DPP v Tobin

• Jurisdiction: Ireland
• Judge: FENNELLY J.
• Judgment Date: 22 June 2001
• Neutral Citation: 2001 WJSC-CCA 2198
• Court: Court of Criminal Appeal
• Docket Number: 133/00,[C.C.A. No. 133 of 2000]
• Date: 22 June 2001

DPP v. TOBIN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor/Respondent

AND

NICHOLAS TOBIN

Accused/Appellant

2001 WJSC-CCA 2198

Fennelly J.

Kinlen J.

Murphy J.

133/00

THE COURT OF CRIMINAL APPEAL

Synopsis:

CRIMINAL LAW

Jury

Fair procedures - Role of jury - Sexual offences - Central Criminal Court - Juror had prior experience of sexual abuse - Risk of bias - Direction to jury - Whether risk of unfair trial - Juries Act, 1976 section 15 (3) - Bunreacht na hÉireann, 1937 article 38.1 (133/2000 - Court of Criminal Appeal - 22/6/01) - [2001] 3 IR 469 - [2002] 1 ILRM 428

DPP v Tobin

The appellant had been tried and convicted on rape and sexual assault charges. It had transpired during the trial that a member of the jury had suffered sexual abuse. The trial judge had refused to discharge the jury. The appellant brought an appeal seeking to have the conviction quashed. Fennelly J, delivering judgment, held that there was a risk of objective bias. The conviction would be quashed and a re-trial ordered.

Citations:

CONSTITUTION ART 38.1

Z V DPP 1994 2 IR 476

AG, PEOPLE V SINGER 1975 IR 408

DPP V HAUGH 2000 1 IR 184

BULA V TARA MINES 2000 4 IR 412

SANDER V UNITED KINGDOME 2000 CLR 767

BLACKWELL 1995 2 CAR 625

R V SAWYER 1980 71 CAR 283

R V SPENCER 1987 AC 128

D V DPP 1994 2 IR 465

KELLY V O'NEILL 2000 ILRM 507

CONSTITUTION ART 38

JURIES ACT 1976 S15(3)

JURIES ACT 1976 S20

JURIES ACT 1976 S21

CULLEN V O'BEIRNE 1984 ILRM 577

R V GOUGH 1993 AC 646

WEBB V THE QUEENB 1994 181 CLR

O'NEILL V BEAUMONT HOSPITAL 1990 ILRM 419

O'REILLY V CASSIDY 1995 1 ILRM 306

DUBLIN WELLWOMAN CENTRE LTD V IRELAND 1995 ILRM 408

R V SUSSEX JUSTICES EX PARTE MCCARTHY 1924 1 KB 256

1 22nd day of June, 2001 by FENNELLY J.

FENNELLY J.

2 The applicant was charged and tried before O'Donovan J. and a jury in the Central Criminal Court on eleven counts of rape and indecent assault alleged to have been committed in the 1980's against the same female person. The jury convicted the appellant by majority verdicts on all counts. The learned trial judge sentenced him to concurrent sentences of imprisonment of eight years on the counts of rape and four years on the other counts.

3 The learned trial judge has certified that the case is a fit case for appeal solely on the ground:

"that the Court failed to discharge the Jury when it was brought to the attention of the Court by the foreman of the Jury that a member of the Jury had disclosed during the course of their deliberations that a particular member of the Jury had a prior experience of sexual abuse."

4 Shortly after this Court made an order admitting the appellant to bail pending the hearing of this appeal.

5 The offences with which the appellant was charged are alleged to have occurred during a period of years when he was living with the mother of the victim and her other children. Some children were also born of his relationship with the victim's mother. During this time, from when the victim was about twelve to when she was about fourteen, it is alleged that the appellant repeatedly sexually assaulted her in different ways, including rape. The Victim first complained to the gardai about the sexual abuse in 1997, when she was twenty four. The appellant has at all times both when interviewed by the gardai and during the trial of some eight days strenuously denied the allegations of abuse.

6 The problem that confronts this Court as is plain from the certificate of the learned trial judge is that some two hours and twenty minutes after he had given his directions to the jury and they had retired to consider their verdict, the jury asked to be allowed to seek directions of the Court. Upon their being recalled, the foreman told the Court that in the course of their deliberations a juror had related personal experience of sexual abuse. The learned trial judge asked whether the juror could not be able to deal with the matter objectively. The foreman said that this was not so but that the jury were concerned as a body. Neither the name nor the gender of the juror was disclosed and no other particulars of the juror's personal experience were given.

7 Following argument in the absence of the jury the learned trial judge recalled the jury and the inquired of the foreman if the ability of the juror in question to approach the case impartially would in that person's own view be affected by his or her experience. The foreman assured the court that it was not affecting the impartiality of that person in any way but explained that the jury felt they should report the matter to the court. That was the sum-total of the information available to the court as to the nature of the problem which had emerged in the jury room.

8 The learned trial judge decided to take no further action, based on the assurance given by the foreman, Slightly later counsel for the appellant intervened to argue that the learned trial judge should, in the exercise of his discretion, discharge the entire jury. He pointed out that, if the juror had disclosed his concern at an earlier stage, the defence would have objected to that juror continuing to serve and that in the actual circumstances the defence was concerned at the risk to the fairness of his trial from the known presence on the jury of a person with an individual experience of sexual abuse, which was what the trial was about. The juror might introduce individual personal experience to the case and might communicate that experience to other jurors. The risk of bias could persist even though the person in question believed himself or herself to be free of it. Furthermore justice must be seen to be done.

9 The learned trial judge rejected the application. He did not think there was a high degree of need to discharged the jury, which was the test he set for himself.

10 It has to be said at once that the circumstances were unusual and presented the learned trial judge with a difficult choice. In effect he could choose only between continuing with the case as he did and discharging the entire jury. Discharging the individual juror was not an option. That would have involved identifying the juror which would have been invidious and embarrassing. Faced with the most categorical assurance from the foreman of the confidence of the jury in their own impartiality, the learned trial judge decide that there was no risk to the fairness of the trial such as to warrant the discharge of the jury.

11 The appellant in his submissions to this Court cites article 38.1 of the Constitution which provides:

"No person shall be tried on any criminal charge save in due course of law."

12 This, he says, incorporates the right to be tried by an unbiased jury. He cited Z v DPP [1994] 2 I.R. 476, The People (Attorney General) v Singer [1975] I.R. 408 and DPP v Haugh [2000] 1 I.R. 184. Applying the maxim that justice should not only be done but be seen to be done, the test should be an objective one. Would a reasonable person have a reasonable apprehension that the appellant would not, in the circumstance receive a fair and impartial trial? This was the test adopted by the Supreme Court as expressed in the judgment of Denham J in Bula Ltd (in Receivership) and others v Tara Mines Ltd and others (unreported 4 ^th July 2000). It was also adopted in a number of other cases in which the courts have considered the notion of bias in judicial or analogous tribunals.

13 Two decisions of the European Court of Human Rights were also cited. In Sander v United Kingdom [2000] Crim. L.R. 767, the trial judge, in a case involving a British national of Asian origin, had received a note from a juror (not the foreman) referring to racist remarks made by a juror. The judge directed the jury to disregard any prejudices. Subsequently, all jury members signed a note disowning any racist remarks or prejudices and the judge did not discharge the jury. The European Court of Human Rights applied the objective test. It considered that there had been a breach by the United Kingdom of article 6(1) of the European Convention on Human Rights and Fundamental Freedoms. An objective observer might reasonably entertain doubts as to the impartiality of the jury.

14 The appellant had been denied the opportunity to challenge the juror during the trial because of the lateness of the disclosure. The learned trial judge should have interrogated the juror in the absence of the other jurors. A number of English cases were cited in support of this proposition (see Blackwell and others [1995] 2 Cr App R 625; Reg v Sawyer [1980] 71 Cr App R 283; Reg v Spencer [1987] A.C. 128.

15 The Director of Public Prosecutions relied on D v DPP [1994] 2 I.R. 465, to show that "the robust common sense of juries" could be expected to resist external influences when strongly and effectively directed by the learned trial judge regarding the obligation to try a case only on the facts. In Eamon Kelly v Paul O'Neill and Conor Brady [2000] 1 I.L.R.M. 507 Denham J remarked that jurors are "robust" and stated that the test is "Whether there is a real risk that an accused person would not receive a fair trial."

16 The Director supported the decision of the learned trial judge not to discharge the jury. He had disposed of any question of subjective bias by his questions to the foreman. Objectively, this was not a case of risk of bias. Singer's case was distinguishable. There a juror was found to be an actual victim of the investment scheme which was the basis of the frauds charged against the accused. Heavy reliance was placed on the warnings given to the jury panel before empanelling and to the directions given by the learned trial judge in his summing up in the trial itself.

CONCLUSION

17 The Court is of opinion that he issue must be decided in the light of the right to a fair trial guaranteed by article...