THE COURT OF APPEAL
Birmingham J.
Sheehan J.
Mahon J.Appeal No.: 320/2012
The People at the suit of the Director of Public Prosecutions
Respondent
Appellant
Judgment of the Court delivered on the 4th day of July 2016 by 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 robbery was 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 Cabra in Co. Dublin, stating:-
“I remember the previous case and the case had to be put back and another jury empanelled on the second day because they did realise. I don’t want that again because we are into a four week case and I want it to be clear from the start if anybody has anybody has any knowledge or connection with any of the parties involved, they should not serve on this jury.”
13. A jury was then empanelled (excluding persons from the areas in question) before being sent home to await the commencement of the trial on the following day, 9th November 2012. On that day, an issue arose in relation to one of the chosen jurors resulting in that jury being discharged. The case, and the empanelling of a new jury, was adjourned to 15th October 2012.
14. On 15th October 2012, the process of empanelling a new jury commenced. Counsel for the respondent renewed her application to have persons from the areas of Finglas, Ballymun and Cabra excluded from selection for the jury. Counsel for the appellant again objected, stating:-
“… I have a very serious objection . It’s taking one entire section of the community and asking that they be put out. There are provisions in the Jury Act as to how things are to be done and if there are individuals that the prosecution have an objection to, it is up to the prosecution to raise the objections, either without cause or for cause. … It is only one step away from trying to pick the jury that they want. ..”
15. Counsel for the respondent addressed the court in the following terms:-
“.. but the reason given last week, and the reason still obtains, is that this trial involves a gang which was operating out of the Finglas, Ballymun, Cabra area and the .. it also involves or there will certainly be a lot of evidence relating to Mr. Eamon Dunne, who was murdered in the Fassaugh Public House in 2010, and again I am saying that it is relevant to both sides. It is not in ease of the prosecution that there is a risk that jurors in that area who know of these events may not be able to bring the necessary impartiality to the deliberations, and on that basis I renew my application.”
16. Acceding once again to the respondent’s application, the judge, immediately, before empanelling a jury, addressed the panel as follows:-
“Any persons with any connection with the case and who knows of the parties involved should not serve on this jury. Anybody with any connection or resides in Ballymun, Cabra or Finglas should not serve on this jury.”
17. A jury was then empanelled on this basis, and it proceeded to hear and determine the case.
The law relating to the composition of juries
18. Article 38.4.5 directs that “no person shall be tried on any criminal charge without a jury”. Save for certain specified exceptions.
19. Section 6 of the Juries Act 1976 provides:-
“Subject to the provisions of this et, every citizen aged eighteen years or upwards and under the age of seventy years, who is entered in a register of Dáil electors in a jury district shall be qualified and liable to serve as a juror for the trial of all or any issues which are for the time being triable with a jury drawn from that jury district, unless he is for the time being ineligible or disqualified for jury service.”
20. Persons who are deemed ineligible for jury service are those identified in s. 7 of the Act of 1976, while s. 8 of that Act identifies the categories of persons who are disqualified from serving on a jury. Section 15 of the Act deals with the selection of the jury from a panel. It provides in s.s. 3:-
“Before the selection is begun the judge shall warn the jurors present that they must not serve if they are ineligible or disqualified and as to the penalty under section 36 for doing so; and he shall invite any person who knows that he is not qualified to serve or who is in doubt as to whether he is qualified or who may have an interest in or connection with the case or the parties to communicate the fact to the judge (either orally or otherwise as the judge may direct or authorise) if he is selected on the ballot.”
21. Section 20 of the 1976 Act permits each party to challenge up to seven persons selected to serve on the jury “without cause”.
22. Section 21 of the 1976 Act provides for the circumstances in which the selection of additional jurors can be challenged for cause shown. Any number of jurors can be challenged in this way. Section 21(3) of the Act enables a judge to allow or disallow any such challenge as he/she shall think proper.
23. Section 26 of the Courts (Supplemental Provisions) Act 1961 provides for the transfer of a trial from one part of a circuit to another part of that circuit. This legislation also provides that where a transfer order is made, the jury empanelled to try the case must be drawn from the district prescribed for the court venue in which the court is actually to be held. This provision is designed to avoid persons associated with a particular geographical area within a circuit serving on the jury empanelled for a specific trial. The option for such a transfer does not arise within the Dublin circuit as there is only one venue within that circuit in which criminal trials are conducted.
24. Section 32 of the Courts and Courts Officers Act 1995 provides for the transfer of a criminal trial from any circuit in the country to the Dublin circuit for essentially similar reasons as are relevant to a transfer within a circuit pursuant to s. 26 of the 1961 Act.
25. The constitutionally of s. 32 of the 1995 Act was challenged in Todd v. Murphy [1999] 2 IR 1. The challenge related to the lack of a right of appeal of a decision on the transfer issue.
26. In Todd the circuit court judge refused an application to transfer the case from Cork circuit court to the Dublin circuit court. The offence in question related to what is commonly referred to as joy riding, and it was observed by the judge that that type of offence was just as prevalent in Dublin as it was in Cork, and that people’s views in relation to such activity would be no different in either location. The circuit judge went on to state:
“Now the position is that if the jury panel involved was largely drawn from the same section of the city as the place in which the people involved in this matter reside, I might take a certain view. I have had a look at the jury panel, not the current one, but the one coming in next week, and it is very largely drawn from other Cork city suburbs and deep into Co. Cork. I cannot see that a jury drawn from persons in those areas, properly charged, would allow any prejudice to influence them, and I do not think that the prospect of an unfair exists in the matter, or exists to a greater extent in Cork than it would in Dublin. I am therefore refusing the application.”
27. The refusal of the Circuit Cork judge to transfer the case from Cork to Dublin was challenged in the High Court. In the course of his judgment, Geoghegan J. stated:-
“In that ruling he took into account the fact that he had examined the jury panel and that it would not come from the same area in Cork where the two victims came from. In fact it was drawn from other Cork city suburbs and Co. Cork and he did not think that a jury properly charged would result in a manifestly unfair trial. This section gives no right to Dublin people returned for trial to have their trial transferred elsewhere. Clearly the Oireachtas had in mind that there could be a problem in smaller areas where local knowledge could give rise to prejudice of perceived prejudice. In his ruling Judge Murphy was thinking of different sections of Cork even though there may have been people from all parts of Cork in the jury panel, and, if a jury was taken well outside the area there is no reason to think that properly directed, they would allow themselves to be prejudiced. That is the line of thinking in all the Supreme Court cases to which I have been referred. It seems to have been a very thought out ruling. In the light of the decided case law on unreasonableness, I can only interfere if it is an irrational one or one which no judge acting reasonably could have come to. I cannot characterise it as that under any circumstances. Therefore, it cannot be judicially reviewed or interfered with by this court.”
28. The case was appealed to the Supreme Court. In his judgment in the Supreme Court Lynch J. stated:-
“I agree with Geoghegan J’s view of the learned Circuit Court judge’s decision: that decision was not only reasoned, but also reasonable and a far cry from flagrantly rejecting or disregarding fundamental reason or common sense.”
29. In judgments in two, often quoted, Supreme Court decisions there can be found what might reasonably be described as a degree of judicial sanction for the concept that a jury need not be drawn from the entire voting registered community in a particular county. In O’Callaghan v. A.G. [1993] 2 I.R. 17, it was stated, (at p. 25):-
“The purpose of trial by jury is to provide that a person shall get a fair trial, in due course of law, and be tried by a reasonable cross-section of people, acting under the guidance of the judge, bound by his directions on law but free to make their findings as to the facts.” (emphasis added)
30. In De Burca v. A.G. [1976] I.R. 38, Henchy J. described the make up of a jury as persons:-
“.. chosen at random from a reasonably diverse panel of jurors from the community .. .” (emphasis added)
31. In his book The Criminal Process, Prof. O’Malley states (at para. 21.08):-
“Impartiality and competence are widely treated as two indispensible jury characteristics. Representativeness is usually included as well, though this can be a rather troublesome concept in certain circumstances. The best that can be achieved is a jury that is broadly representative. Society is composed of so many different groups and categories that it would be impossible to accommodate all of them in any one jury. Obviously a jury system must systematically excluded all members of a particular racial group or which confined jury service to men or women would fall the representativeness test, and would be open to objection on other grounds. But the mere fact that a randomly selected jury drawn from an appropriately representative pool happens to end up without a representative of any one of these groups does not necessarily render it illegal. What matters in this sense is the process rather than the particular outcome.”
32. In the 2015 ECHR case of Armstrong v. United Kingdom (65282/09) (9th December 2014/ECHR) there is the following extract from the court’s judgment:-
“As to whether the court was impartial from an objective point of view, it was to examine whether in the circumstances there were sufficient guarantees to exclude any objectively justified or legitimate doubts as to the impartiality of the jury, bearing in mind that the misgivings of the accused, although important, could not be decisive for its determination.”
33. Central to the appellant’s submissions is the contention that it is not open to a judge to exclude an entire area within a county providing the jury panel. Rather, it is contended that the process of excluding persons from jury service (other than those identified as ineligible for jury service in legislation) is either on the basis that objection is taken without cause shown (up to seven in total from each side), or objected to with cause shown. It is acknowledged that where a juror is objected to with cause shown, it is a matter for the judge to adjudicate on the reasons given and to make a decision to include or exclude that person. Such is part of the judicial function associated with a trial.
34. Essentially, what is challenged in this case is 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.
35. An alternative approach was for the judge to adjudicate individually in relation to objections by the respondent to individuals from the areas in question. This might have been done on the basis of the first seven objections being made without cause shown, (and in respect of which the appellant could not have taken objection), and any objections in addition to the first seven being made on an individual basis and for stated reasons, and for the judge to then adjudicate on each such objection. Had that been done, and had persons been excluded because of their association with particular areas of Dublin city, it is difficult to see what possible challenge there might successfully have been to same, particularly having regard to the nature and circumstances of the offences in this case.
36. The task of empanelling juries is an important one within our legal system. Conducted carefully, it facilitates the conduct of a fair trial and it is in the interest of both the accused and the prosecution, and also very much in the public interest. Not infrequently there are practical problems to be overcome in the jury selection process, including cases involving a multiplicity of defendants or involving complex evidence or likely to require lengthy trials.
37. Jury impartiality is central to the process, hence the statutory provisions providing the right to object to up to fourteen jurors, (seven per side), without showing cause, and to object to an unlimited number of jurors for cause shown. A court is not slavishly restricted to adjudicating on objections to a number of persons subject to cause shown in a singular fashion where the basis for objection is common to all of them. What is required is that cause is shown and objections are heard before a determination to exclude jury panellists is made. Such occurred in this case.
38. While arguably, excluding the entire voting registered population of three suburbs of the city of Dublin might be considered by some to be an unnecessarily large exclusion, it is noteworthy that the numbers involved, while not insignificant, constitutes but a fraction of the population of the city and county of Dublin. It cannot be suggested that the largely populated remaining areas of Dublin were incapable of, (or, in fact, did not), facilitate the selection of a jury constituting a reasonable cross section of people, or a reasonably diverse panel of jurors, or a randomly selected jury from an appropriately representative pool. A more common occurrence, and almost certainly less objectionable, might be decisions to exclude the residents of a particular street, or a particular housing estate, or the former pupils of a particular school, to identify but a few examples.
39. In this case the decision to exclude was made on what might be termed a blanket basis by the judge having been given reasons why such a decision should be made, and having heard counsel for the appellant in relation to the issue. It 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.
40. The court is satisfied that the learned 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. In due course, the appellant received what he himself properly and understandably described as a fair trial, and has acknowledged the guilty verdict arising therefrom.
41. The appeal is therefore dismissed.
