Court of Criminal Appeal dismisses appeal regarding jury deliberation timing and evidence admissibility in murder retrial.

THE COURT OF CRIMINAL APPEAL

Kearns J.

Budd J.

O’Donovan J.

[CCA 92/05]

BETWEEN

JOHN JAMES KELLY

APPLICANT

AND

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT delivered the 2nd day of February, 2006, by Kearns J.

The essential point raised in this appeal is to determine how long a trial judge should allow a jury continue its deliberations

before instructing them that they may disagree.

The applicant was charged with the murder of Christopher Cybulla at a camp site at Curreeny, Co. Tipperary on 28

December, 1999. He was initially tried before O’Higgins J. and a jury in the Central Criminal Court between 14 March,

2002, and 22 March, 2002. He was convicted of murder on 22 March, 2002, and received a sentence of life imprisonment.

He subsequently appealed his conviction to this court in February, 2004. His conviction was then quashed on the basis of

the failure of the learned trial judge to allow the partial defence of provocation to go to the jury. A retrial was ordered and

the applicant was subsequently released on bail.

The applicant’s retrial was heard before Carney J. sitting with a jury in the Central Criminal Court between 18 April, 2005,

and 28 April, 2005. At arraignment and in the presence of the jury, the applicant pleaded not guilty to murder but guilty to

manslaughter. On 28 April, 2005, the applicant was convicted of murder by an 11 to 1 majority jury verdict.

In this case, the jury deliberated for a total period of 9 hours and 55 minutes. The jury had been sent out at 3:42pm on 26

April, 2005, and eventually returned with their majority verdict at 12:36pm on 28 April, 2005, having spent 2 nights in a

hotel.

For ease of reference, it is perhaps appropriate to set out the chronology and to make reference to one or two unusual

features of what occurred after the jury had retired to consider their verdict:-

26 April 2005

3:36pm Jury retire to consider their verdict. Requisitions followed.

3:40pm Jury recharged following requisitions

3:42pm Jury retire

6:15pm One member of the jury returns to the courtroom and asks the registrar how long the jury were expected

to remain in their room. The registrar informs this juror, who does not appear to have been the foreperson, that

he must return to the jury room and remain there until such time as the jury had reached a verdict or until sent

for by the judge. The registrar informed counsel of this exchange

7:12pm Jury brought back to court and given the majority direction pursuant to the provisions of s. 25 (1) of the

Criminal Justice Act, 1984. They are specifically told that they could not, under any circumstances, drop below

10 in reaching a verdict. Thereafter, the jury was sequestered in a hotel for the night.

27 April, 2005

11:08am The jury retire to recommence their deliberations.

1:01pm Jury return to court with a question in the following terms:-

“Could we have a re-reading of the law on the definitions of murder, self-defence,

provocation and manslaughter?”

The redirection is left till after lunch at which point the same is given and the jury retired.

Thereafter, further requisitions were raised in relation to the recharge.

2:31pm Jury brought back to court for further directions

2:35pm Jury retire. At this point, counsel for the applicant apprised the learned trial judge of the fact that at

6:15pm the previous evening a member of the jury, not the foreperson, came down to the courtroom and asked

the registrar how long they were required to remain in their room. Ms. Deirdre Murphy, senior counsel for the

appellant, advised the judge that she was not asking the judge “to do anything about it at this juncture”, but

simply wished to put the matter on the record. She also indicated that she would at some point invite the judge to

consider whether or not the jury should be told they could disagree, but that this issue did not arise “at this

moment”.

4:53pm Jury returned and requested smoking break. They confirmed they had not reached a verdict upon which

10 had agreed. Their total deliberation time at this point was 7 hours and 46 minutes.

In the absence of the jury, counsel on behalf of the applicant invited the trial judge to consider telling the jury

that they were entitled to disagree. In response the learned trial judge stated that he had mentioned that possibility

twice during his charge but “ramming the notion of disagreement down their throats is something I am not

prepared to do”.

5:54pm Jury returned to court after a total deliberation time of 8 hours 32 minutes and indicated, in response to a

question from the registrar, that they had reached a verdict on which at least 10 of them had agreed. However,

before the issue paper was handed over to the registrar, other members of the jury indicated that the reply

offered by the foreperson was incorrect. On being asked again by the registrar whether or not 10 of the jury had

agreed to a verdict, the foreperson then replied in the negative. The judge then directed that the jury be sent to a

hotel for a second night.

6:00pm After the learned trial judge rose, a juror returned to the courtroom and told the registrar that she could

not go to a hotel for another night. The registrar requested that counsel remain in court while he telephoned the

learned trial judge who had left the precincts. The trial judge made clear however that he had made his ruling that

the jury go to a hotel and resume their deliberations the following morning. It appears that on being so advised

the particular juror was able to resolve whatever difficulty she had.

28 April, 2005

11:00am The jury were instructed to resume their deliberations. However, the learned trial judge pointed out that

another murder trial was about to commence before him and that counsel’s speech to that other jury could not be

interrupted. He therefore asked the jury not to come back before 12 noon but at whenever after that time they

had arrived at a verdict. He did not direct the jury that they could disagree.

11:14am Jury retired. Counsel for the applicant then referred to the incident the previous evening where a

member of the jury had come back and indicated she could not go to a hotel for another night. She then

expressed her concern that there was now undue pressure one way or the other within the jury room and

requested that the jury be now informed of their right to disagree. This application was refused.

12:36pm Jury returned with majority verdict (11-1) of guilty of murder. As already noted, the jury had

deliberated for a total period of 9 hours and 55 minutes.

Submissions of the parties on behalf of the applicant

It was submitted that repeatedly sending the jury away to continue their deliberations in this case, with no end in sight unless

or until they reached a verdict, amounted to the application of undue pressure upon them. Furthermore, it was submitted

that the facts of the instant case were unusual because, it was submitted, the jury was having evident difficulties from quite

an early stage. This could be seen in the fact that one juror had enquired as to how long the jury had to remain in their room

on the first day of deliberation, and a second juror had protested vigorously about having to go to a hotel for a second night.

There had been the further confusion surrounding the position as to whether or not the jury had actually reached a verdict

when it was intimated to the court that they had done so, but following enquiry it emerged that the jury had not in fact

reached any verdict. Against that background, it was submitted the learned trial judge erred in failing to inquire from the jury

at any point as to any difficulties they were having. Once difficulties had become apparent, it was submitted, the learned trial

judge should have informed the jury of their right to disagree. In this regard counsel placed reliance upon the judgment of

this court in DPP v Eamonn Kelly (unreported, 9 February 1994, Egan J.).

Counsel further submitted that if there was a real risk that the jury were under undue pressure with no end in sight before

their obligations came to an end, then there was a real risk that any verdict delivered in such circumstances would render a

conviction unsafe. Counsel further relied on the decision of this court in DPP v Ellen Finnamore (unreported, 21 November

2005, McCracken J.) in which McCracken J. stated:-

“The basic principle in what we have to decide is was the conviction safe? Was a person convicted of a

criminal offence in circumstances where we are satisfied that there was no real risk of a wrong verdict? That

is a matter for each individual case. In this case we are quite satisfied that it would not be safe to allow this

verdict to stand. We do not know of course whether the jury in fact felt themselves under pressure. We cannot

know that because we do not know what happened in the jury room but there is certainly a risk and a real risk

in the view of this court that the jury came under undue pressure. The court is not saying that this was done

deliberately by the judge, but the reality is that the jury must have been very tired and there is a real danger

that they would have come under undue pressure or made a mistake particularly when it was a 10 to 2 verdict.

It would not be safe to allow the verdict to stand.”

Ms. Murphy contended that the various difficulties which had arisen in this case were not explored, as they ought to have

been, by the learned trial judge and that this court could not be satisfied in consequence that the juror who complained on

the second evening did not come under undue pressure as she faced the prospect of another night in a hotel, and potentially

more nights, should they not reach an agreement of at least 10. In this regard, it was submitted that the jury had no idea that

their deliberations could come to an end otherwise than by reaching the required minimum. In those circumstances, it was

submitted that this court should conclude that at 8 hours and 32 minutes the jury was deadlocked and that as no proper

enquiry was made at that stage, the learned trial judge had not exercised his discretion appropriately.

In summary, counsel submitted that the following constituted material irregularities and/or undue jury pressure such as

brought the instant case into the same category as the Finnamore case:-

(a) Two separate approaches to the registrar were made by different members of the jury on 26 April and 27 April, 2005, in

breach of the long standing requirement that the jury should not separate and should not speak with officers of the court.

(b) The fact that the jury had already been extensively charged on the law in relation to murder, manslaughter, self-defence

and provocation and had received further directions on these issues on the second day of their deliberations.

(c) The jury had been given the majority charge at 3 hours and 30 minutes, but their deliberations ended at 9 hours and 55

minutes. Thus, just under two-thirds of their total deliberation time involved a situation where at the very least there were

three jurors who could not agree to a verdict.

(d) The failure of the learned trial judge to accede to repeated requests made by counsel for the applicant to apprise the jury

of their right to reach a disagreement - such requests made initially on 27 April and repeated (following the second juror

incident) on 28 April.

(e) Failure by the learned trial judge to fully appreciate the difficulties which the jury were clearly encountering in being able

to reach a verdict. This was evidenced by the confusion in the jury box on the evening of 27 April, 2005, as to whether or

not they had in fact attained the necessary majority and secondly by the protestations of the second juror to the registrar that

she was not in a position to go to an hotel for another night.

(f) Such pressure was further compounded by the learned trial judge, on the morning of 28 April, when he advised the jury

that they could not return before 12 noon due to other commitments in the trial court. Further, the jury were specifically

informed to come to court “when you have arrived at your verdict”. They were not made aware of any other option but

that of a verdict.

In response, Mr. Alex Owens, Senior Counsel on behalf of the Director of Public Prosecutions, accepts that there was

clearly an element of confusion between the jurors at one point where they returned to court as to whether or not they had

arrived at a verdict, but that obviously was not the same thing as “dissatisfaction” and there was no indication that the jury

were deadlocked or unwilling to deliberate further. Furthermore, the jury were not put under any particular time pressure in

that they had been advised they might have to stay overnight in a hotel, so there was no question of tiredness or exhaustion

affecting their deliberations.

Mr. Owens accepted that on the second day of deliberations a female juror indicated she had difficulty in staying in a hotel

for a second night. However, the juror in question within a very short period of time indicated she had resolved whatever

difficulty she had previously had and that was the end of that particular matter.

Mr. Owens pointed out that prior to the commencement of this trial, the trial judge had specifically told the jury that the trial

would last 2 weeks and that any juror who had a difficulty with that time frame should so indicate. None of the jury

empanelled for this particular case had indicated they had any difficulty with that time frame and the trial had, as a matter of

fact, concluded within the 2 week time period. While it might have been inconvenient for the particular female juror to

spend a second night in a hotel, that did not impose any particular obligation on the trial judge to conduct some sort of

inquiry having regard to the overall time parameters which had been mapped out for the trial in question.

The present case could be distinguished from the Finnamore case wherein the learned trial judge specifically stated it was “a

matter for them” (i.e. the jury) as to how long they would deliberate. That was the basis upon which this court had decided

there was a real risk that the jury came under undue pressure and furthermore, the ultimate verdict was a 10-2 verdict in

Finnamore, a factor to which considerable importance was attached by the Court of Criminal Appeal. In the instant case,

the 11-1 majority could clearly be seen as alleviating any concerns the court might have.

Equally, the facts in DPP v Eamonn Kelly were quite different. The jury had been cooped up until 2:50am and the foreman

of the jury had told the judge that there were substantial differences arising among the jury. It was also a case in which there

had been a 10-2 majority decision. Further, in DPP v Kelly, the judgment of this court was made specifically on the facts of

the case, given that in his judgment Egan J. stated that “having regard to the requests made to him and the patent

difficulties which the jury were having” the trial judge should have informed them of their right to disagree.

Far from declining to exercise his discretion, the learned trial judge in the instant case had properly exercised his discretion in

a case of such importance by sending the jury to a hotel where they could obtain a meal, refreshments and overnight rest

before continuing their deliberations in conditions of comfort and calm. When on the 28 April counsel for the applicant

requested a direction as to the possibility of disagreement, the learned trial judge did not err in refusing to give the direction,

because there was nothing at that stage to indicate that the jury was deadlocked or not moving towards a verdict, or that it

was having difficulties of any kind.

Decision

The seminal statement of the law in relation to how a jury should conduct its deliberations was set out by Cassells J. in R v.

McKenna [1960] QBD 411 at 419 as follows:-

“It is a cardinal principle of our criminal law that in considering their verdict, concerning, as it does, the

liberty of the subject, a jury shall deliberate in complete freedom, uninfluenced by any promise, unintimidated

by any threat. They still stand between the Crown and the subject, and they are still one of the main defences

of personal liberty.”

These are principles about which there is no disagreement between the parties to this appeal, the real issue being whether or

not there was a departure from or breach of these principles in the events which occurred.

As was stated by Lord Lane CJ in R v Rose, [1982] 1 W/L/R/ 614, at 621:-

“Where it appears from the length of their retirement and the circumstances of the case, even after a majority

direction has been given to them, the jury may be unable to agree on a verdict and therefore further

deliberation by them may be simply a waste of time, the judge should re-assemble the court, send for the jury

and in open court ask the jury through their foreman, whether there is any chance of their reaching an

agreement, emphasising, needless to say, that he is not inquiring as to how they are divided. According to the

answer which the judge recieves from the jury, he will then decide whether to discharge the jury there and

then, or whether he should ask the jury to retire once again to make a further effort to reach agreement

between them.”

It is suggested on behalf of the appellant that the learned trial judge failed to make appropriate inquiries when difficulties

with two individual jurors arose in this case and that he further was in error in failing to accede to counsel’s application,

notably that made on the third day, that he should advise the jury of their right to disagree.

It is important to underline at the outset that there was no suggestion in the present case that the integrity of the process of

deliberation by the jury as a whole had been undermined by any improper communication by or to either of the individual

jurors who briefly returned to the courtroom to make inquiries about their arrangements. Neither of these incidents were

indicative in themselves of any particular difficulty that the jury might have been having with their deliberations, other than

that they had not yet concluded their deliberations or reached a verdict.

Times have long since passed when juries were free of the time pressures associated with life in the 21st century when

everyone is busy with work, travelling arrangements, appointments and commitments of every sort. It is entirely

understandable that individual jurors would find the prospect of spending one, and certainly two, nights in a hotel something

which might be the source of personal inconvenience for all sorts of reasons. That of itself would not strike this court as

being anything like a sufficient reason for discharging the jury on the basis of either of the enquiries made in this case. If it

is, one may anticipate many cases running into the sand because of the impatience of jurors to get away from court.

Nor is this a case where the jury were sequestered into the small hours of the night with instructions to reach a verdict. That

was the situation which arose in DPP v Kelly (unreported, CCA, 9 February, 1994, Egan J.). In that case the judge’s charge

commenced at 2:00pm and the jury retired at 3:15pm. They were recalled at 6:53pm and informed of their right to bring in a

majority verdict. Counsel for the prosecution then mentioned to the learned trial judge that the judge had not told the jury

they were entitled to disagree. However, the trial judge was not asked to do anything at that stage.

The jury came back again at 9:32pm when the foreman asked for an explanation of guilty knowledge and also asked if they

were going to see the book of evidence. He also told the judge that “there are substantial differences arising among the

jury”. After these matters had been discussed, counsel for the accused suggested that it might then be appropriate to inform

the jury of their right to disagree. The judge did not accede to this application.

Shortly after 11:27pm counsel again submitted to the judge that it would be appropriate to tell the jury that it would be open

to them to bring in a finding that they were unable to agree. Again the judge did not accept that contention.

The jury returned again at 11:30pm looking for further clarification on guilty knowledge and after the judge had addressed

them he discussed matters with counsel and was again asked to inform the jury of their right to disagree. He again refused.

The jury were again addressed by the judge at 12:08am and afterwards counsel for the applicant again raised the question of

time but to no avail. The jury eventually returned just before 3:00am with a 10-2 majority verdict of guilty. In the Court of

Criminal Appeal Egan J., at p.7 of his judgment, not surprisingly, stated:-

“Whatever about the propriety or wisdom of keeping a jury cooped up until this hour at the end of a lengthy

trial, this court has no doubt, having regard to the requests made to him and the patent difficulties which the

jury were having, that the learned trial judge should have informed them of their right to disagree.”

The facts of that case were as far removed from those of the instant case as can be imagined. In the instant case the jury

were not required to deliberate for any excessive unbroken period, nor for any period of time that extended beyond 7:00pm

in the evening. Thereafter, on each of the evenings during which they were sequestered, they were brought to a hotel where

they had refreshments, food and a night’s rest, before resuming their deliberations the following day.

Nor was there any indication of “patent difficulties” such as alluded to by Egan J., other than that the jury, at a relatively

early stage, requested further directions on the meaning to be attached to the different terms of murder, provocation, self-

defence and manslaughter.

It is quite impossible to suggest any specific or fixed period of time as a time at which is appropriate for a judge to tell a jury

that, if unable to reach a verdict upon which, in the circumstances, a majority verdict might be given. At some stage clearly

such a direction must be given, but the timing will depend on the length and nature of the case, its complexity or otherwise,

the nature of any questions raised by the jury themselves and any other circumstances pertaining to the particular case,

subject of course to the over-riding requirement that the jury remain free and unpressured in their deliberations. That being

so, the timing of any direction about the entitlement to disagree has to be a matter of discretion for the trial judge. It is, of

course, a discretion which must be exercised reasonably having regard to the particular circumstances which arise. The trial

judge in the instant case is a judge with enormous experience of criminal trials and his often colourful charges to juries

indicate a shrewd and practical understanding on his part of their difficulties in the function they perform.

There is absolutely nothing in the instant case to suggest that Carney J. applied any form of pressure, direct or indirect, to

the jury by inviting them to continue their deliberations on the third morning when the jury reassembled. Mr. Owens,

counsel on behalf of the Director of Public Prosecutions, accepts that a point in time obviously would have come where the

judge would have had, either of his own volition, or on request made by counsel, to have given the jury such a direction, but

submits, correctly in our view, that this point could not be regarded as having arrived, and still less could it be regarded as

having passed on the facts of this case.

It is of extreme importance to stress that at the very outset of this case, on Monday 18 April, 2005, Carney J. inquired of

the jury as follows:-

“Members of the jury panel you heard that anybody serving on this jury will want to have a fortnight available

to give to us, so anybody having a difficulty in relation to that should mention that before taking the oath.”

None of the empanelled jurors expressed any difficulty with the timeframe thus elaborated, and indeed it may be seen that

the trial commenced and finished well within the two week parameters to which all had consented at the outset.

Considerable reliance has been placed by counsel for the appellant on the decision of this court in DPP v Finnamore

(unreported, CCA, 21 November, 2005, McCracken J.).

In that case the jury were sent out at 4:07pm and at 6:44pm were given a direction that they could bring in a majority

verdict. In fact at that stage they had reached a verdict on one count, but retired to continue their deliberations on the

remaining counts. Sometime after 7:00pm, the judge brought the jury back into court, explaining that they would have an

overnight stay in a hotel if they could not reach a verdict. It would appear, unlike the present case, that the jury had not

been told of this possibility beforehand. The judge asked the foreman if he thought the jury could reach a decision by

8:00pm and offered to have sandwiches sent to them. However, the jury foreman simply indicated that they needed more

time to discuss the matter. At 8:05pm the jury came back stating they still had not agreed on a verdict, that they needed

more time but not a lot of time, possibly an hour at the most. The judge gave them some additional time, apparently with

some reluctance, but in the words of McCracken J. “he rather tellingly said that it was a matter for them”. In the event,

the jury returned at 8:47pm with a verdict of guilty by majority of 10-2 on each count.

In acknowledging that a trial judge has a measure of discretion to make appropriate rulings in the circumstances of any

particular case, the court noted that a jury should not sit for an excessive length of time because of the danger of a jury

making rash decisions when they are overtired or under pressure to finish a case quickly. McCracken J. then stated:-

“In particular we consider that the judge was clearly wrong in saying that it was a matter for them. It is not a

matter for the jury as to how long they will sit. It is a matter for the judge because the judge in his experience

is the person who would be aware of the dangers of a jury sitting for too long and reaching a decision when

they were overtired or perhaps influenced by pressure of time. In this the judge clearly erred.”

Again, this court notes that no similar misdirection was given by the trial judge who simply invited the jury, notably on the

third day, to continue their deliberations with a view to reaching a verdict.

Ms. Murphy complains that this may have conveyed the impression to the jury that they might be kept ad infinitum before

being discharged. She further submitted that the judge wrongly stated in discussion with counsel that he had told the jury

twice about their entitlement to disagree. In fact, Ms. Murphy is quite correct on this point because in his original charge to

the jury the trial judge made but one passing reference to their entitlement to disagree.

This court does not take the view that this means that the trial judge’s charge was inadequate on that count. To place undue

emphasis on the right to disagree can be appreciated by an experienced criminal trial judge as inviting too readily such an

option by a jury. To have done so at an early stage in circumstances where there had already been one trial in this case and

in circumstances also where no indication of deadlock or intractable differences had been notified by the jury to the judge

would have been imprudent to say the least.

Nor do we feel that the judge was obliged to embark upon some form of inquiry when it was so manifestly obvious that the

limited form of question put to the registrar by each of the jurors who returned to court was simply related to the

arrangements and time constraints which affected the two jurors on each of the occasions in question. There was no

suggestion from either juror that he or she had been placed under any form of improper or inappropriate pressure, or that

either juror had been subjected to any form of improper communication whatsoever. In fairness, counsel for the appellant

has made reference to these two incidents or episodes almost entirely in the context of her submission that they constituted

additional grounds for requiring the judge to accede to her application on the third morning of the jury’s deliberations.

We would therefore dismiss the appeal on that ground.

It is also submitted that the trial judge erred in failing to accede to the defence application for the discharge of the jury

following the evidence of Detective Garda Kevin Kennedy that the accused had done time in prison.

However, this was an entirely unprompted response to a question and there is no suggestion that counsel for the Director of

Public Prosecutions was responsible for what occurred. In fact, the purpose for which Garda Kennedy was called was to

give evidence of cooperation by the applicant and to show the applicant’s conduct following arrest in a favourable light. He

was being led through these aspects of his statement as it appeared in the Book of Evidence when this mishap occurred.

There was no application made to the learned trial judge during the summing up to give a direction to the jury that the

evidence of Detective Garda Kennedy on this aspect was irrelevant or that they were to assume that the applicant was of a

good character. This was a tactical decision on the part of the applicant that the “less said the better”. The court is of the

view that no miscarriage of justice occurred in the particular circumstances of the case and relies upon the decision of this

court in DPP v Reddan [1995] 3 IR 560 to so hold. Accordingly, while the admission of such evidence may have been

prejudicial to a certain degree, the court would in that regard exercise its discretion under s.3 subs.1 (a) of The Criminal

Procedure Act, 1993, and will refuse to direct a re-trial on this ground.

Further the court also rejects the ground of appeal which suggests the learned trial judge was in error in failing to require the

prosecution to readdress the jury at the commencement of the trial regarding the applicant’s plea of guilty to manslaughter

and its ramifications for the evidence. The court is satisfied that an adequate outline of the legal position was presented to

the jury by counsel for the Director of Public Prosecutions and furthermore that comprehensive directions were given to the

jury by the trial judge at the conclusion of the case on the various definitions of murder, man-slaughter, provocation and

self-defence. The court further notes that these directions were repeated in response to a query raised by the jury during the

course of their deliberations.

Accordingly, the court will dismiss this appeal on all grounds.