Court of Criminal Appeal allows appeal against murder conviction due to jury intimidation and incorrect legal test applied by trial judge.

COURT OF CRIMINAL APPEAL

90/06

Geoghegan J.

McKechnie J.

Clark J.

THE PEOPLE AT THE SUIT OF THE

DIRECTOR OF PUBLIC PROSECUTIONS

.V.

ANTON MULDER

APPLICANT

JUDGMENT of the Court delivered by Geoghegan J. on 20th day of July 2007

Because of inappropriate interaction with the jury at or in connection with the trial of the applicant for murder and of which he was

convicted, this court, on hearing the applicant’s application for leave to appeal, treated the application as the hearing of the appeal

itself, allowed the appeal and ordered a new trial. The court indicated that it would give its reasons later and this judgment now

contains those reasons.

As I will be explaining, the reasons are effectively twofold. One was the cumulative effect of the incidents complained of taken in

conjunction with the nature of exchanges which the trial judge had with the foreman of the jury and the relevant juror and secondly,

but separately, on the grounds that the trial judge applied the wrong legal test in considering whether he should discharge the jury by

reason of the interventions or not.

The relevant events commenced on the 2nd May, 2006 during the arraignment of the applicant in the presence of the jury panel from

which the jury ultimately trying him was drawn. After the applicant had pleaded “not guilty to murder, but guilty to manslaughter”

there was what is described in the transcript as “shouting from public gallery”. The presiding judge, Carney J., asked whether the

people shouting could be identified and directed that anyone identified should be taken into custody and brought before him at a later

stage. The judge then ordered a repeat arraignment and the applicant answered in the same way. The plea of guilty to manslaughter

was not acceptable to the prosecution and the judge therefore proceeded to swear in a jury. However, before the actual swearing

took place, a garda indicated that he had identified a person. The judge asked that person who was a male “in what capacity are you

here?”. The question had to be repeated and the man then said the following, all in the presence of the jury panel.

“I’m a witness for my sister, so I do apologise for shouting …I here apologise in front of the court and I will stand outside

in the foyer. It is just my reaction to seeing my sister’s husband who strangled her, it just came out of me.”

The judge ordered that he be “put in the cells” until he was ready to deal with him and he then proceeded with the swearing in of the

jury giving the required directions and explanations etc. After the jury was sworn, the judge said the following.

“Now, members of the jury, last chance saloon, are you all satisfied that you are going to be able to stick with this case

until verdict, which could be about two weeks away? You are all satisfied with that? Very good. Now, the second thing I

want to mention to you: the trial judge won’t be aware that an incident happened this morning in the presence of the jury

panel, which I’ll be dealing with later. This is a trial in accordance with law; it is not a show trial. Accordingly, nothing at

this stage has been proved for or against anybody. You will be trying the case on the evidence that is produced and

cross-examined upon, and I want to know whether the incident took place in your presence is going to cause any of you

difficulties?”

The jurors answered in the negative and the judge then went on to explain that the case would be starting the following day before

Mr. Justice O’Sullivan. No application was made by counsel for the applicant to have the jury discharged.

On the first day of the trial proper i.e. the 3rd May, 2006 a witness called Andrea Pollock was called on behalf of the prosecution. She

confirmed in evidence that she was married to William Pollock, who was the youngest brother of the deceased lady alleged to have

been murdered by the applicant. She turned out to be a witness who had to be kept under control so as to avoid breaching the

hearsay rule. In fairness, any trespassing of that rule by her would appear to have been unconscious and in the context of her

evidence it was difficult to keep within the rules. Be that as it may, from the tenor of her evidence the jury would have got the

message that she did not have good relations with the applicant and that this was largely because of information coming from her

sister-in-law. She then proceeded to give relevant circumstantial evidence against the applicant.

On day three of the trial i.e. 5th May, 2006 the following happened. When the court sat and in the absence of the jury, counsel for

the prosecution informed the judge that the gardaí had some concerns as to the behaviour in court of the said Andrea Pollock and her

brother William Pollock and he requested the judge to make an order excluding them from the court while the evidence continued.

After some minor discussion with counsel for the applicant which it is not necessary to outline, the learned trial judge himself said the

following:

“I will be drawing this to the attention of the jury but I may as well as we are dealing with the whole thing, I have a note

from the foreman, Mr. Shortall saying:

‘Colleen Mulder’s brother is making himself a small bit familiar with some members of the jury’.

Now I am going to draw that to the attention, I’m doing it now, to the parties concerned …”.

Counsel for the prosecution, Mr. Clarke, made it clear to the judge that the brother of Colleen Mulder referred to was the William

Pollock whom he was asking to have excluded. The following dialogue then took place between judge and counsel.

“JUDGE: He is the gentleman in question, very good. I think it is proper, Mr. O’Hanlon, unless counsel agree that I should

not do this, I think it would be proper for me, to, first of all, assure Mr. Shortall that I have received this note, taken it

seriously, and perhaps ask him, discreetly perhaps, over lunch, to check with the members of the jury that they don’t feel

in anyway affected unduly and incapable of discharging their function. Perhaps that is overreacting, I don’t know.

MR. CLARKE: No, I am very concerned. Could I enquire if the foreman explains what is meant by … (the transcript did not

pick it up)

JUDGE: You could, certainly, of course. That’s all I have is a note to myself through the registrar.

MR. CLARKE: Then I am wondering if it might be more appropriate, just in case there is even the slightest possibility of

anything untoward that Your Lordship could in fact make an order excluding William Pollock and Andrea Pollock from the

court building entirely.

JUDGE: It may seem possible. You are shaking your head Mr. O’Hanlon. (Mr. O’Hanlon was counsel for the applicant).

MR. O’HANLON: It is not about that application, it is about, I was unaware until Your Lordship said it. Any interference

with the jury, mid-trial, in my view, can only be dealt with in one way properly, and that is to discharge the jury and

recommence. We don’t know what was said, we don’t know the extent of it. I think juries are – Judge Carney when he

was swearing in the jury made reference to the fact that jury panels develop a shyness when they are being sworn in and

very often you will find on a jury somebody who midway through a trial will, for example, certainly disclose that they are

not able to stay for the extra week and they fail to bring this to the attention of the jury when they are being sworn in.

There is a reluctance to bring matters of that kind up in public. Any inquiry in relation to this would suffer from the same

danger, that there would be a reluctance on any juror, in my view, to ever say that they are not able to continue to act.

But any intrusion into the jury function in that way, to the extent that it has resulted and has been brought to the

attention of Your Lordship, in my view can only mean that the jury has, in that sense been interfered with in a way that

is improper. So that the trial can be seen to run fairly the only proper course is to have a jury where this does not occur

and hasn’t throughout the trial. I wouldn’t be happy that it could simply be cured by inquiring of the jury. The fact that it

has happened is something which affects the ability, in my view, of this jury to continue.”

The judge then enquired were there any precedents which would help him in dealing with the situation. Nothing very helpful was

conveyed to the judge except a vague reference to some other case. Mr. Clarke submitted that to request the jury to be discharged

was an overreaction. He then proceeded to recount for the benefit of O’Sullivan J. the incident which occurred at the swearing in

before Carney J. He explained that the person who shouted on that occasion was the William Pollock now being referred to. Mr. Clarke

went on to encourage the trial judge to seek further particulars from the foreman. At that point, the judge made an order excluding

William Pollock and Andrea Pollock from the court building and from the streets surrounding the building during the course of the trial.

Mr. O’Hanlon then made a further submission to the judge in the following terms.

“I should say, Your Lordship is probably not familiar with this but the concern in relation to that witness goes simply

beyond him being the brother of the deceased because the interviews were clarified by the gardaí, they were giving

evidence in relation to this and there is specific concern about this particular gentleman which is referred to in the text of

the interviews which the jury haven’t heard yet, which would again give concern about him having any contact or having

had any contact whatsoever…”

The next part of the transcript is not very clear but it would seem that Mr. O’Hanlon was complaining to the judge somewhere in

these interview documents was a reference to threat of violence with a weapon on the applicant by William Pollock.

The trial judge then proceeded to give a ruling. After referring to the well established principle that courts would be very slow to

discharge a jury that has embarked on a trial, he concluded that on balance he should question the jury in relation to what had

happened rather than decide at that stage to discharge them. The judge then addressed the jury referring expressly to the note

which he received from the registrar. He suggested to the foreman, Mr. Shortall, that he would obtain the correct facts from the

members of the jury as to what the nature of the contact was. He then allowed the jury retire for that purpose.

When the jury returned, the foreman said the following:

“I have established that … (unfortunately this did not come out on the transcript) I need to go back a little bit to

Tuesday, to Mr. Carney’s court. When the indictment against the accused was read out there was a scuffle at the back

and it turned out that the outburst was by the deceased’s brother, a Mr. William Pollock and he was brought before

Justice Carney? The next day, which was Wednesday the 3rd of May, we assembled on the corridor outside Court 15

when one of the jurors was asked by the said Mr. William Pollock if he could borrow the newspaper of the day and he read

out the article, referring to this trial, and made it clear that the reference to the person who gave the outburst was in

fact himself. And there were other people in the neighbourhood in the courts who heard what he was reading out. But the

feeling that the juror felt was that he was familiarising himself with the juror. At the end of the first session, which was

Wednesday, 3rd May, he greeted the said juror – that is to say Mr. Pollock – greeted the said juror with a smile and a

nod. The outcome of the whole thing is that the juror in question feels somewhat intimidated and uncomfortable. And that

concludes what I have to say.”

That use of the word “intimidated” is of crucial importance as far as this court is concerned. Once it was used, it is doubtful whether

the judge should have made any further enquiries. The use of that word was so serious that it would normally warrant the discharge

of a jury unless of course it was used in the context of a deliberate attempt to obtain such discharge. The judge, however, did not

leave it at that and because of subsequent questioning, he ultimately came to the conclusion that he should not discharge the jury.

It is very important therefore that the subsequent matters be set out in this judgment. The first thing the judge did was to ask

another question of Mr. Shortall. It took the following form:

“What I like to, this is an entirely open question, you tell me the juror feels somewhat intimidated and uncomfortable,

what I really want to know is was there only one juror who …”

The foreman explained that there was only one juror but that he had not realised that until they had adjourned. The judge indicated

that he would like to know whether that juror felt able to discharge his or her duty or not. He asked to be introduced to the juror who

turned out to be a Mr. Paddy O’Brien. The following dialogue then took place:

“JUDGE: Mr. O’Brien, what I am concerned to know is … you are aware of course that you have taken an oath to try the

case in light of the evidence only without fear or favour and without any considerations, other than considerations of the

evidence under my direction on the law. What I am interested to know is do you feel … first of all, do you agree with Mr.

Shortall’s summary?

MR. O’BRIEN: I do

JUDGE: And do you feel intimidated or uncomfortable? He said I think ‘somewhat’.

MR. O’BRIEN: I think the word I am using and stressing was, the familiarity was wrong. That is about the extent of it. I

don’t feel intimidated or … (it did not come out on the transcript) but the word I did use to the foreman was the

familiarity that was drawn to me, I just felt that was wrong.

JUDGE: Well do you feel in anyway inhibited or uncomfortable, or in anyway curtailed or affected … your ability to

discharge your duty as a juror in anyway affected, even if intimidated is too strong a word, do you feel in anyway that

you would be compromised or inhibited in giving the full consideration to the case in a way that is entirely, as I described

earlier by reference to the evidence and not by reference to anything else.

MR. O’BRIEN: No, I feel it is probably ok to carry on as it stands.”

At that point, the judge asked the jury to retire while he discussed the matter with counsel.

Mr. Clarke submitted to the judge that in view of Mr. O’Brien’s answers there was no justification for discharging the jury and that the

complaint was merely “a slight familiarity”. When asked to expand on that, Mr. Clarke said the following:

“His complaint was that on Wednesday morning he thought there was a slight over-familiarity, and he has told Your

Lordship that he has disagreed with Mr. Shortall’s use of the work ‘intimidated’ I think. He felt the familiarity was wrong.

That was his …”

He then referred the judge to a reference in Professor Walsh’s book on Criminal Procedure to the English case of R. v. Sawyer [1980]

31 Cr. App. R. 283 where three members of the jury had a five minute conversation with two customs officers in the court canteen in

the course of a trial for importing cannabis even though the two officers were witnesses for the prosecution it was accepted that the

conversation had “nothing to do with the trial”. But the trial judge had refused the defence’s application to discharge the jury and on

appeal, Lord Widgery C.J. stated:

“The correct test to be applied in such cases was whether there was a real danger that the accused was or might have

been prejudiced by what had gone on.”

The English Court of Appeal concluded that there was no real danger of prejudice. Thereafter the trial judge adopted this English test.

The court is satisfied that it is not the correct test in this jurisdiction as will be explained later on in this judgment. Mr. O’Hanlon fairly

acknowledges that he had not at hand any of the authorities when this problem arose and he did not, therefore, attempt to correct

the learned trial judge on the law. He did, however, point out one obvious distinction between this case and the Sawyer case in that

in this case the utterance is directly related to the trial. Mr. O’Hanlon referred to what was clearly the prosecution’s own concern

about William Pollock having regard to the unusual application to have him excluded from the court’s precincts. Mr. O’Hanlon

suggested that the judge must clearly draw the inference that there was “a clear and deliberate interference” with the jury.

In reply, Mr. Clarke claimed that all of this was a gross exaggeration. The witness was merely asking for a newspaper. And in so far as

he was referring to a report of the case, he was merely repeating something that had already happened. The judge did not agree with

Mr. Clarke’s summation in that he pointed out that there were two pieces of information that were new to Mr. O’Brien, first that it was

William Pollock who had made the outburst on the previous occasion before Carney J. and secondly, that it was William Pollock who

had saluted the juror and made himself known once again. Mr. Clarke, however, corrected the judge to the extent that he pointed out

that William Pollock had been identified in the presence of the jury before Carney J.

The trial judge then gave a further ruling. Having referred to what Mr. Shortall, the foreman, had first told him, he then referred to his

own questioning of Mr. O’Brien and he referred to the fact that Mr. O’Brien had felt that the familiarity was wrong and that that was

the extent of it. The next sentence of the judge is quite important. He said the following:

“He didn’t quite agree with the foreman’s description that he was somewhat intimidated and he said he did not feel

intimidated but he did feel that the familiarity was wrong. In response to my question, he felt confident that he could

carry on as a juror.”

At that stage both Mr. Clarke and the judge had referred to Mr. O’Brien allegedly disagreeing with Mr. Shortall. However, it would

appear from the transcript that he never used the word “disagree” or any cognate word. On the contrary when the judge first

interviewed Mr. O’Brien and asked him did he agree with Mr. Shortall’s summary? Mr. O’Brien gave the simple answer “I do”. It was only

when he was further asked to expand that he diluted any reference to intimidation. In the opinion of the court, the trial judge did not

attach sufficient importance to the original report coming from the foreman. That report used the word “intimidated”. In his final

ruling, the judge referred to the foreman having said that the juror felt somewhat intimidated. That might give the impression that this

was merely the foreman’s own opinion having spoken to Mr. O’Brien and perhaps that is what the judge thought. But it is not what the

foreman originally said and in the absence of any clarification to the contrary from the foreman it must be assumed that so far as the

foreman was concerned Mr. O’Brien had used the word “intimidated”. On the fourth day of the trial, the foreman finally confirmed to

the judge that he had communicated with his fellow jurors and that none of them including himself were affected or inhibited in any

way.

Before commenting further on the foregoing factual history it is appropriate to refer to what seems to be the most recent relevant

Irish authority on the matters in issue. This is a decision of this court (Fennelly, Kinlen and Murphy JJ.) in The People (DPP) v. Tobin

[2001] 3 I.R. 469. It is only necessary to refer to the conclusion arrived at in the judgment of Fennelly J. in that case on what the

relevant Irish legal principle is. At p. 473 of the report, it is stated as follows:

“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 cornerstones of the criminal justice system.”

This statement of principle must be read in the context of the submission made in that case by counsel for the appellant as recounted

at p. 472 of the report. Counsel had referred to Article 38.1 and had submitted that applying the maxim that justice should not only

be done but be seen to be done, the test must be an objective one. “Would a reasonable person have a reasonable apprehension

that the appellant would not, in the circumstances receive a fair and impartial trial?” This test was taken from the Supreme Court

decision as expressed in the judgment of Denham J. in Bula Limited v. Tara Mines Limited (No. 6) [2000] 4 I.R. 412. Of course in

applying the test, the court must also have regard to “the robust common sense of juries” as referred to in D. v. The Director of

Public Prosecutions [1994] 2 I.R. 469 and many other cases. But if the learned trial judge in this case had applied the correct test as

to objective bias, his decision as to whether to discharge the jury or not would probably have been different and certainly might have

been different.

Returning to the facts, there was not just one single intervention by a juror in this case which could easily be cured by appropriate

directions to the jury. There were a number of elements to which I have drawn attention as I went through the facts. The most

important of all, of course, was the report by the foreman that Mr. O’Brien had said he was intimidated. The more the judge

questioned the jurors and in particular Mr. O’Brien, thereafter the more likely would be the answer that they were unbiased and fully

able to try the case. It was more important for him to draw the correct inferences from the original report of the foreman. No matter

what Mr. O’Brien said after that, an objective observer knowing the facts would have had a reasonable doubt, putting it at its

minimum, as to whether there was an element of intimidation which could at least subliminally affect the juror and, perhaps by

extension, the jury as a whole. While courts should be reluctant to discharge a jury because of individual incidents involving

communication with a juror the nature of this intervention and the cumulative effect of the incidents and the conflict to some extent

in the reports given to the judge would have all led an observer to be concerned that there would be a risk of an unfair trial.

There may be cases where even if that were so, this court might be in a position to decide at the end that in actual fact there was a

fair trial. However, in the nature of things that is not possible here. Having regard therefore to the factual history which I have given

and having regard also to the fact that the judge applied the wrong legal test, the court took the view reluctantly that there must be

a new trial. The appeal was, therefore, allowed.

DPP v. Mulder