Title: DPP -v- MJ COURT OF CRIMINAL APPEALJudgment was given by Mr Justice Finnegan on March 14th, 2008, sitting with Mr Justice Edwards and Mr Justice McCarthy.
JUDGMENT
In a situation where the jury had sat for almost 13 hours on a hot, oppressive day, and engaged in deliberations for 5½ hours, there was a real danger that the jurors had become extremely tired and as a result there was a real risk of an error on their part.
There was an error on the part of the trial judge in allowing the jury to decide how long it would sit.
It would therefore not be safe to allow its verdict to stand, and so the appeal was allowed and a retrial ordered.
BACKGROUND
The applicant was convicted on four counts of indecent assault in the Central Criminal Court, sitting in Naas on July 27th, 2006. The trial went on over three days. On the second day the trial judge commented on the continuation of the trial: "I will be mindful of the fact that it is very, very clammy. It is very, very draining on all working through those conditions, so that will shorten the day, as it were."
The prosecution case ended on the morning of the third day. The defence was calling two witnesses. There were discussions between the trial judge and counsel, and the jury was sent to lunch, with the judge commenting: "The fair indications from counsel again, and I am not tying anyone to anything, is that we will conclude this case today."
In the absence of the jury, counsel expressed doubts that everything, including closing speeches and the judge's charge to the jury, would conclude that day.
Nonetheless, the defence case, the concluding speeches from the prosecution and the defence and the charge to the jury all ended at 5pm, and the jury retired.
At 8pm the judge discussed with counsel whether he should invite the jury to consider a majority verdict, expressing concern that they might be beginning to wilt. Counsel for the defence agreed. The jury was called in and directed as to a majority verdict, and resumed their deliberations at 8.10pm. At 9.04pm they were called in and they said they had reached a verdict on two counts but had reached an impasse on the others. The judge addressed them saying: "At some stage fatigue has to become a very major factor and in fairness to yourself and everyone, making a decision when you are tired is not the best. It is open to your to defer your deliberations until tomorrow morning and continue them."
He asked them to consider what they would do. At 9.17pm the jury returned and said they would like another short while.They returned at 10.02pm with a question, and retired again. Counsel for the defence expressed concern about that answer and while this was being discussed they returned with their verdict on two other counts. The time was 10.26pm.
DECISION
In giving his decision, Mr Justice Finnegan pointed out that the former practice of juries continuing their deliberations until they had reached a verdict or until it was clear they were unable to agree had been discontinued because of concerns that they would come to a decision out of exhaustion rather than on full consideration of the evidence.
It had previously been decided that it was not a matter for the jury as to how long they would sit, but was a matter for the judge because, due to his experience, he was the person aware of the dangers of a long sitting. It had been indicated in previous cases that generally juries should not sit past 7.30pm, though this was a matter of judicial discretion rather than a rule.
In this case the jury had been in court from 9.30am, with just one hour for lunch, and had been deliberating from just after 5pm until 10.26pm, on what had been acknowledged to be a hot, oppressive, clammy day. "The foregoing persuades this court that there is a real danger that the jury had become extremely tired and as a result [there is] a real risk of an error on their part. It would not be safe to allow the verdict to stand. It is not a matter for the jury as to how long they will deliberate. It is a matter for the trial judge who because of his experience will be aware of the dangers of a jury sitting for too long and reaching a decision when overtired and perhaps influenced by pressure of time," Judge Finnegan said in allowing the appeal and ordering a retrial.
The full text of this judgment is available on www.courts.ie
Chief Prosecution Solicitor: John O'Kelly SC, Dan Boland BL (for the DPP); Michael Finucane, solicitor, Paul Burns SC and Siobhán Ní Chúlacháin (for the applicant)