Irish Court of Appeal
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Cite as: [2015] IECA 15
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Judgment
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THE COURT OF APPEAL Record No: 237/2012 Ryan J. Birmingham J. Edwards J. The People at the Suit of the Director of Public Prosecutions Respondent V
Andrew Franey Appellant Judgment of the Court delivered on the 4th of February 2015 by Mr. Justice Edwards. Introduction. 2. Following his conviction, the appellant was sentenced, on the 29th of June 2012, to imprisonment for a term of ten years from that date, for the s.4 offence, with the final three years thereof conditionally suspended. He also received a further sentence of three years for the s.3 offence, and the sentencing judge directed that both sentences were to run concurrently. 3. The appellant appeals against his conviction in respect of the s.4 offence. Grounds of Appeal Against Conviction 5. Then, at the commencement of the hearing before this Court, counsel for the appellant indicated that his client no longer wished to argue ground c., and that the appeal would be confined to the other two remaining grounds, i.e., those designated a. and b., respectively. 6. Grounds a. and b. are expressed in the following terms:
b. It is submitted that the learned trial judge erred in law in deliberately influencing and/or pressurising the jury into reaching its verdict. 7. The case concerned an incident that occurred on the 31st October, 2008, at Bianconi Drive, Clonmel where a Halloween bonfire was being held. The jury heard evidence that a number of Gardaí were present at the bonfire. Andrew Franey, then aged 21 was observed in an intoxicated state with a bottle of whiskey. He went off, but his brother Jamie then aged 16 came on the scene. He was intoxicated to the extent that there was concern that he would fall into the bonfire. The Gardaí proceeded to arrest Jamie. What was described as “a shomozzle” then developed. During the course of it Andrew Franey came running and punched Garda Sergt. Thomas O’Halloran in the face with a closed fist. Garda Helena Power then sought to intervene in support of her colleague Sergt. O’Halloran and Andrew Franey turned on and towards Garda Power and kicked her directly into the face. He was subsequently charged with the s.3 and s.4 offences in respect of which he was before the Circuit Court. 8. There were two elements to the prosecution case. First, there was the account of eyewitnesses concerning what transpired at the bonfire. Secondly, the appellant was recorded as having made admissions while being taken from the garda van at Clonmel garda station. The admissions were in the nature of boasting of what he had done. 9. The appellant had sought without success to have the said admissions ruled inadmissible at a voir dire conducted by the trial judge on days 1, 2, and 3 of the trial. It is slightly surprising there was voir dire as the issue was not whether he was in lawful custody or anything like that, but whether the remarks alleged to have been made were in fact made. The admissions were ruled admissible and went before the jury. 10. Although the appellant did not give evidence on the voir dire, he subsequently gave evidence in his own defence on day 5 of the trial, and in his evidence before the jury contended that he had not in fact made the alleged admissions that were being attributed to him, and that they were fabricated. 11. However, another issue, potentially bearing on this, had arisen on the 8th of June, which was day 3 of the trial. It emerged on that date that a garda witness who was on the book of evidence, a Garda Foot, was not available. He was in the USA. The defence indicated that they wanted the witness. In that regard, counsel for the appellant told the trial judge that the defence regarded him as important because:
13. All of that having been acknowledged, counsel for the prosecution posed the question “does the trial fall and have to start again?”, to which the trial judge immediately responded “The trial isn’t going to fall”, and suggested that the solution was an adjournment until the witness returned from the USA. It was subsequently established that the witness would be returning on the 16th of June, and so it was proposed to adjourn the trial until the 19th of June. 14. Counsel for the defence opposed any adjournment and requested that the jury be discharged, indicating that he was not comfortable that the jury would be sent away for a long period. Moreover, if the judge was not prepared to discharge the jury the defence would not be ready to resume the case until the 26th of June. 15. The trial judge ultimately ruled as follows:
17. On day 5, the trial judge had addressed the jury in an attempt to provide them with an estimate as to how long the appellant’s trial was going to continue. He said that the trial would not finish that day but he went on to say that “It will finish tomorrow, I promise you. There is no shadow of doubt about it that it is going to finish tomorrow.” The Court then proceeded to ask the jury members if they had any availability problems and where they had any problems to write them down and give them to the Registrar. The jury foreman duly passed a note to the registrar summarizing the position, and the registrar in turn passed the note to the trial judge. The contents of the note were not made known to counsel at that point, and counsel only learned of what it contained on the day after the verdict. 18. The jury’s note had stated:
18:19 Jury returns to court and is sent on a break and given refreshments 18:38 Jury resumes its deliberations 19:34 Jury returns to court and are directed that they could bring in a majority verdict 19:36 Jury resumes its deliberations 20:22 Jury returns to court and are on the point of being sent home for the night when, upon being asked by the trial judge if they would benefit from a small amount of time that evening, they answered in the affirmative. 20:32 Jury resumes its deliberations 20:48 Jury returns with a verdict.
FOREMAN: I would think so, yes. JUDGE: All right. Well, I'm not going to give you any more time this evening, because I don't think it would be fair. I'm it's you've been deliberating now for three hours and six minutes or there or thereabouts and it's now 20 past 8 and I think MR WHELAN: I'm just wondering, Judge, if the jury had a view as to whether, if they had the benefit of a small amount of time this evening, it would make any difference. JUDGE: What short additional time now be of benefit, do you think? FOREMAN: Yes.
26. On the following day, once counsel for the defence had learned the contents of the note that had been passed to the trial judge on day 5, he interpreted it as indicating that one of the jury was unavailable on the Friday, and he expressed concern that the trial judge, knowing that to be the position, had pressurised the jury into bringing in a verdict on the previous evening. The trial judge rejected any such suggestion stating:
MR DOYLE: Well, if that's the Court's reading of the note, so be it. It's not what I read from it -- JUDGE: Yes, well that's my reading. I'm quite happy that there is no -- the jury had expressed flexibility -- the jury expressed flexibility for Thursday and/or Friday to starting early and finishing later.” 27. Although he was not prepared to abandon his ground a., counsel for the appellant all but conceded that it would be difficult for him to sustain it on a stand alone basis. He stressed to the court that the real importance in so far as he was concerned of the break in the trial was that it provided important contextualisation for the trial judge’s concern to see the trial brought to an early conclusion once it had resumed on the 26th of June. 28. In support of ground a. the Court was referred to the judgment of O’Dalaigh C.J. in The People (Attorney General) -v- McGlynn [1957] I.R.232 where he remarked:
31. The Court was also referred to People (Director of Public Prosecutions) v Kelly [2006] 4 IR 273; to People (Director of Public Prosecutions) v Gavin [2000] 4 I.R. 557 and to Director of Public Prosecution v Finnamore, (Court of Criminal Appeal, ex tempore, 21st November, 2005). In the latter case, McCracken J, giving judgment for the court, held that a trial judge was wrong in leaving it up to a jury as to how long into the evening they would deliberate for. He held that it was a matter for the trial judge because the judge in his experience is the person who would be aware of the dangers of a jury sitting for too long and reaching a decision when they were overtired or perhaps influenced by pressure of time. 32. It was submitted that the trial Judge erred in law by (i) pressurising the jury into reaching a verdict through the making of various comments as to when the trial was going to finish, (ii) knowing that one juror had difficulty on Friday the 29th June, 2012 and not informing the parties of this fact, (iii) keeping the jury in continued deliberations late into the evening on Thursday, 28th June, 2012 and (iv) refusing to discharge the jury or order that they cease their deliberations until the following morning. The Court’s Decision 34. The Court is equally satisfied that no pressure was in fact exerted on the jury. That it was manifestly not the trial judge’s intention to place them under pressure is evident from the exchange at 20.22 on day 6 when, just before the jury were brought back, he said expressly “Oh, I have no difficulty putting the case off to tomorrow”, and referred to man having to be fed. Moreover he told the jury “I'm not going to give you any more time this evening, because I don't think it would be fair” (the Court’s emphasis). 35. It seems to the Court that the appellant’s entire argument is premised on the possibility that one of the jurors had indicated that he or she would be unavailable on the Friday, and that the judge knew that and piled pressure on the jury in those circumstances to return with a verdict on the Thursday evening. This premise is based on counsel for the appellant’s interpretation of the jury foreman’s note. The Court considers the premise to be entirely flawed, and counsel’s interpretation of the note to be untenable. On no reasonable construction of the jury foreman’s note could the judge have believed that there would be a problem on Friday. On the contrary, the note indicated a willingness on the part of the jury to be flexible in terms of starting early or finishing later on the Thursday and Friday. 36. The Court is satisfied to dismiss the appeal on both grounds in the circumstances. |
