Court of Criminal Appeal dismisses appeal regarding juror intimidation by deceased's brother in murder trial.

COURT OF CRIMINAL APPEAL

Kearns J.

Murphy J.

Clarke J.

[C.C.A. No. 111 of 2008]

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

ALBIE LONERGAN

APPLICANT

JUDGMENT of the Court delivered on the 8th day of May, 2009 by Kearns J.

On 13th December, 2007 the applicant was convicted in the Central Criminal Court of the murder of his brother, Michael Lonergan, at 58 Baloonagh Estate,

Tralee, County Kerry, on 31st December, 2006. The evidence established that shortly after 6 p.m. on the date in question an altercation broke out between

the two brothers outside the porch of the dwelling house in question in the course of which Michael Lonergan sustained two stab wounds to the chest and

one stab wound to the right thigh as a result of which he died later on the same day. The prosecution sought successfully to lead evidence from a number

of people who were present at the said address at the time of the incident and in whose presence the wounded victim made statements in the aftermath of

the stabbing. Louise O’Brien, the partner of Emmet Coffey, a brother of the deceased’s wife, told the Court that the two brothers started getting abusive

towards each other and were throwing digs at each other. She called for her partner, Emmet Coffey, to come out of the house and separate them. While

waiting for Emmet Coffey to come out of the house she saw the applicant throw a knife from his left hand onto the floor and saw Michael Lonergan clutching

his side. Michael Lonergan turned to her and said he had been stabbed. His exact words were “the bastard stabbed me”. She also gave evidence that in

the immediate aftermath of the incident that her partner Emmet Coffey chased the applicant down the road. At that point Michael Lonergan was lying down

in the hallway of the dwelling house and holding his side. Some ten or fifteen minutes later Emmet Coffey returned to the house at which point strenuous

efforts were made to staunch bleeding from the wounds sustained by Michael Lonergan. This involved putting pressure on the wound with a tea towel.

Louise O’Brien gave evidence that while this was happening, Michael Lonergan said to Emmet Coffey “the bastard stabbed me, my own brother stabbed

me”. Louise O’Brien clarified that no other person was involved in the fight with the applicant other than Michael Lonergan.

Emmet Coffey stated in evidence that on returning to the house having chased the applicant, Michael Lonergan said to him “he is after stabbing me, Albie

is after stabbing me”. Emmet Coffey stated that Michael Lonergan also asked “did I catch him?. Mr. Coffey believed that the interval between his pursuit of

the applicant and his return to the house was within five minutes.

Yvonne Lonergan, the wife of the deceased, also testified that when she went out to the hallway of the house the deceased told her it was the applicant

who had stabbed him. Another witness, Jonathan Bentley, was also present in the house when the argument took place. He left the room in which he was

sitting to go to the toilet and encountered Michael Lonergan in the hallway. He had his hand on his stomach and he was “all blood”. He caught Michael

Lonergan as he was going to fall to the ground. Asked if the deceased had said anything, Mr. Bentley stated that the deceased replied “the cunt stabbed

me”.

At the outset of the trial, an objection was raised by counsel for the applicant that only those statements immediately contemporaneous with the stabbing

should be admitted in evidence and that statements made some ten or fifteen minutes later, notably that of Mr. Emmet Coffey, should not be regarded as

admissible because they did not form part of the res gestae.

Before ruling on this objection, the learned trial judge conducted a voir dire examination of each of the aforementioned witnesses. As a result of a measure

of agreement between the prosecution and the defence, the proposed evidence to be given by the various witnesses was edited and limited to that outlined

above. The prosecution argued that all of the statements made by the deceased, which clearly identified the applicant as his assailant, were admissible as

forming part of the res gestae, including statements made by the deceased some ten or fifteen minutes after the stabbing incident.

Following lengthy submissions involving much citation of relevant case law on the topic, the learned trial judge ruled that all of the statements of the

deceased were admissible. That ruling is the first matter giving rise to the present appeal.

A separate ground of appeal arises from the fact that on the fourth day of the trial the foreman of the jury brought to the attention of the learned trial judge

that an issue had arisen over the weekend. It transpired that one of the members of the jury had been approached by an unidentified party in a public house

and was told by this party to “make the correct decision”.

On being advised of this matter, the learned trial judge conducted a discussion initially with counsel in the absence of the jury. The jury was then recalled

and a request was made of the juror to identify himself which he duly did. At this stage the juror recounted the circumstances whereby he was in his local

pub, was going to the bathroom and got tapped on the shoulder by a gentleman who was unknown to him and who said “I hope you make the proper

decision next week”. The juror protested saying that the individual had got “the wrong guy”. Asked if he was intimidated by this approach, the juror

responded “no”. There then followed a question advanced by the trial judge as follows:

“It is very good of you to bring it to our attention. It is, dare I say it, one has heard of more serious approaches, if you like. And if I may say

so you seem to be, you weren’t put in fear or anything?

JUROR: No

JUDGE: I must ask you this. You have taken an oath to try this case on the evidence and not on any other basis. It is a perfectly human

reaction for you, and for all of you, that this might, might perhaps subconsciously even, taint your view of the case one way or another. And it

is to be presumed, of course, that you will act in accordance with your oaths. But I wonder do you feel, some people would feel that they

might have been tainted by it and are prepared to say they would be. Do you feel you can continue this case purely on the evidence and

excluding from your mind any, how should we put it, sinister implications?

JUROR: Yes, your honour”

The defence contended that the form of the question put by the trial judge invited only a positive response and that the judge effectively led the jury and the

individual juror in question into the position whereby they and he were left with no real alternative other than to affirm the position as presented by the

learned trial judge.

In response, counsel for the prosecution submitted that the approach of the trial judge to the issue of one of the members of the jury being approached was

appropriate and correct. Specifically, counsel for the prosecution pointed out that the applicant’s counsel did not seek the discharge of the jury, but simply

requested that the trial judge would insure that the applicant had a fair trial, stating: “That is as far as I wish to go”.

Mr. Denis Vaughan-Buckley, senior counsel for the respondent, argued that the learned trial judge had applied the correct test as set out in the decision of

The People (at the suit of the Director of Public Prosecutions) v. Mulder [2007] 4 IR 796, in that he applied the objective test as to whether a reasonable

person would have a reasonable apprehension that the accused would not in the circumstances receive a fair and impartial trial.

SPONTANEOUS DECLARATIONS/RES GESTAE

The prosecution sought the admission of the various statements made by Michael Lonergan on the sole basis that the same formed part of the res gestae

and as such were admissible as evidence of the truth of their contents. The prosecution did not seek their admission as “dying declarations” or on any other

basis.

It is well established in Irish law that spontaneous declarations constitute an exception to the hearsay rule. As McGrath Evidence (Thomson Roundhall,

2005) makes clear at para. 5-53:-

“Statements concerning an event in issue, made in circumstances of such spontaneity or involvement in an event that the possibility of

concoction, distortion or error can be disregarded, are admissible as evidence of the truth of their contents. The rationale for the admission

of this category of out of court statements is evident from the formulation of the exception – they are made in circumstances where the

declarant’s mind is so dominated by a startling or overwhelming event that the statement is a spontaneous and instinctive reaction, made

without any opportunity for the declarant to devise a false statement.”

The test for admissibility was formulated by the decision of the Privy Council in Ratten v. R [1972] AC 378 where Lord Wilberforce stated at p.389:-

“The test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction. This may

often be difficult to establish: such external matters as the time which elapses between the events and the speaking of the words (or vice

versa), and differences in location being relevant factors but not, taken by themselves, decisive criteria. As regards statements made after

the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of

spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement

was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his

account, he should exclude it.”

The approach outlined by Lord Wilberforce in Ratten was later endorsed by the House of Lords in R v. Andrews [1987] AC 281. Lord Ackner set out the

relevant principles in the following manner at p.300 to 301:-

“1. The primary question which the judge must ask himself is - can the possibility of concoction or distortion be disregarded?

2. To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy

himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an

instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to

conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the

statement was made in conditions of approximate but not exact contemporaneity.

3. In order for the statement to be sufficiently "spontaneous" it must be so closely associated with the event which has excited the

statement, that it can be fairly stated that the mind of the declarant was still dominated by the event …

4. Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion. In the

instant appeal the defence relied upon evidence to support the contention that the deceased had a motive of his own to fabricate or concoct,

namely … malice …

5. As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of human recollection is relied upon, this

goes to the weight to be attached to and not to the admissibility of the statement and is therefore a matter for the jury. However, here again

there may be special features that may give rise to the possibility of error ... In such circumstances the trial judge must consider whether he

can exclude the possibility of error.”

The principles as thus enunciated were subsequently applied in R v. Carnall [1995] Crim. L. R. 944 where statements made by the deceased more than an

hour after he had been attacked, badly beaten and stabbed were held to have been properly admitted notwithstanding the lapse of time. In delivering the

judgment of the Court of Appeal, Lord Taylor C.J. stated:-

“We do not consider that the time factor, in regard to when a statement claimed to be part of the res gestae, is made, is conclusive. That

much appears from the passage we have quoted from Lord Ackner (in R v. Andrews [1987] AC 281). We also note that in R v. O’Shea (CA

24.7.86) the period which had elapsed before the statement in question was made after the event was of the order of an hour. Although it is

true that the issues in that case were different, the lapse of time does show that it is not necessary that the evidence claimed to be part of

the res gestae should have occurred at, or within minutes of, the event which precipitated it. It must be a matter for the trial judge in any

given case to look at all the circumstances. The crucial question is whether there is any real possibility of concoction or distortion, or whether

the judge feels confident that the maker of the statements was at the time dominated in his thoughts by the event which had occurred so that

what he said could be regarded as unaffected by ex post facto reasoning or fabrication.”

The leading Irish authority on this aspect of res gestae is the decision of this Court in The People (at the suit of the Attorney General) v. Crosbie [1966] IR

490. In that case the appellants C. and M., together with two other accused were charged with the murder of C.N.M. The charge arose out of a fight which

developed at the “read” room at the Dublin Docks in the course of which C.N.M. was stabbed by C. Within a minute of being so stabbed, C.N.M. said when

C. (but not any of the other accused, on the evidence) was standing near him – “he has a knife, he stabbed me”. The appellants were convicted of the

manslaughter of C.N.M. On an application by both of them for leave to appeal against conviction it was held by this Court that the words spoken by C.N.M.

were admissible against all the accused, although it was hearsay evidence, because it formed part of the criminal act for which the accused were being

tried.

In delivering the judgment of the Court, Kenny J. stated as follows at p.496:-

“The Court is of opinion that evidence of the statement made by Noel Murphy immediately after he had been stabbed by Crosbie was

admissible in evidence against all the accused, although it was hearsay, because it formed part of the criminal act for which the accused

were being tried or for those who prefer to use Latin phrases, because it formed part of the res gestae.”

Having considered a number of English authorities, including DPP v. Christie [1914] AC 545 and Teper v. R [1952] AC 480, Kenny J. stated at pp.497 to

498:-

“The words spoken by Noel Murphy were spoken within one minute of the stabbing. They related directly to the incident which was being

investigated (the stabbing), and they were spoken immediately after it. If the words of Lord Normand are adopted, the words were so clearly

associated with the stabbing in time, place and circumstances that they were part of the thing being done and so an item or part of real

evidence and not merely a reported statement.”

In Teper v. R, Lord Normand had stated at pp.486 to 487:-

“… The rule against the admission of hearsay evidence is fundamental ... Nevertheless, the rule admits of certain carefully safeguarded and

limited exceptions, one of which is that words may be proved when they form part of the res gestae ... It appears to rest ultimately on two

propositions, that human utterance is both a fact and a means of communication, and that human action may be so interwoven with words

that the significance of the action cannot be understood without the correlative words, and the dissociation of the words from the action would

impede the discovery of truth. But the judicial applications of these two propositions, which do not always combine harmoniously, have never

been precisely formulated in a general principle. Their Lordships will not attempt to arrive at a general formula, nor is it necessary to review all

of the considerable number of cases cited in the argument. This, at least, may be said, that it is essential that the words sought to be

proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it, in time, place

and circumstances, that they are part of the thing being done, and so an item or part of real evidence and not merely a reported statement.”

In the present appeal, counsel for the applicant has argued that the trial judge went further than this Court had done in Crosbie because he took a

“composite approach” to the issue which adopted law evolved in England and which appeared to be premised on the possibility of concoction or fabrication

as the ultimate test rather than contemporaneity.

However, this Court does not see the decision in Crosbie as being in conflict with the decision of the Privy Council in Ratten v. R or the decision of the

House of Lords in R v. Andrews albeit that those decisions carry the reasoning in Crosbie somewhat further. The Court is satisfied that the more evolved

formulation of principle set out by Lord Ackner does no more than elaborate the rationale for the views expressed in Crosbie. The composite approach

adopted by the trial judge which gave due weight to both the requirement of contemporaneity and the possibility of concoction or fabrication, appear to this

Court to represent the correct approach to this issue. It would be quite wrong to hold that admissibility should be determined by reference solely to a given

time period as to do so would lead to arbitrary and unfair results. Time in this context is an important factor but not a determinant. The true importance of

the requirement of contemporaneity is to eliminate the possibility of concoction. Where it is clear that no such opportunity existed on the facts of a given

case it would be quite wrong to exclude statements on some arbitrary time basis. It is more a matter of factoring in both components when deciding

whether or not to admit such statements as part of the res gestae. In every case the trial judge will have to exercise his discretion having regard to the

particular circumstances of the case.

In the instant case it was never put or suggested to any of the witnesses that the statements as having been made by the deceased were not in fact so

made. No alternative version of events or no other possible perpetrator was possible on the prosecution evidence other than that the applicant had killed his

brother. No motive for concocting or fabricating evidence was suggested to any of the witnesses, nor was any evidence led by the defence to supply any

such motive. Furthermore, counsel for the applicant has not really challenged the admissibility of the statements made by the deceased in the immediate

aftermath of the stabbing. The challenge is effectively confined to the statements made by Michael Lonergan following the return of Emmet Coffey to the

dwelling house following his chase of the applicant down the street.

The Court is entirely satisfied that the statements made some ten minutes after the stabbing were correctly admitted. They formed part of the same

transaction, were sufficiently contemporaneous, and furthermore the Court is satisfied that there was no opportunity on the part of Michael Lonergan to

concoct or fabricate an explanation, and indeed no motive for his having done so was ever identified.

The Court is of the view therefore that this ground of appeal must fail.

INTERFERENCE WITH THE JURY

The other ground of appeal, namely, that the trial judge should have discharged the jury because of possible interference with a member of the jury, can be

quickly dealt with.

In the view of the Court, the learned trial judge applied the correct test as set out in the decision of The People (at the suit of the Director of Public

Prosecutions) v. Mulder [2007] 4 I.R. 796, being an objective test as to whether a reasonable person would have a reasonable apprehension that the

accused would not in the circumstances receive a fair and impartial trial.

The factual situation in the instant case is very different from that pertaining in DPP v. Mulder. The latter involved a culmination of a number of incidents:-

(a) At the arraignment in front of the jury panel the deceased’s brother shouted from the public gallery.

(b) At that stage the judge questioned the deceased’s brother in relation to the shouting and he stated that it was just his reaction at seeing

his sister’s husband who had allegedly strangled her.

(c) On the third day of the trial, prosecution counsel applied for an order excluding the deceased’s brother and his wife from court while the

evidence continued, due to concerns by the gardai as to the behaviour of the deceased’s brother and his wife in court.

(d) The note from the foreman of the jury stated that the deceased’s brother was making himself “familiar” with some members of the jury.

(e) After the trial judge’s request to the foreman to ascertain the correct facts, the foreman addressed the court and referred to the outburst at

the arraignment by the deceased’s brother, and stated that while the jury were waiting in the corridor outside the court, the deceased’s

brother borrowed one of the juror’s newspaper and read out an article referring to the outburst indicating that this was him.

(f) The foreman stated that the juror felt that the deceased’s brother was familiarising himself with him and at the end of that day he greeted

the juror with a smile and a nod.

(g) He further stated that the juror in question felt somewhat intimidated and uncomfortable.

(h) When the juror was questioned by the judge there was a conflict in his answers from that which the foreman had reported.

In delivering the judgment of this Court in Mulder, Geoghegan J. stated at p. 806:-

“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.”

No such problems arise in the instant case. The incident consisted of a simple remark or approach made in a public house which had no effect on the juror

in question. No objection was taken to the form of the enquiry made by the learned trial judge and no objections were raised to any of the questions raised

by the learned trial judge in that context. The Court is satisfied that the learned trial judge conducted the enquiry in question in an entirely appropriate

manner and that any suggestion that he coerced or indicated that the jury should respond to his questions in a particular manner is completely unfounded.

The Court would dismiss the appeal on this ground also.