Cr. App. R. 149 and R. v. Brown (1984) 79 Cr. App. R. 115 considered.

3. That a jury should not reach a verdict in circumstances where it was under pressure to reach a decision quickly, or under time constraints in any way and judges had a duty to forewarn jurors of the risk that they might be required to sit late when considering a verdict.

4. That the separation of the juror from the rest of the jury in the circumstances in which it occurred was not sufficient to render the verdict unsafe.

5. That it was not appropriate for counsel to personalise his role or to give a personal opinion on evidence or the credibility of witnesses, since there was a danger that a jury might regard him as giving expert evidence.

Cur. adv. vult.

In accordance with the provisions of s. 28 of the Courts of Justice Act 1924, the judgment of the Court of Criminal Appeal was delivered by a single member.

Denham J. 29th July, 2009

[1] The parties agreed on a summary of the facts, which is as follows.

[2] M.R., the accused, was arraigned and pleaded not guilty to two counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001, charging him that he did on the 15th May, 2006, sexually assault one D.G.

[3] The trial before His Honour Judge Michael White and a jury commenced on Wednesday, the 6th February, 2008. The evidence concluded on Friday, the 8th February, 2008, at which time the matter was adjourned to Tuesday, the 12th February, 2008, for closing speeches and the judge's charge.

[4] Having been charged by the trial judge, the jury retired at 2.23 p.m. on the 12th February, 2008. They returned with some queries at 3.28 p.m., which were dealt with by the trial judge. They recommenced their deliberations at 3.47 p.m.

[5] The jury was called in by the trial judge at 5.15 p.m., at which stage the foreman indicated that they had reached a verdict upon which they had all agreed in relation to count no.1. That verdict however was not announced at that time. They had not reached a unanimous verdict in relation to count no. 2. The trial judge charged them in...