DPP v McDonagh

• Jurisdiction: Ireland
• Judge: Hardiman J.
• Judgment Date: 13 October 2003
• Neutral Citation: 2003 WJSC-CCA 4104
• Date: 13 October 2003
• Docket Number: [C.C.A No. 84 of 2002]
• Court: Court of Criminal Appeal

DPP v. MCDONAGH

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

MARTIN McDONAGH

Applicant

2003 WJSC-CCA 4104

Hardiman J.

O'Sullivan J.

McKechnie J.

84/02

THE COURT OF CRIMINAL APPEAL

Abstract:

Criminal Law - Appeal against conviction - Murder - Jury keeping - Whether the applicant's conviction should have been quashed on the basis that the jury were not adequately kept.

Facts: The applicant was convicted of murder by a 10 to 2 majority of the jury. He was acquitted on two counts of attempted murder. All of those counts had been the subject of a previous trial where the jury had disagreed. In the course of their deliberations at the re-trial the jury was sent to a hotel to rest and recuperate prior to resuming their deliberations the next morning. Two members of the Gardai were sworn as jury keepers. During that period at the hotel one at least of the jury keepers engaged to some extent at the request of jury members in discussions of a fairly vague nature about the approach to the jury's deliberations. Furthermore one of the gardai ended up in a bedroom first with two female jurors and secondly one of them only during which time some level of physical contact occurred between them. In addition to that the jury keepers also socialised with members of the jury and went drinking with them. A number of the jury members met with relatives of the deceased person as a result of a message conveyed to them by one of the jury keepers that those relatives wished to meet with them. Consequently, the applicant sought leave to appeal against his conviction on the basis that it was unsafe or unsatisfactory.

Held by the Court of Criminal Appeal ( Hardiman, O'Sullivan, McKechnie JJ) in allowing the appeal and quashing the conviction of the applicant:

1. That only the trial judge was entitled to give the jury assistance, directions, hints, or any other indications as to how they were to approach their essential function. The jury keepers should not have mentioned to the jury how they were to approach their deliberations.

2. That the jury were in the keeping of the jury keepers. It was the responsibility of the jury keepers to keep them, that is to say to look after them, to preserve their peace, to prevent them from separating , to prevent anybody from approaching them and generally to ensure that they had the conditions necessary for carrying out their work. The jury keepers should not have become involved in the jury's deliberations or socialised with them.

3. That the court was not concerned with whether the jury keepers acted inappropriately or not but simply with the issue of whether the conviction should be quashed. The court was concerned with whether the trial was unsafe or unsatisfactory. The appropriate test to be applied was an objective and not a subjective one, that is to say the test was not whether there was a real danger that the accused might not receive a fair trial but, whether a reasonable and fair minded observer would consider that there was a danger in the sense of a possibility that a juror might have been unconsciously influenced by his or her personal experience and for that reason the appellant might not receive a fair trial.

4. That the court was not confident that a miscarriage of justice had not occurred. In the circumstances the evidence was not so overwhelming that the court could have been absolutely confident that the verdict would not have been different but for the matters which transpired.

Reporter: L.O'S.

1 Hardiman J. on the 13th day of October, 2003 .

2 This is the applicant's application for leave to appeal against his conviction for murder. The Court has been concerned with one portion of the grounds only, the grounds filed subsequent to the rest of the grounds and fundamentally raising issues as to the manner in which the jury in this case was kept.

3 At his trial the applicant was convicted of murder by a 10-2 majority of the jury. He was acquitted on two counts of attempted murder. All these counts had been the subject of a previous trial where the jury had disagreed. During their deliberations at the re-trial the jury was sent to a hotel to rest and recuperate before resuming their deliberations the next morning. Two members of the Gardaí were sworn as jury keepers. These were referred to during the present hearing as X and Y.

4 We would say in the first instance that it appears that the two members of An Garda Síochána who were designated to keep the jury and who were sworn as jury keepers appear to have been left with very little in the way of proper instructions as to how to keep the jury. One of them had some years of experience in this but had learnt entirely, as I think he said himself, "on the job". Certainly there is no suggestion that to either of them was explained that the phrase in the jury keepers' oath "well and truly keep this jury" means something more than simply not suborning them or interfering with them.

5 First of all of course there is no doubt whatever but that the guards did not make any attempt deliberately to suborn the jury in the sense of trying to produce any particular verdict, nor did they, on the evidence of the juror who made a complaint about one of the guards, discuss the case with the jury or any part...