A perjury trial in the Circuit Court in Co Kerry collapsed yesterday because of what the judge termed a highly unusual "limbo" situation in the law with regard to when jurors could be excused.
One juror was excused initially, and then the entire jury was discharged, after one of the chief witnesses, a solicitor in the State's case, revealed that he recognised one of the jurors as a former client of his.
The case of The People v Patrick Brosnan, of Rockfield, Faha, Killarney, was about to begin at the Circuit Criminal Court in Tralee yesterday morning. Mr Brosnan was charged with perjury going back to a previous Circuit Court case in Killarney in November 1997.
The allegation was that as a witness in that case, Patrick Brosnan v Patrick O'Sullivan and the ESB, he had "falsely sworn" he was not the Patrick Brosnan who claimed in a solicitor's letter in March 1993 he was a passenger in a car driven by Patrick O'Sullivan that struck telephone poles. By means of that solicitor's letter, he had claimed damages.
However, it was alleged he had told the court in Killarney in 1997 he believed the Patrick Brosnan named in the letter was a nephew of his.
The accused had been arraigned on the charge of perjury on Tuesday and had pleaded not guilty. A jury was selected and the remaining panel of jurors told they need not come to court yesterday.
The formality of putting the charge to the selected jury had not taken place when the court was told that solicitor Riobaird Pierse, (son of Listowel solicitor Robert Pierse), recognised one of the jurors as he had acted for him some years previously.
Legal argument continued in the absence of the jury for most of the morning.
When the jury was recalled Judge Carroll Moran said he understood one of the jury had been a client of Mr Pierse. One juror said he had.
The judge said perceptions mattered greatly and justice must not only be done but be seen to be done.
He told the juror he was going to ask him not to serve.
The judge then asked the jury as a whole if they were aware of the fact their fellow juror been a client of Mr Pierse and they indicated they were not.
The judge excused the juror from jury service for three years.
The jury was sent out again and there was argument about whether the trial could take place with 11 jurors.
However, both defence counsel John O'Sullivan and prosecution counsel Stephen Coughlan pointed out that under the law jurors could be discharged only when the trial had commenced and the charge had been laid on the jury.
The Juries Act, 1976 as well as case law going back to 1947 was cited.
Practice bore out that cases "could not open" with 11 jurors and discharge happened only after the charge was put to the jury, Mr O'Sullivan said.
The judge said it was a most unsatisfactory situation. Three days had been set aside for the case. He was satisfied the rest of the jury "had not been contaminated".
He would proceed with 11 jurors "if the law had permitted".
The judge briefly considered emergency options of replacing the juror with members of the public not summoned to do jury service.
There was power in the statute to do so, but it would only happen in an emergency situation, and would be highly unusual, defence counsel Mr O'Sullivan said.