Judge's speech impeded fair trial, court rules

A SPEECH made separately by a judge while he was presiding over a trial of two brothers for murder effectively rendered their subsequent murder convictions unsafe, the Court of Criminal Appeal (CCA) has ruled.

The speech by High Court judge Mr Justice Paul Carney at University College Cork – while he was presiding over the trial of brothers Warren and Jeffrey Dumbrell – contained “prejudicial material” leading to a “reasonable apprehension” they had not received a fair trial, and rendered their murder convictions unsafe, the CCA ruled.

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

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), 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.

Both brothers were convicted of murder after a Central Criminal Court trial and jailed for life. They appealed on grounds centring on claims Mr Justice Carney’s UCC law faculty speech prejudiced their right to a fair trial.

The address involved “trenchant and strong” statements germane to many aspects of the trial over which Mr Justice Carney was presiding, and it was likely to have made a “strong and enduring impression” on the jury, Mr Justice Murray said. The CCA was satisfied the trial judge had not intended this, and also underestimated the possible impact of his statements. 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.

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”.

In a 28-page judgment yesterday, 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 heard at the trial was that 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 referred to the judge quoting “uncritically” from Joan Dean, a member of Advocates for Victims of Homicide (Advic), which was set up to support family members of homicide victims.

The CCA was satisfied that, in quoting statements of Ms Dean, Mr Justice Carney 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 did not do justice to the victims or their families, and that fatal stabbings were out of control, the CCA found.

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

Every citizen had 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 judge’s address, and the test was whether a reasonable observer would consider there was such a danger.

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

The trenchant statements concerning fatal stabbing cases would have resonated with jury members, considering that was the kind of case they were trying and as the statements were made by “their” judge, the Chief Justice said.

This case had special circumstances, the Chief Justice stressed. Key elements included: (1) the statements at issue were made by the presiding judge, the central figure of authority in a trial; (2) the statements were made and published during the trial and; (3) the nexus of the statements and the issues the jury had to decide.

This was a fatal stabbing case and the trial judge’s address had focused on such cases, the Chief Justice said. The address included statements about allegedly unjust sentences in manslaughter cases, and the jury in the Dumbrell trial had to decide between murder and manslaughter. References were also made to sentences failing to do justice to the families of victims when relatives of Mr Cawley were key witnesses in the trial.

The CCA was satisfied the statements were material that could prejudice a jury in arriving at a verdict, the Chief Justice ruled. Juries must be permitted to arrive at verdicts without influence from “extraneous and prejudicial” material, and such strong statements as were made, particularly by the trial judge, amounted to prejudicial material.

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 get 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.