Court of Criminal Appeal allows appeal for retrial due to failure to explain corroboration warning to jury.

COURT OF CRIMINAL APPEAL

[C.C.A. NO. 107 OF 2002]

Denham J.

White J.

O’Leary J.

THE PEOPLE AT THE SUIT OF THE

DIRECTOR OF PUBLIC PROSECUTIONS

AND

DUANE LINDSEY

APPLICANT

Judgment of the court delivered by Denham J. on the 23rd day of February, 2004.

1. This is an application for leave to appeal against conviction and sentence by Duane Lindsey, the applicant, and hereinafter

referred to as the applicant.

2. The applicant appeared before Waterford Circuit (Criminal) Court on the 29th May, 2002, on four counts, being:

Count No.1

Statement of Offence

Possession of a controlled drug for the purpose of supplying the same to another, contrary to Section

15 (1) of the Misuse of Drugs Act 1977 and to Article 4 (1) (b) of the Misuse of Drugs Regulations

1988 as made under Section 5 of the said Act of 1977.

Particulars of Offence

Duane Lindsey on the 27th day of November 1999 in the County of Waterford had in his possession

the controlled drug commonly known as Ecstasy, for the purpose of unlawfully supplying the same to

another.

Count No. 2

Statement of Offence

Possession of a controlled drug, contrary to Section 3 of the Misuse of Drugs Act 1977.

Particulars of Offence

Duane Lindsey on the 27th day of November 1999 in the County of Waterford had unlawfully in his

possession the controlled drug commonly known as Ecstasy.

Count No. 3

Statement of Offence

Possession of a controlled drug for the purpose of supplying the same to another, contrary to Section

15 (1) of the Misuse of Drugs Act 1977 and contrary to Article 4 (1) (b) of the Misuse of Drugs

Regulations 1988 as made under Section 5 of the said Act of 1977.

Particulars of Offence

Duane Lindsey on the 27th day of November 1999 in the County of Waterford had in his possession

the controlled drug amphetamine, for the purpose of unlawfully supplying the same to another.

Count No. 4

Statement of Offence

Possession of a controlled drug, contrary to Section 3 of the Misuse of Drugs Act 1977.

Particulars of Offence

Duane Lindsey on the 27th day of November 1999 in the County of Waterford had unlawfully in his

possession the controlled drug amphetamine.

3. On the 30th May, 2002, he was convicted on all four counts by a majority verdict of 10 to 2.

4. The applicant was sentenced to six years imprisonment on 31st May, 2002, to run from 20th February, 2002, on Counts

No. 1 and No. 3 (the two counts relating to possession of a controlled drug for sale or supply), the two other Counts (No. 2

and No. 4) were taken into consideration.

5. The applicant has applied for leave to appeal against the said conviction on the following grounds:

1. That the trial judge erred in law and in fact in failing to discharge the jury when it had become

apparent that a juror had sufficient concern about his involvement in the case and had brought the fact

to the attention of the court.

2. That the trial judge erred in law and in fact in failing to make sufficient enquiry into the concerns of

the juror.

3. That the trial judge erred in law and in fact in holding that the defendant had been lawfully detained

under section 2 of the Criminal Justice (Drug Trafficking) Act, 1996.

4. That the trial judge erred in law and in fact in finding that the first extension of the defendant’s

detention was lawful.

5. That the trial judge erred in law and in fact in finding that the second extension of the defendant’s

detention was lawful.

6. That the trial judge erred in law and in fact in holding that the provisions of section 2 sub-section 2

(f) (ii) had been complied with.

7. That the learned trial judge erred in law and in fact in ruling admissible the Statement of Admission

(Exhibit 3) and the memorandum of interview (Exhibit 13).

8. That the trial judge erred in law and in fact in ruling that the conduct of the interviewing Gardai had

been proper.

9. That the trial judge erred in law and in fact in ruling that there had been no breach of the judge’s

rules.

10. That the finding of the jury, namely guilty in respect of all counts was perverse as it had been

explained to them during the course of the trial that counts 3 and 4 were alternatives to counts 1 and

2. The failure of the jury to distinguish between the counts renders the conviction unsafe.

11. That the conduct of the trial was generally unsatisfactory and that, in particular, the trial judge

exhibited prejudice towards the accused in particular during the course of the trial within a trial.

6. The applicant has also indicated that he wishes to appeal against the severity of

sentence. This application was adjourned by the court.

7. Written submissions were filed by counsel on behalf of the applicant and on behalf of the Director of Public Prosecutions.

8. In oral submissions Sean Gillane B.L., counsel for the applicant, indicated that his submissions would be on four bases.

These were: (i) the juror; (ii) his submission of a failure to warn the jury of the absence of corroboration pursuant to s. 10 of

the Criminal Procedure Act, 1993; (iii) a submission that the verdict was perverse; and (iv) a submission that the detention

was illegal.

9. Decision

9.1. The Juror

The first matter for consideration is that appearing in number 1 and 2 of the grounds of appeal. At the commencement of

the trial, a juror expressed concern, after the jury was empanelled and prior to the opening of the case, arising from the fact

that he worked in Tramore and that he had seen the applicant.

The transcript provides the following:

“Jury empanelled.

Judge sends jury to jury room to select someone to act as foreman.

Mr. Teehan: I understand there is a problem with one of the jurors, my lord. Perhaps that difficulty

should be explained to your lordship.

JURY BROUGH OUT TO COURTROOM.

Judge: Why is there a problem?

Juror: Its just that I work in Tramore.

Judge: Work in Tramore. And how is that a problem?

Juror: I don’t actually know the man but I work in Tramore, and I’ve seen the man.

Judge: I don’t see that as a problem.

Judge: And you brought that to my attention, is it? I thank you for that. I don’t see that as a problem.

Mr. Maher: I have taken instructions from my client and he does see a problem.

Judge: Your client saw the juror being called and had an opportunity of objecting but he didn’t do so.

Mr. Maher: Could I raise the matter in the absence of the jury.

JUDGE ASKED JURY TO RETIRE. JURY RETIRED AT 11.47 a.m.

Mr. Maher: Can I say, my lord, Mr. Lindsay did indeed contact Mr. Newell after the jury had been

sworn to indicate that he had a difficulty with exactly the member of the jury who brought his

concerns to the attention of your lordship.

Judge: Our man is concerned that he has seen your man in Tramore, no more than that.

Mr. Maher: My lord, its very difficult for a man to be asked that question.

Judge: I don’t accept that. He was asked the question, I said, is there any more than that, and he may

have seen, I said or did see, he knows, to what extent can you, or how far can you take it? In other

words, if you ever see a person are you excluded then from being on a jury?

Mr. Maher: I am not suggesting that my lord.

Judge: But that is the state we are at here.

Mr. Maher: Not quite, in my respectful submission, my lord, because Mr. Lindsay, it was quite clearly

evident to the members of the jury when he was answering the counts, and my lord gave the clearest

possible warning – it couldn’t have been clearer – and yet we find that this particular juror is

sufficiently concerned enough about it to bring it to your lordship’s attention.

Judge: What do you say to that, Mr. Teehan?

Mr. Teehan: On the basis of what we have heard today, I would say in the light of what Mr. Lindsay

is saying.

Judge: On the one level I have to deal with – let’s say – a person who is extremely scrupulous which I

take this man to be. He tells me something and if I then go and discharge the jury am I perhaps

making a mountain out of a molehill?

Mr. Maher: We don’t think so, my lord.

Mr. Teehan: There is a danger of that, my lord, of making a mountain out of a molehill.

Judge: You have to be realistic as well, you know. You cannot serve on a jury if there is a problem

about somebody, but if there isn’t you should serve on the jury, and juries should not be discharged

save and except in proper cases.

Mr. Maher: Well, can I say, my lord, that I was going to make this application because of my

instructions, when coincidentally the juror himself …

Judge: Two completely different things. What this man said does not, in fact, give me cause for

concern. You are telling me of different concerns.

Mr. Maher: I don’t you see. I don’t know exactly. But with respect I know a reply to find out exactly

this gentleman’s difficulties were, but with respect my concerns are that inside the jury room as

happens the chance exists to discharge this jury. The jury panel were still here.

Judge: Well, Mr. Teehan?

Mr. Teehan: I respectfully submit there is no grounds for it.

Judge: I will proceed with this jury. Perhaps we are now here we had better assemble them while we

are here to find out if they have selected a foreman and if they have done that I can go over and

discharge the panel and start from there. So, bring out the jury.

JURY BROUGHT BACK AT 11.52 a.m.

Judge: If I thought there was the slightest doubt about this I would definitely discharge the jury. Now,

ladies and gentlemen, have you selected a foreperson.”

The applicant had the opportunity to challenge the juror prior to the swearing of the

jury, under s. 17 (4) of the Juries Act, 1976, and did not do so. Also, it is clear that the juror did not come within a category

to be excused compulsorily. The issue thus relates to the exercise of the discretion of the learned trial judge. Therefore

exactly what happened in court is critical to the exercise of the discretion. The exchanges have been set out fully above. The

juror said that he worked in Tramore, he did not know the applicant, but he had seen him.

In this case the usual advice was given to the jury that if they knew the accused or knew anything of the case they should

not serve on the jury. It was in that context that the juror spoke.

The learned trial judge had the advantage of viewing the juror when he spoke, and he could assess his demeanour. The

situation appeared clear to him, even so the court canvassed the matter further with counsel. No substantial ground was

raised in relation to the juror. In those circumstances the trial judge exercised his discretion. The court is satisfied that in the

circumstances he did not err in not proceeding to inquire further of the juror of his concerns. In all the circumstances the

court does not consider that the learned trial judge erred in not acceding to the request of counsel for a further inquiry.

The court would distinguish R. v. Thorpe, (unreported, Court of Appeal (Criminal Division), 9th October, 2000). There was

no suggestion of possible intimidation of the jury in this case. Also, the court would distinguish Blackwell & Ors. [1992] 2

Cr. App. R. 625, there was no suggestion of the jury being approached, tampered with or pressurised.

This court is satisfied that in all the circumstances it should not intervene in the exercise of the discretion of the trial judge on

this issue. Consequently this ground of the application fails.

9.2. Corroboration

9.2.a Submissions

It was submitted on behalf of the applicant that, having admitted the statement of the applicant into evidence, the learned

trial judge failed to apply adequately the provisions of

s. 10 of the Criminal Procedure Act, 1993. It was submitted that the references by the learned trial judge in his charge to the

statement were such as to virtually ignore the provisions of section 10.

Counsel on behalf of the Director of Public Prosecutions, Thomas Teehan B.L., submitted that there were three references

to the statement in the charge. He submitted that while the requirements of s. 10 of the Criminal Procedure Act, 1993 must

be brought to the attention of the jury that no particular form of words are required. In the context of the charge, it was

submitted, the statutory requirement was met.

9.2.b Legislation

Section 10 of the Criminal Procedure Act, 1993 states:

“10.-(1) Where at a trial of a person on indictment evidence is given of a confession made by that

person and that evidence is not corroborated, the judge shall advise the jury to have due regard to the

absence of corroboration.

(2) It shall not be necessary for a judge to use any particular form of words under this section.”

9.2.c The Charge

The relevant portion of the charge, as recorded in the transcript, provides as follows:

“That is the standard of proof in a civil case, but as you can readily see it is below the standard

required in a criminal case. You must be satisfied beyond a reasonable doubt in a criminal matter. The

reasonable doubt has been described as a doubt which is not an airy fairey doubt, not a passing doubt,

but something genuine, fundamental, that gives you cause to pause if you were going to do something

in your life like changing your job, change of house, that sort of doubt that would stop you going one

way or the other. It is something serious. It is a reasonable doubt, and you don’t get a reasonable

doubt just because there are two versions. There must be balance and foundation in the doubt. Now,

the accused’s right to silence, when he doesn’t give evidence, is obviously important but the State in

this case are seeking to make out a case and this is very fundamental. This case rests entirely on the

statement. The Gardai go out and find two substances planked in this ditch and you heard the scientist

from Dublin giving evidence on these substances. There would not appear to be any controversy on

these substances, so many grams of amphetamine and ecstasy. Let us say the drugs were found.

What is important is did the defendant have possession or control of the drugs, and you must be

satisfied on that, and you can only be satisfied on that if you believe that he made a statement and

that the statement as taken down in the Garda barracks is reliable in terms of the truth, and that it is

expressed in the accused’s own words. If you are not satisfied that this statement is not true there is

no other evidence on which you can rely to convict the accused. The evidence of his statement and

the evidence of the two Gardai in the station, it is right to be careful in all cases. You approach it, of

course as a juror carefully, methodically and slowly. You don’t jump to conclusions, and it is even

more right to take extra care when the only evidence is that of the State. Look at it every which way

and do not convict unless you are sure that this is his own voluntary statement. Be extra careful

because that is the only evidence. But if you are not satisfied that this is his statement, if you are not

convinced of the detail in it is genuine, if you are convinced beyond reasonable doubt that it is he

rather than the Guards who is speaking the truth then you can only go one way. The accused does not

have to convince you of anything but if there is something in the case that would cause you to have a

reasonable doubt you must give the benefit of that doubt to the accused.”

9.2.d Precedent

The law on corroboration was reviewed recently in People at the suit of the Director of Public Prosecutions v. P.J. [2004]

1 I.L.R.M. Although that case arose in relation to s. 7 (2) of the Criminal Law (Rape) (Amendment) Act, 1990 the court

addressed the issue of corroboration generally and as such it applies equally to this case. At p. 236 McGuinness J., speaking

for the court, stated:

“The trial judge was not required to use any particular form of words in giving his corroboration

warning. Section 7 (2) of the Criminal Law (Rape) (Amendment) Act, 1990 provides:-

‘7 (2) If a judge decides, in his discretion, to give such a warning as aforesaid, it shall not

be necessary to use any particular form of words to do so.’

The necessity for a clear and emphatic warning was stressed in a number of the older cases. In The

People (Attorney General) v Cradden [1955] IR 130 (Court of Criminal Appeal) Maguire C.J. stated

at p. 141:

‘In our opinion, therefore, however it be phrased, the warning to be given should convey

to a jury in unmistakable terms the danger of acting upon the unconfirmed testimony of a

prosecutrix if that testimony stands alone.’

In The People (Attorney General) v Williams [1940] IR 195 (Supreme Court) at p. 240 Sullivan C.J.

held that:

‘… in all cases in which there is no corroboration of the girl’s evidence the attention of the

jury should be directed to that fact, and they should be told that they should weigh her

evidence with great care before they decide to convict.’

The warning is no longer mandatory and much of the general tenor of the judgments in these older

cases would not readily be acceptable today, but once a trial judge has elected to give a warning it

seems to us that the necessity remains for that warning to be clear and unmistakable.

In giving the warning the judge should also explain the meaning of corroboration. Corroboration was

explained by Lord Reading C.J. in R. v. Baskerville [1916] 2 KB 658 as follows at p. 667:-

‘We hold that evidence in corroboration must be independent testimony which affects the

accused by connecting or tending to connect him with the crime. In other words, it must be

evidence which implicates him, that is, which confirms in some material particular not only

the evidence that the crime has been committed but also that the prisoner committed it.’

In The People (Attorney General) v Travers [1956] IR 110 Maguire J. stated (at p. 114):

‘In this connection the judge should explain to the jury what is meant by corroboration,

namely, ‘independent evidence of material circumstances tending to implicate the accused

in the commission of the crime with which he was charged’ (per Sullivan C.J. in Attorney

General v. Williams) [1940] IR 195 at p. 200). I do not propose to elaborate on this rule

which has been explained and adopted by Maguire C.J. in The State (Attorney General) v.

Moore [1950] Ir. Jur. Rep. 45.’

Again, these are pre-1990 cases but where in the context of the present law a discretionary warning is

given, it is still in our view necessary for the meaning of corroboration to be made clear to the jury.

The wording used by the trial judge in the instant case was not calculated to convey any clear

message to the jury. No proper effort was made to define what in law is meant by corroboration, nor

was it explained in detail how a lack of corroboration might affect the jury’s view of the evidence.”

The court would adopt and apply the law as stated in the above judgment. Although no particular form of words is required

of the learned trial judge by s. 10 of the Criminal Procedure Act, 1998, the court should apply the established law.

In cases such as this (i) the trial judge is not required to use any particular form of words in giving a corroboration warning;

(ii) the warning should be clear; (iii) the court should bring to the attention of the jury the absence of corroboration; (iv) the

meaning of corroboration should be explained to the jury; (v) the jury should be advised that they should have due regard to

the absence of corroboration; (vi) in general, the court should approach the manner so as to indicate to the jury that the law

describes a requirement of care and caution by such a jury.

If there is only one piece of evidence against a person it is appropriate to refer to this fact. The learned trial judge did so in

this case. In addition, s. 10 of the Criminal Procedure Act, 1993 brings in a special rule where the one piece of evidence is a

confession. In such a situation the meaning of corroboration should be explained to the jury. This was not done by the

learned trial judge in this case. Nor was it explained how a lack of corroboration might effect a jury’s view of the evidence.

There is a mandatory requirement under legislation which is applicable to this case. The court is satisfied that this was not

done. Consequently, this ground of the application should succeed.

9.3. Other Grounds

As the above ground should succeed there is no necessity to consider the other grounds raised by the applicant.

10. Conclusion

Treating the application for leave to appeal as the hearing of the appeal, the court would grant the appeal on the above stated

ground and would order a retrial.