Court of Criminal Appeal quashes indecent assault convictions due to jury deliberation exceeding safe time limits.

COURT OF CRIMINAL APPEAL

236/06

Finnegan J.

Edwards J.

McCarthy J.

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

.V.

M. J.

APPLICANT

Judgment of the Court delivered on the 14th day of March 2008 by Finnegan J.

On the 27th July 2006 the applicant was convicted on four counts of indecent assault contrary to section 6 of the Criminal Law

(Amendment) Act 1935 before the Circuit Criminal Court sitting at Naas. On the application to this court two grounds are relied upon

by the applicant:-

1. That the learned trial judge erred in law and in fact in amending the indictment after the close of the prosecution case.

2. That the learned trial judge erred in allowing the jury to continue its deliberations until after 10 p.m. in circumstances

where they had been sitting since 9.30 a.m. and deliberating since 5 p.m.

It is proposed to deal firstly with the second ground. At the conclusion of the first day of the trial in speaking to the jury the learned

trail judge said:-

“Come back please for half past ten in the morning. Go directly to your jury room. I have to deal with one or two other

matters that are in the list for tomorrow and once I have disposed of that we will call you back and hear all the

evidence.”

It seems that it was envisaged that the evidence would conclude on the second day.

On the following morning counsel agreed among themselves to dispense with a number of witnesses and counsel were able to tell the

learned trial judge that they expected the matter to complete by midday on the third day. Good progress was made on the second

day of the trial. At the conclusion of the day’s proceedings the learned trial judge addressed the jury as follows:

“Ladies and gentleman, we will adjourn for further hearing in the morning and in the hope of making reasonable progress I

am going to invite you to come earlier in the morning if that is possible and I am going to suggest half past nine. Will that

create any difficulties for any of you?”

The jury agreed to this proposal. The learned trial judge continued as follows:-

“Well, there is some suggestion the weather may turn. Who knows? I heard a report of the racing in Ballinrobe being

cancelled yesterday because of a downpour. It is just hard to imagine. But nonetheless, I will be mindful of the fact that

it is very, very clammy, it is very, very draining on all working through those conditions so that will shorten the day, as it

were.”

The third day of the trial commenced promptly at 9.30 a.m. The first witness called was short, her examination and cross-examination

consuming four and a half pages of the transcript. The second witness was slightly longer, his evidence consuming ten pages of the

transcript with a very short interruption in the absence of the jury consuming one page of the transcript. That concluded the

prosecution case. There was a short interlude during which the learned trial judge dealt with other matters. At that stage it was

indicated that the defence would go into evidence and would be calling two witnesses. The learned trial judge of his own motion

considered the evidence which had been led in relation to each of the counts in the indictment and at 11.09 a.m. counsel asked for

time to consider the learned trial judge’s observations. Discussion of those observations with the learned trial judge resumed at 12.01

p.m. and continued until approximately 12.45 p.m. when the learned trial judge ruled that that there was no evidence to go to the

jury in respect of eight counts and that the matter should proceed on the basis of six remaining counts on the indictment. The jury

were then sent to lunch.

At this juncture the learned trial judge asked counsel if there was a prospect that the case might conclude that evening and counsel

for the prosecution replied that he would like to think so. The learned trial judge before sending the jury to their lunch told them:-

“The fair indications from counsel again, and I am not tying anyone to anything, is that we will conclude this case today.

You will have the opportunity to get to your deliberations, considering your verdict in the case, later in the day, ladies

and gentlemen.”

In the absence of the jury the following discussion took place between counsel for the applicant and the trial judge:-

Counsel: Lest I have misled Your Lordship, when Your Lordship said that the case would conclude today, I was looking at

it in terms of evidence. I am not sure we will get through all the speeches and charges in the normal working day.

Judge: Alright.

Counsel: I am sorry, judge. But certainly there is relatively two short witnesses and the prosecution’s closing and my

address and then Your Lordship’s charge. It may still be possible but lest I was giving you a false indication.

Judge: No, no, that is what I understood, that is what I asked, that we would conclude the case today. However we will

work towards that event if we possibly can. The jury looked very pleased with that.

Counsel: They did. That does encourage me to be swift.

The hearing resumed at 2.08 p.m. and the two defence witnesses gave evidence. There followed a discussion with the learned trial

judge in the absence of the jury in relation to his charge, specifically on the issues of delay and corroboration. Thereafter there were

the prosecution’s closing speech, which was very short consuming just two pages of the transcript, and counsel for the defence’s

closing speech, which again was short consuming seven pages of the transcript.

The jury retired at 5 p.m. There was one requisition and the jury, having been recharged in relation to that, retired at 5.06 p.m.

At 8 p.m. the learned trial judge discussed with counsel whether he should invite the jury to consider a majority verdict. The learned

trial judge remarked that the jury had had a relatively long day and expressed concern that they might be beginning to wilt under the

pressure of the negotiations. Counsel for the applicant expressed a concern to the trial judge in the following terms:-

“That really given that we have been here since half past nine this morning, I am concerned that things are getting into

the territory of being slightly oppressive for them; and if they are not likely to agree at all either majority or otherwise the

sooner we know the better.”

The jury were called in and directed as to a majority verdict and sent out to continue their deliberations at 8.10 p.m.

At 9.04 a.m. the learned trial judge spoke to counsel as follows:-

“It is now after nine o’clock just and I am most anxious, the jury have been working since half past nine this morning or

thereabouts and I have to be very cautious of the fact that they have had a long day.”

The jury were called in and it was announced that they had reached a verdict on two counts but in answer to the learned trial judge

indicated that they had reached an impasse on the other counts. The learned trial judge then addressed the jury as follows:-

“Alright. There are a number of options. You can continue on your deliberations but, I mean, at some stage fatigue has to

become a very major factor and in fairness to yourself and to every one, making a decision when you are tired is not the

best. It is open to you to defer your deliberations until tomorrow morning and continue them…now would you adjourn with

your fellow jurors and discuss with them what is your preference.”

The jury retired to discuss the situation and returned at 9.17 p.m. and indicated that they would like another short while to

deliberate. At 22.02 p.m. the jury indicated that they wished to raise a question and having raised the question returned to their room

while the response was discussed between the learned trial judge and counsel. The learned trial judge then answered the question

and the jury retired to resume their deliberations. Counsel for the applicant in the absence of the jury expressed concern about that

answer and while these concerns were being discussed the jury returned with their verdict. On counsel’s note this occurred at 10.26

p.m.

It appears from the foregoing that the jury had been engaged in the hearing and had been either in court or in their room for a full

period of twelve hours with just over one hour break for lunch. The transcript contains a number of references to the weather. It is

clear that the day was hot, oppressive, clammy and draining. The length of time for which the jury had been engaged was clearly a

matter of concern to the learned trial judge and to the applicant’s counsel and each of them had referred to the nature of the

weather on that day. The former practice which required the jury to continue deliberating until they had reached a verdict or until it

became apparent that they would be unable to agree was discontinued as it carried with it the danger that verdicts would be reached

due to exhaustion or a desire to be released rather than on a full consideration of the evidence. The reason for the practice of

sending a jury to a hotel for a meal and overnight stay when they had not reached a verdict nor reached the stage of being unable to

agree was remarked on in The People (Director of Public Prosecutions) v Gavin (unreported) Court of Criminal Appeal 27th July 2000:-

“The jury was sent to a hotel overnight in order to have a break from their deliberations, to rest and recuperate, so that

they could return to their consideration of the verdict the following morning rested and with a fresh mind.”

In The People (Director of Public Prosecutions) v Finnamore (unreported) Court of Criminal Appeal 21st November 2005 the jury was

sent out to consider their verdict at 4 .07 p.m. At 6.44 p.m. they were directed that they could bring in a majority verdict. At that

time they had in fact reached a verdict on Count No. 2. Just after 7 p.m. they were called back into court when the learned trial

judge explained the position with regard to an overnight stay in a hotel if they had not reached a verdict. He also told them that

there was a normal procedural rule whereby a jury should not sit consistently beyond three and a half hours but if they said they

were nearly there and only wanted another half hour or so then that would be alright. He also told them that normally a jury should

not sit beyond 7.30 in the evening. The learned trial judge asked the foreman if he thought the jury could reach a decision by 8 p.m.

The jury retired at about 7.30 p.m. but were told that they should continue to consult until 8 p.m. At 8.05 p.m. the jury had still not

agreed on a verdict but asked for more time, possibly an hour at the worst. The judge agreed to give them that time if they felt they

were up to it but that it was a matter for the jury. The jury finally returned at 8.47 p.m. with a verdict of guilty. Accordingly the jury

had been deliberating for four hours and forty minutes before reaching their verdict. In the course of the judgment McCracken J.

said:-

“There is no doubt that there have been rulings of this court which are always based on the fact that a judge has

discretion in the circumstances of any particular case. However the judge was right in telling the jury that there were

basic rules that the jury should not sit beyond 7.30 p.m. and should not sit for more than three and a half hours. This

court certainly accepts that is not a mandatory rule. It is a matter for discretion, but the reason for this is because of

the danger of a jury making rash decisions when they are overtired or under pressure to finish a case quickly. 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 danger of the jury sitting for too long and reaching a decision whey they were overtired or perhaps influenced by

pressure of time. In this the judge clearly erred.”

In the present case the court has regard to the following circumstances:-

1. The hearing commenced at 9.30 a.m. on that day.

2. The jury had been in court or confined to their room throughout the day with the exception of the one hour period for

lunch.

3. The total time for which the jury were involved on that day extended from 9.30 a.m. until 10.26 p.m. that is for just

short of thirteen hours.

4. The jury had been engaged in deliberations from 5 p.m. until 10.26 p.m. that is for just short of five and a half hours.

5. The jury completed their deliberations well after 7.30 p.m. the same continuing for a further three hours.

6. The day in question, the 27th July 2006, was regarded by the trial judge as hot, oppressive, clammy and draining.

The foregoing persuades this court that there is a real danger that the jury had become extremely tired and as a result a real risk of

an error on their part. It would not be safe to allow the verdict to stand.

It is a not a matter for the jury as to how long they will deliberate. It is a matter for the trial judge who because of his experience will

be aware of the dangers of a jury sitting for too long and reaching a decision when overtired and perhaps influenced by pressure of

time. In this case there are comments by the learned trial judge in the course of the day’s proceedings from which it is clear that he

was indeed conscious of these dangers. Nonetheless rather than himself deciding for how long the jury should sit he allowed the jury

to decide. In so doing he was in error. He may, and perhaps should, ascertain the jury’s views but the ultimate decision must be his.

Having regard to this error by the learned trial judge but principally having regard to the circumstances listed at 1 to 6 above it would

not be safe to allow the verdict to stand in relation to the four counts on which the jury returned a verdict of guilty.

The court will treat the application for leave as the hearing of the appeal and will allow the appeal and direct a re-trial.