Irish Court of Criminal Appeal
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Cite as: [2012] IECCA 94
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Judgment Title: Director of Public Prosecutions -v- Adach Neutral Citation: [2012] IECCA 94 Court of Criminal Appeal Record Number: 221/10 Date of Delivery: 30/03/2011 Court: Court of Criminal Appeal Composition of Court: McKechnie J., Moriarty J., O'Keeffe J. Judgment by: McKechnie J. Status of Judgment: Approved |
THE COURT OF CRIMINAL APPEAL [C.C.A. No. 221/10] McKechnie J. Moriarty J. O’Keeffe J. The People (at the suit of the Director of Public Prosecutions) Prosecutor/Respondent And
Rafal Adach Accused/Appellant Judgment of the Court delivered the 30th day of March, 2012 by Mr. Justice William M. McKechnie. Background: 2. In his notice of appeal dated the 6th August, 2010, the appellant seeks leave from this Court to challenge his conviction on a number of grounds. These include in ground no. 1 the assertion that when giving a direction to the jury regarding the availability of a majority verdict, and when at the same time informing them of their right to disagree, the learned trial judge, by virtue of the choice of language used, brought to bear improper pressure on its deliberations, such as to render the ultimate verdict unsatisfactory. It is this issue which will be first determined by the Court and which is the subject-matter of this judgment. 3. The factual matrix giving rise to the incident complained of is not overly complicated and may shortly be summarised as follows. On Friday evening, the 29th September, 2007, the complainant, Ms J.G., with others, went out socialising in the Leinster area, to celebrate the 18th birthday of a friend of theirs. In the process they visited a number of licensed premises over many hours, and consumed a large quantity of alcohol. 4. At about midnight or shortly thereafter on the evening in question, Mr. Adach, together with a work friend of his, Mr. C.B., went to a late night premises at which they met the complainant, whom the third party, had known for a number of years. In fact, for a very short period about three years previously, they had been girlfriend and boyfriend, when she was aged seventeen. Over the next two and a half hours or thereabouts, their paths crossed from time to time. On one such occasion, Mr. C.B. invited Ms J.G. back to the appellant's house, where at a later stage it was intended to have some type of party. 5. The precise circumstances in which Ms J.G. left that licensed premises are unclear, but it seems to be accepted that, having become separated from her girl-friends with whom she had spent the evening, she picked up a taxi some miles away, at about 3.45 a.m.. In the meantime the appellant and his friend, having left the public house between 2.30 a.m. and 3.00 a.m., also got a taxi to take them back to where Mr. C.B. was living, so as to collect some alcohol with the intention of then going on to the appellant's house which was a short distance away. Some phone contact took place between Ms. J.G. and Mr. C.B. at or about this time, during which they informed each other as to their respective whereabouts. This call she explained as being in furtherance of their pre-arranged agreement to meet up later. In any event, Mr. C.B. called a local taxi for both himself and the appellant to go to the house party. On entering the taxi, they discovered that Ms J.G. was already in it. All three ended up at the appellant's house some time after 4.00 a.m. on the morning in question. They were the only persons in the house at all relevant times. 6. Within a short period of having entered the house, the complainant and Mr. C.B. went upstairs, whether initially to go to the bathroom or otherwise, is irrelevant. They went into a bedroom and lay on the bed, where they had some minor physical contact with each other; Mr. C.B. then returned downstairs, soon to be followed by the complainant. After a further brief period in which it became clear that the complainant was clearly feeling the ill effects of the night, Mr. C.B. brought her back upstairs and put her into a bed, which happened to be in the appellant's bedroom. It is not suggested that anything improper took place, or that Mr. C.B. was doing anything other than looking after his friend. He returned downstairs where he and Mr. Adach had some more drinks. Eventually, at about 5.30 a.m. he decided to call a taxi to go home. He went back upstairs to where the complainant was, found her asleep or half asleep and told her of his intention to go home: he asked if she wanted to share a taxi and return to her own family home. She declined his offer and said she was fine. The third party then left the house and on his way out, noticed that the accused person appeared to be asleep on a couch downstairs. 7. Within the following forty-five minutes or thereabouts the incident giving rise to the indictment took place. Ms. J.G. alleged that she woke up to find the appellant's hand over her mouth and nose, saying that unless she had oral sex with him he would rape her. This, she said, he repeated on several occasions. Solely by reason of such coercion and being fearful of being raped, she did as she was directed and the physical acts complained of then occurred. Eventually, an opportunity arose and she made her escape from the bedroom and the house, and immediately phoned several people in a distressed state. Very quickly thereafter she reported the matter to the gardaí. A garda investigation followed, which in turn led to the charge as above described (para. 1 supra). 8. In a memorandum of interview recorded by the gardaí, the appellant's version of events was that he woke up on the couch downstairs when Mr. C.B. was leaving. He went upstairs, lay on the bed and asked Ms. J.G. for oral sex. She started the sexual activity which followed, all of which was consensual. Suddenly however, during the course of this engagement, she stopped and started shouting: "where is [Mr. C.B.]?", referring to him by his nickname, by which he was commonly known. The appellant verbally tried to dissuade her from stopping and urged her to continue. She became very angry and repeatedly said words to the effect that, “this …”, pointing to him, “is not [Mr. C.B.] in the bed”, though again, referring to him by his nickname. At the same time as this was happening, some altercation undoubtedly took place between both of them. Whilst the details of what occurred did not vary greatly, the reasons therefor however differed sharply. 9. The surrounding circumstances of which I am about to speak could not be said however to be determinative of the crucial question of consent. Ms. J.G. stated that she was screaming and crying and was trying to fight off her attacker as these events were occurring. She pushed at his face and arms. She pointed to marks on the upper parts of her body, to abrasions and to bruising on her cheek, mouth, nose and chin areas, as supporting her account of what happened. She had blood under her fingernails and on her hands when interviewed by the gardaí some time shortly afterwards, although she could not quite remember how this came to be. Evidence from Dr. Mullen was given with regard to these injuries. Reference was made to her distressed condition when seen by several people shortly after the incident, and to the frantic phone calls which she made to third parties, in its immediate aftermath. 10. The appellant's response to this account, again given in interview, was that during the course of the sexual activity referred to, he was lying on his back with the complainant over him. At some point she suddenly stopped engaging, and having seemed to abruptly come to some sort of realisation, she started shouting "I want [Mr. C.B.]", calling him, as I have said, by his nickname. She repeated this and said that her friend was not the person in the bed. She then grabbed Mr. Adach’s face, scratched it – as she did his arms – with her fingers and nails. In trying to prevent or stop this, a struggle of some description ensued, involving a certain amount of pushing by him and fighting by her. He used such force as was necessary to shove her off. He then told her to get out of the house and she left. Very shortly thereafter he phoned Mr. C.B. to tell him about what had happened and how Ms. J.G. had behaved. This version represents his side of what occurred. 11. There is one other factor of significant materiality which again needs to be noted: it relates to alcohol. There was a serious amount of drink consumed by all parties, throughout that evening. The appellant says that he was drunk, as was Mr. C.B. who admitted to having a lot to drink. Ms J.G. said that she had several drinks of a mixed variety throughout the night. Whilst it may be difficult to quantify the exact unit intake which she had, it was nonetheless established as a matter of fact that because of alcohol, Ms. J.G. could not recall substantial parts of the evening. Much of it was "a blur", as she herself described it when referring to different time periods and events. Whilst some of these were divorced from the incident, others however were quite proximate to it. Therefore, recollection, memory and reliability of recall, were all crucially important features in this keenly contested issue of factual consent. 12. Before leaving this narrative of the background however, the Court feels obliged to record its strong sense of conviction that this incident may never have happened but for the excessive consumption of alcohol by all concerned, on the evening in question. The Trial: 14. On Day 5 the charge continued until about 16:00. Requisitions were then made and the jury retired at 16.40 p.m.. At 18.32 p.m. the jury answered “no” to the standard question as to whether it had reached a verdict upon which all of them were agreed. Madam Foreman then made the following statement to the judge; she said:
15. On Day 6 the jury retired and continued its deliberations for about fifty five minutes, when at 12.02 p.m. the judge recalled it and issued a direction with regard to the majority verdict: he informed it that whilst a unanimous one was still highly preferable, nonetheless a verdict of 10-2 or 11-1 would also be accepted. 16. At the same time as giving that direction he also spoke to it about the possibility of disagreement, saying:
Submissions: 19. On behalf of the prosecutor/respondent, it is submitted that when the relevant portion of the charge is considered in its entirety, there is no unfairness or imbalance in what was said. It is claimed that the judge was simply informing the jury of what the factual position would be, if it disagreed. He pointed out clearly, and on more than one occasion, that a "verdict of disagreement", as it was put, was available. In addition, this direction was given at 12.02 p.m. on Day 6, but the verdict was not returned until 16.29 p.m. on the same day. There is therefore no indication that the jury rushed its decision or were forced into making a decision, either speedily or at all. It is further claimed that the jury felt no pressure to reach a particular verdict, which is evident from its requirement to have portions of the complainant's evidence read to it, and is also supported by the period of time which elapsed from the charge to the verdict when returned. Finally, it is asserted that the circumstances of the instant case are governed by The People (D.P.P.) v. Mulhall [2009] 3 I.R. 151, where a similar submission made on behalf of Ms. Mulhall was rejected. Conclusion:
21. The type of difficulty which this ground of appeal presents has generally been discussed in the context of where a jury is deadlocked in its deliberations. An impasse of such a nature may come to light either by way of a written or even verbal communication passing between the jury and the judge, or as is equally likely, where the judge after a suitable period recalls the jury, and having established the absence of unanimity, inquires if further time would possibly be productive. In either situation it is clear that the jury requires assistance as to what it should do and what its options are. Given the understandably strong judicial urge to help, judges in response have frequently spoken to juries about how such an impasse may be overcome. This situation was the immediate backdrop to what later became known as the "Walhein direction”, identified as such from a case of the same name; R. v.Walhein (1952) 36 Cr. App. R. 167. 22. In its essential terms the direction reads as follows:
24. The concern is that reference to such matters may place improper pressure on a jury member, so as to abandon his/her honestly held view and to succumb to a decision which is not reflective of his or her own. Unhappiness thus developed over time in respect of this matter. In fact when provision was first made for a majority verdict in the United Kingdom (s.13 of the Criminal Justice Act 1967), many felt as a result that the direction, even in its modified forms as had then evolved, may have had outlived its purpose. However, in the absence of a definitive decision regarding its continuing usefulness, it remained in place, even if its application in practice became increasingly disjointed and inconsistent. Watson took the opportunity, at the level of principle, to revisit the issue. In essence the Court of Appeal held that a trial judge should in the first instance decide whether or not any such direction is necessary: this is a matter for him/her. 25. However, if such was thought desirable it should always be consistent with the underlying principle that, for the exercise of their deliberative function, a jury must remain untouched by pressure, save that which is intrinsic to the case itself. Being of the view that the Walhein formula may breach this cardinal rule, the Court recast the direction, at p. 700, in the following terms:
27. Despite the welcome clarification outlined in Watson, this general issue continued to occasion some controversy. Another aspect of it was dealt with in R. v. Radford (Unreported, Court of Appeal, 11th February, 1992) where the Court made it strikingly clear that a trial judge should no longer make reference to the trouble or ordeal which a disagreement may cause. The relevant extract rejecting this practice is as follows:
These trials are expensive to operate in their conduct. This is not a particular [sic] important ingredient for trying to come to a decision in this matter, but it is a factor for your consideration. More importantly, in all likelihood, if you are unable to arrive at a verdict, there will be another trial. This is not in my hands. … But in all likelihood there would be another trial. If that takes place, the accused would have to go through this again as would the witnesses, not the least of which is the young lady. It would not be easy for anybody to have to redo what we have done since Monday of this week. You are members of the jury in as good a position as any other twelve persons who would be hearing this case to render verdicts in this case." 29. The counterbalance which it was said that saved the judge’s charge, was his reminder to the jury of the oath which they had taken and which they could not betray. This stricture he repeated for a second time. On an application to have the verdict set aside, the Court of Appeal in British Columbia considered the direction as a whole and concluded that it was not unfavourable to the appellant. Nor, in that Court's opinion, would it have coerced any member of the jury to reach an improper verdict. Consequently, even though the direction included a number of passages which previously had been judicially disapproved of, nonetheless any impermissible effect had been neutralised by the judge's emphasis, inter alia, on the primacy of the oath. 30. On a further appeal to the Supreme Court, Cory J. delivered the majority judgment on behalf of that Court. Having reviewed judicial precedent from a number of jurisdictions, he outlined (at p. 379 of the report) six principles which he felt could be derived from the authorities as considered. These included:
(4) If a jury has apparently reached an impasse, any exhortation given should avoid introducing factors which are extraneous and irrelevant to the task of reaching a verdict, and should not encourage a juror, by reference to extraneous considerations or by exerting unwarranted pressures, to abandon an honestly held view of the evidence. The exhortation must not interfere with the right of jurors to deliberate in complete freedom uninfluenced by extraneous pressure. (5) It follows that a juror should not be encouraged or exhorted to change his or her mind simply for the sake of conformity." 32. In the instant case the passage from the judge's charge, as above quoted (para. 16) is factually representative of what the jury were informed overall in the context at hand: therefore the reproduction of the entirety of the direction is neither necessary nor required. As can be seen the judge told the jury (a) that, if on giving it their best shot they could not agree, a "verdict of disagreement" could be reached, but such was "highly undesirable", (b) that such a verdict would result in another jury having the burden of hearing the case, and (c) that such a verdict had obvious implications regarding (i) resources, (ii) costs and (iii) stress for both the complainant and the accused. They were, therefore, very much urged to reach a verdict and in the process were again reminded that, having “gone this far with the case”, they should give it their very best effort to arrive at a concluded result. 33. This exhortation was given by the learned judge at 12.02 p.m. on Day 6, when the jury had been deliberating in total for about two hours and fifty minutes. It was given at the same time as he delivered the majority direction, and it followed on from an earlier enquiry made by counsel on behalf of the appellant, as to what the judge's intentions were in this regard. It is not immediately obvious why at the relevant time, which was fifty five minutes after the commencement of their deliberations that morning, it was thought necessary to combine the giving of this instruction with that of the majority direction. No further information had come to light as to whether the jury continued to be divided, as it said it was on the previous evening. An alternative option would have been to provide for a further period of deliberation before directing them on this issue. Whilst the case on appeal to this Court may be distilled rather quickly, the trial judge evidently did not have that view, given the duration of his charge. So perhaps it would have been preferable to have established at least some distance between the majority direction and the exhortation. Be that as it may, it must be noted that no argument has been addressed to us on either the timing or sequence of such direction/exhortation. Accordingly, no further observation on this particular point is required at this time. 34. There can be no doubt but that the impugned references in the judge’s statement relate to matters fundamentally distant from the obligation of the jury, which as enshrined in the express wording of the Oath, is to reach a verdict in accordance with the evidence. Such a task in every case requires a focus of mind and a direction of intellect on the salient factual and legal features, referable to the issue paper, which is left to them for their consideration. This obligation can be more difficult on some occasions than on others, but in all cases, such is and must remain the pivotal stress point of their attention. Any matter, fact or circumstance, not properly within this remit, must be robustly rejected as a matter of principle. One cannot lose sight of the fact that access to a jury's deliberation is not possible: therefore one can never review the actual debate or discussion which takes place, let alone analyse the reasoning by which a verdict is reached. Neither can one ignore the far-reaching consequences of a jury's determination, not only for the proximate parties to the prosecution, but also for the jury structure of justice itself. It is therefore critical to the integrity of that system that matters which do not touch on either the factual or legal issues involved in the proceedings should not be introduced or laid before them. 35. Self-evidently, resources, cost of trials, inconvenience, or hardship on complainant or accused could never be relevant to the burdensome objective resting on their shoulders. If either the prosecution or the defence sought to adduce evidence touching upon any of these topics, it would instantly be rejected. It must therefore be taken that such matters are entirely immaterial to the already difficult task which a jury is duty-bound to undertake. 36. The Watson case and the line of authorities which followed, and the R.M.G. ratio in its essential terms, have been either followed or independently established in other jurisdictions, such as in Australia and New Zealand (O'Malley, The Criminal Process, (Dublin, 2009) at para. 20.41), where it seems to have been definitively established that a trial judge should not inform a jury, through any medium or in any context, that a failure to reach a verdict on their part, would have consequences for or impact upon (i) public convenience, (ii) public expenditure, (iii) the criminal process, including the prosecutor, (iv) the complainant, (v) the accused person, and (vi) a second jury. The rationale for this, as explained above, is to avoid the risk that even one member of the jury may bring such matters into his or her consideration when forming an opinion on the guilt of the accused person. Furthermore, there is the added risk that such an individual, if so influenced, could contaminate other members of the jury in this regard. For such to occur would fatally undermine the effectiveness of the individual and collective process in which and by which a jury deliberates and reaches its decision. If, following a disagreement, inconvenience should result, further expenditure be incurred, or hardship be imposed on any party, such consequences are entirely external to the evidential compass or remit of any given case. It is therefore difficult, if not impossible, to identify any legitimate justification for such type references. Accordingly, even though the authorities above cited are persuasive only, this Court is nonetheless satisfied that they correctly represent the law, and ought to be followed in this jurisdiction. 37. Not every comment by a judge however, even if considered extraneous, will result in a mistrial. Much will depend on the content of the direction as a whole, when viewed in the context of the nature of the charges, the contested issues left to the jury, the exchanges between the judge and jury, the length of their deliberations both before and after such a direction, and any other relevant indicator. What the appellate court must do is determine whether there is a reasonable possibility that the exhortation complained of interfered with, or had a harmful or damaging effect on the absolute freedom of each jury member when deliberating to hold to his/her view, unless by reasoned debate he/she is persuaded to the contrary. In other words, no jury member should be exposed to unwarranted pressure which may have the effect of altering his view, otherwise consciously arrived at and held, on account of such pressure. There cannot be any measure of coercion, for if such were permitted to happen, the end result would represent no more than a numbers game or a mere voting exercise. Such is not what is involved and must thus be avoided. 38. It is submitted on behalf of the prosecution that the present issue can conclusively be determined by reference to The People (D.P.P.) v. Mulhall [2009] 3 I.R. 151 (“Mulhall”). In that case, after fourteen and a half hours of deliberation over three days, the trial judge was informed that the jury had not arrived at even a majority view and therefore were not in a position to return a verdict. In response the judge, in addition to offering any assistance he could with regard to the evidence, said "[t]here are five children having a vital interest in this, as you know, so I am anxious that we reach a conclusion." He gave the jury an option of continuing that evening or recommencing the following morning. The foreman looked for a further half an hour which was granted. In fact no verdict was reached that evening. The jury recommenced their deliberations at 11.08 a.m. on the following morning, had the usual luncheon break, and deliberated for a further twenty five minutes after that. They then returned a guilty verdict on the murder charge in relation to Ms. Mulhall. 39. In the appeal against conviction, it was argued on her behalf that the remarks above noted were improper and had the effect of exerting undue pressure on the jury. This was rejected by the Court of Criminal Appeal on two grounds, the first of which was that the only objection taken to such remarks was that of the D.P.P., with the accused, for her own tactical reasons, remaining mute at the relevant time. It would therefore take something quite remarkable to permit her to raise that objection for the first time at the appellate stage. Secondly and in any event, the Court was also satisfied that the verdict was perfectly safe, in view of the further time period spent by the jury after the impugned comments were made. In these circumstances there was no evidence that the same had any impact on the jury's deliberations. 40. Despite this conclusion however, it is of interest to note that in the Court’s opinion, what the judge had said could be characterised as “improper pressure", albeit without effect and perhaps was not “particularly appropriate” in the circumstances. 41. In any event Mulhall is clearly distinguishable on a number of grounds from the instant case. First and of most significance is the fact that the terms of the exhortation differed in every respect to that presently under review. Such is self-evident by direct comparison. Second, the general circumstances of the case and the overall length of the jury's deliberations were also different. After spending a further thirty minutes considering the matter that evening the jury retired for the night: they had a luncheon break the following day as normal, after which they retired again and then returned their verdict. Consequently the facts of Mulhall are quite distinct from those in the instant case. 42. The most difficult aspect of this issue relates to the Court's assessment of the likely impact, if any, which the judge's urgings may have had on the jury. In several of the decided cases this has not created real difficulty, as the jury returned with their verdict in close temporal proximity to the time at which the exhortation had been given. When such occurs it may be more readily inferred that what has been said has had an effect on one or more members who, as a result, may have altered their view. In this case the jury deliberated for a further two hours and ten minutes (approx.) after the judge had addressed them at 12.02 p.m. on Day 6. Therefore, the interval between that time and the verdict cannot be said to be as striking or as conspicuous as cases where the verdict has been entered within thirty or forty minutes of what had been said. However, despite the importance of time in enabling the court to draw inferences, that factor quite evidentially is not the only matter of relevance. All material circumstances must be looked at and considered, so as to evaluate the likely impact, if any, which the words complained of may have had on the jury. 43. In this case the issue was one of consent – the sexual acts complained of were not in issue. There were no witnesses and both complainant and accused were, by permission and as of right respectively, in the house, indeed, in the bedroom at the time. The relevant events forming the immediate context were explained on one side and on the other: such did not differ greatly even if the explanations given did. It was of course for the jury to take a view on such matters. In any event, at the end of Day 5, having been charged at great length by the trial judge and having deliberated for just under two hours, the foreman expressly told the judge that the jury were "very split" at that time . After a further fifty five minutes on Day 6, the majority direction and the impugned charge were given, after which, as above stated, a verdict was returned following some two further hours of deliberations, by a majority of 11 to 1. 44. It is of considerable importance to look at what meaning the jury could be expected to reasonably take from what the judge said to them, in this regard. There can be no doubt but that overall, his views were very strongly against a disagreement; such an outcome he expressly declared as being one which would be "highly undesirable". That, as a minimum, must be understood as saying that such would be “unwelcome, unsuitable or unattractive”. Indeed, without much difficulty, one could add “objectionable” or even “offensive”. Whichever, there could be no mistaking the strength of his opinion, as conveyed, in this regard. 45. The trial judge then listed some of the reasons which motivated his view and in the process pointed to some of the consequences which would follow if such a “verdict of disagreement” as he termed it, was returned. There would be a retrial and so a second jury would have the "burden" of undertaking the same task as the one that jury was addressing, a situation which of course the jury must be taken as knowing was within their power to avoid or prevent. Such a retrial would impose “stress” for the girl in question, and for the accused, who was older than her having been born in 1981. What was the "stress" being referred to and what was he intending to convey by the use of such expression? It could have been a reference to the ordeal of having to give evidence again and of having to submit to further cross-examination, or to the accused having to face a retrial, or to both. However, as the appellant did not give evidence, which of course the jury were aware of, it is perhaps more likely that the former was uppermost in their minds, rather than the latter. Even if this was not so, the same must surely have been at least equally likely. Of course, this is one of the difficulties. One can never be sure of what actual interpretation the jury did place on such exhortation. Nevertheless, what the Court has suggested as being likely is not in any way fanciful, remote or illusory. 46. Of much more significance however, was the reference by the trial judge to "resources and costs". Neither of these factors were further described or more extensively detailed by him. It must be accepted however, that such related to public resources and public costings, for which in the judge's view, a retrial would have obvious implications. Given the Court's view that such matters are both irrelevant and extraneous to their task, it falls to be considered what effect, if any they may have had on the jury. 47. After about ten years or more of unprecedented growth and expansion, Ireland became a nation engulfed in a national crisis certainly by late 2008. That crisis has impacted at every strand and level of society; from our sovereignty, right through to family units and to individual persons. It has resulted in massive international debt, in a banking and credit crisis, in the collapse of the property market, in growing negative equity and house repossessions, in corporate and personal bankruptcy, in great unemployment and much immigration, in salary reduction and increased taxation, in removal or curtailment of benefits, in pension cutbacks, and much more. In addition and of direct relevance to this case, has been the critically severe reduction in funding available for public services. At every tier and in every area, what currently is available represents a substantial reduction from what was previously provided. There are grave pressures on scarce and limited resources. Public unrest and protest has taken place. There is probably not a single family or person who has not been affected in some way by what has occurred. The crisis has consumed our society for the past number of years and will continue to do so for years to come. Its effect on any scale is devastating and breadthless on its impact. 48. That the condition of public finances in July 2010 were as stated cannot be disputed. Indeed they may have been even worse then now. That it is reasonable to assume that one or more members of the jury, which comprises twelve members of society randomly chosen, may have been affected by this crisis, is utterly plausible. Against such a background, the key issue on this ground of appeal reduces itself to this question: whether the judge's reference to “resources and costings within the public domain”, may potentially have had an impact on the views of any one or more members of the jury, such that it is likely that his, her or their deliberations were influenced by such matters. 49. The importance and status of the judge must not be overlooked in this regard. Correctly so, when presiding over a trial, he is regarded as being a figure of considerable influence and authority within the trial process. When addressing the jury as he did, it must be assumed that he intended his words to have some meaning and some effect – otherwise there would be no purpose in the utterance in the first place. His intention as to the end result is clear enough. The matters or factors of influence to that end have been described, the most important of which relate to resources and costings. Is it reasonably possible in the climate above described that one or more members of the jury may have resiled, as a result of the exhortation, in some way from the obligation to deliver a verdict solely in accordance with the evidence? Is it reasonably possible that the freedom of discussion and decision-making, uninfluenced by immaterial matters which a jury is entitled to expect, became fettered with some concern about a potentially avoidable charge on the public finances? As far back as 1988 the Court in Watson, in circumstances far less demanding than those currently prevailing, was deeply distressed about any reference to public funding. If such was objectionable then it surely must be so now. In fact one can add, that at the level of principle, such is not permitted. 50. Of course, as previously noted it is not possible to answer this question with certainty. But neither is that required. Once there exists a reasonable likelihood in this regard the ultimate verdict becomes tarnished, because the process of reasoning leading to it may have been compromised or interfered with. Given the extraordinary depth of the financial crisis of which I speak, and the almost inevitable impact which the same has had and is still having on individual members of society, of which the jury personnel form part, this Court feels bound to conclude that the judge, by reason of the charge, is likely to have had the unfortunate consequences of inappropriately influencing the jury with his remarks. 51. The conclusion arrived at is not in any way to be read as indicating that when a jury is deadlocked, or when it seeks assistance, that the trial judge cannot positively and actively respond to any such request. Whilst courts in other jurisdictions have formalised what they regard as an appropriate direction in such circumstances, this Court does not feel the necessity to so do in this case. However, the jury can always be urged to continue its endeavours to reach a verdict by open discussion with minds receptive to contrary view and further in this regard can be reminded of the importance of reasoned debate consciously undertaken. This type of phraseology is not in any way prescriptive with the choice of language always remaining in the discretion of the trial judge provided that such is phrased in a manner which is directed solely towards what is expected of a jury during their deliberations (para. 20 supra). Reference to any matters extraneous to this obligation should be avoided as otherwise an unnecessary risk to the verdict is being created. Being mindful of these requirements the judge should be in a position to respond appropriately to any impasse circumstance. 52. For the reasons above given, leave to appeal against conviction will therefore be allowed and on the hearing thereof the verdict will be set aside. 53. In these circumstances it is not necessary to consider the other submissions made on behalf of the appellant.
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