DPP v R (M)

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 29 July 2009
• Neutral Citation: [2009] IECCA 87
• Judgment citation (vLex): [2009] 7 JIC 2904
• Court: Court of Criminal Appeal
• Date: 29 July 2009

[2009] IECCA 87

THE COURT OF CRIMINAL APPEAL

Denham J.

McKechnie J.

O'Keeffe J.

[Appeal No: 157/08]

DPP v R (M)

[2009] IECCA 87

Between/

The People at the suit of the Director of Public Prosecutions

Prosecutor

and

M.R.

Appellant

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2

SEX OFFENDERS ACT 2001 S37

R v BROWN (KEVIN) 1984 79 CAR 115

COONAN & FOLEY THE JUDGES CHARGE IN CRIMINAL TRIALS 2008 PARA 43.28

R v CARR (LESLIE JOSEPH) 2000 2 CAR 149

CRIMINAL LAW

Trial

Severity - Manslaughter - Diminished responsibility - Guilty plea - Whether sentence of life imprisonment permissible - Criminal Justice Act 1999 (No 10), s 29 - Criminal Law (Insanity) Act 2006 (No 11), s 6 - Sentence reduced from life to 20 years (213/2007 - CCA - 27/5/2009) [2009] IECCA 57

People (DPP) v Crowe

Facts The appellant sought leave to appeal a conviction on two counts of sexual assault. It was alleged the appellant did on 15 May 2006 sexually assault one D.G. and D.G.'s evidence in that regard was that the appellant touched her on the breast and vagina on two separate occasions. The appellant admitted touching D.G.' breast only. The appellant was convicted on a unanimous verdict on Count No. 1 and a majority verdict on Count No. 2. The jury was informed at 5.31pm that they could return a majority verdict, which they duly did at 5.53pm. It was brought to the learned trial judge's attention at 5.15pm that one member of the jury was anxious to collect her child from a cr?che at 6pm. That juror was separated from the rest of the jury but was present in court while efforts were made to resolve the problem. It was decided that two uniformed Gardai would collect the child and the juror then returned to deliberate with the jury, who had been directed to suspend deliberations. The appellant sought leave to appeal on the grounds that the Trial Judge erred in law and in fact in refusing to withdraw the prosecuting case at the close of the evidence, secondly, that the verdict was rendered unsatisfactory by virtue of the material irregularity, namely the jury deliberated in the absence of one of their number, and that a majority verdict was returned in circumstances where one of the jurors had expressed her desire to be released and indicated that she was under considerable pressure, thirdly, that the trial was unsatisfactory in that, with regard to Count 1, the Trial Judge erred in his charge to the jury by failing to direct them that it was necessary for them to be unanimous as to the conduct or act which had occurred and lastly, the conviction was unsafe in circumstances of a finely balanced case where prosecuting counsel in his closing speech expressed opinions on the truthfulness of the evidence of the complainant, which opinion ought not to have been given.

Held by the C.C.A.; Denham J. (McKechnie, O'Keeffe JJ) in allowing the appeal and quashing the convictions: 1. That in this case there was a lack of particularisation on Count No. 1 and that led to a confused charge. The Judge failed to direct clearly that the jury must be unanimous on the act or acts which grounded their verdict. In this situation, where one of the acts had been admitted, it would have been appropriate for the trial judge to deal clearly with the acts alleged. In the circumstances, the verdict on Count 1 was unsafe.

2. The separation of the juror from the jury in this case was not such as to render the verdict unsafe, as the juror was in court at all times during the separation.

3. The length of time taken to reach a verdict on Count No. 2 was not per se a ground upon which to grant leave to appeal. However, that issue was required to be considered in relation to the pressure on the juror and jury. There was no doubt that the issue concerning the collection of the juror's child placed a pressure on that juror, which may have spilt over into the jury as a whole. In all the circumstances, there was a real likelihood of pressure on the juror in question to reach a decision, and upon the jury, which was aware of her anxiety to leave.

4. That it was not appropriate for counsel to give a personal opinion on evidence and or on the credibility of witnesses. However, in the circumstances of this case, the court was satisfied that the remarks of counsel were not such as to lead to an unfair trial.

Reporter: L.O'S

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

2 M.R., the appellant, 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 15 ^th May, 2006, sexually assault one D.G.

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

4 Having been charged by the learned trial judge, the jury retired at 2.23 p.m. on the 12 ^th 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 learned 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 learned trial judge charged them in relation to a majority verdict. Then the learned trial judge entered upon an enquiry concerning the difficulties which one juror had in relation to the collection of her 6 year old child who required to be collected by 6 p.m.. It appears that this matter was brought to the judge's attention by the Court Garda and by the fact that the juror in question appeared upset.

6 The judge told the jury to suspend their deliberation, while he was canvassing a solution to the problem of the juror's child who required collection. It appears that the juror with the difficulty was separated from the rest of the jury who had retired to the jury room. The juror was brought into court where she was asked by the judge if uniformed Gardaí could collect her child. The separated juror made a telephone call to the child's créche. After that two uniformed Gardaí went to collect the child.

7 The jury of twelve persons then recommenced their deliberations at 5.31 p.m., having been charged that they could give a majority verdict.

8 The jury returned with a verdict at 5.53 p.m., finding the appellant guilty by a majority of 10 to 2 on Count No. 2. The verdict in relation to Count No.1 was given at that time also, which was a unanimous verdict of guilty.

9 Thus, the appellant was convicted on a unanimous verdict on Count No.1 and a majority verdict of 10 to 2 on Count No.2.

Grounds of Appeal

10 The appellant filed two grounds of appeal, as follows.

i "(i) The Trial Judge erred in law and in fact in refusing to withdraw the prosecuting case at the close of the evidence.

(ii) That the verdict was rendered unsatisfactory by virtue of the material irregularity namely, that the jury deliberated in the absence of one of their number, and that a majority verdict was given in circumstances where one of the jurors had expressed her desire to be released in order to collect one of her children and indicated that she was under considerable pressure.

Motion

11 The appellant brought a motion seeking to extend the grounds of appeal to include the following:-

(ii) That the trial was unsatisfactory in that, with regard to Count 1, the Trial Judge erred in his charge to the jury by failing to direct them that it was necessary for them to be unanimous as to the conduct or act which had occurred.

(iii) The conviction is unsafe in circumstances of a finely balanced case where prosecuting counsel in his closing speech expressed his opinions on the truthfulness of the evidence of the complainant, which opinion ought not have been given.

The Court granted the motion and extended the grounds of appeal.

Particularisation of count

12 The third ground of appeal raised the important legal issue that the indictment was not sufficiently particularised and that the trial judge erred in his charge to the jury. On this ground, with regard to Count No. 1, the Court is satisfied that the trial judge erred by failing to direct the jury that it was necessary for them to be unanimous as to the act which had occurred.

13 The Counts before the judge and jury were as follows:-

Count No. 1

STATEMENT OF OFFENCE

Sexual assault contrary to Section 2 of the Criminal Law (Rape) (Amendment) Act, 1990 as amended by Section 37 of the Sex Offenders Act, 2001

PARTICULARS OF OFFENCE

M.R., a male person, on the 15 ^th day of May 2006 at L.P., N. in the County of … sexually assaulted D.G., a female.

Count No. 2

STATEMENT OF OFFENCE

Sexual assault contrary to Section 2 of the Criminal Law (Rape) (Amendment) Act, 1990 as amended by Section 37 of the Sex Offenders Act, 2001

PARTICULARS OF OFFENCE

M.R., a male person, on the 15 ^th day of May 2006 at L.P., N. in the County of … sexually assaulted D.G., a female otherwise than as set out in count 1.

Charge to jury

14 As to the act in question, that was addressed in evidence, and by the learned trial judge in his charge where he stated:-

"Now, in respect of the first count you have [D.G.'s] evidence in respect of that, that she was touched on the breast and the vagina and that this was the first incident in time and that there was a separate incident. You have [the appellant's] evidence that there was only one incident and that it was a touching of the breast...