THE jury in the £400,000 Shannon Development fraud trial was discharged yesterday, the fourth day of the hearing at Dublin Circuit Criminal Court.
Judge Kieran O'Connor ordered a new trial for Mr Enda Mulkere, a Clare Fianna Fail councillor, after he was told that the forewoman and other jury members were seen reading a legal textbook before the hearing was due to begin yesterday.
The book was Criminal Law Cases and Materials, a prominent legal text written by Mr Mulkere's barrister, Mr Peter Charleton SC, the court was told.
Mr Mulkere's instructing solicitor, Mr James Nash, said he saw the jury forewoman take the book from a bag and hand it around to other jurors. He also observed a discussion among them about it but he did not know what part was being discussed. He walked very close to two jurors to be sure of the book's title.
Mr Charleton (with Mr John Major) said his client found himself in "an appalling position" as a result of what Mr Nash observed. There was a grave danger that some jurors with a perceived expertise of the law might wrongfully influence others.
He said the Juries Act expressly disqualified people with legal training and expertise. He had no option but to ask for the discharge of the jury.
Mr Paul O'Higgins SC, prosecuting, opposed the application. He argued that while it was undesirable for jury members to consult a legal textbook during a trial they had not been warned they should not.
Mr O'Higgins said there was nothing fundamentally wrong in displaying eagerness. He said it was difficult to believe such a thing had never happened before in a criminal trial. Nobody ever knew what occurred between members of a jury in a trial.
Knowledge of the law did not disqualify anyone acting as a juror and the Act only sought to bar people involved in the administration of the law, Mr O'Higgins submitted. Any number of people could have read legal articles in the newspapers, Mr Charleton's book or any other legal textbook.
He believed any perceived danger in this instance could be rectified by a direction to the jury to wait for the legal directions given at the end of the case by the trial judge. This had been said at the start of the trial and could be said often again.
"I cannot see that a degree of enthusiasm could undermine the case and I reject the suggestion that the jury has been influenced beyond the point of redemption," said Mr O'Higgins.
Mr O'Higgins (with Mr Paul McDermott) said he could not recall any passage in Mr Charleton's textbook which could adversely affect the jury or imagine how this could happen.
Judge O'Connor said he was concerned that jury members appeared to have set out on an independent inquiry on only the fourth day of what was going to be a long and complex trial, without waiting to hear all the facts of the case and for the judge's directions.
Legal textbooks in the hands of unqualified people in a trial of this complexity was very dangerous. He was concerned the book was being handed around and one member of the jury might be telling others what the law was.
"Here we have an unusual and, in my experience, a unique situation. The forewoman has seen fit to go and get this book and show it to others. I am not letting this trial continue with this jury because I have a doubt and I must exercise it in favour of Mr Mulkere," said Judge O'Connor.
Judge O'Connor said he wanted the jury to realise it was being "complemented for diligence and enthusiasm" in this case but it had gone the wrong way about it.
He said the jury was warned every time it left the court not to speak to anyone concerning the case but to try it on the evidence and the law as given by the trial judge. Consulting a legal textbook so early in a difficult case was much the same as discussing it with others he felt.
Judge O'Connor said jurors were not compensated for attending and duty disrupted their lives and work. They could be punished by being fined if they do not answer the summons.
He remanded Mr Mulkere on continuing bail for mention of the case next Friday.
Mr Charleton said the trial had been transferred to Dublin from Ennis Circuit Court by the State. This had caused great inconvenience to everyone.
Mr O'Higgins said he had no instructions at this time about that matter.
Mr Mulkere (46) of Carrownacloughy, Crusheen, Co Clare, has pleaded not guilty to a total of 17 charges of committing the fraud by false pretences on dates from October, 1991, to June, 1992, while he was an executive at SFADCo.
Two of the charges allege he obtained cheques from McCarthy Bros (Ennis) Ltd and 11 charges allege he obtained cheques from Madden Pipelines Ltd and Madden Planthire Ltd by false pretences with intent to defraud.
The total amount alleged in these 13 charges to have been paid out by the contractors to Mr Mulkere is £38,143.57.
The remaining four charges allege he caused or attempted to cause cheques to a total amount of £361,235.24 drawn on SFADCo to be delivered to the McCarthy and Madden companies by falsely pretending the entirety of the monies was lawfully due to them.
When the trial opened last week, Mr O'Higgins said Mr Mulkere was a senior executive in SFADCo who had authority to deal with certain works in a supervisory capacity and in liaising with contractors.
Mr O'Higgins said the State was setting out to prove the accused deceived three groups: McCarthys, Maddens and SFADCo. He had deceived the first two groups into giving him sums of money which he then disbursed in ways that had nothing to do with SFADCo and then defrauded SFADCo to reimburse them.
Some of the money paid out by SFADCo to McCarthys and Maddens was for work which had been carried out properly and was therefore legally due to be paid to them. But the entire amount was not due to be paid and the law therefore alleged there was fraud involved, counsel said.