THE COURT OF APPEAL
Birmingham J.
Sheehan J.
Mahon J.
46/13
The People at the Suit of the Director of Public Prosecutions
Respondent
Appellant
Judgment of the Court delivered on the 31st day of July 2015 by
Mr. Justice Birmingham
1. On the 10th October, 2012, the appellant was convicted, by a unanimous jury, of obstructing/assaulting a garda who was acting in the course of his duty. Subsequently, on the 27th February, 2013, he was sentenced to two years imprisonment with eight months of the sentence suspended. He now appeals against the conviction.
2. Two issues are raised in the notice of appeal and the written submissions, of which only one has been pressed in oral argument. The live issue on the appeal arises from the fact that on the 1st February, 2013, subsequent to conviction but prior to sentence, information came into the possession of the defence legal team that one juror had family links with An Garda Siochána: the juror’s father was a retired garda sergeant and her mother had also been a member of An Garda Siochána, working in a clerical capacity.
3. The basic facts underlying the prosecution are not really directly in point on the current appeal and may be stated briefly. The case for the prosecution was that at about 2.40 am on the 15th September, 2010, gardaí went to a nightclub at the Clarence Hotel in Sligo where they saw an altercation taking place at or near the hotel door as two persons were excluded. The incident involved brothers Joshua and Sasha McDonagh, who were sons of the appellant. The incident was a reasonably significant one and involved the gardaí using pepper spray on Joshua McDonagh who was then handcuffed and placed in the rear of a garda van. Gardaí in that van were returning to Sligo garda station when they were recalled to the Clarence Hotel. On their return they saw Garda Donegan being held on the ground by the appellant Martin McDonagh. As Sasha McDonagh was being removed from the nightclub to a garda patrol car, that party was approached by Martin McDonagh and another male. It is alleged that Martin McDonagh lunged at Garda Donegan who fell to the ground, that the garda was then grabbed around the neck and had difficulty in breathing. Then, Mr. McDonagh head butted Garda Donegan in the face on a number of occasions. Garda McDonagh suffered soft tissue injuries and experienced a blurred vision.
4. Subsequent to conviction, it emerged that one of the jurors was the adult child of two retired members of An Garda Siochána, a garda sergeant who served in Sligo and a mother who served as a clerical officer in An Garda Siochána. The situation was brought to the attention of the trial judge who took the view that, in a situation where the jury had been discharged having returned their verdict, there was nothing he could do other than act on foot of the verdict and proceed to sentence. However, the defence draw attention to the fact that when the situation was brought to the attention of the trial judge that he commented that he could well understand that from the point of view of the defence advocate that there would be misgivings in the matter. He went on to indicate that if the certification of an appeal regime had been in place, that he would have been prepared to consider granting leave to appeal.
5. On the 16th May, 2013, the appellant applied for and was granted bail in the Court of Criminal Appeal.
6. The defence says that what has emerged about the background of this particular juror objectively gives rise to a reasonable apprehension of bias. The defence are careful to point out that they are not suggesting that there is any general prohibition on the children of retired gardaí serving on a jury, but they say there are points that are specific to this case. The alleged victim of the incident was a garda and all the witnesses that were called by the prosecution were gardaí, almost all of them with Sligo connections, the juror’s father having served in Sligo. Because the alleged victim was a member of the gardaí and all the witnesses to the incident were gardaí, the case can be distinguished from one where the garda role is that of investigators of an incident in which they had no direct involvement. In these particular circumstances the defence say that a reasonable and fair minded observer would consider that there was a danger, that a juror with the family background this juror had might be influenced consciously or unconsciously. The defence rely on the case of People (DPP) v. Tobin [2001] 3 I.R. 469. In that case, a case of rape and sexual assault, the jury foreman disclosed to the court that during the jury deliberations, one juror had informed colleagues about a personal experience as a victim of sexual assault. That decision establishes that the test to be applied is whether it is an objective one, whether there was a reasonable apprehension of bias. In the special circumstances of that case, 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. The prosecution, for its part, draws attention to the reference to “the special circumstances” of the case in Tobin. The prosecution draw particular attention to the fact that Fennelly J. in the course of delivering judgment in Tobin had specifically stated:
“This is not to say that such considerations would apply to the trial of every type of offence where a juror has undergone a similar ordeal. It is enough to say that assumed abuse is in a special category. Nor does it follow that subsequent discovery that a juror had had an experience of that kind would warrant quashing the conviction. The issue in this case was explicitly raised by the jury which expressed its concern.”
7. There are a number of points to be made. First of all, there is no doubt the relatives of serving or retired members of An Garda Siochána are not prohibited by statute from serving on the jury.
8. Secondly, it is necessary to look at what the judge had to say to the jury panel before a jury was sworn to try Mr. McDonagh. The judge addressed the jury panel in these terms:-
“The details you have heard in the indictment, they relate to some allegation about a happening on Warren Street here in Sligo on the 15th September, 2010, where it is alleged that he (Mr. McDonagh) obstructed and/or assaulted Garda Kevin Donegan, a garda officer acting in the course of his duty and its various other legal ingredients, but that is the essence of the incident. So, if you know anything about that or if you have heard anything about that particular incident that should raise a question in your mind as to whether you should serve on the jury or not. Equally, if you know Mr. McDonagh, or know of him and now perhaps ask for an address to be furnished in a moment and we will give you some further details of the likely prosecution witnesses. Again that will help you to decide whether you have any connection with the case which would render you ineligible to serve.”
9. The jurors were told that if there were any difficulties, they should let the judge know when called forward before taking the oath and not afterwards. The State Solicitor in accordance with the practice normally followed in Sligo Circuit Court read the list of witnesses, all of whom were members of An Garda Siochána and all of whom, with the exception of the mapper, who was from garda headquarters, were or had been serving in Sligo.
10. The Court is of the view that if either side in the trial believe that it is appropriate that a more extensive or elaborate direction than is usual should be given to the jury panel then it is incumbent on that legal team to draw that to the attention of the trial judge and seek such a direction from him.
11. Absent such a direction from the trial judge, the juror who served was eligible to serve and in serving was not flouting any advice or direction of the trial judge.
12. The prosecution had relied on the case of DPP v. McCarthy [2008] 3 IR 1. The case involved a Limerick gangland murder and a juror who was working as a civilian clerk in Clondalkin garda station in a situation where the trial took place in Cloverhill courthouse. Delivering the judgment of the Court of Criminal Appeal, Kearns J., as he then was, commented:-
“A court has no hesitation in rejecting this complaint. The juror in question was eligible in law to serve on the jury and took an oath to deliver a verdict in accordance with the evidence. As noted in a preceding section of this judgment, it is not to be assumed that jurors will disregard a solemn oath taken in this manner, nor is there to be any presumption adverse to an eligible juror to such effect. The court is further satisfied that no reasonable or fair minded observer would think that some unfairness to the applicant would result from the presence of this juror on the jury.”
13. In this case, had the defence been aware of the family background of the juror concerned, it is likely that it would have used one of its peremptory challenges. However, that of itself is certainly not sufficient to justify an intervention by an appeal court post conviction. It is in the nature of things that if post verdict both sides acquired detailed information about each member of the jury that it is likely that both sides would have preferred if they had excluded individual jurors. If elaborate inquiries of each member of the jury panel were permitted in this country before a jury is sworn, as is the practice in some other jurisdictions, then it is possible that questions might be directed to the family background of panel members. Equally, questions might be addressed to the issue of whether panel members had been the victims of crime, whether they or indeed members of their family had interaction, whether positive or negative, with An Garda Síochána, or even what newspapers were read or what political party was supported. However, this has never been the practice in Ireland.
14. Had the information about the juror come to light during the course of the trial, then it is possible that there would have been an application in that regard to the trial judge, who might have dealt with the situation by giving particular warnings or directions to the jury as selected, might have decided to take no action or might have dealt with the situation by directing the juror not to continue to serve. However, again that of itself does not require an intervention post verdict by an appeal court. In Tobin, Fennelly J. specifically commented that it did not necessarily follow that if it had emerged post conviction that a juror had an experience of the kind under consideration there that would warrant quashing a conviction. This Court respectfully agrees.
15. Section 6 of the Juries Act 1976, as amended by the Civil Law (Miscellaneous Provisions) Act 2008 (No. 14 of 2008), provides:-
“Subject to the provisions of this Act, every citizen aged eighteen years or upwards who is entered in a register of Dáil electors in a jury district shall be qualified and liable to serve as a juror for the trial of all or any issues which are for the time being triable with a jury drawn from that jury district, unless he is for the time being ineligible or disqualified for jury service.”
16. By statute then the juror was qualified and liable to serve.
17. The courts should be slow to expand the category of those who are excluded from serving beyond the categories listed by the Oireachtas. Had the Oireachtas felt it appropriate to exclude family members of individuals deemed ineligible or disqualified, it was, subject to general constitutional issues that might arise, open to it to do so, but that did not happen. The list of those who are ineligible or disqualified has been prescribed by the Oireachtas. That being so, it is not for this Court to expand the list. Accordingly, the Court rejects this ground of appeal.
18. The Court can deal very briefly with the second ground which was not pressed. This ground of appeal was in these terms. During the course of the prosecution case it was submitted (sic) by a witness for the prosecution, one Sergeant Foley, that CCTV evidence central to the matter was not preserved by An Garda Siochána for the purposes of the prosecution and was subsequently destroyed by Sergeant Foley, having serious consequences for the case of the defence. These matters were raised and proper direction was not given by the trial judge on the failure of the prosecution to maintain what had been important potential evidence.
19. The first point to be made is that the question of giving directions in relation to CCTV footage was not raised with the trial judge either before he commenced his charge or by way of requisition. Having regard to the decision in People v. Cronin [2003] 3 I.R. 377, that would be sufficient to dispose of this ground of appeal. An examination of the issue raised shows that it is not one of substance. This ground relates to the fact that two episodes of CCTV footage were not preserved by An Garda Siochána. The evidence of the garda sergeant involved was that there was nothing of evidential value to preserve. Now, it is not in dispute that the prosecution is under a duty to seek out and preserve evidence which comes into their possession having a bearing or potential bearing on the issue of guilt or innocence. However, it is well settled that the missing evidence in question has to be such as to give rise to a real possibility that, in its absence, the accused would be unable to advance a point material to his defence. The obligation is to be applied in a practical and realistic way. In this case, the defence engaged the services of an expert, a chartered electrical engineer. When cross examined he broadly accepted that the CCTV footage that had not been preserved would not have advanced the case. In these circumstances the Court has no hesitation in rejecting this ground of appeal, which in any event was not pressed.
20. In the circumstances, the Court will dismiss the appeal and confirm the conviction.
