Court of Criminal Appeal quashes murder convictions due to trial judge's prejudicial statements causing jury bias.

UNAPPROVED

COURT OF CRIMINAL APPEAL

187/08

199/08

Murray C.J.

McKechnie J.

Dunne J.

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

-v-

JEFFREY DUMBRELL AND WARREN DUMBRELL

APPLICANTS

JUDGMENT of the Court delivered by Murray C.J. on the 28th day July, 2010

Jeffrey Dumbrell and Warren Dumbrell, the applicants, both of whom are brothers, were convicted of the offence of murder at the

conclusion of a trial before a judge and jury at the Central Criminal Court. The trial lasted for 10 days and the Court imposed on each

of them a mandatory sentence of life imprisonment.

The specific offence for which they were each convicted was that on the 29th day of October 2006 at Inchicore Dublin they did

murder Christopher Cawley, contrary to common law as provided for by s. 4 of the Criminal Justice Act, 1964.

The second applicant, Warren Dumbrell had also been indicted on a charge of threatening to kill or cause serious harm to another

person but was found not guilty of that charge.

The applicants applied to this Court for leave to appeal against conviction. On the 5th day of July 2010 the Court determined the

application by granting leave to appeal, treating the application as the appeal and deciding that the verdict of the trial should be set

aside on the grounds that it must be considered unsafe. The Court ordered that each of the applicants should be retried on the

charges of murder against them.

This judgment sets out the reasons for the Court’s decision on the determination of the application and the appeal.

The Application

Both applicants sought leave to appeal on essentially the same ground as reflected in the following ground of appeal:

“The trial judge erred in law and in fact in failing to discharge the jury during the course of the trial in circumstances

where the possibility existed of the jury being biased as against the accused due to the adverse publicity attaching to a

lecture delivered by the learned trial judge during the trial”.

In essence the applicants submitted that statements made by the learned trial judge as aforesaid, at the time of the trial but at

another venue, coupled with the ensuing publicity and the particular circumstances of the case, were such that there was a real risk

or likelihood that the jury were prejudiced in the issues which they had to decide and that as a consequence the verdict must be

considered as unsafe.

As is explained later in this judgment one of the issues upon which the jury had to decide was whether the case for the prosecution

had proved beyond reasonable doubt that the accused were guilty of the crime of murder rather than manslaughter.

It is not necessary for the purpose of deciding the issue in this appeal to review or set out in any detail the evidence tendered at the

trial. Solely for the purpose of setting matters in context the Court will refer to the general factual background to the case as

emerges from the evidence at the trial.

Background Facts

The deceased lived in a block of flats in Inchicore, Dublin with his wife and children. His wife and two of his children were among a

significant number of witnesses who gave direct evidence concerning the assault on the deceased by the applicants which led to his

death. This occurred on 29th October 2006.

In his summing up of the evidence of the deceased’s wife the learned trial judge told the jury that, inter alia, she saw the deceased,

who was running towards the building in which they lived in a flat, being chased by the two accused one of whom had something long

and wooden like a baseball bat or a hurley and the other had a knife which was between 9 and 12 inches long. The deceased did not

make it to the tower, as it was described, in which he lived but fell to the ground. The accused were alleged to have started to hit

the deceased “everywhere”. The deceased was trying to scramble to his feet and get back to the tower but the accused were on

top of him hitting him and using both their hands and whatever they had in their hands. According to the witness the attack seemed

to last for ten minutes. When it was over the deceased was not moving any more and the accused started to walk away.

Other witnesses to these events, including two daughters of the deceased, and called by the prosecution gave evidence supporting

the prosecution case that the fatal attack on the deceased had been carried out by the two appellants.

The deceased was found to have received multiple stab wounds as a result of which he died. The learned trial judge’s summing up and

citation of the evidence of the State Pathologist, Professor Marie Cassidy included her following statement:-

“This man died following a knife assault. There was superficial incise wounds to the face, hands and right wrist as well as

six stab wounds to the back of his body. Only three of the stab wounds were deeply penetrating. There were two

shallow wounds around the back of the left shoulder. The injuries to the back were large wounds which penetrated

deeply into the tissue causing internal injury. As death was due to blood loss he may have been incapable of some

activity after he was injured. All the injuries could have been caused by one knife although more than one knife or one

assailant cannot be excluded. There were minor cuts on his hands which were probably of the defence type injuries

consistent with there having been a struggle with his assailant or assailants …. I was of the opinion that his death was

principally due to the stab wound to his left thigh.”

She was cited as having said in cross-examination “the essential cause of death was the stab wound to the left thigh. He would have

needed urgent surgical treatment.”

There was evidence at the trial of an “encounter” on a CIE bus earlier that day between the deceased and a brother of the two

appellants, Tommy Dumbrell. The evidence indicated that as a result of that encounter it had been intended that a fight would take

place at the flats between the deceased and that brother. One of the appellants, Jeffrey Dumbrell, gave evidence at the trial in his

defence. In his evidence he claimed that he, and his brother, his co-accused, Warren, had gone down to the flats because there was

meant to be a fight so that they could “make sure that it did not get out of hand or that he was not jumped on by more than one”.

In fact the brother Tommy Dumbrell was at no time present at the scene of the fatal confrontation.

The learned trial judge’s summing up of Jeffrey Dumbrell’s evidence included the following:-

“There was meant to be a fight between Christoper Cawley and my brother Tommy Dumbrell. That is the man who was on

the bus earlier”. The trial judge continued “Warren and himself were going down to make sure that it did not get out of hand

or he wasn’t jumped on by more than one. Mr. Cawley ran away and I ran after him. We ran into the flats after him and he fell

to the ground and jumped up. He had a knife in his hand. My brother smacked it out of his hand with a hurley. I was not

armed with anything. Nothing. When his brother smacked the knife out of his hand with the hurley I grabbed the knife. Mr.

Cawley dived on top of me to get the knife. He grabbed a hold of the blade. A struggle ensued and I ended up stabbing him

once or twice. I am not sure how many times because I wanted to get him off me, leave me alone.”

The learned trial judge continued his summing up in the following terms:-

“Now he accepted that these actions were responsible for the death of Mr. Cawley”. The Judge quotes his evidence: “As far as

I know he was stabbed in the legs. I went for his legs. I had no idea that a serious injury like this could lead to a man’s death.”

Further on the trial judge referred to his evidence in the following terms:-

“As far as we knew there was no serious damage done. We were not going to take part in any fight, just going to ensure that

it was a fair fight between Mr. Cawley and his brother. Then he left.”

The trial judge noted that it had been put to that accused in cross-examination

“You see, the one thing whatever happened that night what did not take place was a fair encounter, a fair fight or a fair

encounter between two individuals, is that right, that didn’t happen”. And the answer was “no”.” The summing up also noted

that the witness claimed that they did not bring a knife that it was the deceased that produced the knife and when the

witness’s brother knocked it out of his hand he was the one with the knife then. “We did not intend to kill the man or to do him

serious injury.”

The foregoing reference to the evidence before the trial court is not intended in any way to reflect on the weight of the evidence but

it gives a context to the issues which are left by the learned trial judge to the jury to decide.

In his charge to the jury the learned trial judge succinctly and clearly directed the jury on the principles of law to be followed and

applied by them as relates to the charge of murder.

He also directed them on the law and principles of the offence of manslaughter as an alternative verdict to the offence of murder on

the indictment.

Having instructed them as to how they should complete the issue paper in the event of a verdict of not guilty or guilty of murder the

learned trial judge told them: “In between you could find a verdict of manslaughter and that could arise if you are not satisfied in

relation to the statutory intent for murder or if you found that the killing of Mr. Cawley was due to self defence in circumstances

where more force was used than was objectively or reasonably necessary but no more force was used than was necessary

according to the lights of the accused having regard to his particular background and make-up … The formula for manslaughter is

“not guilty of murder but guilty of manslaughter”.” He concluded by informing the jury that it was a matter for them to decide these

issues based entirely on the evidence and nothing else, applying the legal directions which he had given them to the facts as they

found them.

Public Statements of the Trial Judge

The learned trial judge, Mr. Justice Carney, holds a position described as ‘adjunct professor of law’ at the Faculty of Law, University

College Cork. It appears that that involves giving an annual lecture or speech each year. That yearly event was scheduled to take

place on Tuesday June 10th 2008 more or less midway through the trial. The date and the topic had been decided upon before it was

known when this particular trial would take place.

That event had been signalled to the jury by the learned trial judge on the second day of the trial when he told them that the sitting

time of the court would have to take account of the fact that “next week a commitment I have to deliver a lecture in Cork on

Tuesday”.

It was mentioned again the following day when he told the jury that he would be asking them to come in a bit earlier than usual on

the Tuesday morning “to facilitate my getting down to Cork”.

In order to facilitate that event, the trial did not continue on Tuesday afternoon but it was adjourned at 1 p.m. and resumed the

following day, Wednesday, at 2.15 p.m.

In affidavits filed on behalf of the applicants evidence of the trial judge’s address and ensuing publicity was tendered to the Court.

This evidence was not disputed by the respondent.

From the evidence tendered to this Court it appears that the speech was circulated in advance to the Press with a statement on its

front page containing an embargo not to publish before 6.30 p.m. on Tuesday June 10th.

It also appears from such evidence that the TV media were alerted, TV cameras being present at the time of the learned trial judge’s

arrival at the location in Cork and at least significant portions of the speech were filmed some of which were broadcast later.

It is also clear from that evidence before the Court that the address was not delivered, nor intended to be delivered for the benefit of

only students or members of the faculty of law of University College Cork such as might occur in a lecture theatre but it was delivered

to an audience that included members of the public and the media generally. The contents were clearly intended to be publicised to

the general public through the media.

This is what occurred, the core contents of the address receiving extensive general publicity.

It was on the foregoing basis that counsel for the applicants have contended that the statements of the learned trial judge, delivered

as they were during the course of the trial, inevitably came to the knowledge of the members of the jury and consequently, it was

claimed, the fairness of the trial was prejudiced.

The Address

In their submissions counsel for the applicants relied upon and emphasised extensive extracts from the statement as delivered and as

published in the media, both the press and television.

The most relevant portions of the address as relied upon by the applicants in relation to the issue in this appeal can be summarised as

follows:-

The address commenced by stating that “One of the greatest grievances of victims is the level of sentences imposed by

the courts in respect of the taking of human life”. This was a reference to sentences imposed in respect of manslaughter,

murder being expressly excluded from that issue because the sentence for that offence is mandatory life imprisonment.

The learned trial judge proceeded to quote, uncritically, from one of the founding members of the AdVIC organisation, set

up to support family members of homicide victims, Mrs Joan Dean, to the effect that in her view;

(i) families of homicide victims feel that sentences being handed down for manslaughter are frequently too lenient

the penalty not reflecting the severity of the crime;

(ii) society views manslaughter as the most serious crime of all;

(iii) sentencing does not reflect this view which devalues the victim and human life;

(iv) since 2000 the majority of sentence of manslaughter average close to five years and that one third is wiped off

the sentence from the moment it is passed.

Having so quoted Mrs Dean the learned trial judge, Carney J. then commented:-

“Mrs Dean makes two very strong statements which deserve to be treated with the greatest respect. She

says that the courts are disconnected from the public they serve and that sentencing judges are being

rendered powerless in their courts by the Court of Criminal Appeal. Had she been aware of it she might have

mentioned that it is more and more the case that appellate judges never had the responsibility of conducting

a criminal trial themselves.”

In the process, Carney J. noted that probably most members of AdVIC had “lost their loved ones through a fatal stabbing”

and such cases “have increased exponentially in number”.

The learned trial judge then went on to express a view as to how such crimes come about and that this occurs in one of

three ways:-

“Such cases have increased exponentially in number and in my experience they broadly come about in one of

three ways:-

1. After what used to be known as the fair fight and is now known as the straightener, the loser goes home

to his kitchen drawer and returns to the scene with the bread knife, the carving knife or the vegetable knife.

2. That person who habitually carries a knife allegedly for his own protection uses it, and will often claim that

he was merely waiving the knife when the deceased unreasonably impaled himself on it, and

3. The immigrant community who do not integrate buy vodka and beer in the off-licence and sit around a

table in somebody’s flat drinking it in large quantities. When the row breaks out there is invariably close to

hand a knife which has been used in the preparation of the vegetables.

These scenarios must now account for dozens of deaths every year. Fatal stabbings are in fact now out of control. The

Registrar of the Central Criminal Court has just informed me that cases coming into the court have doubled overnight

and that even after that a steady pattern of growth is projected for the future.”

The address then went on to refer to three manslaughter cases in which another judge, Mr. Justice White, had been the trial judge

and in which comments made or sentences handed down by the Central Criminal Court had later been rejected or reduced by the

Court of Criminal Appeal. These cases were D.P.P. v. Dillon, D.P.P. v. Kelly and D.P.P. v. Aherne. As regards the first of these cases it

was noted that the sentence was reduced, on appeal, to one of eight years although the sentence imposed in the trial court was not

mentioned. In the second of such cases the sentence was reduced from fourteen years to eight years imprisonment on appeal. In the

third case the outcome of the appeal is not mentioned (in fact the Court of Criminal Appeal held that the length of sentence, ten

years, imposed at the trial was correct but on principles which differed to that relied upon by the trial judge). In relation to each of

those cases Carney J. highlighted the fact that the Court of Criminal Appeal had rejected the sentencing approach by White J. in

those cases based on the principle that in any case when a life is taken and a knife is used a minimum sentence of twenty years

should be applied before mitigating factors are taken into account. Carney J. highlighted the judgments of the C.C.A. in those

particular cases which held that such a general rule of twenty years imprisonment could not, in principle, be applied as a starting

point in all such cases irrespective of the particular circumstances of the individual case. As regards the third of these cases, D.P.P.

v. Aherne Carney J. referred to the fact that White J. after setting out several mitigating factors, imposed a sentence of ten years.

He noted that the Court of Criminal Appeal had overturned the sentence when it noted, inter alia, that “sentences must be

proportionate not only to the crime but to the individual offender”. Carney J. added that although a different approach based on

“just desserts” has attracted support in some other jurisdictions and might yield a result better for victims and as a deterrent “our

principles of sentencing as they stand require an individuated approach”.

The address, in its summary or conclusion, went on to make a number of statements. It first of all referred to certain information

received from judicial researchers and commented on it:-

“The Judicial Researchers of the High Court inform me that after allowance has been made for the part suspension of

many sentences the effective average custodial sentence being imposed for manslaughter is one of six years

imprisonment.

This is of course before the statutory remission of 25% kicks in as of right, leaving four and a half years as the term to

be actually served on average for a vicious wilful and gratuitous taking of human life, only a multiple of this being

tolerated for a sexual crime by the appellate courts and also the Court of Public Opinion.”

He then continued:-

“ I am bound by considerations of fealty and obedience to follow the judgments of Mr. Justice Hardiman which are

binding upon me as I am reminded from time to time.

I think what I can do, however, is formulate what I believe Joan Dean would say were she the one who was giving this

lecture. I believe that she would say that so far as wilful, violent, gratuitous homicides are concerned the courts are not

dealing with them with the severity expected by the majority of right thinking members of society who are fearful for

their personal safety.”

“ I believe she would then want to know why this is so. I do not have the answer to that question. I think it may have

something to do with the rules being formulated in different times. If one looks at the main volume of Frewen’s

judgments of the Court of Criminal Appeal the seminal judgment of Walsh J. in the O’Driscoll case appears in the

company of cases which do not compare with the mindless viciousness of what is going through the Courts today. Drugs

crime did not of course exist then. Alcohol probably produced not much more than the messy drunk.

It is not for me to say that there should be a reassessment of the fundamental principles of sentencing in the light of

what the Courts are having to deal with today. That is for the Supreme Court and the Court of Criminal Appeal whom it

is my obligation in the scheme of things as a trial judge to respectfully follow and obey.”

Summary of Arguments of the Parties

Counsel for the applicants submitted that the nature and content of the trial judge’s address was such that there was a direct

correlation between the contents of the address and the facts and issues in the trial over which the judge who made those remarks

was presiding at the time. It was submitted that a trial judge’s relationship with a jury is unique and anything said by a trial judge

during the trial, even if outside the trial, which comes to the notice of the jury carries a special weight and neither an accused nor his

counsel are in a position to make any countervailing steps.

The applicants did not contend for actual bias but objective bias on the part of the jury. It is not a question of proving actual bias.

There was objective bias because in the instant case the nature of the statements were such as to create in the minds of a

reasonable observer an apprehension of bias on the part of the jury against a verdict of manslaughter. It was submitted that to

embark on an address on the issue of knife crime and the inappropriateness of sentences in cases where manslaughter verdicts are

returned was to create a situation where the accused could have legitimate reason for a fear of lack of impartiality on the grounds

that there was a reasonable apprehension the jury may have been influenced by the contents of the speech in question. In the

particular circumstances of the case there was a real risk of bias on the part of the jury and therefore, as a matter of law, the

verdict must be considered as unsafe.

Counsel for the respondent submitted that there was no evidence that the jury considered anything other than the evidence that

was presented to them in the court and they were directed to try the issues on the evidence before them. The address in question

did not refer to the particular case nor was the speech in any way addressed to the jury either directly or indirectly. There were

general comments on the law relating to sentencing in manslaughter cases and did not intrude in any invasive way in the trial. It was

also submitted that it should be presumed that the jury, in accordance with their oath, would only have regard to the evidence before

them in deciding on its verdict. The applicants were invited by the learned trial judge to make any submissions they wished regarding

any special direction to the jury but they failed to make any such submission. The test as to whether there was objective bias was

whether a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the

jury was biased. The address in question was made outside of the trial at another venue without reference to the trial itself and

therefore did not give rise to any reasonable grounds for apprehending that the jury would be influenced or biased by it.

Extraneous Matters

Before proceeding to express its conclusions on the issues in this application the Court wishes to make it clear that there are certain

matters which arose, expressedly or implicitly, in the course of this application which have no bearing on the decision which the Court

has to make.

Counsel for the applicant tendered material concerning the principles or ethics which should govern the making of statements in public

by members of the judiciary. The learned trial judge himself, in response to the submission of counsel at the trial that the jury should

be discharged because of the prejudicial nature of his public statements, pointed out that it is acceptable and should be treated as

acceptable for judges to give academic lectures. The issues in this appeal have nothing to do with rules or principles which should

govern public statements, articles, addresses to conferences or lectures and so forth by members of the judiciary. It is hardly

necessary to say that such activities are acceptable and positive particularly when they may promote an understanding and

discussion of the law or the administration of justice. Neither is it hardly necessary to say that such matters are governed by

generally understood principles or ethics encapsulated by the notion of “judicial reserve”. But all such matters are in the private

domain in the sense that they are informal principles or understandings governing a judge’s personal conduct.

The only concern of the Court is to consider this application as a matter of law. In a case such as this a court is not concerned with

any possible departure from rules of conduct and this Court is not in any way concerned with considering whether there was or not in

this particular case.

In this context the only issues of law for the Court to consider, as raised by the applicants in their application, relate to the

statements of the learned trial judge as actually made and as published and their possible impact on the trial.

While the Court is constrained for the purposes of the appeal to repeat in some detail to the statements contained in the learned trial

judge’s address and the ensuing publicity, it considers it proper for clarity in the public interest to at least say that significant

portions of the statement, particularly where the learned trial judge purported to quote what a representative from the AdVIC

organisation said or speculated as to what such a representative might say, contained errors and lacked a balance in the presentation

of alleged deficiencies in sentencing in manslaughter cases, even though it may also have reflected concern that exists among the

public from time to time concerning a sentence imposed in a particular case or sentences as perceived generally in relation to

particular crimes. That said, the Court in determining the issues in this appeal is not concerned with the accuracy or otherwise of the

statements contained in the learned trial judge’s address concerning alleged deficiencies in the sentencing system. Again, it is solely

concerned with the fact that such statements were made and publicised, irrespective of their accuracy or completeness, so as to

examine objectively the potential influence of such public statements on the jury in the case over which the trial judge was presiding

at the time.

Media Reportage

From the evidence tendered to the Court on behalf of the applicants it is clear that the presentation of the paper and its contents

attracted, as intended, significant media attention, including coverage on television, radio and national newspapers, both in print and

on their websites. In addition one national newspaper, the Irish Times, directed readers to the full text of the address on its website.

The television crew which had been awaiting the trial judge when he arrived at the venue filmed at least some of the speech. The

Court, by way of example, refers to elements of that publicity relied upon by the applicants.

Broadcast Media

The making of the speech and its general contents were first aired on the news bulletin on RTE at 9 p.m. that evening, June 10th.

It reported that the “most senior criminal judge in the country” has stated that “the incidents of fatal stabbings in this country is

now out of control ... the average sentence actually being served by offenders for fatal stabbings is 4½ years”. It reported that

judges are being rendered powerless in their courts by the Court of Criminal Appeal particularly in sentencing offenders in cases of

fatal stabbings and that Mr. Justice Carney had speculated how the mother of a stabbing victim might respond to that revelation.

It then showed a film clip of the trial judge making the following statement:- “I believe that she would say that so far as wilful violent

gratuitous homicides are concerned the courts are not dealing with them with the severity expected by the majority of right

thinking members of society who are fearful for their personal safety”. Some of these statements were repeated on RTE News on

Two later that evening. These statements, coupled with the image of the judge delivering part of the address, given his description

as "the most senior criminal judge in the country" must have made a powerful impact on the viewer.

The following morning RTE’s radio show “Morning Ireland” continued with the same story introducing the item as “A judge’s remarks

on a stabbing epidemic and sentencing policy for people guilty of violent crime”.

That news programme reported, inter alia, that “The courts are dealing with an epidemic of knife crime an epidemic that is likely to

get worse, that was the message from Judge Paul Carney the most senior criminal judge in the State in a speech in Cork last night.

Now the judge avoided direct criticism of the court system but he also pointed out that many victims felt the sentences handed

down for manslaughter are often too lenient.” It played a sound clip of a portion of the address of the trial judge speaking in Cork

which included the portion shown on RTE television the previous evening and quoted above. In the course of the programme the

programme presenter also referred to the speech, in posing a question to an interviewee, “Judge Carney spoke about the fact that

what used to be known as a fair fight is now known as a straightener where the loser goes home to their kitchen and returns to the

scene with a bread knife or a carving knife or a vegetable knife, how much damage can regular kitchen knives do?” There were other

comments by interviewees on the trial judge’s address.

Print Media

The extensive reportage in the print media occurred primarily on the morning after the speech was delivered but was continued in

some newspapers in the days following. It is neither necessary nor practical to recite in full the evidence concerning that reportage

but the publicity relied upon by the applicants included, for example, the following matters:

“Knife crime is now out of control, says top criminal judge.” (headline) …”These [stabbing] scenarios must now account for dozens

of deaths every year. Fatal stabbings are now out of control.” ...”Mr. Justice Carney said last night the major grievance of Irish

victims and the families appear to be with manslaughter sentences – as murder sentences carried a mandatory life sentence. And

he pointed out the victims rights group AdVIC had made very strong points on this matter” ... “He cited AdVIC’s complaint that

“lenient sentences frequently cause great unease in the public perception and a much distorted message is given to society when

judicial clemency takes place. ...judges are being rendered almost powerless in their courts.” The article gave prominence to

statements of a mother of a victim of a knife killing applauding the remarks. (Irish Independent 11/6/08).

“Fatal stabbings out of control warns top judge.” (headline). “Fatal stabbings are out of control but a lenient sentencing regime is

not equipped to deter criminals ... Mr. Justice Paul Carney said despite wilful violent and gratuitous killings, criminals were not being

jailed for as long as people would expect”. (The Examiner 11/6/08).

“Ireland is being plagued by an epidemic of fatal stabbings and the perpetrators are safe in the knowledge that they can escape with

only a short prison sentence.” (Editorial Evening Herald 11/6/08).

“Mr. Justice Carney said fatal stabbings are in fact now out of control. ... I believe that she would say that so far as wilful, violent,

gratuitous homicides are concerned, the courts are not dealing with them with the severity expected by the majority of right

thinking members of society who are fearful for their safety”. (Irish Times front page 11/6/08). “Mr. Justice Carney acknowledged

the dissatisfaction expressed by campaign group AdVIC over the leniency of some sentencing. He said one of the founder members

of AdVIC, Joan Dean deserved respect for comments she made that the courts are disconnected from the public they serve”.

(Inside page of the Irish Times 11/6/08 under heading “Carney says Rise in Rate of Fatal Stabbing Cases is Set to Continue”).

“Fatal stabbings in Ireland are “out of control”, according to the most senior judge in the Central Criminal Court.” (The Star

11/6/08).

The address was also mentioned or covered the following Sunday in the Sunday Tribune, the Sunday Times and the Sunday

Independent.

Discharge Application

When the trial resumed on the afternoon following the address, namely at 2.15 p.m. on the 11th June 2008, an application was made

by Counsel on behalf of the applicant to discharge the jury, having regard to the fact that the speech had received significant

publicity and thus it may have had a prejudicial effect on the jury. Counsel for the second applicant summarised his position thus:

“I think the application I propose to make can be summarised as follows, that some of the Court’s remarks, some of

your Lordship’s remarks in your capacity as a speaker in Cork last night could be construed by reasonable members of

the jury as indicating that a manslaughter verdict is insufficient in a trial of this nature because it attracts too light a

penalty under the supervision the Court of Criminal Appeal. In my respectful submission in those circumstances I would

ask that the jury be discharged.”

Counsel for the first applicant went into more detail in his application, but in essence his point was the same.

Counsel for the D.P.P., despite the Judge not requiring to hear him, nevertheless said that the jury can be expected to determine the

case in accordance with the evidence and the charge, and do so in compliance with their oath.

The trial Judge refused the application, stating that:

“I anticipated this application would be made which I regard as totally opportunistic”.

With regards to his statements in the speech, he adamantly denied impropriety noting that:

“In the course of this paper I twice set out in very full terms the obedience and the fealty that I am required to give to

judgments of the Supreme Court and Court of Criminal Appeal and made it wholly clear that I am bound by whatever

parameters come down from those courts. I quoted at length an address given by Joan Dean to a judge’s conference

and I speculated what further she might have to say but I made my own position of obedience and fealty to those

judges whose decisions are binding on me very, very clear.”

Nonetheless, Carney J. offered to:

“[G]ive any directions to the jury that I am asked to give to them in relation to what I had to say last night in a different

capacity in another place if counsel wants me to. But I will only do so if they want me to.”

Finally Carney J. concluded that:

“The fact that I was able to know from the off that this application would be made indicates to me how opportunistic it

is. I refuse to discharge the jury.”

Decision

In the light of the evidence tendered and the submissions made on behalf of the applicants and on behalf of the D.P.P. the Court has,

inter alia, to determine the meaning and impact of the statements of the learned trial judge in Cork on the evening in question and as

reported extensively in the media.

First of all the Court is satisfied that when the learned trial judge quoted previous statements of Mrs. Dean of the AdVIC organisation

that he conveyed, and would be so understood by any reasonable person, his approval as a judge and, as was the case, as the judge

presiding at the time at the trial of the applicants, of those views. In addition, when the trial judge purported to quote what Mrs.

Dean might say the Court is satisfied that they could only be understood as expressing the views he held. Whether they are also the

views of Mrs. Dean is a matter for speculation.

Furthermore, the Court again having carefully considered the evidence and the submissions of the parties, have concluded that in the

eyes of a reasonable person the address and the ensuing publicity conveyed an endorsement by the trial judge of the following

claims:-

Sentences in fatal stabbing cases, other than murder, do not do justice to the victims or their families.

Fatal stabbings are out of control and their occurrence will continue to rise.

Sentences imposed in fatal stabbing cases of manslaughter are insufficient to do justice to society from which the Courts

are disconnected.

That sentences for the vicious wilful and gratuitous taking of life are wholly inadequate and devalue human life.

Manslaughter sentences are a major source of the grievances of victims and their families in contrast to the mandatory

murder sentence of life.

That trial judges are powerless in being able to impose a deterrent or just sentence in manslaughter cases.

What formerly would have been a fair fight now turns into a knife killing.

Applicable Principles of Law

Every citizen has the right to a fair trial. That justice must not only be done but must “manifestly and undoubtedly be seen to be

done” (The People v. Singer [1975] I.R. 408) is not a pious aspiration but is a substantive principle applicable to every trial. This

universal principle is embedded in our Constitution and in particular in Article 38.1 which guarantees that “No person shall be tried on

any criminal charge save in due course of law”. It is from that provision in conjunction with the other provisions of the Constitution

protecting the personal rights that the Supreme Court has, in its case-law, identified the principles of constitutional justice which,

inter alia, govern the conduct and course of criminal trials.

In The People (D.P.P.) v. Tobin [2001] 3 I.R. 469, in which this Court was considering possible bias on the part of a particular member

of the jury due to a prior personal experience, the judgment noted that:-

“The Court is of the opinion that the issue must be decided in the light of the right of 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.”

In Dublin Well Woman Centre Ltd v. Ireland [1995] 1 I.L.R.M. 408 at 418 Denham J. stated in her judgment (nem diss):-

“In the general sense ‘bias’ is an emotive word. It is defined in the Oxford English Dictionary as:

An inclination, leaning, tendency, bent, a preponderating disposition or propensity, predisposition,

predilection, prejudice.

It is also a technical legal term and as such has been defined by the Courts in many cases. The concept of bias

developed through cases considering material interest. It also arose on pre-judgments, prior involvement, and personal

attitudes and beliefs. There are two fundamental streams of thought within this wider consensus. First, there should be

no actual bias, i.e. a subjective test. And secondly, there should be no reasonable apprehension that there is bias, i.e.

the objective test.”

In the circumstances of that particular case Denham J. went on to observe:-

“What was and is in issue is the objective test: as to whether a person in the position of the appellant in this case, being

a reasonable person, should apprehend that his chance of a fair and independent hearing of the question at issue does

not exist by reason of the previous non judicial position, statements and actions of the learned High Court judge on

issues which are at the kernel of this case.”

In her conclusions in that case Denham J. stated:

“There is no suggestion or finding that the Court gave or would have given anything but an honest answer. But the test

is objective; not whether the learned High Court judge considered she was or was not biased; nor whether the appellant

considered the judge was or was not biased; but whether a person in the position of the appellant in this case, a

reasonable person, should apprehend that his chances of a fair and independent hearing …” would be prevented by the

actions of the learned High Court judge.

Referring to the test to be applied she continued:-

“The apprehension of the reasonable person in the position of the appellant is what has to be considered”.

In her conclusions in that case (at 423) Denham J. stated further, “Once the question of a possible perception of bias has been

raised reasonably on the grounds of pre-existing non judicial position and actions, it would be contrary to constitutional justice to

proceed with a trial.”

Denham J. then went on to conclude, in the circumstances of that case, that the appellant had established “the case of reasonably

apprehended bias in the circumstances – objective bias”.

Bula Ltd v. Tara Mines Ltd (No.6) [2000] 4 I.R. 412 was a case in which the applicants sought to have an earlier decision of the

Supreme Court set aside on the grounds of objective bias of the members of the court. In the course of her judgment in that case

Denham J. again referred to the nature of the objective test which is to be applied under our law and stated:-

“… it is whether a reasonable person in the circumstances would have a reasonable apprehension that the applicants

would not have a fair hearing from an impartial judge on the issues. The test does not invoke the apprehension of the

judge or judges. Nor does it invoke the apprehension of any party. It is an objective test – it invokes the apprehension of

the reasonable person.”

McGuinness J. followed the same test in her judgment in that case with which Morris P agreed.

In The People (D.P.P.) v. Tobin (cited above) this Court referred to the judgment of the supreme Court in the Bula case and noted

that it “was concerned with allegations of bias at the highest levels of the judiciary. It is notable, therefore, that the “reasonable

apprehension” test applies even there.”

The Court then went on to state: “A fortiori, therefore it applies to the case of a challenge alleging bias in the jury”. In that case the

Court then went on to examine the possibility of objective bias on the part of one member of the jury. The judgment of the Court

states:-

“That is to be assessed according to the standard of a reasonable and fair minded observer who knows the relevant

facts”.

In that case and applying the well established test the Court concluded that:-

“… a reasonable and fair minded observer would consider that there was a danger, in the sense of a possibility, that a

juror might have been unconsciously influenced by his or her personal experience and, for that reason the appellant

might not receive a fair trial.”

The Court set aside the jury verdicts and directed a retrial.

Accordingly, in the light of these well established principles, the applicants must be entitled to succeed in their application if they

satisfy the Court that in the circumstances of the case a reasonable and fair minded observer would consider that there was a

danger, in the sense of a real possibility, that one or more of the jurors might have been unconsciously influenced in resolving an issue

in the trial for the purpose of arriving at a verdict. Indeed there was no fundamental difference between the parties to this application

as to the test to be applied, counsel for the D.P.P. acknowledging that the question is whether a fair minded and informed observer,

having considered the facts, would conclude that there was a real possibility that the tribunal, in this case the jury, was biased.

Jury Awareness

Having regard to the facts and circumstances of this case the Court is of the view that probably all members of the jury became

aware of and had knowledge of the essential elements of the trial judge’s statements referred to above as a consequence of the

publicity given to them. Certainly a significant number of members of the jury must have become so aware. The Court is also satisfied

that there is a real possibility that one or more members of the jury may have accessed and read the full text of the judge’s address

online which readers of the Irish Times were invited to do in its front page report.

The circumstances include the fact that the jury were aware that the judge presiding over their trial was giving a lecture in Cork on

Tuesday evening June 10th because he had mentioned that fact to them twice. In addition they were aware that the reasons why

they were not sitting as jurors in the trial on Tuesday afternoon and Wednesday morning was to facilitate the trial judge in that

commitment. Although not of great significance that also meant that since the hearing had been interrupted for these periods at least

some members of the jury would have the morning entirely free to access the media at their leisure. Of more relevance is the fact

that the trenchant statements reported in the media concerning fatal stabbing cases would have resonated with members of the jury

that being the kind of case which they were trying and they were made by “their” judge.

Counsel for the D.P.P. quite properly, acknowledged that it was more than likely that members of the jury had become aware of what

had been published.

That being the case the Court is obliged to consider what effect they may have had on the jury and the implications for the fairness

of the trial.

Effect on the Jury

Firstly in this regard the Court is satisfied that the learned trial judge never intended his address to have an impact or influence the

jury in the trial over which he was presiding at the time, even though he intended that it would receive wide publicity. Secondly,

apart from his refusal to discharge the jury on the application of the defence, no criticism was otherwise made of his conduct of the

trial itself, nor could it have been, as it was fair and proper.

The address and the publicity it received made no reference to the particular trial which was taking place. Public discussion, including

critical public discussion, of the criminal law, the functioning of the courts and indeed sentencing generally or sentencing in relation to

particular crimes may occur without prejudicing any ongoing trial unless there are special attendant circumstances. Even then, in

most cases it is likely that any question of prejudice could be resolved by appropriate directions to the jury. If the statements in

question had been made by another person or even another judge unconnected with the trial different considerations might have

arisen.

Again, cases of prejudicial publicity in the media concerning a person charged with a criminal offence in advance of his or her trial may

be resolved, so far as a fair trial is concerned, by the so called “fade factor” in cases where it can be safely presumed that a

substantial passage of time between the offending publicity and the commencement of the actual trial means that a jury would not be

prejudicially affected by it.

This case has its own special circumstances.

One of the key elements in this case is the fact that the statements in question were made by the presiding judge at the trial. The

presiding judge is the central figure of authority in a trial. The jury are exclusively responsible for findings of fact but they exercise

their function under the guidance and directions of the trial judge.

A second key factor in the view of the Court is the immediacy of the statements to the trial. They were made on the evening of the

fifth day and publicised primarily on the sixth day of a ten day trial.

A third key factor is the nexus between the statements, bearing the aforementioned key factors in mind, and the nature of the trial in

which the jury were then sitting and the issues which they had to judge. The statements made by the trial judge focused on fatal

stabbing cases. This was a fatal stabbing case. Statements made centered on the allegedly unjust sentences in manslaughter cases

to the specific exclusion of murder cases. In this case, as explained above, one of the issues left to the jury to judge was whether

they should find the accused guilty of murder or manslaughter, the trial judge, having told them “in between you could find a verdict

of manslaughter and that could arise if you are not satisfied in relation to the statutory intent for murder or if you found that the

killing of Mr. Cawley was due to self defence …”. References were also made in the address to sentences in manslaughter devaluing

human life and failing to do justice to victims’ families. The mother and two daughters of the deceased in this case were key

witnesses and on whom the prosecution relied. References were made by the trial judge in his address to the so-called “fair fight”

ending in an unlawful fatal killing. The evidence given in this case made reference, even if peripherally, that the fatal encounter had

originally been intended to be a so-called “fair fight” and the trial judge referred to it in his summing up.

Although the address of the trial judge was not on its face directed at or connected to the trial nonetheless it involved trenchant and

strong statements concerning matters which were germane to many aspects of the trial which was in the course of taking place at

the time and over which he was presiding. In those circumstances, in the Court’s view the statements are likely to have made a

strong and enduring impression on the jury because of the nexus between the matters commented on in the address and the

circumstances and issues arising in the trial, not least of which was whether they should bring in a verdict of murder or manslaughter

in that fatal stabbing case.

When, in the aftermath of the address and the publicity it had received that morning, counsel for the defence, properly, in the Court’s

view, applied to have the jury discharged on the grounds that the trial had been prejudiced, the learned trial judge observed in two

separate statements “I anticipated this application would be made which I regard as totally opportunistic.”…”The fact that I was

able to know from the off that this application would be made indicates to me how opportunistic it is.” Although the learned trial

judge did apparently anticipate that the statements in his address and the ensuing publicity could lead to an application to discharge

the jury on the grounds of prejudice, the Court is satisfied that he underestimated the possible impact on the jury at that point and

subsequently in the trial.

As already set out above in this judgment, an important overall effect of the statements was the contention that convicting persons

of manslaughter, at least in knife stabbing cases, did not, in contrast to murder cases, serve the ends of justice for the victim, for

the members of their family or for society.

The Court is satisfied that the statements made and as published was material that could prejudice a jury in arriving at a verdict in

the circumstances of this case.

Juries must be permitted to arrive at their verdict in a criminal trial without influence from extraneous and prejudicial material. Strong

and trenchant statements that manslaughter verdicts allegedly do not result in justice for the victims, their families or society is such

prejudicial material. Such strong and far reaching considerations concerning the consequences of a conviction for manslaughter can

only be considered as having real potential to prejudice a jury which may have to choose between a verdict of manslaughter or a

verdict of murder, particularly when those statements although made outside of the trial are made during the trial and bear the

authority of the presiding trial judge. Of course such statements could not in law have been introduced in the trial as counsel for the

D.P.P. acknowledged at the hearing. However, it was brought to the minds of the jury in a unique, and so far as the Court is aware

unprecedented, manner when the learned trial judge himself made such public statements while the trial was ongoing.

A citizen being tried before a judge and jury must be entitled to have his trial proceed without the trial judge making public comments

during that trial which, because of their particular nature, carry the risk of prejudicing its fairness.

Furthermore, having regard to the key elements in this case, the Court is satisfied that the danger or real possibility of a juror being

subconsciously, let alone consciously, influenced by the material when arriving at a verdict could not have been avoided by any

particular direction on the part of the trial judge himself. Any special direction from the trial judge to the jury to disregard what he

himself had said would not in the Court’s view have been sufficient to eliminate the potential prejudice. On the contrary it would be

more likely to give further emphasis to the fact that the statements were made by the trial judge and their nexus with a case of this

nature.

As was pointed out in D.P.P. v. Tobin (cited above), a trial may be rendered unfair and a verdict considered unsafe if it is established

that there was a danger, in the sense of a possibility, that even one juror might have been “unconsciously influenced” by matters

which might make the trial unfair. There is at least such a danger or such a real possibility in this case.

Conclusion

Having regard to all the circumstances of the case and the evidence before it, and in particular the combination of the key factors

referred to above, the Court concludes that a reasonable person would have a reasonable apprehension that a juror, or jurors, may

have been either consciously or unconsciously influenced by the contents of the address referred to and the subsequent publicity

given to it. This apprehension is particularly applicable to any issue as to whether the verdict should be guilty of manslaughter or

guilty of murder. Accordingly the Court is satisfied that a reasonable person could have a reasonable apprehension that the applicants

did not receive a fair trial.

In those circumstances the trial must be considered as offending against the principles of constitutional justice and the verdict

considered unsafe. The Court has ordered that the verdicts in the case of each of the two applicants be set aside. A retrial in each

case is ordered.