The Court of Criminal Appeal allowed Anton Mulder’s appeal against his murder conviction and ordered a new trial, concluding that concerns about contact between a witness’s brother and a juror risked an unfair trial. The court also found that the trial judge had applied the wrong legal test when deciding whether to discharge the jury.
The events began during Mulder’s arraignment on 2 May 2006. He pleaded not guilty to murder but guilty to manslaughter. A man in the public gallery shouted that the accused had strangled his sister. The judge told the jury panel that nothing had yet been proved and asked whether the incident would cause any juror difficulty. No application was made at that point to discharge the jury.
During the trial, the prosecution witness Andrea Pollock gave circumstantial evidence against Mulder. On the third day, the trial judge disclosed a note from the jury foreman, Mr Shortall, saying that Colleen Mulder’s brother was making himself familiar with jurors. The prosecution sought to exclude William and Andrea Pollock from the court building; the judge made that order.
The foreman later told the judge that William Pollock had asked a juror to borrow a newspaper, read aloud a report about the trial identifying himself as the person who had shouted at the arraignment, and later greeted the juror with a smile and nod. The foreman said the juror felt “somewhat intimidated and uncomfortable.”
The juror, Mr O’Brien, agreed with the foreman’s summary but said the familiarity was wrong and that he felt able to continue. The judge decided not to discharge the jury. On the fourth day, the foreman said none of the jurors felt affected or inhibited.
The appeal court said the original report of intimidation required particular weight. It held that the later questioning did not remove the concern that an objective observer could reasonably doubt whether the juror, and potentially the jury, could try the case fairly. It also rejected the trial judge’s reliance on the English “real danger” test, holding that the relevant Irish principle required consideration of the constitutional right to a fair trial and the appearance of an impartial jury.
The court said the combined effect of the incidents, the differing accounts and the wrong legal test meant the trial could not stand. It allowed the appeal and ordered a new trial; it did not determine Mulder’s guilt or innocence.