Irish Court of Criminal Appeal

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Cite as: [2011] 2 IR 113, [2009] IECCA 27, [2011] 2 IR 112

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Judgment Title: DPP -v- Marie Norris

Neutral Citation: [2009] IECCA 27

Court of Criminal Appeal Record Number: 5/08

Date of Delivery: 02 April 2009

Court: Court of Criminal Appeal

Composition of Court: Finnegan J., Hanna J., Charleton J.

Judgment by: Finnegan J.

Status of Judgment: Approved


Judgments by	Result
Finnegan J.	Other (see notes)

Notes on Memo: Refuse leave to appeal against conviction

COURT OF CRIMINAL APPEAL

005/2008

Finnegan J.
Hanna J.
Charleton J.

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

.v.

MARIE NORRIS

APPLICANT

Judgment of the Court delivered on the 2nd day of April 2009 by Finnegan J.

On the 21st November 2007 the applicant was convicted at Clonmel Circuit Court on the following five counts:-

Count 1. Unlawful possession of a controlled drug, cocaine, contrary to section 3 and section 27 of the Misuse of Drugs Act 1977.

Count 2 Possession of a controlled drug, cocaine, for the purpose of selling or supplying it to another contrary to section 15 of the Misuse of Drugs Act 1977 and contrary to article 4 (1)(b) of the Misuse of Drugs (Regulations) 1988 as made pursuant to section 5 of the Misuse of Drugs Act 1977.

Count 3 Unlawful possession of a controlled drug, cannabis resin, contrary to section 3 and section 27 (as amended by section 2 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.

Count 4 Possession of a controlled drug, cannabis resin, for the purpose of selling or otherwise supplying it to another contrary to section 15 and section 27 (as amended by section 2 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.

Count 5 Possession of a controlled drug, cannabis resin and cocaine, for the purpose of selling or otherwise supplying it to another contrary to section 15A (as inserted by section 4 of the Criminal Justice Act 1999) and section 27 (as amended by section 5 of the Criminal Justice Act 1999) of the Misuse of Drugs Act 1977.

In respect of these counts she was sentenced to terms of imprisonment of five years, ten years, five years, ten years and ten years respectively, the terms to run concurrently. She appealed against conviction the sole ground of appeal being as follows:-

“The trial and verdict was unsatisfactory in that the foreman of the jury knew the applicant in that she was a neighbour of the applicant”.

The jury returned a verdict of guilty on the five counts on the 21st November 2007 and the matter was put back for sentence to the 13th December 2007 and again to the 19th December 2007 when sentence was imposed. After the imposition of sentence counsel on behalf of the applicant addressed the learned trial judge as follows:-

“There is another matter that was brought to my attention this morning, judge. It may not come to anything but I just want to apply it at this stage that there is a potential problem in relation to the composition of the jury in this case. I don’t propose leave to appeal at this stage unless I can get firm confirmation and instructions. But what I might be doing is coming back to the court asking for an extension of time within which to file grounds of appeal. It is nothing to do with the way the trial ran from the point of view of the court or the prosecution; it is a composition problem.”

On the 29th July 2008 an application was made to the learned trial judge for an extension of the time within which to appeal and that application was granted.

The applicant applied for leave to admit additional evidence by way of an affidavit of the applicant and the court acceded to that request. The relevant averments in the affidavit are as follows:-

“3. I grew up and was reared in a very small housing estate in Clonmel in Co. Tipeprary. I grew up in No 53 Ard Fatima which is a small housing estate of about fifty nine to sixty one houses in Clonmel. The foreman of the jury, Ms Anne Kennedy-Dennehy, grew up and was reared in the same small estate of Ard Fatima in No. 6 Ard Fatima at the same time as when I lived in that housing estate. When I was living in Ard Fatima my name was Maria Sheehan.

4. I do not believe that No. 6 Ard Fatima has been sold outside the Kennedy family and I have frequently seen Anne Kennedy-Dennehy return to No. 6 Ard Fatima to visit her relatives there.

5. The address at which my former husband and I lived from in around 1982 is 11 Elm Park in Clonmel. 11 Elm Park is a very short distance from Ard Fatima. In fact it was just across the road from Ard Fatima. I had, however, lived on a day-to-day basis in Cahir from in around 2003. I returned to 11 Elm Park on a nightly basis to assist in caring for my terminally ill father prior to my arrest.

6. When I was growing up in Ard Fatima I knew the foreman, Anne Kennedy-Dennehy. She knew my family and I knew her family. I would recognise her and I am sure she would recognise me. Both Anne Kennedy-Dennehy and I went to the same school.

7. My former husband worked for Niall Dennehy as a lorry driver and Anne Kennedy-Dennehy is the sister-in-law of Niall Dennehy. I have worked in chip shops in Clonmel for over ten years.

8. My son is good friends with the son of Johnny Dennehy. Johnny Dennehy is Anne Knnedy-Dennehy’s brother-in-law.

9. My brother David Sheehan was originally a co-accused in this trial. However, a nolle prosequi was entered on the indictment as against him.

10. My late son Michael Norris died in 2003 and I was devastated by his death. He was a drug user and died from an overdose. He was only nineteen years of age.

11. It was not explained to me by my solicitor and I did not appreciate that I could object to jurors. I was not aware that I should scrutinise jurors to see if I knew a juror.

12. I say that during the course of the trial I was positioned at the rear of the court. I was not facing the jury. I could not see the jury clearly as they were in a jury box that was angled facing away from me and my line of vision. I would have had to be on the other side of the courtroom to look at the jury directly.

13. I say that I did not take notice of the composition of the jury when I was giving evidence because I was very nervous and upset.

14. After a guilty verdict was returned, my attention was turned to the jury and I suddenly noticed that Anne Kennedy-Dennehy was on the jury and was the foreman. I informed my solicitor and he said that he would look into it. I further say that counsel acting on my behalf raised the issue of the composition of the jury at the sentencing hearing and counsel for the prosecution confirmed the same.

15. I say that throughout the trial, I was unaware of her presence and only noticed it after the verdict was returned.

16. I say that had I known that this old neighbour of ours was on the jury I would have instructed my legal team to object to her sitting on the jury.”

In addition to the affidavit the applicant relies upon the transcript of Day 1 of the trial. From the transcript it is clear that the members of the jury were made aware of the applicant’s maiden name. At the request of the judge counsel for the Director informed the jury panel that David Sheehan is a brother of the accused. The first witness, Garda Moran, gave evidence that the applicant’s maiden name is Marie Sheehan, that she married a Mr Patrick Norris from whom she had separated for quite a period of time, that in her generation of the Sheehan family there were four brothers and one sister most of whom lived around the Clonmel area.

On that evidence the applicant seeks to have the verdict of the jury set aside on ground of objective bias.

The Law
The test to be applied where objective bias is alleged is whether a reasonable person, who has knowledge of all the relevant circumstances, would have a reasonable apprehension of bias: O’Callaghan & Others v Judge Alan Mahon & Others [2007] IESC 17 30th March 2007. While the objective perception of bias may arise from different circumstances attending a hearing, in the present case the court is concerned with knowledge of an accused by a member of the jury. As Fennelly J. remarked in Director of Public Prosecutions v Tobin [2001] 3 I.R. 469:-

“The rich and growing body of case law in this jurisdiction regarding complaints of bias in decision-making bodies (including the courts themselves) contains very few instances of alleged juror bias and none of the type which arises in this case.”

In that case it was held that the right to a fair trial guaranteed by Article 38 of the Constitution guarantees an accused person a trial by a jury free from suspicion or taint of bias. Section 15(3) of the Juries Act 1976 is the statutory scheme designed by the Oireachtas, in the first instance, as the final filter to eliminate disqualified and ineligible jurors and secondly to eliminate biased jurors in the broadest sense of that term. Section 15(3) provides as follows:-

“15(3) Before the selection has 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.”

In The People (Director of Public Prosecutions) v Haugh [2000] 1 I.R. 184 at p.193 Carney J. in his judgment in a divisional court of the High Court said:-

“Section 15(3) of the Juries Act 1976, is the statutory scheme designed by the Oireachtas in the first instance as the final filter to eliminate disqualified an ineligible jurors and secondly to eliminate biased jurors in the broadest sense of that term and it works well. It is part of an all embracing statutory code and this code does not make provision for the jury being questioned in writing in advance of the ballot.”

At commencement of the proceedings at the applicant’s trial the learned trial judge addressed the jury panel as follows:-

“Now, ladies and gentlemen, I am required to warn you pursuant to section 15(3) of the Juries Act before empanelling a panel. Each of you got a jury summons and presumably you have read it and it sets out whether you are eligible or ineligible or disqualified or in respect of an incapicatory excuse as of a right not required to serve. Ladies and gentlemen, there is a trial about to start this morning and the names and addresses of the accused and the complainant will be set out for you by Mr Orange on behalf of the prosecution.”

Counsel for the prosecution then addressed the jury panel as follows:-

“The accused person is Marie Norris and her address is 11 Elm Park in Clonmel. I think by agreement with the defence counsel I should also mention the names Derek Norris, who I believe is the son of the accused Marie Norris. His name is likely to come into play in the course of this particular trial and also David Sheehan who is the brother of the accused and he resides at 211 Elm Park. Anybody knowing any of these people or think that they might know these people should identify these facts or knowledge to the judge when called.”

The judge then again addressed the jury panel as follows;-

“If any of you know that you are not qualified or are ineligible to serve or in doubt as to whether or not you are qualified or ineligible to serve or in doubt in respect of incapacity or excusable as of right or if you think you have an interest or connection with this case or any people involved, please tell me when selected.

Now, the time to tell me is prior to taking the oath, not beforehand, just before you take the oath. To wait until after you have taken the oath could cause certain difficulties. So please tell me when you come up and you are asked to take the oath that is the time to tell me…If you know any of the persons referred to or know or have personal involvement or feel there is a basis upon which you might be other than completely impartial and objective, you might make that known to me. Again the time to let me know is just before taking the oath…The most convenient time as I tell you, the time to tell me if you have any difficulties is before you take the oath.”
There was accordingly compliance with the requirements of the section, save and except that there was no mention of the penalties where a person who is unqualified or ineligible sits on a jury: the juror in question in this case did not fall into either such category.

The People (Director of Public Prosecutions) v Tobin is a case which concerned objective bias of a juror. The court there adopted the objective test applied in R v Gough [1993] A.C.646. The facts in R. v Gough were as follows. After trial and conviction for robbery, during the sentencing hearing a juror recognised a brother of the accused as her neighbour. An investigation was carried out during which she said that she had not noticed references to the brother’s involvement in aspects of the crime. While the test as formulated in that case is worded differently from the formulation used in this jurisdiction the court in The People (Director of Public Prosecutions) v Tobin held that any differences between the two tests is more apparent than real. Certainly this court is satisfied that the test within this jurisdiction is no less favourable to an accused person than that in England. The test was modified in England in In Re Medicaments and Related Classes of Goods (No. 2) [2001] ICR 564 by the deletion of the words “a real danger” from the same. The court, however, recognised that the two phrases in the R v Gough test “a real danger” and “a real possibility” are in fact the same. The test, however, was there formulated as follows:-

“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Tribunal was biased.”

The court is satisfied that the deletion from the test in England of the words “a real danger” does not alter the position that there is no difference between the tests in that jurisdiction and in our law.

As to the characteristics to be attributed to the fair-minded and informed observer it is unnecessary to delve into the characteristics to be attributed to him other than that one is entitled to conclude that such an observer will adopt a balanced approach or as expressed in Johnson v Johnson [2000] 201 C.L.R. 488, 509 at para 503 by Kirby J.:

“A reasonable member of the public is neither complacent nor unduly sensitive or suspicious.”

In R. v Gough it was held that there was no ground for disturbing the jury’s verdict. As there are few cases in our jurisprudence dealing with the issue of objective bias on the part of a juror it is of some assistance to look to the experience in England. The first matter to note is that it has repeatedly been held that juror bias engages Article 6(1) of the European Convention on Human Rights. In Metropolitan Properties Co. (FTC) Limited v Lannon & Others [1969] 1 QB 577 and Lawal v Northern Spirit Limited [2004] 1 All ER 187 it was held that the objective test satisfies the requirements of the Convention which also requires an objective test. Again in R. v Abdroikof [2008] 1 All E R 315 it was held that the European Court of Human Rights objective test imposes no more rigorous test than that applied in English domestic law. As to the jurisprudence of the European Court of Human Rights, see Hauschildt v Denmark [1989] 12 EHRR 266 and in Pullar v U.K. [1996] 22 EHRR 391.

In Pullar v U.K. M. and C were the leading prosecution witnesses. The jurors included F, a junior employee of M’s firm who had received notice of dismissal on grounds of redundancy shortly before the trial began. F. informed the clerk of the court of his employment in M’s firm. The clerk ascertained that F. did not know Pullar and was ignorant of the facts of the case and he did not inform the court or the lawyers appearing of the position in relation to F. M, on seeing F. sitting as a juror, told the clerk of his connection with F but again the clerk took no action and informed no one. Pullar was convicted. Subsequently his lawyers learnt of the connection between F and M and appealed. On appeal it was held that the clerk should have informed the court and that if he had F would probably have been excused. However a mere suspicion of bias was insufficient to justify quashing a verdict and that it is necessary to prove that a miscarriage of justice had actually occurred and the appeal failed. On application to the Commission it was unanimously found that there had been a breach of Article 6(10) of the Convention in that the impartiality of the jury which convicted Pullar was capable of appearing open to doubt and Pullar’s fears in that regard could be considered objectively justified. However the court by a majority of 5-4 held that there had been no violation. It was pointed out by the court that knowledge of a person did not necessarily lead to prejudice; it was a question of nature and degree. In Pullar’s case it was not clear that an objective observer would conclude that F would be more inclined to believe M rather than the witnesses for the defence.

In R v I [2007] E.W.C.A. Crim. 299 a serving police officer sat on the jury this being authorised by law. He knew the police witnesses in the case. A second problem arose when during the trial a juror furnished a note to say that he thought he may have worked in the same factory as the appellant and had recognised him but had only just realised at a later stage in the trial that this was so. In relation to the police officer the court said:-

“Here, it would have been helpful to have known how well the juror knew the police officers. Had he ever worked with them on any a particular matter or on a particular project? How often did he see them in the course of his work? How and in what circumstances did he meet him?.”

It was held that on the basis of the police officer juror’s knowledge of the police witnesses’ objective bias had been established. However in relation to the juror who had worked with the defendant it was held that his knowledge would not have justified the discharge of the juror.
R v Pintori [2007] EWCA Crim 1700 concerned a juror who was a civilian employee of the police and she knew the police witnesses in the case. Evidence was given by a police inspector that the juror after the trial had said: “I knew them and because I am in the job, I just found him guilty.” The juror denied having made the statement. The court held that the fact that the juror knew the officers in the case reasonably well and had worked with them is sufficient to satisfy the objective bias test and the appeal was allowed.

Returning to this jurisdiction, in The People (Attorney General) v Singer [1975]1 I.R.409 the foreman of the jury was a chartered accountant, was an investor in Shanahan’s Stamp Auctions Limited and a claimant against that company in the liquidation in respect of his investment. He was employed by a firm of chartered accountants of which one of the senior partners was the liquidator of the company. The applicant had been convicted of fraudulent conversion in relation to the affairs of the company. The applicant did not become aware until after the trial that the foreman was an investor and claimant in the liquidation of the company. The guilty verdict was set aside.

The People (Director of Public Prosecutions) v Moulder [2007] IECCA 63 concerned an attempt by the brother of a murdered victim to generate familiarity with a member of the jury. The juror reported the matter to the trial judge and, having conducted an inquiry, the learned trial judge allowed the trial to proceed. The Court of Criminal Appeal set aside the conviction and ordered a retrial. The court cited with approval a passage from the judgment of Fennelly J. in The People (Director of Public Prosecutions) v Tobin:-

“The court is of the opinion that the issue must be decided in the light of the right to a fair trial guaranteed by Article 38 of the Constitution. The right of an accused person to be tried by a jury free from any suspicion or taint of bias is one of the corner stones of the criminal justice system.”

The court applied the objective test. Of crucial importance was that the juror felt intimidated. It was noted that there was not just one single intervention by a juror in the case which could easily be cured by appropriate directions to the jury. One juror had said that he was intimidated. An element of intimidation affecting one juror could, at least subliminally, affect the juror and perhaps by extension the jury as a whole. Applying the objective test there was a risk of an unfair trial.

In The People (Director of Public Prosecutions) v Tobin the appellant was convicted of rape and sexual assault. The foreman of the jury disclosed to the court that during the jury’s deliberations a member of the jury had related a personal experience of sexual abuse. The foreman assured the court that it was not affecting the impartiality of that person in any way but explained that the jury believed that they should report the matter to the court. The learned trial judge refused an application to discharge the jury. In the special circumstances of the case applying the objective test the court held that the juror might have been unconsciously influenced by his or her personal experience and for that reason the appellant might not receive a fair trial and the conviction was set aside. The court conducted an extensive review of the authorities in this jurisdiction, in England, in Australia and considered the decisions of the European Court of Human Rights. The court held that it does not follow that such a person as the juror in question is incapable of acting impartially. However, the circumstances of the events disclosed at the trial must have been sufficiently similar to the experience of the juror to cause her to raise her experience with the other members of the jury. In that situation a reasonable and fair-minded observer would consider that there was a possibility that the juror might have been unconsciously influenced by her personal experience and for that reason that the appellant might not receive a fair trial. Other jurors might well be influenced by sympathy for a fellow juror. The issue had been explicitly raised by the juror. Such considerations would not apply to the trial of every type of offence where a juror had undergone a similar ordeal to that with which the trial was concerned. However sexual abuse falls into a special category. Even then, subsequent discovery that a juror had an experience of that kind would not of necessity warrant quashing the conviction. The special circumstance in the case which led the court to its decision is that the concerns were explicitly raised by the jury.

Application of the law to the circumstances of this application
The information furnished by way of the additional evidence admitted on this application is less than comprehensive. The nature of the information disclosed raises at least a suspicion that the applicant was anxious to give only such information and in such a form as would assist on the application and thereafter to avoid precision. The applicant was born on the 6th August 1965 and at the date of the hearing was forty two years of age. The applicant and the juror were raised in the same housing estate. Assuming sequential numbering of the houses within the estate, the respective families resided at opposite ends of the same: the applicant does not say how close the houses are to each other. In 1982, some twenty five years before the trial, the applicant moved with her husband to 11 Elm Park, Clonmel, a separate estate on the opposite side of the road from Ard Fatima: again no precise information as the distance between the two houses is disclosed. Elm Park would appear to be a larger housing estate than Ard Fatima: the jury were told that the applicant’s brother resides at No. 211 in that estate. As to whether, and if so when, the juror moved from Ard Fatima and if so to where she moved the applicant does not say. The applicant saw the juror attend at Ard Fatima to visit her relatives but there is no suggestion of any contact between them not even a casual greeting. The applicant and the juror went to the same school: it is not suggested that they are close contemporaries or that they shared the same class or that they were friends at school or even acquaintances. The applicant’s former husband worked at some time for the juror’s brother-in-law: we are not told when or for how long, nor are we given any information to suggest that the juror was aware of this. The applicant’s son is good friends with the son of another brother-in-law of the juror: we do not know if the friendship is such that the juror should be assumed to be aware of the same. In short a great deal more information must be available to the applicant but she has chosen not to make that available to the court.

The applicant worked in the chip shop in Clonmel for over ten years: we are not told when this was, or if the juror was a customer, or otherwise how this is relevant.

The court accepts what the applicant says was her physical position within the court and that she was not directly facing the jury and that she did not scrutinise the jury. Less credible, perhaps, is that she did not see the foreman when giving evidence and only became aware of her presence after the verdict was returned. One would expect, in the ordinary course, that someone in the applicant’s position would be more likely to notice the foreman rather than other members of the jury.

No information is disclosed to suggest any circumstance which, notwithstanding the very limited nature of the acquaintance disclosed, the juror might have been prejudiced either in favour or against the applicant.

Applying the objective test, and taking into consideration as the court must the informed observer, the court is not satisfied that the applicant has established that such informed observer would have a real apprehension of bias in the sense of there existing a real possibility of an unfair trial. The court also takes into account that the learned trial judge properly and comprehensively advised the jury panel as required by section 15(3) of the Juries Act 1976. It takes into account that the courts on many occasions have noted the independence of juries in general and that they can be expected to honour their oath.

The court will refuse the applicant leave to appeal against conviction.