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Finding that the conviction was safe, Lord Chief Justice Declan Morgan was satisfied that if the trial judge’s direction’s to the jury created an impression that the jury were being pressurised, “the prosecution or defence would have intervened by way of requisition to ensure that the matter was corrected”.

Background

The Court heard that in September 2015, Mr Joseph Henry Smyth was arrested for various assaults against his girlfriend which occurred during a “dispute” in her home in South Belfast. The prosecution case was that he dragged his girlfriend “upstairs by the hair, punching her as he did so”, that he hit her with a Hoover causing an 8cm laceration to her head, that he bit her nose and broke it, and then proceeded to kicked her out of an upstairs window, as a result of which she “sustained a fracture to the base of the fifth metacarpal and a fracture to her lumbar spine”.

Mr Smyth was convicted on Count 1 of causing grievous bodily harm with intent pursuant to s.18 of the Offences against the Person Act 1861; and sentenced to an extended custodial sentence of 8 years followed by 3 years on licence. He was also convicted on Count 3 under s.66(1) of the Police (NI) Act 1998 for assaulting a police officer, and sentenced to four months imprisonment, to run concurrently with the sentence on Count 1.

Mr Smyth was acquitted on Count 2 under s.4(1) of the Welfare of Animals Act (NI) 2011 and no order was made on Count 4 (s.20 of the Offences against the Person Act 18611861 causing GBH) which was an alternative to Count 1.

Irregularity

The conviction appeal concerned an irregularity in the taking of the verdicts

On the approach that the jury had to take on the alternative counts, the trial judge indicated that because Counts 1 and 4 were alternative counts the jury could not find Mr Smyth guilty on both: Count 1 had to be considered first as this was the more serious charge, and it was only if there was a verdict of not guilty on Count 1 that they should consider Count 4.

The day after the trial judge’s charge to the jury, she called them back ‘to give them a direction in relation to a majority verdict’. At this point, the foreperson informed the Court that the jury had not reached a verdict on Count 1, and that they had reached a verdict of guilty on Count 4.

Thereafter, the jury was advised that they had to reach a majority verdict of “at least 10” on Count 1. Later that day, the jury returned a guilty verdict by majority 10-1.

Court of Appeal

Delivering the judgment of the Court, Morgan LCJ said it was “generally preferable not to take any verdicts until all the counts have been dealt with” (R v Harbinson NICA 20, R v A NICA 2 and R v S and C NICA 51 considered).

However, Morgan LCJ said that R v Andrew Nigel Fernandez 1 Cr App R 123 and R v McEvilly EWCA Crim 1162 provided ample ‘support for the jurisdiction of the learned trial judge to decline to accept the jury’s verdict on Count 4 and conclude that the jury should be discharged from giving a verdict on that count in the event of a conviction on Count 1’.

It was submitted by counsel for Mr Smyth that the trial judge’s direction ‘inappropriately pressurised the jury into coming to a verdict on Count 1; that it “removed from the jury the possibility of a disagreement or at least pressurised the jury into avoiding a disagreement”.

Morgan LCJ said that if the trial judge’s ‘remarks created an impression that the jury were being pressurised in any direction… the prosecution or defence would have intervened by way of requisition to ensure that the matter was corrected’.

‘…in light of the absence of any requisition at the time’, Morgan LCJ held that ‘this was a relevant indication that the remarks did not give rise to any sense of pressure upon the jury’.

Satisfied that the conviction on Count 1 was not unsafe, the Court of Appeal held that the trial judge was correct to decline to accept the jury’s verdict on Count 4, and that once the jury had returned a guilty verdict on Count 1 the proper course was to discharge the jury from giving a verdict on Count 4.