Court of Appeal dismisses appeal where jury discharge was refused for inadvertent bad character disclosure during cross-examination.

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Edwards J.

116/15

The People at the Suit of the Director of Public Prosecutions

V

Michael Murphy

Appellant

Judgment of the Court (ex tempore) delivered on the 20th day of July 2015 by Mr. Justice Sheehan

1. This is an appeal against conviction.

2. Following a jury trial at the Circuit Criminal Court in Cork, the appellant was convicted on the 13th April, 2015, of assaulting Laura

O’Callaghan on the Grand Parade in the city of Cork on the 17th February, 2014 and sentenced to two years imprisonment the

following day.

3. The appellant’s sole ground of appeal against the conviction is that the learned trial judge failed to discharge the jury on the

application of his counsel on the basis that the prosecution witness namely, Laura O’Callaghan gave evidence while being cross

examined by counsel for a co-accused, which tended to show that he had previous convictions in circumstances where his own

counsel had not cross examined Laura O’Callaghan about her previous convictions.

4. In order to consider this ground of appeal, it is necessary to consider the circumstances in which this application arises.

5. The appellant was tried with two co-accused and originally faced five charges. The principal evidence linking the appellant to the

crime which he was convicted of was the identification evidence of Garda McCarthy from relevant CCTV footage as well as

identification evidence by the injured party.

6. In the course of a lengthy cross examination of the complainant by counsel for the third defendant, the injured party replied in

answer to a question about whether or not she had previous convictions by saying “your clients have previous convictions as well”.

The following is the relevant extract from the transcript:-

“Mr. Dwyer: Do you have previous criminal convictions.

Laura O’Callaghan: I am not on trial here.

Q. For assault.

A. No, I am not on trial here.

Q. You are denying that are you.

A. I am not on trial here, I said.

Q. No I want to know about the value of your testimony, are you denying.

A. I am not on trial here.

Q. That you have previous convictions.

A. I am not on trial here.

Q. So you are not going to answer the question.

A. Your clients have previous convictions as well I am not on trial here.

Q. I am just asking a question here on behalf of Ms. Forrest, alright.

A. I am not on trial here.”

7. Counsel for the third defendant was able to point out that his client had no previous convictions, leaving it effectively in the air

that Mr. Murphy and his co-accused Mr. Hill, both had previous convictions.

8. Counsel for the appellant contends that this led to a fundamental unfairness and that the trial judge ought to have discharged the

jury. In the course of his written submissions, he relies on para. 17 36 of “Criminal Procedure” by Mr. Dermot Walsh, where he states:

“In the interest of a fair trial it is accepted that the jury must not be informed about unsavoury aspects of the accused’s

character which might prejudice their impartial and objective assessment of the admissible evidence relevant to the

offence actually charged. In particular the jury should not be informed of the accused’s previous criminal record or the

fact that he is well known to the police, except to the extent that he had elected to put his character in issue or the

similar fact evidence rule applies. It is recognised that where a jury has improperly heard such evidence, it is very difficult

for them to put it out of their minds when considering the accused’s guilt. Accordingly, through inadvertence, prejudicial

information about the accused’s character or past criminal record comes to the attention of the jury improperly, the trial

judge will have to consider whether to exercise his or her discretion to discharge the jury.”

9. Counsel for the appellant goes on to further refer to what Mr. Walsh states at p. 851 of that work where he says:-

“It would appear that the trial judge’s exercise of discretion can be influenced by the manner in which the information

came to the attention of the jury. In R. v. Weaver for example, the jury became aware that the accused was known to

the police as a result of questions persistently put to a police officer in cross examination by defence counsel. In rejecting

the appeal based on the trial judge’s refusal to discharge the jury Sachs L.J. gave as one of his reasons the fact that the

defence counsel was responsible for inviting the answers about which he subsequently complained.”

10. In this case it was not the fault of the appellant’s counsel that this evidence of previous convictions was elicited. Counsel goes

on to refer to Mr. Declan McGrath’s book on evidence at para. 911 and says:-

“As a general rule, evidence of the bad character of an accused is inadmissible and the prosecution cannot adduce such

evidence as part of its case or seek to elicit it by cross examination of the accused or witnesses called on his or her

behalf.”

He goes on further to quote at para. 918 as follows:

“The application of the exclusionary rule option arises for consideration in circumstances where evidence of bad character

of an accused is disclosed by inadvertence or arises unexpectedly in the course of a trial. The course to be taken when

this occurs depends on the nature of the evidence disclosed and the degree of prejudice that may have been caused. In

some instances the view may be taken by the trial judge that any possible prejudice can be cured by appropriate

directions to the jury or alternatively that the accused would be best served if the matter was not mentioned and thus

highlighted again. In other cases where there is a serious risk of an unfair trial because of the prejudice that has been

caused, then the appropriate course of action is to discharge the jury. A trial judge is afforded a broad discretion to deal

with the inadvertent disclosure of evidence of bad character as he or she sees fit and in general an appellate court will be

reluctant to interfere with the course adapted by him or her.”

11. Counsel for the respondent opposes the application pointing out that when this matter first arose, counsel for the appellant did

not apply to have the jury discharged, but only did so when the more serious charges were withdrawn by the Director of Public

Prosecutions and this happened the following day and the four charges that were withdrawn related to serious events that were

alleged to have occurred on the day following the incidents that occurred at the Soho Bar on Grand Parade, Cork.

12. Counsel for the Director of Public Prosecutions also contended that the issue for the jury was an issue of identification and that

the central question was whether or not Garda Kevin McCarthy and Laura O’Callaghan, the injured party, were correct in their

identification of the appellant as the person who struck Laura O’Callaghan outside the Soho Bar.

Conclusion

13. The court does not take issue with the defence not making an immediate application to discharge the jury and only doing so for

the first time when the four counts relating to events that occurred the day after the incident at the Soho Bar were withdrawn from

the jury. The question for this Court is did the trial judge correctly exercise his discretion in this case in refusing to discharge the jury.

14. First of all this Court notes the general jurisprudence in this area to the effect that a trial judge should always be slow to accede

to a request to discharge a jury and in particular the court also notes what Mr. McGrath states in para. 918 namely, “a trial judge is

afforded a broad discretion to deal with inadvertent disclosure of evidence of bad character as he or she sees fit and in general an

appellate court will be reluctant to interfere with the course adopted by him or her”.

15. This Court holds that the impermissible evidence which crept into this case was of limited significance in the overall context of the

case which really boiled down to the question as to whether or not the jury could rely on the identification evidence in the case,

primarily that of Garda McCarthy.

16. In these circumstances the court is satisfied that no injustice arose as a result of the decision made by the trial judge in refusing

to discharge the jury and accordingly the appeal is dismissed.