The Court of Criminal Appeal has ordered a retrial in the case of Mr Martin McDonagh after finding that the behaviour of two gardaí acting as jury-keepers at a Dublin hotel rendered the trial unsatisfactory.
A man died after he was shot during a row between Traveller families in Sligo in May 1999. Mr McDonagh was convicted of murder by a majority 10-2 verdict at the Central Criminal Court on February 23rd, 2002.
The appeal court heard that the gardaí, whom it has directed may be identified only as "members", were drinking with some jurors in a hotel bar until about 2 a.m. and one, referred to as member X, had afterwards allegedly gone to the room of a woman juror who later complained he had sexually assaulted her.
Member X has denied the allegation in a statement and no criminal proceedings have been taken. His counsel told the appeal court yesterday member X was also denying that he was drunk.
While finding the conduct of the members rendered the conviction of Mr McDonagh unsatisfactory, Mr Justice Hardiman yesterday said it would be wrong to place the blame entirely on the jury-keepers in the absence of any guidelines or proper instructions for gardaí who were charged with keeping juries. He noted that in other jurisdictions, the function of jury-keeping was performed by independent officials and not police officers.
There should be more directions as to the proper mode of jury-keeping, he said. It would be desirable, if possible, to have a woman garda among the jury-keepers. Women gardaí had previously undertaken such duties.
The three-judge court quashed the conviction of Mr McDonagh (31), formerly with an address at Hampstead, England, for the murder of Patrick Ward after a funeral at Ballymote, Co Sligo, on May 10th 1999.
Mr Justice Hardiman, sitting with Mr Justice O'Sullivan and Mr Justice McKechnie, directed there should be a retrial. Mr McDonagh was remanded in custody pending the outcome of a bail application to be made shortly.
Giving the court's decision, Mr Justice Hardiman said it appeared the two gardaí were left with no proper instructions about keeping a jury. One had some years experience doing so, but had said he learned it "on the job".
The judge said there was no attempt by either member to persuade the jury of any particular verdict nor had they discussed the case with the jury or any individual juror.
However, some things had happened which caused the court concern. At least one member had engaged with the jury in a discussion of a vague kind about the approach to the jury's deliberations. Only the trial judge could give directions to a jury in that regard.
It was also the responsibility of jury-keepers to stop juries being approached by others about the trial and to prevent the jury separating. This role was inconsistent with becoming a drinking companion and even more inconsistent with encouraging some jurors not to go to bed but to have more drink. The judge said he accepted this was started by a juror going over to the two members in the bar and asking them to have a drink but, he said, it was the responsibility of the members to refuse and that was not done.
Mr Justice Hardiman said the jury foreman had described the principal jury-keeper as a meticulous man who relaxed as the night went on.
Another matter of concern to the court, even giving the most favourable consideration, related to one jury-keeper ending up in a hotel room, initially with two women jurors and then just one woman, Ms AB.
There was some level of physical contact and some comments about how the juror should approach her deliberations and it was plain Ms AB was upset.
It appeared he ended up lying on the bed and there was a measure of physical contact. Ms AB was increasingly uncomfortable, she left her room and asked another woman juror to come back to the room and eventually the jury-keeper had left. It could not have been earlier than 5 a.m. when he left and those circumstances were very inappropriate.
In all the circumstances, the court found it difficult to be confident the events which occurred had had no effect. It was very difficult to think that Ms AB would have been unaffected by her experience, she was seen to be upset the next morning and after the verdict which was reached about noon on February 23rd. She had made a complaint later that day to the jury foreman.
Mr Justice Hardiman said the court accepted submissions by Mr Anthony Sammon SC, for Mr McDonagh, to the effect that each juror was an advocate for their own point of view when deliberating a verdict.
It was difficult to be confident Ms AB was in as good a position to do that as the other jurors, given the circumstances.