15
COURT OF CRIMINAL APPEAL
94/03 &
95/03McCracken J
Murphy J
DeValera J
Between:
The People at the Suit of the Director of Public Prosecutions
Respondent
AND
Noel Price and Michael Stanners
Applicants
Judgment of the Court delivered by Mr Justice McCracken on the 30th day of July 2004
___________________________________________________________
The Applicants were jointly charged and jointly convicted of three offences arising out of a petrol bomb attack on the home of Philip Treacy at Tillogue House, Clonlara, County Clare on 17th May 2001. At the time, there were six persons in the house, namely Philip Treacy and his wife Pauline, his daughters Ashling and Norma, his son Richard and a friend of Richard. The Applicants were each sentenced to twelve years imprisonment in respect of the charge of arson.
The only evidence of identity against the Applicants was contained in statements subsequently made by them to the gardaí. Of the persons in the house at the time of the attack, only Philip Treacy, Pauline Treacy and Ashling Treacy gave evidence, and none of them identified either of the Applicants. Identification was therefore an issue central to the trial.
Under cross-examination, Ashling Treacy was asked about the actions of her sister Norma, who did not give evidence. She said that after the attack Norma came past her roaring and shouting, that she, Norma, shouted that one of the assailants was Edds McCarthy. It was also put to Ashling that in a statement made to the gardaí at the time she had said that Norma had told her that she saw two other persons who were also named. She said that she could not remember this.
The Applicants case is that there was an obligation on the prosecution, particularly where identification was of such importance, either to call Norma Treacy as a witness or offer her for cross-examination, or at least to have taken statements from her and included those statements in the Book of Evidence.
Exception is also taken by Counsel for the Applicants to a passage in the closing speech of Counsel for the prosecution in relation to Norma Treacy. He said:-“It is also the case that you decide the case based on the evidence that has been given. Ms Norma Treacy is not a witness. She is not on the book of evidence. Comments were made in regard to what she said through her sister who has given evidence. What weight you put to that is a matter for you. It is, of course, a fact that somebody whose house had been petrol bombed would highly likely to be frightened and certainly shocked and you might anticipate that they wouldn’t be very reliable in regard to who came out of the car or who was seen (inaudible on tape). Those are matters for you to decide.”
Following this comment, an application was made by Counsel for Michael Stanners to have the jury discharged. The basis for this application was the comment by prosecuting Counsel. The learned trial Judge refused to discharge the jury on this basis. It is notable that there was no such application based on the failure of the prosecution to call or offer Norma Treacy as a witness, and indeed the Applicants were placing reliance on the evidence of Ashling Treacy as to what her sister had said. In their closing speeches to the jury Counsel for both Applicants emphasised the evidence given by Ashling Treacy in this regard. Counsel for Michael Stanners at that stage certainly criticised in colourful terms the failure of the prosecution to call Norma Treacy, comparing the situation to Hamlet without Ophelia, but it is striking that Counsel’s indignation was not translated into an application to withdraw the case from the jury.
In his charge to the jury the learned trial Judge dealt with the question by saying:-
“Mr O’Sullivan said to you in his closing address that maybe Norma was not credible. Mr Nix says to you that is not fair. You can’t say that somebody is not credible when they are not even called to give evidence and they are not subjected to the possibility of being cross-examined. The defence say it is unfair that Norma was not produced as a witness. Now, I am not saying it was fair or it wasn’t fair but I will say this much, you would be entitled to take the view that it is not fair if you want to. Again I am not saying it one way or the other and you would be entitled to take the view that it is not fair for the prosecution to say that this evidence is unreliable when that witness has not been called. You could take that view and nobody would criticise you if you did.”
This is not a situation in which the prosecution withheld information from the Applicants as to what was alleged to have been said by Norma Treacy. The Applicants had Ashling Treacy’s account of what she said she heard her sister say. This was used by Counsel for the Applicants to cross-examine Ashling Treacy, and accordingly the jury had before it the evidence of what Norma Treacy is alleged to have said. It is not for this Court to say what the situation would have been had the Applicants’ advisors sought the evidence of Norma Treacy, nor what would have been the situation had they applied to have the jury discharged on the grounds that she had not been called. That did not happen. They chose to leave the question of the absence of Norma Treacy to be dealt with in submissions to the jury, no doubt for very good reason. While the failure of an accused to apply for a direction or to requisition the trial judge does not automatically preclude such accused from raising a point on appeal, it is certainly a matter to be taken into account.
This Court is satisfied that in these circumstances the prosecution were not at fault in failing to call or offer Norma Treacy as a witness or in failing to take statements from her.
With regard to the closing submissions by Counsel for the prosecution, this Court feels that he ought not to have made the comments relating to her reliability, but he did say that they were matters for the jury to decide. The Court is quite satisfied that any possible prejudice to either of the Applicants was fully dealt with by the learned trial Judge in his charge to the jury.
Exception was also taken by Counsel for the Applicants to a remark made by the learned trial Judge in the course of his charge to the jury in which he emphasised that persons coming into a criminal trial had certain basic and fundamental rights. He then said:-
“If you were ever in trouble, if you were ever in the predicament of Mr Price and Mr Stanners, you would be very grateful that you had that protection. I suppose, to be unfair, it is unlikely that you would be in such a predicament. I don’t mean to ‘plamass’ you members of the jury but you don’t look like the people who are likely to end up in the dock but, at the same time, you might have friends or relatives who would be an accused person and you would be comforted by the fact that some friend or relative had the protection of the law given to an accused person.”
The complaint made is that this implies that the members of the jury were good law abiding citizens, in contradistinction to the Applicants who were people who it was likely would end up in the dock. The learned trial Judge was asked to discharge the jury at the requisition stage on this ground, but refused to do so. In his charge the trial Judge had made the functions of the jury and the rights of the accused very clear, and in particular emphasised the presumption of innocence. The Court does not feel that any reasonable jury could have taken the implication out of the Judge’s remarks which is argued for on behalf of the Applicants.
In relation to the charge of the learned trial Judge, the Applicants also criticise the manner in which the learned trial Judge addressed the question of “reasonable doubt”. The basic principles to be applied in addressing the jury on this point were set out by Kenny J in The People (Attorney General) v. Byrne [1974] IR 1 where he said at page 9:-
“The correct charge to a jury is that they must be satisfied beyond reasonable doubt of the guilt of the accused, and it is helpful if that degree of proof is contrasted with that in a civil case. It is also essential, however, that the jury should be told that the accused is entitled to the benefit of the doubt and that when two views of any part of the case are possible on the evidence, they should adopt that which is favourable to the accused unless the State has established the other beyond unreasonable doubt …. The Court thinks that jury men understand the meaning of the expression “beyond reasonable doubt”, particularly when it is associated with the comparison of the standard of proof in a civil case.”
In the present case the learned trial Judge did compare the degree of proof in criminal and civil cases by way of illustration, and he did emphasise that the jury must give the benefit of the doubt to an accused when two views on any part of the case are possible. The Applicants also say that the learned trial Judge ought not to have tried to use a practical example to illustrate the meaning of “reasonable doubt” as to do so may be confusing. The learned trial Judge only did so because Counsel for Mr Stanners had given a similar example in his closing submissions. This Court does agree that such examples may be unhelpful, and certainly if that was the only explanation given to the jury as to the meaning of “reasonable doubt” the Court can see that it might be confusing. However, the learned trial Judge had already highlighted the important principles, and the Court is quite satisfied that there was no danger of confusion in the minds of the jury.
In general, the Court is quite satisfied that the jury were properly directed by the learned trial Judge and that there was ample evidence, particularly in the form of the statements made by the Applicants, upon which the jury could reach the verdicts which they did.
This leads to the final point taken on behalf of the Applicants, which arose from very unusual circumstances. After lunch on the 4th day of the trial, which was a Monday, and after Counsel for the prosecution and Counsel for Mr Price had addressed the jury, the learned trial Judge was notified that a member of the jury alleged that on the previous Friday evening as she was driving up O’Connell Street in Limerick having left the Court, Mr Price had pulled up beside her at traffic lights, blew cigarette smoke towards her and waved at her. Counsel for Mr Price informed the learned trial Judge that he was instructed that this had not occurred, and it must have been a case of mistaken identity, but also submitted that, even if the jury person was mistaken, it would be something which would be on the minds of the jury and might prejudice the jury, and therefore the learned trial Judge should discharge the jury. Counsel for Mr Stanners submitted that it could have an impact on his client even though he was never alleged to have done anything wrong. The learned trial Judge declined to discharge the jury and discussed the procedure which should be followed with Counsel for both Applicants. They agreed, that in the absence of discharging the jury, it would be best not to mention Mr Price’s denial.
When the jury returned, the learned trial Judge, without mentioning this specific incident, asked:-
“Madam Foreman, do you wish to say something on behalf of the jury and on your own behalf?”
The response from the foreman of the jury was:-
“We discussed it and decided not to say anything but since you mentioned it, we were just discussing the seating here. It is very uncomfortable for people with long legs.”
It would seem clear from this exchange that the jury had in fact discussed the matter between themselves and did not wish to make a formal complaint to the learned trial Judge. It is, however, of some relevance that, at the same time as the trial Judge being notified of this event the jury also requested that their names and addresses should not be read out in Court.
Counsel for the Applicants rely on the decision of this Court in The People (Director of Public Prosecutions) v. Tobin [2001] 3 IR 469. That was a prosecution for rape and sexual assault, and in the course of the jury’s deliberations the foreman disclosed to the Court that a member of the jury had related to the jury a personal experience of sexual abuse. The foreman had assured the Court that this was not affecting the impartiality of the person concerned but he had felt that it should be reported to the Court. The trial Judge refused to discharge the jury and the Court of Criminal Appeal upheld the Appellant’s appeal and ordered a re-trial. In the course of the judgment at page 478 it was said:-
“Little is or was known at the relevant time of the personal experience of the individual juror, except that, during the deliberations on the jury’s verdict, this history was for the first time brought to the attention of the other jurors and then to that of the Court. It is perfectly understandable that a juror might not wish to draw attention to himself or herself in relation to such an embarrassing matter. This perhaps illustrates the very fact that the private or even secret nature of sexual abuse may have a profound impact on a person. It does not follow that such a person on a jury is incapable of acting impartially. The opinion of the juror and of the jury as a body was that there was no problem about their impartiality. That, of course, disposes of any question of subjective bias. It leaves outstanding the possibility of objective bias. This is to be assessed according the standards of a reasonable and fair minded observer who knows the relevant facts …. The central facts are the simple ones that the appellant was on trial for extremely serious offences which must have been sufficiently similar to the experience of the juror to cause him or her to bring the matter up. In that situation, the Court considers that in the special circumstances of this case a reasonable and fair minded observer would consider that there was a danger, in the sense of a possibility, that the juror might have been unconsciously influenced by his or her personal experience and, for that reason the appellant might not receive a fair trial. Moreover, even jurors without similar experience of sexual abuse might well be influenced by sympathy for a fellow juror who had suffered, at the hands of another, the type of abuse with which the abused was charged.”
This Court entirely agrees with the proposition that the situation must be looked at both in relation to possible subjective bias and to possible objective bias. However, at page 479 of the same judgment it was stated:-“The court does not discount the possibility that a judge, by a considered and carefully worded special direction to the jury, might sufficiently counteract these dangers as to render it unnecessary to discharge the jury. That was considered in the different circumstances of D v. Director of Public Prosecutions [1994] 2 IR 465. That was not done in the present case. It is not necessary to address the issue for that reason, except to say that the prior general remarks made by the learned trial Judge in the course of his charge could not be regarded as sufficient to deal with the specific problem which arose.”
In the present case, the learned trial Judge said to the jury towards the end of his charge:-
“I know and I believe that there has been some incident whereby one of you and I don’t really want to know which of you it is, may have seen one of the accused when you were leaving court on Friday and, presumably, that member of the jury has told the other eleven about it. What I am going to say to you now is very important. Whatever it was happened and from what I have heard it wasn’t a very serious incident, but whatever else you do or you don’t do, you must not let that influence you one way or the other, either in favour of the accused or against the accused or whatever. As I said, at the very beginning, you come to this case as a blank piece of paper so that you only take on board the evidence in the case and nothing else. I know you will be robust enough to appreciate that you do not take on board things that don’t matter and things which have nothing to do with the issues in this case. Whatever happened in O’Connell Street on Friday has nothing to do at all with the issues in this case and I have to advise you strongly not to have any regard to that in your deliberations.”
It appears to this Court that that passage very clearly explained the situation to the jury. They were left in no doubts as to how they should approach the problem. This Court has recognised on a number of occasions the robustness and independence of juries in general. It does seem to this Court that the objective view of what occurred must be looked at in the light of the generally accepted independence of juries. Any argument for objective bias which might have existed before the learned trial Judge’s charge to the jury has been negated by that charge.
For the reasons given in this judgment the Court will refuse leave to appeal against conviction to both Applicants.
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