Court of Appeal: Trial judge should not have granted jury permission to visit site of crime

About this case:

• Judgment:
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Finding that the trial judge had erred in law in allowing the jury to visit the rubbish chute that the man had pushed the deceased into, Mr Justice Mahon said it was of greater concern that a member of the jury had been permitted to throw a stone down the chute in circumstances where this was an entirely different event than an adult being forced head-first into the chute.

The Court of Appeal was satisfied that the proper course of action for the trial judge should have been to discharge to jury.

Background

On Thursday 9th May 2013, David O’Loughlin found Liam Manley sitting on the pavement outside a shop in Cork city. Mr O’Loughlin said he felt sorry for Mr Manley, and took him back to his apartment.

At the apartment, a friend of Mr O’Loughlin accused Mr Manley of being involved in a paedophile incident, causing Mr O’Loughlin to assault Mr Manley, eject him from his apartment; and when he tried to regain entry, Mr O’Loughlin pushed him into a rubbish chute.

Mr Manley’s body was found by a caretaker on Monday 13th May 2013, the cause of death was mechanical asphyxia, associated positional asphyxia and hypoxia or lack of oxygen due to being trapped inside the chute.

Mr O’Loughlin pleaded not guilty to murder, and in evidence given at trial, he emphasised that he had never wished to harm or kill Mr Manley, and that he was devastated as a consequence of what had occurred.

In March 2015, after a unanimous guilty verdict, he was sentenced to life imprisonment.

In the Court of Appeal, Mr O’Loughlin raised six grounds of appeal, which were summarised by Mr Justice Mahon as the un-cautioned Garda interview, the rejection of the application to direct the jury to find Mr O’Loughlin ‘not guilty’, the issues arising in relation to the charge to the jury, and the visit by the jury to the chute.

The first three summarised grounds of appeal were all dismissed by the Court of Appeal.

The visit by the jury to the chute

In the course of the trial the jury had been shown photographs of the chute, and they had also heard expert evidence as to the speed at which Mr O’Loughlin would have travelled through and exited the chute had his passage not become blocked by rubbish bags.

In Mr O’Loughlin’s evidence during the trial he said that when he put the deceased into the chute he honestly believed that he would simply slide down and exit into a bin of rubbish below which would act to break his fall, and that he would not have been injured, let alone died.

Following the conclusion of the trial judge’s charge to the jury, after it had begun its deliberations, the Foreman of the jury requested for the jury to view the chute before making a final decision. There was no objection by either the prosecution or the defence.

By the time Mr O’Loughlin and his legal representatives arrived to the location of the chute, the trial judge, the jury, and prosecution legal team had examined the chute in their absence. A member of the jury had also been permitted to throw a stone down the chute in a perceived experiment.

Mr O’Loughlin complained that:

Relying on DPP v. Cronin (No. 2) IR329, the DPP emphasised that counsel for Mr O’Loughlin did not make known any objection to, or concern about, the proposed visit to the chute

Justice Mahon stated that the request from the jury at a point well advanced into their deliberations, to view the chute in the apartment block was highly unusual.

The fact that it was made in the absence of an application by either the prosecution or the defence and prior to any direction by the learned trial judge that such an inspection take place was in conflict with s. 22 of the Juries Act 1976.

Considering s. 22 of the Juries Act 1976, Justice Mahon stated that “at least technically”, the judge’s permission to the jury to view the chute was unlawful.

Citing commentary on s.22 of the Juries Act 1976 in The Criminal Process, Justice Mahon emphasised Professor O’Malley’s assertion that visiting a particular scene, reconstructing or recreating a particular incident “…may influence a jury just as much as any conventional piece of evidence tendered in Court and perhaps more so at times”

Taking into account all of the above, Justice Mahon stated that “the jury ought not to have been permitted to attend the location of the chute in the course of their deliberations in the absence of any application that they do so from either the prosecution or the defence”.

Furthermore, it was of “greater concern… that the jury were permitted to conduct a stone throwing experiment at the chute. That ought not to have been permitted”.

The Court was satisfied that Cronin should not prevent or curtail the court from considering this ground of appeal, adding that it was in the interests of justice to do so.

Allowing this ground of appeal and quashing the verdict of the jury, Justice Mahon stated that the proper recourse of the trial judge should have been to discharge the jury.