DPP v Warren

JurisdictionIreland
JudgeMr. Justice Mahon
Judgment Date04 July 2016
Neutral Citation[2016] IECA 198
Docket NumberAppeal No.: 320/2012
CourtCourt of Appeal (Ireland)
Date04 July 2016

Birmingham J.

Sheehan J.

Mahon J.

The People at the suit of the Director of Public Prosecutions
Respondent
- and -
Joseph Warren
Appellant

[2016] IECA 198

Appeal No.: 320/2012

THE COURT OF APPEAL

Conviction – Conspiracy – Empanelling juries – Appellant seeking to appeal against conviction – Whether trial judge erred in principle by excluding from the panel of potential jurors resident in Ballymun, Finglas and Cabra in the County of the City of Dublin

Facts: The appellant, Mr Warren, attempted to steal cash from Chubb cash in transit vehicle at Celbridge in Co. Kildare on 2nd November 2007. He was thwarted when that attempt was intercepted by Gardaí who had earlier been engaged in a surveillance operation of the appellant and five other men. These men had travelled in vehicles in convoy from Ballymun, Co. Dublin, to Chubb?s headquarters in Sandyford, Co. Dublin, and from there followed the cash in transit van to a shopping centre in Celbridge. The appellant and one of the other men were seen to approach the vehicle when it stopped at the shopping centre and unsuccessfully attempted to open its door. At that point the Gardaí intervened and the men, including the appellant, were arrested at or close to that location. On 7th November 2012, following the return of a guilty verdict by a jury at Dublin Circuit Criminal Court, the appellant was convicted in respect of a single count of Conspiracy, contrary to s. 71 of the Criminal Justice Act 2006, and s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001. The appellant was sentenced on 14th November 2012 to a term of imprisonment of eight years, to date from 7th November 2012. The appellant appealed to the Court of Appeal against that conviction on the ground that the trial judge erred in principle and in law by excluding from the panel of potential jurors resident in Ballymun, Finglas and Cabra in the County of the City of Dublin. Essentially, the appellant challenged the decision of the judge to accede to an application to exclude persons living within a particular area from service on the jury in what might be described as a blanket ruling, rather than on an individual basis.

Held by Mahon J that the judge?s decision to exclude was, in the circumstances, a pragmatic exercise in case management designed to expedite the process of empanelling a jury in a trial involving a large number of defendants and which was scheduled to last a number of weeks; as such it was within the discretion of the judge. Mahon J held that the Circuit Court judge acted appropriately and was entitled to make what was, in the circumstances, a measured, practical and sensible decision in relation to the empanelling of the jury. Mahon J noted that, in due course, the appellant received what he himself properly and understandably described as a fair trial, and acknowledged the guilty verdict arising therefrom.

Mahon J held that the appeal should be dismissed.

Appeal dismissed.

Judgment of the Court delivered on the 4th day of July 2016 by Mr. Justice Mahon
Mr. Justice Mahon
1

This is an appeal against conviction on 7th November 2012 following the return of a guilty verdict by a jury at Dublin Circuit Criminal Court. The conviction was in respect of a single count of Conspiracy, contrary to s. 71 of the Criminal Justice Act 2006, and s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001. The appellant was sentenced on 14th November 2012 to a term of imprisonment of eight years, to date from 7th November 2012.

2

An earlier trial of the appellant in February 2012 on similar charges resulted in the jury failing to reach a verdict.

Background facts
3

An attempt to steal cash from Chubb cash in transit vehicle at Celbridge in Co. Kildare on 2nd November 2007 was thwarted when that attempt was intercepted by gardaí who had earlier been engaged in a surveillance operation of the appellant and five other men. These men had travelled in vehicles in convoy from Ballymun, Co. Dublin, to Chubb's headquarters in Sandyford, Co. Dublin, and from there followed the cash in transit van to a shopping centre in Celbridge. The appellant and one of the other men were seen to approach the vehicle when it stopped at the shopping centre and unsuccessfully attempted to open its door. At this point the gardaí intervened and the men, including the appellant, were arrested at or close to that location.

4

In the course of his trial, the appellant maintained that his involvement in the attempted robberywas under duress. This was contested by the prosecution on the basis that, inter alia, picture messages of scantily clad women were exchanged between the appellant and the appellant's phone and the phone of one of the other men, Mr. Eamon Dunne, as both men were sitting in a vehicle outside Chubb's premises in Sandyford, Co. Dublin on the morning of the attempted robbery, and also on the basis that at Mr. Dunne's funeral in 2010, (Mr. Dunne having been subsequently murdered), the appellant was identified as one of the deceased's pallbearers, and was also seen embracing the deceased's father. It was also established that two of the other pallbearers were individuals involved in the attempted robbery on 2nd November 2007. It was contended that these actions were indicative of a close friendship as between the men involved in the attempted robbery, (including the appellant), and were inconsistent with any suggestion that the appellant had not been involved in the incident on a voluntary basis.

Ground of appeal
5

Essentially, one ground of appeal is pursued by the appellant.

?The learned trial judge erred in principle and in law by excluding from the panel of potential jurors resident in Ballymun, Finglas and Cabra in the County of the City of Dublin.?

6

The other grounds of appeal as originally submitted in writing, while not withdrawn, were not the subject of oral submissions in the course of the hearing of the appeal.

Preliminary objection by the respondent
7

A preliminary objection by the respondent in relation to this sole ground of appeal is based upon the fact that in the course of the sentencing hearing on 14th November 2012, the appellant indicated by way of mitigation that he understood and accepted that he had been found guilty?during a very fair trial?. In the course of his sentencing the learned sentencing judge noted the following:-

?He acknowledges in the note he has written and in what he has read to the court here today that he had a fair trial, that he is guilty of the offence, and that he will serve whatever sentence the court measures. That in itself is something that can be held to his credit.?

8

The respondent maintains that to permit an appeal to proceed on the basis that the trial was in some way unfair would, in the circumstances, be an abuse of process. The respondent maintains that in relation to his sentence the appellant received credit for his acknowledgment of guilt, and that his appeal against conviction ought not therefore be entertained.

9

On the basis of the possibility that the acknowledgement by the appellant at his sentencing hearing that he had received a fair trial was a reference to the conduct of the trial post the conclusion of the process of selecting jury, and that his acceptance of guilt was an acknowledgement of the verdict of the jury as constituted, the court is satisfied that the appellant ought to be permitted to proceed with his appeal on the ground concerning the empanelling of the jury. It is noteworthy that the judge who empanelled the jury (Her Honour Judge Ryan) was not the judge who conducted the trial and sentenced the appellant (His Honour Judge McCartan).

The directions given in relation to the empanelling of the jury
10

At the commencement of the trial on 8th October 2012, counsel for the respondent requested that jurors drawn from the areas of Finglas, Ballymun and Cabra in Co. Dublin would be excused from serving on the jury. This application was made on the basis that the appellant and his co-accused, as well as the deceased, Mr. Dunne, were strongly associated with these areas, and that jurors drawn from these areas might not be impartial in the discharge of their responsibility. Counsel submitted the following:-

?..the reason which I was going to go into is that this is a relatively small area and the risks that there is knowledge within a juror of one or other of the persons named in the indictment or people associated with them is great and that goes to the issue of the capacity to be impartial in relation to jury service. But there was a specific event occurred in the previous trial when a young man from Ballymun, I believe, was empanelled on the jury and he came in the next morning and said that having seen (the appellant) and heard the case open he realised he knew (the appellant). If perhaps – it is a matter for the court obviously – but perhaps can be dealt with by perhaps a stronger warning to the jury panel but there is a concern. We lost a juror. Particularly in a long trial. And there is a concern that the issue of impartiality may arise. I leave it at that.?

11

Counsel for the appellant objected to the respondent's application. He submitted that?simply to exclude in a peremptory manner person from serving because they come from a certain area is entirely improper in my respectful submission.? He contended that the provision enabling the respondent to challenge without cause up to seven potential jurors, and to challenge any additional number with cause shown, in addition to the usual judicial warnings given to juries were sufficient to meet any concerns articulated by the respondent.

12

In any event, the judge acceded to the respondent's application. She excluded from membership of the jury any person from the areas of Finglas, Ballymun and...

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