Court of Appeal: Requiring a criminal jury to explain its verdict is ‘impractical’

Mr Justice Alan Mahon made the remarks as he upheld the conviction of Garrett O’Brien, 40, for the murder of 27-year-old father-of-two Seamus O’Byrne at his home in March 2009.

O’Brien was found guilty by a jury at the Central Criminal Court and was given the mandatory life sentence by Ms Justice Iseult O’Malley on 6 November 2012.

The three-judge Court of Appeal dismissed O’Brien’s appeal today, in which his lawyers argued their client’s fair trial rights were breached because the jury did not provide an explanation for its verdict.

It was O’Brien’s case that another named individual was the killer and he had no involvement in the crime nor had any knowledge of it.

O’Brien’s barrister, Feargal P Kavanagh SC, said the prosecution “rode two horses” by opening their case on the basis that it was a “joint enterprise” but ending up on the basis that O’Brien was the “triggerman”.

If the jury had a reasonable doubt that O’Brien may not have been the gunman, and the prosecution’s case was that he was the gunman, then he should have been entitled to an acquittal, counsel submitted.

The problem was that O’Brien did not know at this juncture whether he had been convicted of being a gunman or a “gopher” as part of a joint enterprise. That had consequences for him in the future such as when he goes before the parole board, counsel said.

Mr Kavanagh, who appeared with Michelle O’Sullivan BL, submitted that it was an inherent weakness in the procedure and O’Brien’s “fair trial rights” were breached.

Mr Justice Mahon said it was “entirely novel” to suggest that a jury could be questioned as to how, or the reasons why, it reached its verdict.

It had never been the practice in Ireland that a jury be asked for an explanation of their verdict other than simply stating guilty or not guilty, Mr Justice Mahon said.

No request was made on O’Brien’s behalf, prior to the jury retiring to consider its verdict, to request a ‘specific verdict’, nor was the matter the subject of any requisition.

Mr Justice Mahon said O’Brien was charged with and tried for specific offences and clear verdicts were returned in respect of each. He had also been found guilty of possessing a firearm with intent to endanger life on the same occasion.

“A requirement that a jury should, in effect, give reasons for, or explain its verdict is impractical and a recipe for enormous difficulty,” Mr Justice Mahon said.

“The secrecy of the manner in which a jury conducts its deliberations has long been a hallmark of our criminal legal system”.

As there was no basis to support the argument that the jury ought to have been asked for a detailed explanation as to the breakdown of its verdict, any such lack of detail could not undermine the verdict, Mr Justice Mahon, who sat with Mr Justice George Birmingham and Mr Justice John Edwards, said in dismissing the appeal.

Dismissing all other grounds, Mr Justice Mahon said the court was satisfied O’Brien was lawfully arrested and there was no de-facto arrest or detention beforehand. Furthermore, the property was in fact his sister’s and he did not ordinarily reside there.

Mr Justice Mahon said the trial judge had made it abundantly clear that O’Brien, according to the prosecution, was the gunman who killed the deceased but that he wasn’t acting alone.

In all the circumstances, there was little more the trial judge could have said. If there could have been any criticism of the trial judges charge - and the Court of Appeal did not believe there could have been - it was that the judge’s charge unduly favoured the defence.

Finally, the trial judge was entitled to rule that a senior consultant engineer for Villacom, with whom O2 Telefonica Ireland had a service agreement, was properly authorised to assemble and disclose certain mobile phone data, Mr Justice Mahon said.

Ruaidhrí Giblin, Ireland International News Agency Ltd.