Constitutional - Right To Trial In Due Course Of Law (Right To Jury Trial)

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Right to a Jury Trial – Art 38.5 - Introduction

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1.For Criminal Matters – what Constitutes “Criminal”?

2.Role of Jury vs Role of Judge (Fact/Law distinctions)

3.Voir Dire – Proceedings in the absence of the Jury

4.Directions by the Trial Judge

5.Composition of the Jury

6.Unanimity of Jury Decision


Certain rights in the Constitution are expressed as “inalienable” (e.g. Article 42 – Right to Education) and “imprescriptible” (e.g. Article 41 – Rights of the Family), meaning that they cannot be transferred away or abandoned.

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Article 38.5

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“Save in the case of the trial of offences under Section 2, Section 3 or Section 4 of this Article, no person shall be tried on any criminal charge without a jury”

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Criminal Matters

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If it is a “Criminal Matter”, then the default position is that a Jury is required.

Exceptions are expressly stipulated by the Constitution:

-Article 38.2 – Minor Offences, triable by Summary Courts

-Article 38.3 – Special Courts, such as the Special Criminal Court

-Article 38.4 – Military Tribunals under Military Law

Generally:

Issues of FACT are for consideration of Jury

Issues of LAW are for consideration of Trial Judge

The Judge can determine that there is not sufficient evidence for the matter to be put to the Jury, but the Judge cannot determine that evidence once it has been put to the Jury.

Trial Judge can never direct a verdict of guilty

Trial Judge can, however, direct the Jury as to what defences in law may or may not apply for the Accused, thereby limiting the opportunities for a not guilty decision

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Re Haughey

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HELD: Right to a Jury is not simply a constitutional right that can be waived. It is a Constitutional Imperative – a duty upon the State – that consequently cannot be waived. “trial by jury of non-minor offences is mandatory, it is not simply a right to be adopted or waived at the right of the accused.”

Certain rights in the Constitution are expressed as “inalienable” (e.g. Article 42 – Right to Education) and “imprescriptible” (e.g. Article 41 – Rights of the Family), meaning that they cannot be transferred away or abandoned.

Hogan and Whyte argue – as with Re Haughey – that the Jury Trial is not waivable, and is instead a duty on the State rather than a right conferred on the Individual.

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O’Callaghan v AG [1992]

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“ There appears to emerge a fairly clear consensus that the essence of trial by jury is that the decision as to the guilt or innocence of the accused is made by a group of his fellow citizens and not by a judge or a number of judges”

HELD: A requirement of unanimity among a jury is not essential to reaching a fair, representative and constitutional verdict

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De Burca v AG [1976]

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“Looking at the essence of a trial with a jury, I am of the opinion that it does presuppose that the trial should be in the presence of, and under the authority of, a presiding Judge having power to instruct a jury as to the law and to advise them as to the facts, and that the jury should be free to consider their verdict alone without the intervention or presence of the judge or any other person”

FACTS: Juries Act 1927 – excluded those without property. Did not entirely exclude women, they could apply to be included.

HELD: O’Higgins, CJ had no difficulty with exclusion of Women. He did, however, find that those without property were being deprived their Right to Equality under Article 40.1. But he held that no breach of Article 38.5.

Walsh, J rejected the legislation. He held that Jurors could – fairly and constitutionally – have requirements placed upon them regarding competence. But, Article 40.1 required that women and those without requisite property (rate-payers) be not discriminated against re Jury service

Henchy, J and Griffin, J addressed the Article 38.5 aspect, and held the provision breached Art 38.5

Quite apart from the rights of jurors not to be treated unequally, the accused, under Article 38.5, was entitled to

“a trial in due course of law by a group of laymen who, chosen at random from a reasonably diverse panel of jurors drawn from the community, will produce a verdict of guilty or not guilty free from the risks inherent in a trial conducted by a judge or judges alone, and which will therefore carry with it the assurance of both correctness and public acceptability that may be expected from the group verdict of such a representative cross-section of the community”

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Curtis v Attorney General [1985]

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FACTS: Curtis charged under Section 186 of Customs Consolidation Act 1876, as amended by S 34 of the Finance Act 1963. Curtis opted for Trial on indictment. However, Section 34 allowed the District Court Judge, at a preliminary investigation stage, to conclusively determine the value of the goods involved

HELD: This was an unconstitutional intervention into the province of the jury. The value of the goods is not a question of law – it is a question of fact.

The Judge can determine that there is not sufficient evidence for the matter to be put to the Jury, but the Judge cannot determine that evidence once it has been put to the Jury.

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Voir Dire

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We have already examined the “Exclusionary Rule”, where certain evidence could not be admitted because it was obtained in breach of ones constitutional rights.

But if the jury hears the Defendant contesting some evidence, then the damage is already done: the jury has heard the prejudicial evidence, and it will be extremely difficult for the jury to simply disregard the evidence, if the Judge decides it is inadmissible.

Thus, decisions on admissibility must be made in the absence of the Jury, simply before the Judge alone. This is, in fact, a mixed question of fact and law. However, the danger of prejudice is extremely high.

Voir Dire proceedings are the title for such legal arguments in the absence of the Jury. Principle only used to decide whether evidence admissible. Once decided it is admissible, evidence must be put before the jury.

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People v Lynch [1982]

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Supreme Court concluded that questions re admissibility of evidence were questions of fact, properly to be put to the Jury.

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DPP v Conroy [1986]

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Court overturned itself, Lynch approach was incorrect

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DPP v Davis [1993]

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FACTS: Trial Judge firmly directed a Jury to return a verdict of Guilty. Single count of murder, but accused pleaded manslaughter. Not accepted by the Prosecution, so “Not guilty” simplicter was his stance at trial. Trial Judge directed the foreman of the Jury to sign for a guilty verdict because – in the Trial Judge’s mind, the Prosecution had proven the accused was guilty beyond a reasonable doubt.

HELD: Supreme court overturned this decision as an unconstitutional infringement upon the role of the Jury

Trial Judge can, however, direct the Jury as to what defences in law may or may not apply for the Accused, thereby limiting the opportunities for a not guilty decision

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Representational Quality of Jury

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A jury of one’s peers?

Should we have positive discrimination? Or should the jury be genuinely random? Article 40.1 - Right to Equality

What about the distinction between Selecting the panel, and selecting the individual jurors from that panel?

De Búrca -v- AG - Women Jurors

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Section 25 Criminal Justice Act 1984

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Section 25 Criminal Justice Act 1984 – Procedural Requirements:

1.The verdict in criminal proceedings need not be unanimous in a case, and can be 10:1 decision

2.The foreman of the jury must state in open Court whether the verdict is unanimous, or is a majority and – if so – the number of jurors who agreed with the verdict

3.If the verdict is not unanimous, the jury must have deliberated for at least 2 Hours

4.If the verdict is NOT Guilty, then it shall not be indicated whether the verdict was unanimous or by a majority.

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Reade -v- Judge O'Reilly (2009)

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The applicant was charged with offences contrary to ss. 3 and 15 of the Non-Fatal Offences Against the Person Act 1997, which were hybrid offences, providing for both summary trial and trial on indictment. The applicant was summonsed to appear before the District Court. The first respondent, having perused the relevant statements, formed the view that the offences at issue were minor offences, accepted jurisdiction in the case and listed it for trial.

At the trial, following the evidence of the victim of the alleged crimes, the first respondent changed his mind and ordered that the offences in question were not minor offences and that the matter did not fall within his jurisdiction. The first respondent sent the accused forward for trial at the next sitting of the Circuit Criminal Court and directed the service of a book of evidence.

The applicant instituted judicial review proceedings and was granted leave to seek an order of certiorari quashing the order of the first respondent declining jurisdiction, an order ofmandamus compelling the first respondent to hear the matter and an interim order staying the proceedings.

The applicant argued that, where the second respondent had elected for summary trial of such hybrid offences, the first respondent had no choice but to abide by the jurisdiction chosen for him. Secondly, he argued that the first respondent's original decision as to jurisdiction was binding on him and that he had no power to reverse it. In the alternative, if there was such a power, he submitted that the decision to change the order on jurisdiction could only be done on evidence. Finally, the applicant argued that the procedure was unfair as, rather than having the charges disposed of, he now faced the uncertainty of a jury trial.

The High Court (Charleton J.) refused the reliefs sought. The court found that, even if a judge in the District Court took a preliminary view that the papers in a case disclosed a minor offence, the court was still under a constitutional duty to ensure that the case was tried with a jury should it emerge on a further perusal of the facts, or on hearing the evidence at the actual trial itself, that the case involved a non-minor offence (see [2007] IEHC 44, [2007] 1 I.L.R.M. 504 ).

The applicant appealed to the Supreme Court.

Held by the Supreme Court (Murray C.J., Finnegan and Macken JJ.), in affirming the order of the High Court refusing an order ofcertiorari but granting a declaration that the District Court did not have power to send an accused forward for trial or direct service of a book of evidence in the circumstances, 1, that the decision of the second respondent whether to prosecute a hybrid offence summarily or on indictment was an administrative function only and did not determine definitively whether or not the offence was a minor offence nor how it would be prosecuted. The District Court alone had jurisdiction in that regard.
The State (Holland) v. Kennedy [1977] I.R. 193 , The State (McEvitt) v. Delap [1981] I.R. 125 and The State (McDonagh) v. O hUadhaigh (Unreported, High Court, McMahon J., 9th March, 1979) followed; Conroy v. Attorney General and Another [1965] I.R. 411 , Melling v. O Mathghamhna and the Attorney General [1962] I.R. 1 , Robinson v. O'Donnell [2009] IESC 51, (Unreported, Supreme Court, 2nd July, 2009) and Director of Public Prosecutions (Murphy) v. G.G. (a minor) [2009] IESC 17, [2009] 3 I.R. 410 considered.

2. That, if on the facts proved or on hearing details of the offence, it became clear to a District Court Judge that a hybrid offence was not, in fact, minor, he or she was obliged to decline jurisdiction and discontinue the hearing.
The State (Holland) v. Kennedy [1977] I.R. 193 , The State (McEvitt) v. Delap [1981] I.R. 125 and Feeney v. District Justice Clifford [1989] I.R. 668 applied; The State (McDonagh) v. O hUadhaigh (Unreported, High Court, McMahon J., 9th March, 1979) followed.

3. That there was no statutory provision conferring on the District Court a power to send an accused forward for trial and direct the service of a book of evidence, where it had declined jurisdiction in the trial of a hybrid offence. However, this did not prevent the second respondent from commencing proceedings again in respect of the offence, this time on an indictable basis.
Cumann Lúthchleas Gael Teo. v. Judge Windle [1994] 1 I.R. 525 distinguished.

4. That the trial of the applicant in the District Court was not in breach of fair procedures. In declining jurisdiction, the first respondent was ensuring that the trial of the applicant took place in due course of law.
The State (McEvitt) v. Delap [1981] I.R. 125 and Feeney v. District Justice Clifford [1989] I.R. 668 followed.