DPP v Norris
| Jurisdiction | Ireland |
| Judge | Finnegan J. |
| Judgment Date | 02 April 2009 |
| Neutral Citation | [2009] IECCA 27 |
| Court | Court of Criminal Appeal |
| Date | 02 April 2009 |
| Docket Number | [C.C.A. No. 5 of |
[2009] IECCA 27
COURT OF CRIMINAL APPEAL
Finnegan J.
Hanna J.
Charleton J.
MISUSE OF DRUGS REGS 1988 ART 4(1)(B)
MISUSE OF DRUGS ACT 1984 S2
O'CALLAGHAN v MAHON 2008 2 IR 514 2007/47/9902 2007 IESC 17
DPP v TOBIN 2001 3 IR 469 2002 1 ILRM 428 2001/8/2198
CONSTITUTION ART 38
JURIES ACT 1976 S15(3)
DPP v HAUGH & HAUGHEY 2000 1 IR 184 2000/7/2615
R v GOUGH (ROBERT) 1993 AC 646 1993 2 WLR 883 1993 2 AER 724
MEDICAMENTS & RELATED CLASSES OF GOODS, IN RE (NO 2) 2001 ICR 564 2001 1 WLR 700
JOHNSON v JOHNSON 2000 201 CLR 488 2000 HCA 48
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6.1
METROPOLITAN PROPERTIES CO (FGC) LTD v LANNON 1969 1 QB 577 1968 3 WLR 694 1968 3 AER 304
LAWAL v NORTHERN SPIRIT LTD 2004 1 AER 187
R v ABDROIKOV (NURLON) 2008 1 AER 315 2007 1 WLR 2679
HAUSCHILDT v DENMARK 1990 12 EHRR 266
PULLAR v UNITED KINGDOM 1996 22 EHRR 391
R v I (ALAN) 2007 EWCA CRIM 2999
R v PINTORI (ANDREI) 2007 EWCA CRIM 1700 2007 CRIM LR 997
AG, PEOPLE v SINGER 1975 IR 408
DPP v MULDER 2007 4 IR 796 2007/20/4152 2007 IECCA 63
CRIMINAL LAW
Jury
Bias - Objective bias of juror - Juror raised in same housing estate as accused - Neighbour - Accused unaware could object to jurors - Accused unaware of foreman's identity during trial - Accused recognised foreman of jury upon conviction - Whether knowledge of accused by member of jury give reasonable apprehension of bias - Whether real danger of bias - Whether irregularity lead to risk of unfair trial - People (DPP v Tobin [2001] 3 IR 469, Reg v Gough [1993] AC 646 and O'Callaghan v Mahon [2007] IESC 17, [2008] 2 IR 514 followed; Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 approved - Constitution of Ireland 1937, Article 38 - European Convention on the Protection of Human Rights and Fundamental Freedoms 1950, article 6(1) (5/2008 - CCA - 2/4/2009) [2009] IECCA 27
People (DPP) v Norris
Judgment of the Court delivered on the 2nd day of April 2009by Finnegan J.
On the 21 st November 2007 the applicant was convicted at Clonmel Circuit Court on the following five counts:-
Count 1. Unlawful possession of a controlled drug, cocaine, contrary to section 3 and section 27 of the Misuse of Drugs Act 1977.
Count 2 Possession of a controlled drug, cocaine, for the purpose of selling or supplying it to another contrary to section 15 of the Misuse of Drugs Act 1977 and contrary to article 4 (1)(b) of the Misuse of Drugs (Regulations) 1988 as made pursuant to section 5 of the Misuse of Drugs Act 1977.
Count 3 Unlawful possession of a controlled drug, cannabis resin, contrary to section 3 and section 27 (as amended by section 2 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.
Count 4 Possession of a controlled drug, cannabis resin, for the purpose of selling or otherwise supplying it to another contrary to section 15 and section 27 (as amended by section 2 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.
Count 5 Possession of a controlled drug, cannabis resin and cocaine, for the purpose of selling or otherwise supplying it to another contrary to section 15A (as inserted by section 4 of the Criminal Justice Act 1999) and section 27 (as amended by section 5 of the Criminal Justice Act 1999) of the Misuse of Drugs Act 1977.
In respect of these counts she was sentenced to terms of imprisonment of five years, ten years, five years, ten years and ten years respectively, the terms to run concurrently. She appealed against conviction the sole ground of appeal being as follows:-
"The trial and verdict was unsatisfactory in that the foreman of the jury knew the applicant in that she was a neighbour of the applicant".
The jury returned a verdict of guilty on the five counts on the 21 st November 2007 and the matter was put back for sentence to the 13 th December 2007 and again to the 19 th December 2007 when sentence was imposed. After the imposition of sentence counsel on behalf of the applicant addressed the learned trial judge as follows:-
"There is another matter that was brought to my attention this morning, judge. It may not come to anything but I just want to apply it at this stage that there is a potential problem in relation to the composition of the jury in this case. I don't propose leave to appeal at this stage unless I can get firm confirmation and instructions. But what I might be doing is coming back to the court asking for an extension of time within which to file grounds of appeal. It is nothing to do with the way the trial ran from the point of view of the court or the prosecution; it is a composition problem."
On the 29 th July 2008 an application was made to the learned trial judge for an extension of the time within which to appeal and that application was granted.
The applicant applied for leave to admit additional evidence by way of an affidavit of the applicant and the court acceded to that request. The relevant averments in the affidavit are as follows:-
2 "3. I grew up and was reared in a very small housing estate in Clonmel in Co. Tipeprary. I grew up in No 53 Ard Fatima which is a small housing estate of about fifty nine to sixty one houses in Clonmel. The foreman of the jury, Ms Anne Kennedy-Dennehy, grew up and was reared in the same small estate of Ard Fatima in No. 6 Ard Fatima at the same time as when I lived in that housing estate. When I was living in Ard Fatima my name was Maria Sheehan.
4. I do not believe that No. 6 Ard Fatima has been sold outside the Kennedy family and I have frequently seen Anne Kennedy-Dennehy return to No. 6 Ard Fatima to visit her relatives there.
5. The address at which my former husband and I lived from in around 1982 is 11 Elm Park in Clonmel. 11 Elm Park is a very short distance from Ard Fatima. In fact it was just across the road from Ard Fatima. I had, however, lived on a day-to-day basis in Cahir from in around 2003. I returned to 11 Elm Park on a nightly basis to assist in caring for my terminally ill father prior to my arrest.
6. When I was growing up in Ard Fatima I knew the foreman, Anne Kennedy-Dennehy. She knew my family and I knew her family. I would recognise her and I am sure she would recognise me. Both Anne Kennedy-Dennehy and I went to the same school.
7. My former husband worked for Niall Dennehy as a lorry driver and Anne Kennedy-Dennehy is the sister-in-law of Niall Dennehy. I have worked in chip shops in Clonmel for over ten years.
8. My son is good friends with the son of Johnny Dennehy. Johnny Dennehy is Anne Knnedy-Dennehy's brother-in-law.
9. My brother David Sheehan was originally a co-accused in this trial. However, a nolle prosequi was entered on the indictment as against him.
10. My late son Michael Norris died in 2003 and I was devastated by his death. He was a drug user and died from an overdose. He was only nineteen years of age.
11. It was not explained to me by my solicitor and I did not appreciate that I could object to jurors. I was not aware that I should scrutinise jurors to see if I knew a juror.
12. I say that during the course of the trial I was positioned at the rear of the court. I was not facing the jury. I could not see the jury clearly as they were in a jury box that was angled facing away from me and my line of vision. I would have had to be on the other side of the courtroom to look at the jury directly.
13. I say that I did not take notice of the composition of the jury when I was giving evidence because I was very nervous and upset.
14. After a guilty verdict was returned, my attention was turned to the jury and I suddenly noticed that Anne Kennedy-Dennehy was on the jury and was the foreman. I informed my solicitor and he said that he would look into it. I further say that counsel acting on my behalf raised the issue of the composition of the jury at the sentencing hearing and counsel for the prosecution confirmed the same.
15. I say that throughout the trial, I was unaware of her presence and only noticed it after the verdict was returned.
16. I say that had I known that this old neighbour of ours was on the jury I would have instructed my legal team to object to her sitting on the jury."
In addition to the affidavit the applicant relies upon the transcript of Day 1 of the trial. From the transcript it is clear that the members of the jury were made aware of the applicant's maiden name. At the request of the judge counsel for the Director informed the jury panel that David Sheehan is a brother of the accused. The first witness, Garda Moran, gave evidence that the applicant's maiden name is Marie Sheehan, that she married a Mr Patrick Norris from whom she had separated for quite a period of time, that in her generation of the Sheehan family there were four brothers and one sister most of whom lived around the Clonmel area.
On that evidence the applicant seeks to have the verdict of the jury set aside on ground of objective bias.
The test to be applied where objective bias is alleged is whether a reasonable person, who has knowledge of all the relevant circumstances, would have a reasonable apprehension of bias: O'Callaghan &Others v Judge Alan Mahon &Others [2007] I.E.S.C 17 30 th March 2007. While the objective perception of bias may arise from different circumstances attending a hearing, in the present case the court is concerned with knowledge of an accused by a member of the...
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