People (Attorney General) v Heffernan (No. 2)

• Jurisdiction: Ireland
• Judgment Date: 17 January 1951
• Date: 17 January 1951
• Court: Court of Criminal Appeal

The People (Attorney General) v. Heffernan (No. 2).

THE PEOPLE (at the suit of the Attorney General)

and

PATRICK HEFFERNAN (No. 2) (1)

Court of Criminal Appeal.

Criminal law - Procedure - Trial - Murder charge - Separation of jury before summing up - Jurymen conversing with other persons - Irregularity - Effect on verdict - Juries Act, 1927 (No. 23 of 1927), s. 63, sub-s. 2.

A jury empanelled in a murder trial which lasted several days was not permitted to separate and was provided with accommodation under the provisions of s. 63, sub-s. 2, of the Juries Act, 1927. On the Sunday prior to the conclusion of the trial the members of the jury were taken to a hotel outside Dublin and occupied a room which had been reserved for them and five members of the Gárda Síochána who had been sworn as jury keepers. At the invitation of a member of the jury other occupants of the hotel conversed with members of the jury, dined with the jury and jury keepers in the jury's private room, and subsequently travelled back to Dublin in the omnibus reserved for the use of the jury and jury keepers. The jury found the prisoner guilty. On an application for leave to appeal it was

Held, by the Court of Criminal Appeal that, for the jury to mingle with other persons over such a length of time and in the circumstances disclosed in the case was a grave irregularity and a departure from the recognised procedure in any criminal case where the jury is not allowed to separate.

R. v. Taylor [1950] N. I. 57 applied. R. v. O'Neill 3 Cr. & Dix. 146 distinguished.R. v. Ketteridge[1915] 1 K. B. 467 discussed.

The appeal was accordingly allowed; the conviction was quashed and a new trial ordered.

Criminal Appeal.

Application by Patrick Heffernan, a labourer, for leave to appeal against conviction in the Central Criminal Court on a charge of murder and sentence of death.

The grounds of the application for leave to appeal were,inter alia, that the trial judge should have acceded to the application for a direction made on behalf of the accused at the close of the evidence for the prosecution; that the trial Judge should have acceded to the request for a direction at the close of the case for the accused; that the trial Judge failed adequately to instruct the jury as to the onus of proof, having regard to the particular facts of the case; alternatively, having regard to the question asked of the trial Judge by the jury and the subsequent verdict, the jury failed to appreciate the legal position regarding onus of proof; that the case for the defence was not adequately put to the jury by the trial Judge. Application was made to the Court for liberty to amend the notice of application for leave to appeal by adding the following ground of appeal, viz., that the trial was not conducted in accordance with the established rules of criminal procedure in that during an adjournment of the trial on Sunday, the 12th November, 1950, the jury were

allowed to, and did, mingle with and freely converse with members of the public; application was also made to the Court to hear fresh evidence in support of the said additional ground of appeal.

The facts sufficiently appear in the headnote and in the judgment of the Court of Criminal Appeal.

Cur. adv. vult.

Maguire C.J. :—

The applicant was tried at the Central Criminal Court, sitting at Green Street, Dublin, on an indictment charging him with murder. He was convicted and sentenced to death. He applies to this Court for leave to appeal on a number of grounds, the first being that the trial Judge should have directed a verdict in his favour as the evidence was insufficient to support a verdict of guilty. The other grounds were misdirection and inadequate direction by the trial Judge and that the verdict was against the evidence and the weight of evidence. The main ground, and that to which the greater part of the argument was directed, was that the trial was not conducted in accordance with the established procedure of the criminal law in that the jury were allowed to mingle with members of the public.

By agreement, affidavits in support of the ground of appeal were read. The Court thereupon granted leave to appeal. As counsel for the Attorney General did not question the facts stated in the affidavits before referred to it was necessary to call the deponents as witnesses. Counsel for the Attorney General, however, tendered affidavits from the five jury keepers. These were read without objection and, leave having been given, the deponents gave evidence in which they repeated and supplemented their evidence upon affidavit. Leave was further given to the appellant to call one witness who was also examined before the Court.

As this was a murder trial the jury, in accordance with the invariable practice now given statutory effect by s. 63 of the Juries Act, 1927, were not allowed to separate from the time when the prisoner was given in charge. The trial...