Judge's comments 'prejudiced' trial

A speech delivered by a High Court judge while he was also presiding over the trial of two brothers resulted in them not receiving a fair trial, the Court of Criminal Appeal has ruled.

The speech by Mr Justice Paul Carney at University College Cork contained “prejudicial material” leading to a “reasonable apprehension” Warren and Jeffrey Dumbrell had not received a fair trial and rendered their convictions for murder unsafe, the court ruled.

The Chief Justice, Mr Justice John Murray, said the address by on June 10th 2008 was circulated to the media, was intended to and did attract extensive publicity and included statements on several issues relevant to the trial of the Dumbrell brothers, including fatal stabbings, knife crime and sentencing policy.

The address involved “trenchant and strong” statements germane to many aspects of the trial over which Mr Justice Carney was presiding and was likely to have made a “strong and enduring impression” on the jury, he said.

The CCA was satisfied the trial judge had not intended this and also underestimated the possible impact of his statements.

Having regard to all the circumstances, the CCA was satisfied a reasonable person would have a reasonable apprehension the judge’s address may have consciously or unconsciously influenced the jury, he said.

The Chief Justice stressed, while the address contained several inaccuracies relating to certain decisions of the CCA and “lacked a balance” in its presentation of alleged deficiencies in sentencing in manslaughter cases, that was not relevant to the issues of law decided by the CCA in the Dumbrell appeal against conviction.

The only issues of law for the CCA related to the statements made by the trial judge as published and their possible impact on the trial, he said.

The CCA’s decision also had “nothing to do” with rules or principles which should govern public statements or lectures by members of the judiciary. It was “hardly necessary” to say such activities “are acceptable and positive particularly when they may promote an understanding and discussion of the law or the administration of justice”.

The Chief Justice was giving the reserved judgment of the three judge CCA outlining its reasons for overturning earlier this month the convictions of Warren (36) and Jeffrey Dumbrell (30), from Emmet Place, Inchicore, for the murder of Christopher Cawley.

A father of six, Mr Cawley was fatally stabbed at Tyrone Place, Inchicore, on October 29th 2006.

The brothers were convicted of murder after a 10-day trial at the Central Criminal Court and jailed for life by Mr Justice Carney. They appealed on grounds centring on claims the address by Mr Justice Carney to the law faculty at UCC prejudiced their right to a fair trial.

In a 28-page judgment, the Chief Justice, sitting with Mr Justice Liam McKechnie and Ms Justice Elizabeth Dunne, noted one of the issues the Dumbrell trial jury had to decide was whether the brothers were guilty of murder rather than manslaughter and that evidence to the trial was the essential cause of death was a stab wound.

The Chief Justice referred to extracts from Mr Justice Carney’s speech, including references to knife crime and a statement that “fatal stabbings are out of control”. He also referred to the judge quoting “uncritically” from Ms Joan Dean, a founding member of the AdVIC organisation set up to support family members of homicide victims.

The CCA was satisfied, when quoting statements of Ms Dean, Mr Justice Carney, as a judge and as the judge presiding at the trial of the Dumbrells, had conveyed his approval of those views. The address also conveyed an endorsement by the trial judge of various claims, including that sentences in fatal stabbing cases, other than murder, do not do justice to the victims or their families and that fatal stabbings are out of control, the CCA found.

The address indicated the trial judge endorsed claims that sentences imposed in fatal stabbing cases of manslaughter are wholly inadequate, the CCA said.

Every citizen has a right to a fair trial, the Chief Justice said. In this case, the Dumbrells argued there was a real danger the jury had been prejudiced by the trial judge’s address and the test was whether a reasonable observer would consider there was such a danger.

Given the extensive publicity of the address, the CCA considered it was probable all or a significant number of members of the jury were aware of it. The trial judge had also twice told the jury he was giving a lecture in Cork.

The CCA found Mr Justice Carney never intended his address to impact on the jury or influence the trial, although he had intended it would achieve wide publicity. Apart from his refusal on June 11th, 2008 to discharge the jury on grounds of his

address, his conduct of the trial was fair and proper, the CCA ruled.

The address made no reference to the Dumbrell trial and there could be public discussion of the courts and sentencing without prejudicing any ongoing trial, the Chief Justice stressed. Cases of prejudicial publicity could also in certain

circumstances be resolved by passage of time.