Too late to raise on appeal allegation that juror asleep during part of evidence

The People (at the suit of the Director of Public Prosecutions) (respondent) v Leo O'Regan (applicant).

Criminal Law - Appeal - One juror apparently asleep - Jury having seen the accused in custody - Whether jury should have been discharged - Whether trial judge had given a proper charge to the jury - Whether the trial judge had erred in principle in imposing sentence.

The Court of Criminal Appeal (Mr Justice Barrington, Mr Justice Geoghegan, Mr Justice Smith); judgment (ex tempore) delivered 25 March 1999.

While there was a suggestion that one juror had been asleep for a portion of the evidence, no application to discharge the jury had been made at the time, and it was too late to raise the point on appeal. The trial judge had dealt properly with all matters in his charge to the jury, and was entitled to impose a ten year sentence.

The Court of Criminal Appeal so held in dismissing an application for leave to appeal conviction and sentence.

Blaise O'Carroll SC and Paul McDermott SC for the applicant; Patrick McCarthy BL for the respondent.

Mr Justice Barrington said that the applicant had been convicted on 7 September 1997 in Cork Circuit (Criminal) Court on a count of robbery and had been sentenced to ten years imprisonment. The case had been partly heard at an earlier stage and a problem had arisen in relation to it. The Court of Criminal Appeal had asked for a report from the trial judge in relation to that problem.

This appeal had been heard in two parts, and had raised a number of points. The first was that the trial judge ought to have discharged the jury because there was a suggestion that one of the jurors was asleep during a portion of the cross-examination of one expert witness. It had not been treated by either counsel or judge as a serious matter at the time, and there was no clear evidence as to whether the juror had been asleep. There had been no application to discharge the jury at the time, and Mr Justice Barrington said that it was too late to raise the point now.

The second point raised was that the jury had at one stage seen the applicant in custody. Mr Justice Barrington said that the trial judge had clearly warned the jury that this was irrelevant to the case, and it was hard to imagine that the defence were in any way prejudiced by it.

The defence had also made a complaint that the trial judge did not put the defence case to the jury, but it was quite clear that this had been done. The trial judge had commented adversely on it, but this was something he was entitled to do.

The next point in the appeal related to the judge's charge, where he referred to a statement by the applicant that he had been in "Susie's" on the night of the robbery, whereas his alibi had been that he was babysitting with his girlfriend. Mr Justice Barrington said that the Court of Criminal Appeal were puzzled as to how this reference had arisen. However, the trial judge in his report to the court was quite clear that in the garda's evidence of his interview with the applicant, the applicant had said that on the night of the robbery he was drinking in a place called "Susie's".

This reference had not appeared in the garda's notes of the statement. However, it did appear in the cross-examination of the applicant's girlfriend. Mr Justice Barrington said that counsel for the applicant had submitted that the trial judge had not explained to the jury the way in which circumstantial evidence should be treated, a point which had not been made originally. One of the issues in the case was that there was a coat which the Gardai alleged was the property of the applicant.

There was blood on the coat and the expert evidence was very strong that the blood was the blood of the priest who was the victim of the crime. The applicant admitted he had it in his possession at one stage, but denied that it was his. While this was circumstantial evidence, it was quite clear that the trial judge had built in treatment of that episode with the treatment of the alibi defence and it was quite clear that the whole of the applicant's case was put to the jury in a balanced way.

The trial judge had told the jury that if the alibi defence even raised a doubt in their minds as to the force of the prosecution case, that should resolve that doubt by acquitting the accused. Counsel for the applicant had submitted that the reference to the applicant's girlfriend being or not being under the influence of the applicant was inappropriate.

Mr Justice Barrington said that this was a rather indelicate way of putting the matter, but it had been put to her in cross-examination that she did not want to see the applicant going to jail and that she was covering up for him. These issues must have been present in the minds of the jury, and the trial judge had done nothing wrong in referring to them, though he might have referred to it in a slightly more delicate manner.

Mr Justice Barrington said that leave to appeal was refused. As regards the appeal against sentence, Mr Justice Barrington said that this was a particularly despicable crime where three young men had entered a priest's house, beaten him up and robbed him. The two co-accused had pleaded guilty and had both been sentenced to six year's imprisonment. This court had upheld the sentence of one of them, and an appeal was pending in respect of the other. The applicant had pleaded not guilty, and according to the trial judge was the ring-leader. He had 16 previous convictions including one for burglary. In those circumstances, this court could not say that the trial judge had erred in principle in imposing a sentence of ten years imprisonment. The application for leave to appeal against sentence was also refused.

Solicitors: Daly Derham & Co (Cork) for the applicant; Chief State Solicitor for the respondent.