DPP v Nevin

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 14 March 2003
• Neutral Citation: 2003 WJSC-CCA 4217
• Court: Court of Criminal Appeal
• Docket Number: [C.A.A. No. 117 of 2000]
• Date: 14 March 2003

DPP v. NEVIN

BETWEEN/

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

Prosecutor/Respondent

v.

CATHERINE NEVIN

Accused/Applicant

2003 WJSC-CCA 4217

Geoghegan J.

Quirke J.

Peart J.

117/00

THE COURT OF CRIMINAL APPEAL

Synopsis:

CRIMINAL LAW

Appeal

Conviction - Murder and soliciting to murder - Fair trial - Whether publicity rendered it improbable that applicant could have fair trial - Whether charge to jury and rulings and directions of trial judge fair (117/2000 - Court of Criminal Appeal - 14/03/2003)

DPP v Nevin - [2003] 3 IR 321

This was an application by Mrs. Catherine Nevin for leave to appeal against a conviction of murder and three other convictions for soliciting to murder. The applicant contended inter alia that the publicity rendered it improbable that the applicant could have a fair trial and that the charge to the jury was weighted in favour of the prosecution.

Held by the Court of Criminal Appeal (Geoghegan, Quirke and Peart JJ) in refusing the application for leave to appeal that the applicant received an exceptionally fair trial in very difficult circumstances. The trial was impeccably conducted by the trial judge and all her rulings and directions were correct.

Citations:

Z V DPP 1994 2 IR 476

TRIMBOLE, STATE V GOVERNOR OF MOUNTJOY PRISON 1985 IR 550

ZOE DEVELOPMENTS, IN RE UNREP GEOGHEGAN 3.3.1999 1999/25/8085

HANAHOE V HUSSEY 1998 3 IR 69

CONSTITUTION ART 40

O'KELLY, RE 108 ILTR 97

D V DPP 1994 2 IR 465

AG V X 1992 1 IR 1

REG V HORSEFERRY ROAD MAGISTRATES COURT 1994 1 AC 42

R V WEST 1996 2 CAR 374

R V KRAY 1970 1 QB 125 1969 3 WLR 831 1969 AER 941 1969 53 CAR 412

YOUNG & COUGHLAN 1976 63 CAR 37

IN EX PARTE TELEGRAPH PLC 1994 98 CAR 91 1993 1 WLR 980

CRIMINAL JUSTICE (ADMINISTRATION) ACT 19241924 SCH 1 RULE 3

INDICTMENT (PROCEDURE) RULES 1971 RULE 9 (UK)

INDICTMENT ACT 1915 SCH 1 RULE 3 (UK)

R V BARRELL & WILSON 1979 69 CAR 250

R V BAIRD 97 CAR 308

LUDLOW V METROPOLITAN POLICE CMSR 1971 AC 29

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S6(3)

INDICTMENT ACT 1915 S5(3) (UK)

DPP, PEOPLE V B(K) 2000 2 IR 199

AG V MARTIN JOYCE & WALSH 1929 IR 526

R V BOND 1906 2 KB 389

R V HAGAN 1873 12 COX CC 357

R V BALL 1911 AC 47

1 14th day of March 2003 by Mr. Justice Geoghegan

Mr. Justice Geoghegan

2 This is an application by Mrs. Catherine Nevin the above-named applicant for leave to appeal against a conviction of murder and three other convictions for soliciting to murder which verdicts were returned by a jury on the 11 ^th of April, 2000 at the end of a lengthy trial presided over by Carroll J.

3 There was the usual written document filed containing "Grounds of Application". These numbered nineteen. At the hearing before this court Mr. Patrick MacEntee S.C. counsel for the applicant opened this application on the basis of nine points of appeal and he more or less followed that order in his subsequent submissions. Rather than strictly follow either the grounds set out in the written notice or more to the point the grounds as argued, the court thinks it useful to concentrate first on what, in its view at least, appeared to be the three principal grounds of argument. These are:-

4 1. That the learned trial judge in her discretion ought not to have permitted the trial to go on because of adverse press publicity after the murder had occurred and more recently during an earlier and aborted trial which rendered it improbable that the applicant could have a fair trial.

5 2. That separate trials of the counts in the indictment ought to have been ordered or more accurately that the trial of the murder count and the trial of the solicitation counts should have been separated. The main thrust of Mr. MacEntee's argument was that the murder trial should not have taken place in tandem with any or all of the solicitation counts as there was a considerable amount of evidence in the murder trial which was allegedly either irrelevant to the solicitation charges or if relevant, the probative value of which was far outweighed by its prejudicial effect. In particular, there was a good deal of evidence relating to the applicant's character and her relationship or perhaps more accurately lack of relationship with her murdered husband and it was suggested that this evidence would not have been admissible evidence in relation to any of the soliciting charges if they had been heard alone. That being so, it was then argued that there should have been separate trials.

6 3. That the charge or summing up to the jury by the learned trial judge was weighted in favour of the prosecution in a number of respects but particularly in her failure to bring back to the minds of the jury the alternative explanations of the circumstantial evidence which had been put forward to the jury by Mr. MacEnteee in his closing speech.

7 It has already been mentioned that there are other grounds of appeal also and they will be dealt with in due course in the judgment but for the sake of clarity it seems more appropriate first to treat of these three grounds which the court perceives as principal grounds of appeal.

The publicity

8 It must be stated straight away that there was a great deal of press coverage of aspects of this case before and during the first but aborted trial which was inappropriate and inexcusable. Nobody would suggest that the media are not entitled to give some coverage to how an investigation of a major crime which is causing public concern is progressing. It has been consistently suggested in this case that gardaí were improperly leaking information to the media in a conspiracy to promote their own theory of who was responsible for the murder. Within the limits of ensuring that a fair trial will not be prejudiced, the gardaí may well be entitled in a responsible manner to give certain levels of information about how an investigation is going to the press and, indeed, there could be circumstances (though it is not suggested that there were such here) where the giving of such information might be a legitimate garda tactic to attract new and relevant witnesses. Mr. MacEntee appeared to acknowledge that proof of any wrongful conspiracy by the gardaí would have probably required full disclosure of sources by the relevant journalists, something which they were not forced to do by the trial judge. This whole question comes under one of the additional grounds of appeal but it can be conveniently dealt with under the umbrella of the adverse publicity ground. The pre-trial publicity led Mr. MacEntee to apply to the trial judge to stop the first trial which she refused to do. When that trial became aborted after ten days due to an incident involving the jury room Mr. MacEntee both on the basis of the pre-trial publicity and on the basis of newspaper coverage of the first trial applied that the second trial be delayed. That application was also refused. The second trial within a very short time became itself aborted due to illness of a juror and it was then agreed on all sides that there would not be a further application to delay the third trial but that the learned trial judge would be deemed to have refused such adjournment and her ruling on the second trial could, therefore, be a good ground of appeal on the third trial.

9 The publicity objected to took two forms. One took the form of articles by crime correspondents etc. giving indications of how the gardaí were understood to be viewing the investigation. While none of these articles pointed a definite finger of guilt on the applicant it would have been clearly implied. Other articles took the form of what has been described as "colour pieces". The articles relating to the investigation were in the period 1996/97 and therefore a very long time before even the first trial. The so called "colour pieces" arose during the first trial. Constant comments were made by certain popular newspapers on the applicant's appearance and her clothing etc. Ultimately, the learned trial judge banned these newspapers from publishing any photographs of the applicant and made an order banning comment on the accused woman's "hairstyle, dress, jewellery, nail varnish, reading matter or demeanour in court." The judge quite rightly ruled that the applicant's right to a fair trial far outweighed the media's right to comment. It is not necessary to set out in graphic detail the comments that were made in the press about the applicant. It is sufficient to refer to the ultimate ruling of Carroll J. on the matter made on the third day of the second trial when she said the following:-

"I found the colour pieces, particularly in the Evening Herald but to a lesser extent in the Irish Independent, the worst kind of tabloid journalism designed solely to sell newspapers without any regard to Mrs. Nevin's dignity as a human person. Mrs. Nevin had been dissected every day by comment on her personal appearance, her demeanour. She is given no credit for her composure in a situation of great stress. Comment on her appearance was made in a particularly offensive way. Her privacy has been invaded by photographing her coming out of her own home and by prying into her book to see that her husband's memorial mass card was a marker. And all of this to feed an insatiable public curiosity for detail upon detail of what kind of person Mrs. Nevin is. The theme which emerged of fictional character or plot from an airport novel is a trivialisation of what is the most serious exercise being carried out in this court, consequent on the violent death of a man to determine whether his wife, Mrs. Nevin, the accused is guilty of his murder."

10 Carroll J. ultimately ruled that notwithstanding these articles there was not a "real or serious risk that Mrs. Nevin would not get a fair trial." In making this ruling she relied on the principles enunciated by the Supreme Court in Z v. DPP [1994]...