DPP v Wilson & Crowley

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 05 November 2015
• Neutral Citation: [2015] IECA 275
• Court: Court of Appeal (Ireland)
• Date: 05 November 2015

[2015] IECA 275

THE COURT OF APPEAL

The President

Birmingham J.

Edwards J.

107

114/13

DPP v Wilson & Crowley

No.

The People at the Suit of the Director of Public Prosecutions

Respondent

v

Alan Wilson and David Crowley

Appellants

Crime & sentencing – Burglary – Appellants convicted of offences – Appeal – Multiple grounds of appeal advanced

Facts: The appellants had been convicted of burglary (the second appellant also being convicted of a firearms offence. Having been sentenced to terms of imprisonment at Dublin Circuit Court, they now sought to appeal on multiple grounds, including that the second appellant had had contact with a juror.

Held by Birmingham J, that the appeals against convictions would be dismissed. The Court was satisfied that the complaints regarding the trial judge”s conduct in the matter were without merit.

1 Judgment of the Court delivered on the 5th day of November 2015 by Mr. Justice Birmingham

2 1. The appellants were tried jointly in the Dublin Circuit Criminal Court. The first named appellant, Alan Wilson, was charged with and convicted of a single count of burglary. Subsequently, he received a sentence of seven years imprisonment in respect of this offence. The second named appellant, David Crowley, was also convicted of a burglary offence and further of an offence of possession of a firearm, a shotgun, in such circumstances as to give rise to a reasonable inference that it was not in his possession for a lawful purpose. The trial judge, His Honour Judge Desmond Hogan, imposed a sentence of seven years imprisonment in relation to the burglary offence and a concurrent sentence of eight years imprisonment in respect of the firearms offence.

3 2. At issue at trial were offences alleged to have occurred at 56 Drumheath Drive, Blanchardstown, on the 3 ^rd June, 2009. A number of statements were furnished to gardaí by the occupant of the house, one Lisa Murray. By reference to these statements, it was the prosecution contention that on the occasion in question, Ms. Murray had seen both appellants walking into the kitchen of her home and had then seen the second named appellant, David Crowley, hit her boyfriend, David O'Brien, on the head with a meat cleaver, A statement referred to the presence of blood on Mr. O'Brien's head after the assault. The statement of Ms. Murray refers to the fact that she left the house and went around to her father's house which was nearby. As she left the house, she heard two shots being discharged.

4 3. A statement was also provided to the gardaí by Noel Murray, the father of Lisa Murray, who said that he had been at home at 7.30 pm on the relevant occasion, the 3 ^rd June, 2009, had heard two loud bangs and that his daughter had come to the house screaming. According to Mr. Murray's statement, he had gone with his daughter back towards her house and had seen David Crowley along with others leave the house. Mr. Crowley was holding a firearm. It is a noteworthy feature of the case that at no stage was a statement provided by Mr. O'Brien, the alleged injured party, nor did he play any role at trial. Both applicants have appealed against conviction and Mr. Wilson has also appealed against severity of sentence. The sentence severity aspect will be dealt with later, to the extent that it is necessary to do so, but suffice to note at this stage that Mr. Wilson was in custody solely in relation to the current burglary charge between the 6 ^th March, 2012 and the 5 ^th April, 2012. Between the 5 ^th April, 2012 and the date on which he was sentenced on this burglary matter on the 12 ^th April, 2013, Mr. Wilson was in custody in relation to a murder charge in respect of which he was acquitted on the 31 ^st July, 2014,

5 4. Each appellant has advanced a number of grounds of appeal and while some are specific to one appellant or the other, there is considerable overlap. It is convenient to deal first with those grounds which are common to both. The grounds of appeal which are common to both appellants are as follows:-

6 (i) Failing to discharge the jury on the application of both appellants where there had been contact between the second named appellant and some jurors following day two of the trial.

7 (ii) The admission into evidence of the statement of Lisa Murray and Noel Murray and a failure to impeach Lisa Murray.

8 (iii) A challenge to the lawfulness of the arrest.

9 (iv) No evidence that any physical contact that might have occurred/alleged assault was in fact unlawful.

10 (v) Lack of evidence that the appellants entered the premises at 56 Drumheath Drive as trespassers.

11 (vi) The adequacy of the judge's charge in relation to trespass and the response to questions from the jury in that regard.

Ground 1: Failure to discharge the jury following contact between the second named appellant and some jurors at the conclusion of day two of the trial

12 5. While this point appears in both notices of appeal, it is really only being argued with real force by Mr. Crowley. The point arises in the following circumstances. When the court sat on the 8 ^th February, 2013, which was the third day at trial, the trial judge, in the absence of the jury, informed counsel that the "jury minder" had been told by a juror that on the previous afternoon, following the conclusion of court business as the juror left the court building, that he took out a cigarette at which stage the appellant, David Crowley, approached him and lit his cigarette. The judge indicated to counsel that he felt that the proper course of action to be adopted by him was to bring down the juror and ask certain questions of him. The juror was brought into court and the following exchanges between judge and juror took place.

"Judge:	Can I say this much to you firstly: I am most obliged to you. You did mention to the jury minder who mentioned - who caused it to be mentioned to me that when you were stopping to have a cigarette just outside the court building, I think, that one of the accused came over and lit your cigarette: is that right? Now was that - could you just tell me - just tell me what happened. I just got to hear -
Juror:	I was looking for my lighter that's all.
Judge:	Yes.
Juror:	And the gentleman there just came over and offered me a light. To be honest with you, I didn't recognise him at the start because he had a black jacket on him.
Judge:	Yes.
Juror:	And then I recognised who it was and just said 'Thanks' and off he went.
Judge:	Alright, tell me did you - how did you regard that? Did you feel threatened in any way by it?
Juror:	Not at all, no. No my lord.
Judge:	And you didn't think that that would be an influencing factor. Or do you -
Juror:	Not at all.
Judge:	That it could be reaching - you reaching a free and unfettered decision having deliberated.
Juror:	It won't impact on me whatsoever.

Judge:	Good, bad or indifferent?
Juror:	Good, bad or indifferent, your honour.
Judge:	Alright. Tell me, did you mention that to any of the other jurors?
Juror:	Well four of them go with me and there were two more in front of me so -
Judge:	Yes?
Juror:	And some of them saw it.
Judge:	And?
Juror:	And I mentioned it to them this morning.
Judge:	And did any of them -
Juror:	As I said, I felt obliged to mention it.
Judge:	Well I'm - oh I'm greatly obliged that you did, and you are to be commended for that. No doubt about that. Did any of the other jurors make any comment to you about or otherwise?
Juror:	No, not - they were just surprised I think. A few jaws dropped. That was about it.
Judge:	Yes. Okay. Thank you. I don't mean to embarrass you or anything -
Juror:	Oh, not at all.
Judge:	By singling you, but I have certain duties.
Juror:	I think we felt a bit uncomfortable going all - going out at the same time as the defendant, you know, through the turnstiles and all -
Judge:	Yes.
Juror:	As a result of that.
Judge:	Yes?

Juror:	That's the only thing I would say.
Judge:	That's all.
Juror:	That's all."

13 6. There followed some discussion between judge and counsel, but counsel for Mr. Crowley indicated that while he would have to take instructions, he would be very concerned at this stage. Counsel referred to the fact that the gentleman had said, notwithstanding that he was not influenced, that he felt uncomfortable. Counsel for Mr. Wilson interjected to say that he would be uncomfortable about phrases such as "jaws dropping" and "feeling uncomfortable".

14 7. At that stage, the whole jury was brought into court. The judge addressed the jury as follows:-

"Madam Foreman, ladies and gentlemen, good morning to you. Thank you for your attendance again this morning. A certain matter arose yesterday and a juror very properly brought it to the attention of the jury minder who then caused it to be brought to my attention and that was when he was going to have a smoke outside on leaving the building yesterday at the end of the trial, that one of the accused went over to him and lit his cigarette for him. Now, I think there were other jurors present when that happened and I think other jurors may have seen what happened. And I want to ask you and I will give you some time to consider it if you wish, whether you would consider that to be an influencing factor that would make you perhaps slightly nervous or upset or could have the effect on you that you could not give a fair and considered and reasoned verdict, or would you have been influenced by that in any way? In other words, did you feel harried by it, did you feel frightened by it? Now that is -...