The Court of Criminal Appeal has allowed an appeal by M. J. against four indecent assault convictions and directed a retrial, finding it unsafe to let the jury’s verdicts stand after a long, hot day of proceedings and deliberations.
In a judgment delivered on 14 March 2008, the court said the jury had been involved in the hearing from 9.30am until 10.26pm on 27 July 2006, with just over an hour for lunch. They deliberated for nearly five and a half hours, continuing three hours beyond 7.30pm.
The court said the day was described as hot, oppressive, clammy and draining. It found a real danger that the jurors had become extremely tired, creating a real risk of error.
The trial judge had raised the possibility of the case concluding that day and, when the jury reached an impasse on some counts, invited them to discuss whether they wanted to continue or resume the next morning. They asked for more time. The appellate court held that the ultimate decision on how long a jury should deliberate belonged to the judge, who could ask for the jury’s views but could not leave that decision to them. It found the judge had erred by doing so, despite having recognised the risks of fatigue.
The court treated the application for leave to appeal as the hearing of the appeal and allowed it. It ordered a retrial on the four counts on which the jury had returned guilty verdicts.
M. J. had been convicted in the Circuit Criminal Court sitting at Naas on four counts of indecent assault under section 6 of the Criminal Law (Amendment) Act 1935. The appeal also challenged the trial judge’s amendment of the indictment after the prosecution case closed. The judgment does not state that the court decided that ground; its stated reason for setting aside the four verdicts was the risk arising from the length of the jury’s day and the judge’s handling of deliberations.