Irish Court of Criminal Appeal

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Cite as: [2009] IECCA 87, [2010] 1 IR 577

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Judgment Title: DPP -v- M.R.

Neutral Citation: [2009] IECCA 87

Court of Criminal Appeal Record Number: 157/08

Date of Delivery: 29 July 2009

Court: Court of Criminal Appeal

Composition of Court: Denham J., McKechnie J., O'Keeffe, J.

Judgment by: Denham J.

Status of Judgment: Approved


Judgments by	Result
Denham J.	Convictions Quashed (no retrial)

THE COURT OF CRIMINAL APPEAL

[Appeal No: 157/08]

Denham J.
McKechnie J.
O'Keeffe J.

Between/

The People at the suit of the Director of Public Prosecutions

Prosecutor

and

M.R.

Appellant

Judgment of the Court delivered on the 29th day of July, 2009 by Denham J.

1. The parties agreed on a summary of the facts, which is as follows.

2. M.R., the appellant, was arraigned and pleaded not guilty to two counts of sexual assault contrary to s.2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s.37 of the Sex Offenders Act, 2001, charging him that he did on the 15th May, 2006, sexually assault one D.G.

3. The trial before His Honour Judge Michael White and a jury commenced on Wednesday, the 6th February, 2008. The evidence concluded on Friday, the 8th February, 2008, at which time the matter was adjourned to Tuesday, the 12th February, 2008, for closing speeches and the judge's charge.

4. Having been charged by the learned trial judge, the jury retired at 2.23 p.m. on the 12th February, 2008. They returned with some queries at 3.28 p.m., which were dealt with by the trial judge. They recommenced their deliberations at 3.47 p.m.

5. The jury was called in by the learned trial judge at 5.15 p.m., at which stage the foreman indicated that they had reached a verdict upon which they had all agreed in relation to Count No.1. That verdict however was not announced at that time. They had not reached a unanimous verdict in relation to Count No. 2. The learned trial judge charged them in relation to a majority verdict. Then the learned trial judge entered upon an enquiry concerning the difficulties which one juror had in relation to the collection of her 6 year old child who required to be collected by 6 p.m.. It appears that this matter was brought to the judge's attention by the Court Garda and by the fact that the juror in question appeared upset.

6. The judge told the jury to suspend their deliberation, while he was canvassing a solution to the problem of the juror's child who required collection. It appears that the juror with the difficulty was separated from the rest of the jury who had retired to the jury room. The juror was brought into court where she was asked by the judge if uniformed Gardaí could collect her child. The separated juror made a telephone call to the child's crèche. After that two uniformed Gardaí went to collect the child.

7. The jury of twelve persons then recommenced their deliberations at 5.31 p.m., having been charged that they could give a majority verdict.

8. The jury returned with a verdict at 5.53 p.m., finding the appellant guilty by a majority of 10 to 2 on Count No. 2. The verdict in relation to Count No.1 was given at that time also, which was a unanimous verdict of guilty.

9. Thus, the appellant was convicted on a unanimous verdict on Count No.1 and a majority verdict of 10 to 2 on Count No.2.
Grounds of Appeal

10. The appellant filed two grounds of appeal, as follows.

"(i) The Trial Judge erred in law and in fact in refusing to withdraw the prosecuting case at the close of the evidence.

(ii) That the verdict was rendered unsatisfactory by virtue of the material irregularity namely, that the jury deliberated in the absence of one of their number, and that a majority verdict was given in circumstances where one of the jurors had expressed her desire to be released in order to collect one of her children and indicated that she was under considerable pressure.

Motion

11. The appellant brought a motion seeking to extend the grounds of appeal to include the following:-

(ii) That the trial was unsatisfactory in that, with regard to Count 1, the Trial Judge erred in his charge to the jury by failing to direct them that it was necessary for them to be unanimous as to the conduct or act which had occurred.

(iii) The conviction is unsafe in circumstances of a finely balanced case where prosecuting counsel in his closing speech expressed his opinions on the truthfulness of the evidence of the complainant, which opinion ought not have been given.

The Court granted the motion and extended the grounds of appeal.

Particularisation of count

12. The third ground of appeal raised the important legal issue that the indictment was not sufficiently particularised and that the trial judge erred in his charge to the jury. On this ground, with regard to Count No. 1, the Court is satisfied that the trial judge erred by failing to direct the jury that it was necessary for them to be unanimous as to the act which had occurred.

13. The Counts before the judge and jury were as follows:-

Count No. 1

STATEMENT OF OFFENCE

Sexual assault contrary to Section 2 of the Criminal Law (Rape) (Amendment) Act, 1990 as amended by Section 37 of the Sex Offenders Act, 2001

PARTICULARS OF OFFENCE

M.R., a male person, on the 15th day of May 2006 at L.P., N. in the County of … sexually assaulted D.G., a female.

Count No. 2

STATEMENT OF OFFENCE

Sexual assault contrary to Section 2 of the Criminal Law (Rape) (Amendment) Act, 1990 as amended by Section 37 of the Sex Offenders Act, 2001

PARTICULARS OF OFFENCE

M.R., a male person, on the 15th day of May 2006 at L.P., N. in the County of … sexually assaulted D.G., a female otherwise than as set out in count 1.

Charge to jury

14. As to the act in question, that was addressed in evidence, and by the learned trial judge in his charge where he stated:-

"Now, in respect of the first count you have [D.G.'s] evidence in respect of that, that she was touched on the breast and the vagina and that this was the first incident in time and that there was a separate incident. You have [the appellant's] evidence that there was only one incident and that it was a touching of the breast only, not a touching of the vagina, and that he didn't interfere with [D.G.'s] clothing. So, therefore, I can say to you in the first charge if you believe him, acquit, or if it could be true, acquit. But what I have to make clear to you, members of the jury, that it is a matter for you entirely to consider the evidence, it is your exclusive preserve. And even though you have an admission you can still bring a verdict of not guilty, I can't direct you to bring in a verdict of guilty only, and that option is still available to you and I want to make that quite clear to you that it is your total preserve to decide on a verdict on the first count. And obviously again if you reject [the appellant's] account of that incident, you must rely on the prosecution evidence and be satisfied beyond a reasonable doubt on it."

15. A feature of this case is that, in relation to Count No.1, the appellant admitted that he touched the complainant's breasts. This is an admission of guilt of this particular act. Therefore if the jury believed him on this they should not acquit. For, as the trial judge said himself:-

"Now, in relation to the first count, the [appellant] has accepted some activity which can be regarded as a sexual assault, clearly to go into someone's bedroom and to touch their breast while they are sleeping or waking up has the ingredients and you are quite entitled to consider it as a sexual assault".

16. Yet, as set out previously, the trial judge also gave a direction which was unclear and left it to the jury to convict the appellant on Count No.1 on two alternative bases, (a) touching of the breast (which the appellant admitted), or (b) touching of the breast and the vagina. There was no direction to the jury that they had to be unanimous as to the act which formed the basis of the verdict. The result is that the jury could have found:-

(a) that the complainant was correct and that the appellant touched her on her breast and vagina, or

(b) that the appellant had touched the complainant on the breast only, as he admitted, or

(c) that some of the jury were satisfied that the appellant touched the complainant on the breast only and others of the jury that he had touched her on the breast and vagina, but all agreed he had touched her.

17. It is important to particularise the facts of an offence alleged. This is so especially in a situation where one set of facts is admitted. In R. v. Brown [1984] 79 Cr.App. R. 115 at p.119 the Court held that:-

"1. Each ingredient of the offence must be proved to the satisfaction of each and every member of the jury (subject to the majority direction).

2. However, where a number of matters are specified in the charge as together constituting one ingredient in the offence, and any one of them is capable of doing so, then it is enough to establish the ingredient that any one of them is proved; but (because of the first principle above) any such matter must be proved to the satisfaction of the whole jury. The jury should be directed accordingly, and it should be made clear to them as well that they should all be satisfied that the statement upon which they are agreed was an inducement as alleged."

It was held that there had been a misdirection in that case and that the appeal would be allowed and the conviction quashed. While R v. Brown was a fraud case, the court stated this fundamental principle of fairness.

18. Counsel for the appellant drew the Court's attention to, and adopted, words from Coonan and Foley, The Judge's Charge in Criminal Trials, (Dublin, 2008) at pp.893 to 894, at para 43-28:-

"The Brown direction, if adopted in Ireland, will inevitably create difficult problems, as it has in England. However, there is an element of core sense with a direction that ensures the jury will return truly agreed verdicts. It would appear to be highly unfair if an Irish jury could, in fact, return a verdict of guilt where it was, unbeknownst to the Court, not agreed on the factual basis for the crime with which the accused stands charged. In principle, therefore, the submission here is limited to the simple proposition that the principles in Brown make sense and should be applied in Ireland. Of course, working out precisely when those principles apply and when specific direction is required may be difficult on a case-by-case basis. However, as outlined above, there is certainly a core jurisprudence that could assist the Irish trial judge in this regard."

19. Without expressly adopting and applying that rule, the Court considers that there is merit in such an approach. To achieve a decision on facts, a jury should reach a unanimous or, after a direction, a majority decision on the fact or facts in issue. There should be agreement on the fundamental facts of the case. There may be fine factual details not at the core of the alleged acts which would not be subject to this principle. The need for a direction may arise only in rare cases. In R. v. Carr [2000] 2 Cr App R 149 it was held that such a direction was necessary. However, Lord Bingham C.J. noted at pp. 158 and 159:-

"[The Court] are not seeking to lay down any general rule. There will often be minor differences between the facts alleged and the evidence given by various witnesses, and there is no need for agreement between all jurors on fine factual differences. Here, however, the difference between the two forms of assault did not depend on fine factual differences, but on a stark difference in the evidence of witnesses describing the two events, those two forms of assault giving rise to very different defences. We regard this case, taken on its own facts, as one which falls within the principles laid down in Brown and Mitchell. We remind ourselves … that ultimately the question is whether we consider this conviction to be unsafe."

20. In this case there was a lack of particularisation on Count No. 1. The complaints in relation to the touching of the breast and the touching of the vagina were not particularised. This led to a confused charge. The judge did not direct clearly that the jury must be unanimous on the act or acts which grounded their verdict.

In a situation where one act had been admitted, it would have been appropriate for the trial judge to deal clearly with the acts alleged. This is a critical foundation to a verdict of guilty. Also, the nature of the acts grounding a verdict of guilty is relevant to the issue of sentencing.

21. In the circumstances, the Court is satisfied that the verdict on Count No.1 is unsafe.
Pressure on jury

22. The second ground of appeal was based on submissions that a jury should not reach a verdict, either by unanimity or by a majority, in circumstances where there is pressure on them to reach a verdict quickly, or where they are influenced by pressure of time. It was submitted that the verdict in this case was given in a situation where there was pressure on them and that it is unsafe and should not be let stand.

23. It was submitted that a juror had a concern for her child, who had to be collected from the crèche at 6 p.m.. It was submitted that the trial judge had erred by failing to make it clear to the jury, before sending them off on the previous Friday, that they may be required to sit into the evening of Tuesday the 12th February, 2008, in order to consider a verdict. It was submitted that the juror in question, and the other jurors, or some of them, were under pressure to decide quickly because of the distress and anxiety of the juror in question.

24. The approach of the trial judge to the concern of the juror regarding the collection of her child at a crèche may be seen in the transcript of the 12th February, 2008, at pp.31 to 34. The transcript indicates how the Court dealt with the issue:-

"Jury returned (5.15 p.m.)
REGISTRAR: Mr Foreman of the jury, kindly answer just yes or no to the following question. With respect to count No. 1, have you reached a verdict upon which you are all agreed?

FOREMAN: Yes.

REGISTRAR: Have you entered that verdict opposite?

FOREMAN: Yes.

REGISTRAR: In respect of count No. 2, have you reached a verdict upon which you are all agreed? Again only yes or no.

FOREMAN: No.

REGISTRAR: Could you hand me the issue paper, please?

JUDGE: Okay. I am going to charge the jury on a majority verdict now. Members of the jury, in respect of count No. 2 in the indictment, please continue to try and agree a unanimous verdict, that is a verdict agreed by all 12 of you. But I will accept a majority verdict on count No. 2 in the indictment and that is a majority of at least 10, of at least 10 of you. So please try and continue to agree a unanimous verdict, that is a verdict of all 12, but if you cannot agree a unanimous verdict of 12 I will accept a majority verdict of at least 10. Thank you very much. The lady that is in difficulty about her child, can you ring anyone?

JUROR: I have nobody that I can call who lives close enough to pick him up.

JUDGE: Where exactly is it?

JUROR: N.

JUDGE: If you retire to consider your verdict - what time do you need to collect your child at?

JUROR: Six o'clock.

JUDGE: If you retire just for the moment, your deliberations are suspended for the moment, I just want to canvass that difficulty with counsel. If you go to your jury room for the moment, don't deliberate for the moment until I deal with this lady's difficulty, please.

In absence of jury

JUDGE: Now, this lady brought to the attention of the court guard her difficulties and I don't know how she understood that she would be out of here by 6 o'clock, but obviously I don't want the jury to be under any pressure in terms of delivering a verdict and I just want to hear what submissions you have to make on the issue.

MR. BOLAND: Well, Judge, I could make inquiries from the gardaí could they help out, perhaps go to N. or something like that.

JUDGE: And collect the child?

MR. BOLAND: Yes. I can certainly find out if that is possible.

JUDGE: Could you do that? Do you want to say anything, Mr Hickson?

MR. HICKSON: It would pose a problem, not that I am being obstructive, but I was involved in a case as a prosecutor on one occasion when somebody left to go to the parking meter and was allowed, permitted to go, and no objection was raised and the Court of Criminal Appeal found that all the parties…

JUDGE: The jury had separated?

MR. HICKSON: Yes, they had separated, and that caused a predicament.

MR. BOLAND: Judge, I am instructed by Mrs G. that the gardaí in ... would go up to N. and pick up the child provided they have all the information as to where the child is.

JUDGE: Okay. Could you just bring that lady out herself, please? Thanks. The gardaí can collect the child, would that be…

JUROR: Could I go with them to collect him because he is six years of age?

JUDGE: He's six?

JUROR: He's six. And he is in a crèche so…

JUDGE: And do you know the people in the crèche?

JUROR: I do know them in the crèche. He's six years of age. Can I not please go with them to pick him up?

JUDGE: No, you can't. I mean, it is only up to N.; the guard can - if you give all the relevant information the guard can take the child down here.

JUROR: Yes, but he goes hysterical when…

JUDGE: Well, then obviously that is an issue, which doesn't solve the problem.

JUROR: If he needs to be collected, I can ring them and I can try and talk to him and explain.

JUDGE: Yes.

JUROR: Who is going to collect him?

JUDGE: Which garda officer is going to collect him?

MR. BOLAND: It will be Garda H. and Garda McG. and they will be uniform guards, it has to be, Judge, apparently.

JUDGE: Okay. The court will be cleared for a moment and if Ms G. and your solicitors stay in court, and counsel if you want. Then, if just the two guards could remain, Garda H. and Garda McG., if you two could come up, please. And does anyone have a mobile phone?

REGISTRAR: There's a phone here, Judge.

JUDGE: There's a phone here, there's a landline here. So if you make the phone call and tease out the situation with the people in charge of the crèche and speak to your son and explain the situation and we will monitor developments as they stand. Okay?

Brief adjournment.

JUDGE: Now, what's the situation?

SOLICITOR: It has been organised, the guards are gone to pick up the child and they have left numbers for contacting them.

JUDGE: Thank you very much. Can you just bring the jury out again? Thanks.

In presence of jury

JUDGE: Thank you, members of the jury. I just had deliberations suspended just dealing with that difficulty with that lady. And I am now directing you to recommence your deliberations in relation to the outstanding count, count No. 2 on the indictment. And don't feel under any pressure, take your time. So if you continue to deliberate now, to agree either - I'd prefer a unanimous verdict, a verdict agreed by all 12 but if you cannot agree a unanimous verdict, the Court will accept a majority verdict of 10 on count No. 2. Thanks very much.

Jury retired (5.31 p.m.)"

25. The trial judge told the jury to retire and that their deliberations were suspended. He repeated the instruction not to deliberate, while the issue in relation to the child was considered.

Separation of juror

26. It is true that a juror was separated from the jury. However, while separated from the jury she was in court at all times, as the trial judge addressed the problem regarding the collection of her child. As appears from the transcript, after telephone communication with the crèche, two uniformed gardaí were organised to collect the child. The Court is satisfied that the separation of a juror in these circumstances is not such as to render a verdict unsafe.
Length of time

27. The length of time of the deliberations by the jury was also raised by counsel for the appellant, with emphasis being placed on the short deliberation prior to the delivery of the verdict on Count No. 2.

The Court considers that there is no reason for concern in relation to the jury deliberations on the first count. The jury retired at 2.23 p.m., returned with some queries at 3.28 p.m., which were dealt with by the trial judge, and they recommenced their deliberation at 3.47 p.m. The jury was called in by the trial judge at 5.15 p.m., when the foreman indicated that they had reached a verdict upon which they all agreed on Count No.1. The trial judge charged them as to a majority verdict. They resumed their deliberations at 5.31 p.m. and a majority verdict was given at 5.53 p.m. Bearing in mind the previous length of deliberations, this length of time taken for reaching a verdict on Count No. 2 is not per se a ground upon which to grant leave to appeal. However, this length of time requires to be considered in relation to the issue of pressure on the juror and jury.
Pressure on a juror and jury

28. A jury should not reach a verdict in circumstances where it is under pressure to reach a decision quickly, or under time constraints in any way. In this case the learned trial judge dealt with a practical problem that arose, as to the collection of a child at a crèche. He dealt with the matter reasonably and with common sense.

29. However, while the Court is satisfied with the manner in which the trial judge addressed the issue on the day, it was a most unfortunate occurrence. Clearly judges have a duty to forewarn jurors of days when the Court might sit late, i.e. when it may be required to sit late in considering a verdict. It is clear from the transcript that the juror had not realised that she may be required to sit into the evening and that she was concerned and wished to collect her child.

30. There is no doubt that the issue concerning the collection of the child placed a pressure on the relevant juror, which may have spilt over into the jury as a whole.

31. The circumstances included an upset juror who wished to leave the Court to pick up her son at his crèche, but who was refused leave to do so. Her upset was apparent. When asked if she would agree to members of An Garda Síochána collecting her child she expressed her wish to collect the child herself, she said "… but he goes hysterical when …", the final words were not recorded. She agreed to ring the crèche and to talk to the child. Then two uniformed gardaí were dispatched to collect the chid by 6.00 p.m. The jury retired at 5.31 p.m. and returned a majority verdict at 5.53 p.m. In all the circumstances the Court is concerned with the apparent pressure of time placed upon the juror. While the effect on the jury may only be speculated upon by this Court, it is a matter for concern. In all the circumstances of the case the Court considers that there was a real likelihood of pressure on the juror in question to reach a decision, and upon the jury which was aware, or some of whom were aware, of her anxiety to leave. A jury should be free to deliberate free from any form of time pressure. A jury should not be made to feel that a juror is under pressure to remain in the jury room in circumstances where he or she is under a degree of stress.
Counsel's opinion

32. The fourth and final ground of appeal was the submission that the conviction is unsafe as prosecuting counsel in his closing speech improperly expressed his opinions as to the truthfulness of the evidence of the complainant, which opinion, it was submitted, ought not to have been given.

On behalf of the Director of Public Prosecutions, it was submitted that prosecuting counsel is entitled to give his view in relation to the evidence and the credibility of witnesses, provided he makes it clear that it is his or her view only, and that the jury must come to its own view after deliberation.

33. The Court is satisfied that it is not appropriate for counsel to personalise his role or to give a personal opinion on evidence and or on the credibility of witnesses. There is a danger that a jury might regard him as giving expert evidence. However, in the circumstances of this case the Court is satisfied that the remarks of counsel were not such as to lead to an unfair trial.
Conclusion

34. The appellant was convicted on the 12th February, 2008. He was sentenced to two years one each count, to run concurrently from the 30th April, 2008. He has served over fourteen months of the sentence and consequently would be eligible for remission soon.

35. The Court treats the application for leave to appeal as the hearing of the appeal and quashes the convictions for the reasons given. In all the circumstances of the case, the Court will not order a retrial as it would not be appropriate or just.