Manslaughter
Cases
The People (Attorney General) v. Thomas
[1954] IR 321
Court of Criminal Appeal.
The judgment of the Court was delivered by Maguire J.
MAGUIRE J. :
6 April
This is an appeal by leave of the trial Judge from a conviction of manslaughter at the Central Criminal Court on the 3rd February, 1954. The appellant was convicted of manslaughter on an indictment charging him that on the 25th day of August, 1953, on board the motor vessel “Munster,”an Irish ship registered in Dublin, whilst the said vessel was on the high seas between Liverpool and Dublin he murdered one, Robert Ernest Humphries.
The grounds of appeal mentioned in the certificate of the trial Judge are:
1, (a) that there was no legal evidence of the fact of the death of Robert Ernest Humphries;
(b) that the learned trial Judge was not entitled to leave it to the jury to infer the death of Robert Ernest Humphries on the evidence.
2. That there is no jurisdiction to try for the offence of manslaughter on an Irish ship where death does not occur on board the ship, or within the jurisdiction.
Notice of additional grounds of appeal was served by the appellant, but save in so far as these grounds apply to the sentence of six years’ penal servitude passed at the trial, these grounds are not relied upon, or pressed, on the hearing of this appeal.
As to the first ground of appeal, it is necessary to set out shortly the facts and circumstances. The appellant and Humphries were passengers on the M.V. “Munster” from Liverpool and were coming to Dublin together on holiday, both having been discharged from the crew of an oceangoing ship on the completion of its voyage the day before at Liverpool. Humphries was aged 22 and the appellant was aged 20. They had spent the greater part of the day in Liverpool drinking together, and with friends. They had gone aboard the M.V. “Munster” about 9.40 p.m. They had further drink on board. The ship left Liverpool about 10 p.m. Between then and midnight, incidents of quarrelling and fighting occurred in which there is evidence that the appellant was prominently involved. About midnight, in the course of a struggle in which the appellant and Humphries were involved, the appellant threw Humphries overboard,or caused him to fall overboard, from a deck on the ship 20 to 24 feet above water. The ship was then two hours out from Liverpool and some 15 miles from the nearest land the coast of Wales. The ship was travelling at 16 or 17 knots. There was a strong north-west wind and a choppy sea. The sky was overcast and cloudy. The incident was witnessed by a number of persons who gave evidence and described what occurred. The alarm was promptly given. Life-belts were thrown into the sea. The ship was stopped and turned round; then it went back over the same course it had taken. The sea was searched with strong lights for an hour and a half for Humphries, but he was not found. He was seen in the water once only by one person who saw him for a moment as he disappeared behind the ship a few minutes after entering the water. Notwithstanding what appears to have been a careful search, he was never seen again and his body was never recovered. There was no evidence that he was alive after that time. His mother, with whom these young men were going to stay at Bray, and with whom he communicated regularly when absent on voyages and always at Christmas, never received any communication from him. The M.V. “Leinster,” a sister ship of the M.V. “Munster,” was in the vicinity at the time of the occurrence. One of the life-belts was washed ashore on the Lancashire coast the following week. Humphries was stated to be a strong swimmer, but he had had a somewhat exhausting day culminating in the struggles mentioned and he had been precipitated into the water fully clothed from a height of at least 20 feet.
In these circumstances and on these facts we have to consider the first ground of appeal. This Court is of opinion there was evidence on which the jury could be satisfied beyond reasonable doubt that Humphries was drowned and that his death was sufficiently proved if the evidenced which I have only very briefly summarised, was accepted by the jury. The judge could not have withdrawn the case from the jury on the ground that there was not evidence, or not sufficient evidence, of death. It is well established that death and killing may be proved by circumstantial evidence: see the judgment of Mr. Justice Murnaghan in The People (Attorney-General) v. Kirwan (1), in whose opinion all the judges in the Supreme Court concurred. This ground of appeal fails.
The second ground of appeal depends on the proposition that Humphries did not die on board the M.V. “Munster”or anywhere within the jurisdiction of the Central Criminal Court. The submission of the appellant is that the Central Criminal Court has no jurisdiction where the death does not occur on board an Irish ship or within the territorial jurisdiction. Mr. Bell, in opening this appeal, at first conceded that there was jurisdiction to try and convict the appellant for murder, but not for manslaughter. Later, in the course of his argument, he withdrew from this and submitted that there was no jurisdiction in the Central Criminal Court to try the appellant either for murder or manslaughter. The whole question, therefore, is open and has to be considered. It is clear that the Central Criminal Court had jurisdiction to try and convict the appellant of an assault on Humphries on board the M.V. “Munster,” an Irish ship on the high seas. The distinction it is sought to draw between murder and manslaughter is that the intention necessary to constitute murder must be complete before the act which causes or results in the death. In the case of manslaughter, the intention to kill is absent and therefore the intention to kill cannot have been formed on board the ship before the man was thrown into the sea. Reg. v. Keyn (1) is strongly relied upon in support of this argument. Both the appellant and Humphries were aboard an Irish ship on the high seas at the time the assault that led to the death of Humphries was committed by the appellant. They were then clearly within the jurisdiction. This is a material particular not present in the case of Reg. v. Keyn (1) and the cases of United States v. Davis (2) and R. v. Coombes (3) mentioned and relied upon in Keyn’s Case (1). The facts in the present case were similar to, indeed almost identical with, those in R. v. Armstrong (4). Mr. Justice Archibald in that case directed the jury that the ship was a British ship, that the crime had been committed on a British ship on the high seas and that it was not necessary that the act should have been completed on board the ship as death was a direct consequence of the felonious assault. Armstrong’s Case (4)was cited and approved of by Lord Coleridge C. J. in Keyn’s Case (1) at p. 158. Mr. Justice Archibald’s view in Armstrong’s Case (4) was not disapproved of or even referred to at all by Cockburn C.J. or any of the Judges who joined in the majority judgments in Keyn’s Case (1). The gist of the decision was of the majority of the Judges in Keyn’s Case (1) that the defendant in that case at the time the act was done was not himself within the British jurisdiction. Keyn’s Case (1)arose on and was confined to a possible conflict of jurisdictions which does not arise here: see also R. v. Hindmarsh (5).
This Court is of the opinion that the death of Humphries was the direct consequence of the felonious assault on him by the appellant, and that it was not necessary for the purpose of giving jurisdiction to the Central Criminal Court that the death resulting from the assault should have occurred within the jurisdiction. This ground of appeal also fails.
It remains to consider the appeal on sentence. This Court fully realises that the trial Judge rightly took the view that this offence committed on an Irish ship on the high seas was of a very serious character. This Court cannot accept the contention that the offence should be treated as if it were a road accident. Nevertheless, regard must be had to the previous excellent character of the appellant, and to the strong and unbroken friendship between him and Humphries, the absence of any motive, or ill-will, towards Humphries, and the other extenuating circumstances in the case. The justice of the case will be met by a sentence of three years’ penal servitude to date from the conclusion of the trial on the 3rd February, 1954. It will be observed that the appellant has been in custody since the 25th August, 1953. Leave to appeal against the sentence will be granted and the appeal on sentence will be allowed to the extent mentioned. The sentence will be reduced to three years’ penal servitude as aforesaid.
On the application of counsel for the appellant the Court granted a certificate, pursuant to s. 29 of the Courts of Justice Act, 1924, that the decision involved a point of law of exceptional public importance, and that it was desirable in the public interest that an appeal should be taken to the Supreme Court. The grounds of appeal on which the certificate was granted were as follows:(1) that there was no jurisdiction in the trial Court to try for the offence of manslaughter on an Irish ship on the high seas where death was not proved to have taken place on board the said ship or within the jurisdiction.
(2) That the Court of Criminal Appeal was wrong in law in holding that there was any evidence of a felonious assault on board the Irish ship so as to bring the offence charged within the jurisdiction of the trial Court.
In accordance with the certificate granted by the Court of Criminal Appeal the appellant appealed to the Supreme Court (1) on the said grounds and on the following grounds:
(3) That there was no legal evidence of the death of Robert Humphries.(4) That the sentence imposed by the trial Court as altered by the Court of Criminal Appeal was excessive.
D. E. Bell, Senior Counsel (with him Noel Hartnett ), for the appellant:
The death of Robert Humphries has not been legally proved. An accused may not properly be convicted of murder or manslaughter unless the fact of death has been legally proved or the body found: Hale’s Pleas of the Crown, vol. 2, at p. 290. Proof of death in this case falls short of the minimum legal requirement.
The Central Criminal Court has no jurisdiction to try the accused for the offence of manslaughter where the death does not occur on board an Irish ship or within the territorial jurisdiction. Manslaughter is a complex crime consisting of two essential ingredients, namely, some unlawful act or culpable neglect which causes death, and the fact of death. In this case, since the death took place, if at all, in the water, the crime, not being completed on board the ship, was not committed within the jurisdiction: The Queen v.Keyn (1). The Court is confined in its admiralty jurisdiction to trying cases of crimes committed in Irish ships.
The old common law and rules of the admiralty jurisdiction applied only on a British ship. There is no three-mile limit about the ship. What is commonly called the three-mile limit is confined to the coast and if it were thought desirable that such jurisdiction should be given around a ship it would have been given clearly and unambiguously. [They also referred to Reg v. Lewis (2); R. v. Coombes (3);2 & 3 Edw. 6, c. 24; Territorial Waters Jurisdiction Act, 1878 (41 & 42 Vict., c. 73).]
J. Healy, Senior Counsel , and Brian Walsh, Senior Counsel (with them, A. Hederman ) for the Attorney General:
An accused may be convicted of murder or manslaughter notwithstanding the fact that the body of the victim has not been recovered if other evidence of death is available: R. v. McNicholl (4); R. v. Hindmarsh (5); Attorney-Generalv. Ball (6). It is submitted that there is ample evidence from which the factum of death may be inferred. In this case there was evidence that Robert Humphries had consumed about 231/2 pints of an intoxicant before he went aboard and that he had consumed more drink on the ship.
There was evidence of a struggle for some time prior to his being precipitated at least 20 feet into a choppy sea, approximately 15 miles from the nearest land. Assuming that he knew the direction of the nearest land and could, therefore, keep swimming in that direction, while there was evidence that he was a good swimmer, there was no evidence that he was a strong swimmer, capable of swimming the distance in the circumstances. Furthermore, there was evidence that prior to the occurrence, Humphries sent money regularly to his mother and that he wrote frequently to her; she has not heard from him since this event. It is submitted that this is ample evidence from which his death may be inferred.
The Central Criminal Court has jurisdiction to try and convict of murder or manslaughter if a live body is precipitated from an Irish ship into the sea and is not recovered. It is not necessary that the act should be completed on board the ship to give the Court jurisdiction: Reg. v.Armstrong (1). The death of Humphries was a direct consequence of an assault made on him aboard an Irish ship; that assault was felonious and as it occurred on an Irish ship it took place within the jurisdiction of the Central Criminal Court. [They also referred to The Queen v.Anderson (2); The Queen v. Mannion (3); Wills’ Circumstantial Evidence, 7th ed., at p. 348.
Supreme Court
The judgment of the Court was read by Maguire C.J.
MAGUIRE C.J. :
3. June
The indictment on which the accused was tried charged him that on the 25th August, 1953, while on board the M.V. “Munster,” registered in Dublin, and while on the high seas between Liverpool and Dublin, he murdered one, Robert Humphries. At the trial in the Central Criminal Court the jury returned a verdict of manslaughter. From that verdict the appellant appealed to the Court of Criminal Appeal. That Court affirmed the conviction.
The case comes before this Court by reason of a certificate granted by the Court of Criminal Appeal that the case was a fit case for appeal to the Supreme Court under s. 29 of the Courts of Justice Act, 1924, as involving a point of law of exceptional public importance.
Stated briefly, the salient facts of the case are:
The appellant, who is not an Irish citizen, was travelling on the “Munster,” an Irish ship, with his friend, Robert Humphries. Both apparently consumed a very large amount of intoxicating liquor during the day and the accused was in a very obstreperous, if not fighting, mood on the early part of the voyage. When about fifteen miles out from the Welsh coast the two friends came into handgrips. Humphries was thrown into the sea as a result. The ship was put about, a search made, but he could not be found and his body has not since been recovered.
The first point to be dealt with is that concerning the proof of death. It is argued that the death has not been legally proved. Mr. Bell’s contention on this point is founded on Hale’s famous dictum, which he says has never been departed from”I would never convict any person of murder or manslaughter unless the fact was proved to be done, or at least the body found dead.”
It must be taken from the verdict of the jury that they were satisfied that the appellant in the course of committing an unlawful act or by some culpable neglect of duty caused Humphries to fall overboard, and there was abundant evidence to support such a finding. They must also have found that Humphries was dead, since that is a necessary ingredient of the crime as explained to them by the learned trial Judge. It is submitted that the proof of death falls short of the minimum legal requirement.
The dictum of Sir Matthew Hale was considered by the Court for Crown Cases Reserved in R. v. McNicholl (1).Of it Sir James Campbell C.J., who delivered the Judgment of the Court said, at p. 583: “I should like to point out at once that these words, upon their ordinary grammatical construction, must be read as disjunctive, and when so read do not imply more than that, in order to convict an accused person upon a charge of murder, there must be proof, either of the fact of the murder, or of the finding of the dead body, and fall entirely short of the wholesale proposition that in no case ought there to be a conviction for murder unless there is proof of the finding of the body.” Later, he states that the Court had been able to arrive at the clear conclusion that what had been relied upon as an inflexible legal maxim is nothing more nor less than a wise and necessary caution to be addressed by the presiding judge to the jury. The actual decision in the case was that proof of the fact of murder might be established by the confession of the accused without the production of the body, and this involves the conclusion that in homicide cases it is not necessary to produce the body of the victim if the fact of killing be otherwise clearly proved.
In the case of The People (Attorney-General) v. Kirwan (1),Sullivan C.J., giving the judgment of the Court of Criminal Appeal, approved of the judgment in McNicholl’s Case (2)and added that the law was correctly stated in Wills’ Circumstantial Evidence, 5th ed., c. 7, s. 3, as follows:”It is now clearly established that the fact of death may be legally inferred from such strong and unequivocal circumstances of presumption as render it morally certain, and leave no ground for reasonable doubt.” This Court is of the opinion that the law is correctly laid down in the passages cited.
There was evidence that the deceased had consumed 231/2 pints of intoxicating liquor before going on the ship; there was further evidence that he continued drinking on board the ship between 9 and 12 o’clock at night. The jury might reasonably infer that he was therefore not in a good condition to sustain any great effort. He was also precipitated some 20 feet at least into the sea. The ship was 15 miles from land and, assuming he was not picked up, that would be the minimum distance he would have to swim even if he knew which was the right direction, which seems altogether improbable. There was evidence that the ship was turned and made a search for about an hour with its floodlights on and no sign was seen of Humphries. The sea was “choppy” and rather rough. There was another ship in the neighbourhood at the time of the search. The night was bright and the moon was out. There is the possibility that he might have been picked up, but, if he was, it could only have been with the knowledge of those on board the other vessel and it is altogether incredible that all on board would have kept silent in the circumstances. If some other boat, even a small one, rescued Humphries, it is again incredible that such a remarkable rescue as this would have been should not have become widely known in a matter of hours in these days of easy and swift communication. But that is by no means all. Humphries was returning to his mother’s home. She has not heard from him since the fateful night. Even if a desire on Humphries’ part to disappear happened to coincide with the opportunity to do so, there is a very cogent reason why he should have made it known that he was alive. The appellant was his close friend. He was put on trial for murder. That trial achieved very great publicity as might be expected. Surely Humphries, if alive, would not have allowed his friend to be placed in peril of his life when a word from him would save him. All these were matters proper for the jury to consider and no doubt they did so.
This Court is of the view that there was ample evidence before the jury on which they might conclude, if they saw fit, that the death of Humphries had been proved as a moral certainty and so as to leave no ground for reasonable doubt. The first ground of appeal accordingly fails.
The next ground of appeal is that there was no jurisdiction in the Central Criminal Court to try the appellant for manslaughter as the death did not occur on board the ship and so was not within the jurisdiction of the Court. It is clear that the Central Criminal Court has all the jurisdiction formerly exercised by the Admiral and later exercised by the Commissioners of Oyer and Terminer appointed to exercise the Admiralty jurisdiction in criminal cases (11, 12, 13 Jac. 1, c. 2 (Ir.)). This was not contested. Mr. Bell contended that the jurisdiction was confined to the trial of persons committing offences on board an Irish ship on the high seas where such offences were committed and completed on the ship. Manslaughter, Mr. Bell says, is a complex crime consisting of two essential ingredients. The first is some unlawful act or culpable neglect, which causes the death, and the second is the fact of death itself. The death admittedly did not take place on the ship. The crime, therefore, according to the argument, not being completed on board the ship was not committed within the jurisdiction. Mr. Bell referred at length to the case of The Queen v.Keyn (1). Keyn, a foreigner, was in command of a foreign ship which ran into a British ship within three miles of the English shore and sank her. A passenger on board the English ship was drowned. The facts were such as would in English law amount to manslaughter. On his being indicted for that offence in the Central Criminal Court the jury found Keyn guilty. Counsel for the prisoner objected that the Court had no jurisdiction. Pollock B., the trial Judge, stated a case on the point for the opinion of the Court for Crown Cases Reserved. The majority of the Court held that as the offence was not committed on a British ship there was no jurisdiction to try the prisoner, even though the ship at the time of the occurrence was within what has become known as the “three-mile limit.”
Particular reliance was placed upon that portion of the judgment of Cockburn C.J.. where he deals with the ingredients of the crime of manslaughter. The learned Chief Justice says that the crime involved two things essentially distinctthe act of the party killing, as the cause of death; and the death of the party killed, as the effect of the act.”But it is obvious,” said the Chief Justice, “that the act of the party killing may take place in one jurisdiction, the death of the party killed in another.” He then poses the question, “In which jurisdiction was the offence committed?”and answers, “In neither.” If the offence was committed in neither jurisdiction, he goes on to point out, it cannot, apart from express legislation, be tried at common law in either jurisdiction.
Applying these observations to the present case, the contention on behalf of the appellant is that since the death took place, if at all, in the water, the crime was not complete upon the Irish ship and therefore no crime in fact or in law took place on the ship, and it follows that the jurisdiction of the Central Criminal Court which is confined in its admiralty jurisdiction to trying cases of crimes committed in Irish ships is not brought into operation. If the argument is correct it would appear that there is no jurisdiction in any Court of this country to try either a citizen or foreigner on an Irish ship who by culpable negligence or design throws another overboard with the result that death occurs in the water.
Mr. Bell also relied on R. v. Coombes (1), which was a case of conviction for murder under an Admiralty Commission. A shot was fired from the shore at a person in a vessel on the sea, which killed him. The death therefore took place at sea. The judges held that the case was properly tried under the Admiralty Commission. It does not follow that the local territorial Court would not also have had jurisdiction. Reference was also made to the statute, 2 and 3 Edw. 6, c. 24, in the preamble of which it is recited that where a person is stricken in one county and dies in another no indictment lay in either, to avoid which the statute gives jurisdiction to the Court sitting in the county where death occurs. This was relied on as showing that in homicide cases where the act and the death take place in different areas of jurisdiction it requires a statute to give a Court in either area jurisdiction to try the crime.
The fact that numerous statutes exist settling disputes between rival Courts claiming jurisdiction, be they both territorial or one territorial and the other pertaining to the Admiralty, seems to have no real bearing on the issues in this case. Granted that there may have been no jurisdiction in either Court where the act in cases of homicide was done in one jurisdiction and death occurred in another, such considerations have no bearing where both the act causing the death and the death itself take place in a place where the trial Court has jurisdiction.
It is apparent that the offence the Court has to deal with was not committed within the territorial limits of the jurisdiction of the Central Criminal Court. If cognizable by that Court, it must be by reason of the fact that the ancient jurisdiction of the Admiral is vested in that Court. It was not questioned that the ancient jurisdiction of the Admiral was now vested in the Central Criminal Court.
It will be convenient in discussing the matter of the Admiral’s jurisdiction to consider it from two aspects. First, what jurisdiction the Admiral had as regards the place where the crime was committed, and, secondly, in respect of what persons that jurisdiction operated.
The jurisdiction as regards place is described in Blackstone’s Commentaries, Bk. IV, pp. 267-8, as being over “. . . all crimes and offences committed either upon the sea, or on the coasts, out of the body or extent of any English county, . . .” Stephens in his History of the English Criminal Law says that crimes at sea were under the jurisdiction of the Admiral. The statute, 11, 12 and 13 Jac. I, c. 2 (Ir.), by which the jurisdiction of the Admiral was transferred to certain Commissioners refers inter alia to all felonies thereafter to be committed “in or upon the sea” whereon the Admiral had or pretended to have jurisdiction. The English statute, 28 Hen. 8, c. 15, is similarly worded.
In Keyn’s Case (1), Sir R. Phillimore, at p. 67, Lindley J., at pp. 87, 88, Denman J., at p. 100, Brett J. A., at p. 148, Cockburn C.J., at p. 162, all refer to the jurisdiction exercised by the Central Criminal Court in England inherited from the Admiral and the Commissioners as covering offences committed on the high seas. It was decided in The Queen v.Armstrong (2), where the deceased was thrown into the water and not seen again that the offence need not be consummated on board ship, and this Court is of opinion that the case was rightly decided. This Court holds that as regards place, the offence was committed within the jurisdiction of the Admiral.
The other aspect of the jurisdiction now requires consideration. It is not necessary for the purposes of this case to enumerate all persons over whom the jurisdiction may extend. It is sufficient to say that it is clear law that the jurisdiction extends to a foreigner on an Irish ship.
It being undoubted that crimes committed by foreigners on board British or Irish ships are cognizable by British or Irish Courts, as the case may be, without any statute, is there anything in the origins or the legal theory giving rise to this rule of law to indicate that whatever jurisdiction attaches is limited to the punishment of a crime begun and completed on board the ship, as distinct from a crime completed by the death taking place in the water surrounding the ship?
The basis of the jurisdiction is the right of the country to which the ship belongs to control the conduct of those on board from the point of good order and the prevention of crime by virtue of the protection afforded to such persons while sailing in such ship. In The Queen v. Anderson (1)Blackburn J., at p. 169, says:”There are a vast number of cases which decide that when a ship is sailing on the high seas, and bearing the flag of a particular nation, the ship forms a part of that nation’s country, and all persons on board of her may be considered as within the jurisdiction of that nation whose flag is flying on the ship, in the same manner as if they were within the territory of that nation.”Coke says:” Protectio trahit subjectionem et subjectio protectionem. ” Lord Coleridge in The Queen v. Carr (2),says, at p. 85: “The true principle is, that a person who comes on board a British ship, where English law is reigning, places himself under the protection of the British flag, and as a correlative, if he thus becomes entitled to our law’s protection, he becomes amenable to its jurisdiction, and liable to the punishment it inflicts upon those who there infringe its requirements.” He adds that there is no distinction to be drawn between a member of the crew and a passenger.
In the case of The Admiralty (3), Lord Coke cites with approval the words of Beresford C.J. who, voicing the view of the Court in a case in the time of Edward I, said:”. . . the King willeth that the peace be as well kept upon the sea as upon the land; and it is not possible that peace should be kept without jurisdiction of justice.” In the very judgment relied on so much by Mr. Bell in his forceful argument, Cockburn C.J., at p. 235, says that the question is whether the defendant, at the time the act was done, was himself within British jurisdiction.
A foreigner may not, while under the protection of the flag, infringe the criminal law of the protecting country without incurring punishment. In what way do these principles apply to the facts of the present case?
The verdict of manslaughter in this case involved a finding of fact that Humphries is dead. The evidence points only to a death by drowning on the high seas. The other ingredient of the crime, the act or omission causing the death, occurred on board the M.V. “Munster,” an Irish ship. Thus the event leading to the death also took place upon the high seas. The two elements necessary to give jurisdiction were thus both present. The crime was committed on the high seas and the appellant was at the time of its commission on an Irish ship. The appellant was, therefore, properly triable in the Central Criminal Court.
The appeal in so far as it was based on want of jurisdiction also fails.
People (DPP) v Horgan
[2007] I.E.C.C.A. 29
JUDGMENT of Mr. Justice Kearns delivered on the 3rd day of May, 2007.
This is an application brought by the applicant pursuant to s. 2 of the Criminal Justice Act, 1993 for a review of certain sentences of imprisonment imposed on the respondent on 10th March, 2006, following his conviction on that date in the Central Criminal Court for the rape and manslaughter of Rachel Kiely on 26th October, 2000, at the Regional Park in Ballincollig, Cork.
The respondent had been arraigned on two counts on 29th April, 2002, as follows:-
(a) Murder of Rachel Kiely on 26th October, 2000, at Ballincollig Community Park, Ballincollig in the County of Cork.
(b) Rape of Rachel Kiely on 26th October, 2000, at Ballincollig Community Park, Ballincollig in the County of Cork.
A trial lasting 26 days took place in May, 2002 in the course of which the respondent gave evidence denying that he had anything to do with the death or rape of Rachel Kiely. However, at the conclusion of the trial, the respondent was convicted of the said offences and was thereupon sentenced to a term of imprisonment for life on the count of murder and to a term of imprisonment of ten years for rape, the same to run concurrently with the life sentence, but to date from the 6th November, 2000.
Because of an error in the summing up to the jury by the trial judge, both convictions were quashed by this Court on 6th December, 2004, and a retrial ordered, which said trial commenced on 21st February, 2006. On that date the respondent was re-arraigned and, in relation to the count of murder, he pleaded “not guilty of murder but guilty of manslaughter.” The respondent at all times maintained his plea of “not guilty” in relation to the count of rape.
The evidence at the second trial was to the effect that Rachel Kiely left her home in Inishmore Square, Ballincollig in Cork with her two dogs to go walking in the nearby regional park at about 5pm on 26th October, 2000. She was then 22 years old and worked as a beautician. While she was seen in the park at around 5.15pm, the dogs returned home without her at about 5.40pm, at which point her mother became concerned as to Rachel’s whereabouts and safety. Both the gardaí and friends were contacted and an extensive search was undertaken. Her body was found concealed in undergrowth near some old ruins located in the park. She had been raped and there was further evidence that she had suffered compression to her neck, probably as a result of an armlock, which precipitated her death by causing cardiac arrest. She also had extensive bruising along the left jaw line and some other scratches and superficial injuries.
Evidence as to cause of death was given in the first trial by former State Pathologist Dr. John Harbison. Unfortunately, due to his illness, he was unable to testify in the second trial. His successor, Dr. Marie Cassidy, gave evidence in relation to cause of death which was based on photographs only. She concluded that Rachel was caught and held in an armlock which compressed her neck and precipitated cardiac arrest and death. Semen found on the deceased matched a DNA sample from the respondent, who at the time was a sixteen year old neighbour of Rachel Kiely. The respondent did not give evidence at this second trial.
At the conclusion of the trial, the respondent was ultimately found not guilty of murder by the jury but guilty of manslaughter. He was also found guilty of rape by the jury.
On the same date, the respondent was sentenced to terms of imprisonment of eight years on each count, the same to run concurrently, but as and from the 10th day of March, 2006, with six years of the said sentences being suspended. In formulating the sentences, the learned trial judge noted that the respondent had already spent four and a half years in jail since 2002, the bulk of which was time spent in custody whilst awaiting trial, but some of which followed his conviction in the aftermath of his first trial. The learned trial judge had regard to the fact that the time spent in jail amounted to the equivalent of a six year sentence when remission for good behaviour was taken into account. The sentence of eight years then imposed effectively added a further two years to that six year sentence. The learned trial judge treated the respondent as a person with no previous convictions although that was not strictly the case as of the sentencing date, the respondent having been convicted of certain other offences in 2005, during the period when he was at liberty following the setting aside of his original convictions by this Court. As was noted in evidence given by Sergeant Denis Cahill in the course of the sentencing hearing, the respondent was charged with the main offences on 10th November, 2000. He went into custody on that occasion and remained in custody until 31st January, 2005. At that time he was granted bail by the High Court. However, he later went back into custody on 7th December, 2005, having been convicted at Macroom District Court in County Cork of three offences. These offences consisted of a s. 2 assault, possession of stolen property and burglary, all perpetrated while the respondent was on bail following the quashing of his convictions in the first trial. It appears he received a very light sentence of 30 days in respect of these offences. In passing sentence the learned trial judge treated the respondent as a person who had no previous convictions. He did so on the basis that the three offences dealt with in the District Court were committed subsequent to the main offences of which he was convicted at the trial. He did however state that these later convictions cast some doubt upon the genuineness of the respondent’s efforts at rehabilitation while in custody.
The Jurisdiction of the Court
Section 2(1) of the Criminal Justice Act, 1993, provides, inter alia:-
“If it appears to the Director of Public Prosecutions that a sentence imposed by a court… on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence”
The test to be applied on the hearing of such an application was laid down by this Court in Director of Public Prosecutions v Byrne [1995] 1 I.L.R.M. 279, where the following passage occurs at p.287:-
“…. since the finding must be one of undue leniency, nothing but a substantial departure from what would be regarded as the appropriate sentence would justify the intervention of this Court.”
In People (DPP) v Redmond [2001] 3 I.R. 390 this Court reaffirmed the basic principle that a sentence should not be disturbed just because members of the court, had they been dealing with the matter at first instance, might have imposed a different one. Absent exceptional circumstances, an error of principle must be demonstrated. Where, however, an error of principle is established, this Court should proceed to consider what is the appropriate sentence, following for that purpose the procedures required under the authority of The People (Director of Public Prosecutions) v Cunningham [2002] 2 IR 712.
The Application
The grounds upon which the applicant moves in the present case are as follows:-
(a) The learned trial judge failed to have due regard to the fact that the respondent had pleaded not guilty to the offences upon which he was tried until the 21st February, 2006.
(b) The respondent’s denials included sworn testimony denying the said offences during the course of his first trial.
(c) The learned trial judge gave undue weight to the age of the respondent as a mitigating factor when imposing a sentence.
(d) The learned trial judge erred in finding that the respondent had rehabilitated himself in whole or in part by virtue of educational opportunities taken by him whilst in custody when he had been convicted for other offences whilst on bail on the said charges, or, alternatively, giving undue weight to that consideration in the particular circumstances having regard to the absence of any contrition in respect of the offences until 21st February, 2006.
(e) The learned trial judge failed to have due regard to the fact that the particular offence of manslaughter was that of assault manslaughter committed in the course of or for the purposes of rape.
(f) that, having regard to the particular facts, the offence of manslaughter on this occasion had to be regarded as being in the most serious class of offences, being a category or class of greater seriousness than manslaughter where the evidence disclosed there was provocation or the use of excessive force in self – defence.
Submissions made on the application
In the course of the application before this Court, Mr. Patrick McCarthy, S.C., counsel for the applicant, contended that the aggravating factors of the offences far outweighed the mitigating factors. He submitted that the evidence in case showed that the respondent had “ambushed” Rachel Kiely while she was out for a walk in the park which was close to her home. The level of violence involved in the course of the rape of Rachel Kiely had led to her death, and was thus to be seen as being in the worst category, or at least in the same category, as those cases where a rape is accompanied by sustained or gross physical assault. Thirdly, he submitted that the value of any plea offered by the respondent at the outset of a second trial was negligible having regard to the history of the case.
Mr. Brendan Grehan, S.C., counsel for the respondent, urged that the original sentence should not be disturbed. He submitted that the characterisation of what had happened as an “ambush” of Ms. Kiely was unsupported by evidence and indeed there was no evidence that what had happened was premeditated. The respondent had made an amateurish attempt to cover his tracks and the jury had acquitted the respondent of murdering Ms. Kiely. He had offered a plea of guilty to her manslaughter at the outset of the second trial. He was aged only sixteen years when he killed Ms. Kiely and had no convictions prior to the date of the killing. The respondent had also apologised for his actions after the verdict was returned by the jury. He had not appealed against his conviction for rape. He was now a registered sex offender and was serving his sentence on a special wing in the midlands prison, Portlaoise, Co. Laois. He had been the subject matter of some quite vicious media reporting since the date of his conviction. All of this had added greatly to his suffering. Mr. Grehan urged that the respondent be permitted to continue his excellent progress on various educational courses and to be put on a treatment programme for sex offenders.
In relation to the offence of manslaughter, Mr. Grehan urged the court to take the view that this was a case of “involuntary manslaughter” where little violence had been inflicted on the victim. There was no evidence to suggest there had been any sustained or violent attack upon Rachel Kiely. The evidence of State Pathologist, Dr. Cassidy, indicated that some relatively short term compression of the neck could have precipitated cardiac arrest and caused of death of Rachel Kiely.
The Law
Manslaughter is an offence punishable with a maximum sentence of life imprisonment. Manslaughter consists of an unlawful killing and is currently defined by reference to two categories, voluntary and involuntary manslaughter. Voluntary manslaughter is, essentially, mitigated murder where the accused killed under provocation, or used excessive force in self-defence or could show diminished responsibility on a charge of murder or infanticide. Involuntary manslaughter is, as pointed out by O’Malley in Sentencing Law and Practice, 2nd Ed.,at p. 249:-
“…a somewhat misleading term in so far as it might suggest that the accused was acting involuntarily at the time, which is not, of course, the case.”
Involuntary manslaughter currently comprises two subcategories, being (a) manslaughter by an unlawful and dangerous act and (b) manslaughter by gross negligence. We are only here concerned with the former.
In Ireland, a conviction for unlawful and dangerous act manslaughter (where the unlawful act is an assault) arises where:-
(a) the act which causes death constitutes a criminal offence and poses the risk of bodily harm to another;
(b) the act is one which an ordinary reasonable person would consider to be dangerous, that is, likely to cause bodily harm.
(c) in this regard ‘dangerousness’ is to be judged objectively.
As pointed out in the recent Law Reform Commission Consultation Paper on Involuntary Manslaughter (published March, 2007) at p. 27:-
“The fact that an accused did not foresee, or indeed that a reasonable person in his or her position would not have foreseen death as a likely outcome of the unlawful conduct is irrelevant to a finding of guilt. Liability is constructive in that an accused’s intention to inflict some trivial injury to another person would make it justifiable for the law to hold him accountable for the unexpected result of his behaviour, that is, death.”
The requirement that the act must be both unlawful and dangerous to ground a manslaughter conviction was confirmed by this court in The People (AG) v. Crosbie and Meehan [1966]1 I.R. 490.
It almost goes without saying that manslaughter by assault may involve varying degrees of culpability due to the varying degrees of violence which may be employed. The Law Reform Commission Paper states:-
“The more brutal the assault (for instance if several punches or kicks are applied to the head or if the accused brandishes a knife), the more foreseeable death or serious injury are and the more reprehensible the criminal conduct.”
Different levels of culpability are reflected in sentencing decisions. In the first edition of his book on the topic Mr. O’ Malley states at p. 403:-
‘Of those imprisoned for manslaughter in 1993 and 1994, exactly 50 percent got five years or less and 50 percent got five to 10 years. Sentences in excess of 10 years are rare, though not unknown, and are generally reserved for manslaughters which, in terms of gravity, are bordering on murder. The general trend seems to be that the more deliberate and gratuitous the assault or violence leading to the victim’s death, the heavier the punishment that is deserved.”
In the second edition of Sentencing Law and Practice, Mr. O’ Malley notes at pp. 249 to 250:-
“Courts in several common law jurisdictions have said that the sentence for manslaughter must depend largely on the context in which the crime was committed …. it is clear that the amount of violence intended or inflicted is a crucial factor.”
Indeed, in The People (DPP) v Conroy (No.2) [1989] 1 I.R. 160, the Supreme Court noted that there was no presumption that a particular instance of the crime of manslaughter could not, from a sentencing point of view, be as serious as, or more serious than, an instance of the crime of murder and further that there was no sentencing principle which would inhibit a court from imposing the maximum permissible sentence for manslaughter merely on the grounds that such a sentence had not been imposed in recent times.
As was noted by this Court in People (DPP) v Kelly [2005] 1 ILRM 19, the court must in every case examine the range of penalties applicable. It must then ascertain the location within that range of the case under consideration. It is only after this examination has been completed that the court should consider any mitigating circumstances. Current Irish sentencing principles require an individuated approach.
That such an approach can yield widely varying outcomes is apparent from various decisions of this Court. In Conroy’s case, the appellant was one of four men who forcibly entered the home of an elderly woman, tied her to a chair and ransacked the house. They then entered another house occupied by two elderly men, each of whom was severely beaten. One of them died shortly afterwards as a result of his injuries, while the other died in hospital some weeks later. While the appellant pleaded guilty to burglary and manslaughter and had no previous convictions of significance, this Court imposed an effective sentence of 17 years in lieu of the sentence of life imprisonment imposed by the Central Criminal Court for the manslaughter offence.
A very different view was taken in People (Director of Public Prosecutions) v. O’ Donoghue [2006] IECCA 134. In that case the defendant was an adult male in his 20’s who had forcefully griped an eleven year old boy, a neighbour who he knew very well, in a headlock during a form of ‘horseplay’. He was charged with murder, and he pleaded not guilty to murder but guilty of manslaughter. In a statement to the gardaí, he claimed that he grabbed the boy after the boy had thrown stones at his car, and that the death had been an accident. At his trial he was acquitted of murder but was found guilty of manslaughter and was sentenced to four years imprisonment. The prosecution appealed against the sentence imposed on the grounds of undue leniency.
In the course of dismissing the appeal, this court noted that the death arose out of the catching of the young boy in a headlock and, even with the additional forcible grasping of the neck, this could not be described as “a deliberate, violent or prolonged assault” on the deceased. However, the court also noted that that conclusion by the trial judge that this might be described as being at the “horseplay end of things” was not inconsistent with its description of being “dangerous”.
Significantly, and in marked contrast to the present case, the O’ Donoghue case was bereft of any aggravating feature in the sense that the unlawful and dangerous act which resulted in the death was not, on the facts as found by the court, linked with any other offence, serious or otherwise.
Insofar as sentencing for rape is concerned, the Court is aware of a number of cases where in recent years this Court has upheld life sentences imposed by the Central Criminal Court for that offence, including The People (DPP) v. D (Unreported, Court of Criminal Appeal, 21st May, 2004), The People DPP v. RMcC (Unreported, Court of Criminal Appeal, 12th May, 2005), The People (DPP) v. Adams (Unreported, Court of Criminal Appeal, 21st December, 2004) and The People (Director of Public Prosecutions) v. King (Unreported, Court of Criminal Appeal, 7th April, 2005). Some of these cases involved multiple rapes and involved children, but in no case was the victim killed. In The People (DPP) v. Barry (Unreported, Court of Criminal Appeal, 16th Oct, 2006) a sentence of 21 years was upheld by this Court in circumstances where a young woman was assaulted and gang-raped by four assailants while her boyfriend was locked in the boot of a car. There is thus ample precedent for a sentence at the highest range when the particular facts and circumstances so demand.
As to the status and importance of previous convictions in the context of mitigation, the Court notes that in People (DPP) v Dwyer [2007] IECCA 3, February 2nd, 2007, it was held that it was wrong and an error in principle for the trial court to hold that convictions and sentences imposed subsequent to the date of the main offences but prior to sentencing for the main offences “can be effectively ignored”, particularly where they illustrate a propensity or where they relate to similar crimes, and that they must be taken into account – at least to some degree.
The Judgment
In passing sentence, the learned trial judge pointed out that the untimely death of Rachel Kiely had “undoubtedly devastated” the entire of the Kiely family. The Kiely family and the respondent’s family had been obliged to move away from the locality where they had been living. He noted that the respondent had, like the Kiely family, undergone the stress of having to face a second trial. He further noted that in the intervening period the former State Pathologist, Dr. Harbison, had become ill. He observed that Dr. Harbison’s illness had operated to the respondent’s benefit, “insofar as it seems that the evidence given by Dr. Cassidy was perhaps less forceful from the prosecution’s point of view in relation to the charge of murder.” He noted that “in the circumstances” the jury were constrained to return a verdict of manslaughter and “because of that, perhaps the rape was the more heinous of the offences you committed.”
He then detailed the factors he would take into account in imposing sentence. Firstly, he took into consideration the age of the respondent at the time when the offences were committed. The learned trial judge also dealt with the matter on the basis that, at the time when the offences were committed, the respondent was a person of good character with no previous convictions. The learned trial judge qualified that finding by adding: “but it does concern me, that within a relatively short period of being released from custody, you got yourself into trouble and it does give me concern as to whether or not you will in fact rehabilitate yourself and that was one of the reasons why I asked Mr. Grehan after lunch how you spent your time in prison and whether you had sought to avail of the educational opportunities that were going to be open to you.”
The response to that inquiry revealed that the respondent had completed both his junior and leaving certificates while in prison and this seems to have allayed the concerns of the trial judge on the issue of rehabilitation. The learned trial judge then proceeded to determine that concurrent sentences were appropriate in respect of the convictions for manslaughter and rape and that a sentence of eight years in respect of each of the counts was appropriate.
Having regard to the period spent in custody on remand, the learned trial judge assessed that this was the “equivalent of a six year sentence”. He then proceeded to impose the eight year sentence in respect of the two offences, but suspended six years of the eight year sentence in respect of each offence, the said sentence to operate from 10th March, 2006.
Decision
The court is satisfied that there was a basic error of principle in this case in the formulation of the sentence in that the aggravating nature of each offence upon the other was not adequately addressed. The learned trial judge made no reference to this consideration in the course of the sentencing hearing. In the view of this Court, this particular consideration is the distinguishing feature which places the offences in the category of the most severe.
In considering the conviction for rape, the court cannot ignore the fact that this offence was aggravated to the greatest possible degree by the dangerous manner in which it was perpetrated. This involved restraining the victim by her neck in an armlock or headlock, a manoeuvre which, as was frankly conceded in the course of the cross-examination of Dr. Cassidy, involved a high degree of danger to the victim. The learned trial judge, while undoubtedly mindful of the background facts, did not advert to them in any detail. The victim, who was known to the respondent, had gone for a brisk walk in a nearby park with her dogs. The court does not consider as unreasonable the characterisation of the rape and fatal assault on Rachel Kiely as a form of ambush in the particular circumstances. It was perpetrated in sobriety in the late afternoon. There was evidence that the body had been moved to a concealed position by the perpetrator. There was also evidence before the court that the respondent had attempted to run away or leave home at an early stage of the garda investigation. Sergeant Cahill testified that on the evening when the respondent was first interviewed at home by members of the gardaí, he thereafter left home with his bags packed and was subsequently picked up by the gardaí in Cork city.
The court is also of the view that the plea of guilty to manslaughter which was offered at the outset of the second trial must be seen as a relatively small value in the particular circumstances that the respondent gave sworn testimony that he had absolutely nothing to do with this matter when first tried. On any version of events, the lateness of the plea, coming as it did some five years after the events, greatly lessens its value. For much the same reasons, the value of the apology offered by the respondent in the aftermath of his convictions must be seen in the same light.
Insofar as the manslaughter offence is concerned, the unlawful and dangerous act which resulted in the death of Rachel Kiely took place during the course of a rape, which equally elevates that particular offence into the most serious category. The Court is of the view that there are strong public policy considerations which demand that a rape accompanied by violence which carries an appreciable risk of death, must be seen as being in a most serious category and must attract a sentence at the higher range. It is not in controversy in the instant case that the neck of the deceased victim, Rachel Kiely, was compressed, either prior to or during the course of the rape offence, and by any objective or reasonable standard this must be seen as a highly dangerous form of assault.
At the end of the day, it is perhaps unhelpful to characterise the case either as one of aggravated manslaughter or aggravated rape. The truth of the matter is that each offence was aggravated by the other. It is that interconnection which demands the imposition of a severe sentence. Having concluded that there was an error of principle in the formulation of the sentences by the learned High Court judge, this Court proceeded to hear further submissions from the respondent’s counsel before rising to consider the sentence it would substitute as appropriate. Having considered those further submissions, it is the decision of the Court to impose sentences which, whilst severe, will not deprive the respondent of some hope of rehabilitation and re-entry into society. The Court is also mindful of his very young age at the time of the commission of the offences. The Court also takes into account the fact that the respondent offered a plea of guilty to manslaughter at the commencement of his second trial, though that plea was of no great value when the entire history of the case is taken into account and notably where the denial of rape was maintained.
The Court will substitute sentences of twelve years on each of the convictions for manslaughter and rape, the same to run concurrently, and to be backdated to the 10th September, 2001. The Court would hope that the educational opportunities afforded to the respondent in the past will be continued during the remainder of his sentence.
Given that it formed no part of the applicant’s oral submissions before this court, and given that the decision of this Court in DPP v Dwyer [2007] IECCA 3 was not available to the learned trial judge or referred to by counsel for the applicant, the court in reaching its decision has not taken into account in any way, other than in the manner considered by the trial judge, the significance of the convictions incurred by the respondent during the period when he was on bail in 2005. The Court believes it was a reasonable approach on the part of the trial judge to treat the 2005 convictions as raising doubts about the sincerity of the respondent’s efforts at rehabilitation at that time and will refrain from considering any other sequelae which may flow from the Dwyer decision, given that it is not altogether clear from the judgment whether the later offences in that case were committed subsequent to the offences the subject matter of the application for review.
DPP v Joel and Costen
[2016] IECA 120
udgment of the Court delivered on the 4th day of March 2016 by
Mr. Justice Birmingham
1. On the 7th December, 2012, the appellants were each convicted at Wexford Circuit Court of the manslaughter of Evelyn Joel. The verdicts were by a majority of 11 to 1. Both now appeal against their conviction. On the 4th March, 2013, each appellant was sentenced to two years imprisonment which was suspended on condition that they perform 240 hours community service. The Director of Public Prosecutions has sought a review of the sentences imposed on grounds of undue leniency. However, this judgment deals with the conviction aspect only.
2. The background to this case is that the appellants lived together at Cluain Dara, Enniscorthy, with their two children who were aged twelve years and nine years at the date of trial. On or about the 23rd November, 2004, Evelyn Joel, mother of the appellant Eleanor Joel moved in to Cluain Dara. It appears that the expectation initially was that this would not be a long term arrangement, but would last until Evelyn was offered suitable accommodation by the Local Authority. Accommodation was required because Evelyn Joel was suffering from advanced primary progressive multiple sclerosis which had been diagnosed in 2000. Following the diagnosis, the appellant was offered a long term hospital bed in Wexford General Hospital, but she refused this, instead going to live with Alf Joel, her brother in law. She was estranged from her husband Billy Joel and when Alf became ill, Evelyn Joel moved to Cluain Dara. However, any expectation that her stay in Cluain Dara would be short term was not realised and she remained there for some fourteen months.
3. In December 2005, her condition deteriorated and she was admitted by ambulance to hospital in Wexford on the 1st January, 2006. The ambulance personnel who were called to Cluain Dara at the behest of Phyllis Costen, mother of the appellant Jonathan Costen, were greatly disturbed at the condition in which they found their patient. Ms. Eleanor Joel had asked Mr. Costen’s mother to come to the house to assist. The ambulance personnel found the patient in very poor condition, the bed that she was lying in was filthy, due the fact that she was doubly incontinent and her lower body was covered in faeces. She had extensive bed sores which were infected. On admission to hospital, she was bathed, her bed sores were attended to, she was provided with antibiotics to which she responded.
4. Following admission, she initially made progress in response to treatment, but unfortunately while in hospital she developed pneumonia. On the 7th January, 2006, Evelyn Joel died in Wexford General Hospital. Following on from the death of Evelyn Joel, both appellants were charged with manslaughter and the case advanced against them was that her death was due to their neglect while she was living in their home.
5. A number of grounds of appeal have been advanced in written and oral submissions. These might be summarised as follows:-
– An issue about the trial venue and the failure to accede to an application to transfer the case.
– An issue arising from the substitution of one juror by another.
– Issues in relation to causation, there are two submissions here, one identifying the threshold that the prosecution must meet and secondly whether the evidence in the case met the identified threshold.
– An issue about the relevance of the negligence of others and how this was dealt with by the trial judge.
– A subsidiary issue relates to the adequacy of the investigation that was carried out.
– A further issue which was specific to the appellant Jonathan Costen relating to the question of whether a duty of care existed.
The failure to transfer
6. On the 2nd October, 2012, the appellants made an application to the judge to whom the case was then assigned, His Honour Judge Hickson. There were a number of aspects to the application to transfer:
(i) That this was a re-trial and that the original trial which ran between October and December 2011, had received massive coverage in the local Wexford media over a seven week period.
(ii) The fact that the coverage of the first trial contained many references to the deceased having been starved and refused water, as well as other coverage that was now highly prejudicial. That evidence had emerged in a situation where both accused had initially faced a charge of reckless endangerment, but those charges were withdrawn from the jury at the close of the prosecution case. These issues were not expected to feature during any re-trial.
(iii) Concerns arising from the fact that it was the appellant’s defence that neglect and inadequacies on the part of the HSE, and in particular local HSE services in Wexford, and/or the two local housing authorities involved Wexford County Council and Enniscorthy Town Council, caused the death of Mrs. Joel or contributed to a very substantial extent to it. The actions of many employees of the HSE and of the local authorities would come under scrutiny.
7. The trial judge refused the application to transfer. In the course of this ruling he indicated that the reporting had in general been accurate and that there had been no particular victimisation of the accused by members of the public. He indicated that what concerned him was the media coverage arising from the count of reckless endangerment. He indicated that it occurred to him that it would be:
“Unwise and unsafe not to advise a jury, be they in Wexford or in Dublin that initially such a count was preferred against both defendants and then directed. It would be a risk to avoid mentioning it all together. That being so it seems to me that whether the trial takes place in Wexford or in Dublin, a judge will be obliged to direct a jury in relation to that issue and of course to properly charge then in relation to that issue.”
8. Section 32 of the Courts and Courts Officers Act 1995, deals with the question of transfers. The section so far as material provides:-
“32(1) Where a person (in this section referred to as ‘the accused’) has been sent forward for trial to the Circuit Court, sitting other than within the Dublin Circuit, the judge of the Circuit Court before whom the accused is triable may, on the application of the prosecutor or the accused, if satisfied that it would be manifestly unjust not to do so, transfer the trial to the Circuit Court sitting within the Dublin Circuit and the decision to grant or refuse the application shall be final and unappealable.”
9. The parties are in disagreement about the significance of the phrase “the decision to grant or refuse the application shall be final and unappealable”. The respondent says that the statement is an absolute one and an unqualified one and that it precludes any appeal at this stage from the decision of Judge Hickson. However, the appellants say that the effect of the section is simply to clarify that there is no possibility of a stand alone appeal and to ensure that once a judge has made a decision whether to transfer or to refuse to transfer, that the trial will then proceed.
10. The Court is of the view that the interpretation contended for by the appellants is the correct one. A decision in relation to the venue may be of fundamental importance. It would be unacceptable if a party who felt that they had been adversely affected by a decision in relation to venue were precluded from raising the issue in a post conviction appeal. There are two matters to which the Court will draw attention. The reference to “grant or refuse the application” is suggestive of an approach that precludes stand alone appeals after the decision to transfer or refuse is made. The concern seems to be that matters should proceed to trial without further delay. There is a further point, the section refers to the decision being “final”. A literal interpretation of the word “final” would appear to prevent a judicial review, but there have been judicial reviews. (See by way of example the case of Todd v. Judge Murphy [1999] 1 ILRM 261). In those circumstances, the Court believes that it has jurisdiction to entertain the appeal on this ground. However, the language of the section and in particular the phrase “the judge may transfer if satisfied that it would be manifestly unjust not to do so”, does not mean that transfers will be granted lightly, quite the contrary in the first instance. It is absolutely clear if there is an appeal, the situation is one where very particular regard must be paid to the view of the Circuit Court judge who dealt with the application. It is a situation where it is appropriate to afford a very considerable margin of appreciation.
11. The circumstances of Mrs. Joel’s death received significant coverage in both the local media and the national media. The first trial received significant coverage in the national media. However, the coverage of the trial in the Wexford media can properly be described as blanket coverage. The trial was a lengthy one, taking place over a seven week period and throughout the trial each of the Wexford newspapers provided massive coverage. It is undoubtedly the situation that people pay more attention to media stories that are local to them or in some other ways personal to them. The likelihood is that all of the members of the jury panel would have been exposed to the coverage from the time of the original trial. If the evidence on the re-trial was expected to be a repetition of the evidence from the first trial that would not give rise to a major problem, still less an insuperable one. However, in a situation where evidence given at the first trial of a particularly shocking and emotive kind, could not be adduced at the re-trial that did represent a difficulty. The extent of the coverage and the fact that coverage related to events that had occurred in their own area, in their own home county, meant that the scope for the fade factor to operate in respect of Wexford jurors was limited.
12. This was a case where the facts in issue were very unusual, were particularly sensitive, and particularly emotional. As a matter of common sense those who heard about such matters over a prolonged period in an intensive manner were very unlikely to forget. It was a situation where it was likely that views would be formed and where it would not be easy to set those views aside. In these circumstances the application to transfer was a meritorious one. Courts ought to trust jurors to be true to their oath and to decide cases on the evidence that they hear in court. However, jurors are human and jurors and potential jurors should be assisted where necessary and if it is reasonably practical to do so. Recognising this, jurors from the Enniscorthy area were precluded from serving on the first jury. Presumably this was on the basis that they would have learned by word of mouth and by whatever amount of pre-trial publicity there had been about the events at Cluain Dara and might have formed a view in relation to it. Such was the extent of publicity arising from the first trial across the County of Wexford, that jurors from every part of the County would have been placed in a difficult position. In this case, the issues at stake were so emotional and so sensitive and the coverage had been so massive and so intense that the case for a transfer was a truly compelling one. This was a case which should have been transferred from Wexford to Dublin.
The substitution of a juror
13. The sequence of events that have given rise to this issue would seem to be that after twelve jurors had been selected, the judge told the jury about the need to select a foreman. He told them that it would be an hour or so before the case was ready to start and that as soon as they were ready, they should let him know because he was proposing to keep the jury panel until he knew that the jury was ready to start. The judge then addressed counsel and told them of his intention to send the jury for an early lunch and proceed to deal in the absence of the jury with a defence motion. He then said that he was rising for a short while. Sometime later the judge returned to court and observed to those present that an unforeseen problem had arisen and that he might have to release one of the jurors. The judge inquired where was senior counsel for Eleanor Joel and was told by junior counsel for Jonathan Costen that she had stepped out for a moment as had Ms. Joel’s junior counsel and instructing solicitor. The judge then explained to junior counsel for Mr. Costen that one of the jurors apparently had become unwell, so that he proposed to release that juror and swear in another juror. Junior counsel for Mr. Costen commented that he did not see a difficulty with that and senior counsel for the prosecution also confirmed that he did not have a difficulty. The jury were then brought into court and the judge addressed the jury and one juror in particular, commenting that he understood that juror was not feeling well and that he was releasing that juror. Junior counsel for Mr. Costen then said to the judge that his instructing solicitor was not in court at present. There was then an exchange between judge and counsel with the judge commenting: “Well if you think I am going to hold up the matter because your instructing solicitor is not here, you are wrong”. Counsel replied, “I appreciate that.” The judge then instructing “do it yourself” to which counsel replied “may it please the court”.
14. While some doubt has been cast over this in the submissions on behalf of Jonathan Costen it appears very likely both appellants were present for this exchange and for the selection of the twelfth juror. What is clear is that the discharge of a juror and the selection of a replacement took place in the absence of the legal advisers of Eleanor Joel. That a judge, who was about to start what was obviously going to be a long and difficult case, would be anxious to get the case started and to ensure that no time was lost is understandable, indeed more than that admirable. Nonetheless, the Court is concerned that a significant step in the trial was taken in the absence of Ms. Joel’s legal advisers and without notice to them. Whatever the situation in other jurisdictions, peremptory challenges are very much part of the Irish legal system and are exercised by both prosecution and defence on a daily basis. It is true that the right to challenge is a right that is personal to an accused person, but in practice, accused persons will leave it to their lawyers to exercise peremptory challenges or indeed challenges for cause on their behalf.
15. The respondents in opposing this ground of appeal lays emphasis on the fact that the conviction was by an 11 to 1 majority, thereby it seems implicitly accepting that the appellant would have a ground of complaint had the verdict been a 10 to 2 majority. In the view of the Court, the distinction between an 11 to 1 majority and a 10 to 2 one is not really valid. Every juror has, of course, an opportunity to vote on the outcome of a case, but the capacity of a juror to influence the outcome is not limited to casting their own individual vote at the conclusion of the jury’s deliberation. During deliberation a juror may seek to persuade other jurors to their point of view. There is no way of knowing what role the juror who was selected in the absence of and without the knowledge of Ms. Joel’s lawyers played in the jury deliberations. It is possible that the juror was a powerful and persuasive advocate for a conviction and influenced the outcome to a decisive extent. This is an unsatisfactory state of affairs and the ground of appeal relating to Ms. Joel succeeds.
16. The position in relation to Mr. Costen is somewhat different. His junior counsel was in court and explained to the judge that his instructing solicitor was not present, to which, as we have seen, the judge responded “do it yourself”. Ordinarily, the challenging of jurors is undertaken by the solicitors on either side who have the jury list before them. While it was less than ideal that counsel should be asked to take on the responsibility of challenging a juror in the absence of an instructing solicitor, the position is distinguishable from that of Ms. Joel where no lawyer was present or knew of what was happening. So far as Mr. Costen is concerned, had this been the only point which was open to him the Court would not have been prepared to quash the conviction.
Ineffective investigation
17. The appellants have complained that their right to a fair trial has been comprised by an inefficient and inadequate investigation. They point out that their response to the allegations against them and their defence is in part based on a contention that others, including healthcare professionals and local authority officials, were responsible for such negligence as occurred. They say that no private individual and certainly not the appellants could have the resources to mount an investigation into the neglect of others. Accordingly, if their trial is to be a fair one it is essential that the possible responsibility of others should be thoroughly and fairly investigated by the various bodies having statutory responsibility on the area. There is no doubt that the fairness of trial may be compromised by what has happened prior to it. See in that regard the observations of O’Flaherty J. in Heaney v. Ireland [1996] 1 I.R. 580.
18. In any case, it is desirable that those tasked with the investigation should approach it with an open mind. However, if the investigation is not to be directionless, there will come a stage in most inquiries where there has to be a working hypothesis. Looking back retrospectively it may not always be easy to identify where one begins and the other ends. It may indeed be the case that the gardaí were entitled to take the view that there was no indication of criminal conduct on the part of either the HSE or local authorities or any officials of those bodies. However, what is surprising is that the gardaí asked an independent review committee established by the HSE tasked to review the scope, range and level of services provided to Mrs. Costen by the HSE during the two years before her death having regard to the medical conditions and circumstances and to review the delivery and coordination of these services, to review existing protocols and procedures for the delivery of these services and to make recommendations for the future as appropriate “to desist”. No doubt, the concern of the gardaí was that an ongoing parallel inquiry could prejudice their investigation. However, it is understandable if the targets of an investigation will feel aggrieved if alternative theories are not explored to a conclusion.
19. While it may be that there was no indication of criminal conduct on the part of the HSE or its employees, the nature of the HSE interaction with Mrs. Joel while in Cluain Dara gave rise to concern and disquiet. The late Mrs. Joel lived in Cluain Dara with her daughter for fourteen months. During the first ten months of her stay she was seen on fifteen occasions by a public health nurse or one of her team of registered general nurses. In contrast between the 6th September, 2005, and the 1st January, 2006, she was not visited by any HSE nurse and this notwithstanding that Mrs. Joel’s condition had been seen to be deteriorating up to that point. During the final four months of her life the HSE involvement with her was limited to leaving nappies outside the house where she resided. One would have to say that there were sufficient indications of possible failings on the part of statutory agencies, the then Minister for Health spoke of huge failings, that the matter required investigation.
20. The approach of the gardaí to the various healthcare professionals who featured in the case and were interviewed by gardaí was in marked contrast to the garda approach to the appellants. No nurse or indeed other HSE official was contacted directly by members of the garda investigation team: instead all of the nurses who had dealt with Mrs. Joel since her discharge from Wexford Hospital five years earlier went to the offices of the solicitors for the HSE. With the assistance of the solicitor, nurses prepared statements which were then “reviewed by” their Director of Nursing. However, notwithstanding that this may not seem entirely balanced, the Court is not persuaded by the arguments that the nature of the garda investigation rendered a fair trial impossible. As has already been said, looking back on an investigation it will not be easy to see how the balance between keeping an open mind and having a focused inquiry is to be struck. However, right from the time when the ambulance was called on the 2nd January, 2006, there had to be serious concerns as to the contribution to the deteriorating condition of Mrs. Joel made by the acts and omissions of the appellants. It was entirely proper that the gardaí should investigate the circumstances surrounding Mrs. Joel’s death and the gardaí cannot be criticised for focusing on the role of Ms. Joel and Mr. Costen.
Negligence of others
21. A central element of the defence case was that there was gross negligence on the part of others. The defence contend that in these circumstances it was not appropriate for the judge to tell the jury, as he did, that they “were not here on an inquiry into whether or not the Health Board was negligent, right? That is not the focus”.
22. There can be absolutely no doubt that the defence was fully entitled to run the defence that there was gross negligence on the part of the HSE and that substantial responsibility for the death of Mrs. Joel rested with the HSE and its employees. Had the judge prohibited the defence from pursuing the issue that would have been a serious matter. However, he did not do that. Rather what he did, and what he was fully entitled to do, was to instruct the jury that the focus of their consideration should be the question of whether the two accused were guilty or not guilty of the offences with which they had been charged. The oath that each juror had taken was to well and truly try the issue whether the accused were guilty or not guilty of the offences with which they had been charged and the judge was doing no more than reminding jurors of that fact.
23. However, that is not the end of the matter. Those healthcare professionals who dealt with Mrs. Joel while she was in Cluain Dara were material witnesses. Even if the nature of the defence that was going to be mounted had not been obvious that would still have been the case. However, given that the nature of the defence that was being advanced these individuals were potentially very significant witnesses indeed, and in the view of the Court ought to have been included in the book of evidence and called as witnesses or at the very least tendered so as to be made available for cross examination.
24. The question of whether the health professionals would be called by the prosecution or indeed by the trial judge was an issue at both the original trial and on the re-trial. Prior to the first trial, the appellants sought to have six public health nurses as well as the General Practitioner of the late Mrs. Joel and two occupational therapists added to the book of evidence. That application was opposed by the prosecution and refused by the trial judge. In these circumstances the appellants adopted a stratagem at trial which involved the witnesses in question being called by one accused and cross examined by the other.
25. In advance of the re-trial an application was made to the judge of the Circuit Court who was expected to be the trial judge. He indicated that if he was in fact the trial judge, he would direct the prosecution to call a number of the witnesses in question, failing which he would call the witnesses himself. However, he added that if he was not the trial judge that his ruling would not bind whoever was. In the event the judge who gave this indication was not in fact the trial judge and so the issue was revisited on the first day of the re-trial before His Honour Judge O’Donnabháin to whom the case was assigned. After hearing argument, at that stage Judge O’Donnabháin indicated that he did not see the need for Mrs. Joel’s general practitioner to be called as any failings on his part could be established through other witnesses. The judge was of the view that there was no need for any nurse other than Monique Crean, the public health nurse, who had dealings with Mrs. Joel to be called. However, in her case the judge said that he was disposed “at the moment” to call her. In response to this Ms. Crean attended court on the afternoon of the second day and the prosecution indicated that it would tender her then. The defence, who it seems, had not been told that Ms. Crean was coming to court that afternoon and were somewhat surprised at being asked to cross examine her at that point, were reluctant to proceed with the cross examination in a situation where transcripts of interviews that had been conducted with her line manager, which Judge Hickson had directed should be disclosed, had still not been made available. Accordingly, the evidence of Ms. Crean was deferred on foot of an application by the defence.
26. On day three, the court was told that Ms. Crean would be made available the following day. However, at the same time the prosecution re-opened the issue whether in fact Ms. Crean should be tendered at all. The other event of significance on day three was that the appellant obtained an extension of the legal aid certificate to cover the attendance at trial of Prof. Patrick Carr, a retired professor of nursing from Manchester University. Prof. Carr had given evidence at the first trial in relation to the needs of an individual with MS and whether those needs had in fact been met by the nursing professionals who dealt with Mrs. Joel. The application in relation to the certificate was made and acceded to in a situation where there had been a controversy about a fee note submitted by the Professor after the first trial, notwithstanding that the trial judge, Judge O’Donabhain agreed with counsel for Mr. Costen that the fee was perhaps the most reasonable that he had seen. The appellants were anxious that the jury should have the evidence of the public health nurses, before hearing from the professor. The court, however, felt that the professor could offer his opinion by reference to the nursing records and the judge was clear that he “would not get involved in calling the nurse until after hearing from the professor. The relevance of this is that when the court sat on day four, the judge commented that he had considered the matter overnight and had concluded that in the light of the fact that the defence would be calling an expert witness that he was not going to call Nurse Crean.
27. This Court has already indicated that these witnesses were material. As they clearly had material evidence to offer, they ought to have been called by the prosecution. The appellants did not carry through on the stratagem that had been adopted at the first trial. In part it would seem to have been because counsel for Mr. Costen attached significance to certain comments made by the trial judge which seemed to indicate the significance of the evidence of the nursing professor was very considerable indeed and that there was a risk of diminishing or undermining that significant evidence by calling other witnesses. Whatever the reason the defence did not in fact have an opportunity to cross examine the witnesses that they had wished to. In the view of the Court, the fact that these witnesses were not called to give evidence nor were they even tendered and thus were not available for cross examination rendered the trial unsatisfactory.
Causation
28. In a situation where Ms. Joel had a significant and complicated background medical history, had been hospitalised in the circumstances described and had contracted pneumonia while in hospital, causation was always likely to feature as a significant issue. It is necessary to determine first where the threshold is to be laid. Both sides made submissions to the trial judge on this topic. The prosecution contended that the test was that set out in People v. Davis [2001] 1 I.R. 146. That was an appeal against a conviction for murder. The conviction had been recorded in a situation where there was evidence that the deceased had been savagely assaulted, especially by kicks by the appellant shortly before she met her death. While alternative causes of injury were canvassed, they were regarded by the Court of Criminal Appeal as utterly lacking in credibility as a possible source of any significant part of the multiple injuries which the deceased lady sustained. The Court of Criminal Appeal was of the view that the injuries observed by Dr. John Harbison, State Pathologist were absolutely consistent with the applicant’s own description of the appalling assault he perpetrated on the deceased. There, Hardiman J. delivering the judgment of the Court of Criminal Appeal dismissing an appeal against murder conviction had commented:-
“It seems overwhelmingly probable the applicant’s attack was the sole cause of all significant injury. In point of law, however, it is unnecessary to go so far: it is sufficient if the injuries caused by the applicant were related to the death in more than a minimal way. There was ample evidence on which the jury could be satisfied beyond reasonable doubt that these injuries were the sole or principal cause of death and it is clear from the verdict that they were so satisfied.” (Emphasis added).
29. The appellants for their part contended that the test was as set out in People v. Dunleavey [1948] 1 I.R. 95. There, in a case where the appellant had been convicted of gross negligent manslaughter, having knocked down a cyclist while driving a taxi, the Court of Criminal Appeal, in a judgment delivered by Davitt J., offered a model charge for manslaughter by negligence cases. While the appeal was primarily concerned with the degree of negligence that was required to be established, the Court, in relation to causation, said that whatever words were used by the trial judge, the jury should be given clearly to understand: “that they must be satisfied that negligence on the part of the accused was responsible for the death in question”. The appellants go on to interpret “responsible for” with assistance from the Oxford Dictionary Online as meaning “being the primary cause of something” and so able to be blamed or credited for it”.
30. Insofar as Dunleavy and Davis appear to lean in different directions it has to be said that in neither cases did the observations in relation to the causation threshold form part of the ratio of the case. In Dunleavy, while the Court was offering general assistance, the question of causation cannot have been to the fore in the minds of the members of the Court given that this was really a degree of negligence case. In Davis the language of the judgment makes it clear that the observations in relation to de minimis being sufficient was not required as the evidence in the case went well beyond that. More fundamentally the remarks were in the context of a savage fatal assault and do not necessarily apply to a gross negligence manslaughter.
31. The trial judge was firmly of the view that the “more than minimal” test represented the law in Ireland. However, despite the firmness with which he expressed that view, his charge was in fact somewhat more equivocal. In the course of his charge, he commented:-
“Are you satisfied on all of the evidence you have heard that the gross neglect caused her death? Now by cause it is – does that neglect have a more than minimal involvement in causing her death. In other words did their action or their lack of action, their omissions, did it have a substantive cause in her contracting the pneumonia.”
32. The debate between the “more than minimal” versus “substantial cause” has arisen in a number of jurisdictions. Really there are three possible approaches. One that a jury should be told they had to consider whether the actions of the accused were responsible for, in the sense of the primary cause of the death. Two whether the jury should be told that the question was whether the actions of the accused were a substantial cause or a substantial contributing cause. Three whether the jury should be told that the question was whether the accused’s actions, contributed to the death in more than a minimal way.
33. The issue is the subject of a very helpful discussion in McCauley and McCutcheon on Criminal Liability. They correctly point out that the difference between the de minimis test and the substantive cause test is largely one of degree. The former is liable to cast the net wider than the latter – something which fails to satisfy the substantial cause test might still be more than minimal. The authors opine that in cases of what Glanville Williams describes as “incomplete mens rea”, such as manslaughter, there is an argument that the de minimis test sets the threshold too low. This Court agrees with that view and is of the view that in cases of manslaughter, the jury should be told that the issue is whether the actions or omissions of the accused was a substantial cause of the death. Such an approach is consistent with fundamental constitutional principles. If the situation was otherwise, it would mean that someone who had contributed to the death only minimally and whose contribution was dwarfed by the contribution of others could be solely made account.
34. In the Court’s view, this blurring of the distinction between the tests, however well intentioned, may have caused confusion on the part of the jury which will in any event have heard the reference to “a more than a minimal involvement”. There will probably be many cases where in truth the issue of causation is very clear cut, the Davis case was just one such case. In those circumstances any infelicity or inexactitude of language may well be capable of being overlooked. However, in this case the medical history of Mrs. Joel was a very complex one and identifying the exact cause of death was not altogether straightforward. In these circumstances the blurring of the test was unfortunate and for that reason this ground of appeal succeeds.
Sufficient evidence to be considered?
35. There remains for consideration the question of whether there was sufficient evidence in relation to causation to be left to a jury for consideration irrespective of where the threshold was set. The indictment laid against the appellants had charged them with the unlawful killing of Evelyn Joel by neglect, causing her to die of pneumonia, complicating sepsis syndrome, due to infected pressure sores, due to immobilisation, due to multiple sclerosis. That formulation reflected the opinion of Dr. Marie Cassidy, the State pathologist, as set out in her post mortem report of the 9th January, 2006. At later stages, two supplemental reports were provided by Dr. Cassidy. In a report dated the 17th July, 2006, she opined:-
“This lady ultimately died because she had bedsores which had become infected”.
That report continued:-
“Her carer(s) should have been aware of the severity of the ulcers. Had treatment been sought earlier it is possible that the ulcers could have been treated and she may not have died from infectious complications.”
36. A second supplemental report of the 14th May, 2008, saw Dr. Cassidy observe:-
“While in hospital she developed pneumonia, ultimately responsible for her death. This is not unusual in elderly bedridden patients particularly if they are generally unwell. The lung infection, however, would not be due to the same organisms as those found in the bedsores.”
37. The issue of causation was to the forefront of the appellants’ minds. They had issued a motion seeking an order pursuant to s. 4(e) of the Criminal Procedure Act 1967, as amended, on the grounds that there was insufficient evidence for them to be required to stand trial and seeking instead that the charges against them should be dismissed. The appellants say that the high watermark of the case against them is to be found in the report of Dr. Cassidy of the 17th July, 2006. That report said that they should have sought treatment earlier. Had they done so, it was a possibility that the ulcers could have been treated and, had they been treated Mrs. Joel might not have died. (Emphasis added, emphasis that of the appellants).
38. The appellants say that there was no evidence to support the proposition that any failure on the part of the appellants to call timely medical attention or other failure could be said to be responsible for the death of Mrs. Joel, as that phrase is used in Dunleavy, or to be a substantial cause, the alternative test that has found favour. Indeed they say that even if, contrary to their submissions, the de minimis test was to be applied that the evidence, with its reference to the fact that it was possible that Mrs. Joel might not have died had treatment been sought earlier, was so vague that even that test could not be met.
39. The appellants are very critical of the approach of the trial judge to the s. 4(e) application which had been adjourned by the judge who had sesin of the case originally to the first day of the trial. Then it is said that the trial judge did not fully engage with the arguments and instead allowed himself to be over influenced by the prosecution contention that the time to consider the application was at the close of the prosecution case in the ordinary way. The appellants say that this unsatisfactory state of affairs is compounded by the fact that when the issue was recanvassed in the context of an application for a direction at the close of the prosecution case that considerable significance was attached to what Dr. Cassidy had said in re-examination.
40. Clearly Mrs. Joel’s medical history was a very complex one. Shortly after she had moved in with her brother in law, Mr. Alf Joel, she had contracted a neurological disease. In a situation where she could no longer stand or walk she was hospitalised for one month in Wexford General Hospital in October 2000. There she was diagnosed as having primary progressive multiple sclerosis. This form of disease was likely to steadily worsen and there would be a severe decline at the end.
41. On the 22nd November, 2004, she moved into Cluain Dara. This was in a situation where Mr. Alf Joel had developed a severe respiratory condition for which he was hospitalised and had informed the HSE that he could no longer cope with Mrs. Joel when discharged home, because of her smoking habit. It is noteworthy that in Cluain Dara items such as a bathing hoist and pressure relieving cushions which had been available through the HSE to Mrs. Joel when staying with Mr. Alf Joel were no longer available to her while staying with the appellants.
42. Even on the day that she moved into Cluain Dara Mrs. Joel was very far from being a well woman. A nurse who visited her some eight months later on the 22nd July, 2005 found that her physical condition had deteriorated. At the risk of seriously understating the situation, the care that she received in Cluain Dara was seriously suboptimal. It could not really have been in dispute that professional support and medical attention should have been sought and obtained much earlier. However, the question is did that ground criminal liability?
43. In this case, the DPP was not contending that the appellants had directly caused the deceased to contract pneumonia. Rather the case for the prosecution was that the appellants had more than a minimal involvement in the series of events that culminated in Mrs. Joel’s death. Even on the basis of a requirement that the prosecution had to establish that the actions and omissions of the appellants contributed substantially to the death, it is the view of the Court that there was sufficient evidence both at the time of the s. 4(e) application and at the time of the application for a direction for the case to proceed. It is of course the case that at the time of the direction application the issue was whether there was evidence that a jury properly directed could, not necessarily would have been satisfied on this point. A jury so deciding would not necessarily be deciding that there were not others who bore responsibility or indeed deciding that the culpability of others was not considerably greater, than these somewhat pathetic appellants who were not even aware of the existence of the carers allowance but simply deciding that their failures contributed substantially. Obviously, if contrary to the view of the Court, the jury merely had to be satisfied that a contribution was made which was more than de minimis it would be easier for the jury to be so satisfied. In these circumstances this ground of appeal does not succeed.
The existence of a duty of care
44. This ground of appeal is specific to Jonathon Costen. A number of grounds of appeal have been formulated in this regard. In summary those grounds were:
1. failing to tell the jury that they would have to be satisfied that the appellant had voluntarily assumed the duty of looking after the late Evelyn Joel and/or that his prior conduct gave rise to a duty to look after the late Evelyn Joel:
2. failing to grant an application for a direction:
3. failing to redirect the jury that there was no general duty on the appellant to act in the circumstances of the case and
4. the learned trial judge erred and/or misdirected himself in law and/or in fact and/or in principle in that he determined that there was a legal duty on the appellant to act in circumstances where:
(a) that appellant was not a blood relative of Evelyn Joel;
(b) there was no contractual or statutory obligation on the appellant to act;
(c) the appellant had repeatedly demanded that Evelyn Joel leave the house;
(d) the appellant was not involved in attending to the sanitary or hygienic needs of the late Evelyn Joel and
(e) that the evidence before the court made clear that the appellant had not voluntarily assumed a duty of care towards the late Evelyn Joel nor had a duty arisen by virtue of his prior conduct.
45. The question of when a duty to act can be said to exist is considered by McCauley and McCutcheon in Criminal Liability. The point is made that traditionally there has been a judicial reluctance to create omission liability, the view being that such duties should be confined to a limited number of circumstances. Nevertheless the authors make the point that over the years the trend has been towards extending omissions liability.
46. The obligation to act or assist will in some cases be imposed by statute. Sometimes the law provides that a failure to act in the prescribed manner is an offence itself, but the law will sometimes go further and convict the offender of homicide if the victim dies. Some child neglect cases where parents were found guilty of homicide involved a duty to care and to act imposed by statute.
47. Again, a failure to perform a contractual obligation which results in death will sometimes be the basis of a liability. This, it was pointed out, is the explanation for a series of decisions which have held neglectful railway gate keepers guilty of manslaughter. More directly relevant, the authors point out that in some circumstances the relationship between an accused and victim is held to give rise to a duty to act. Examples are the duty of parents to a child or of children towards a dependent parent. More directly relevant still is the recognition that a duty to act might be derived from the assumption of a responsibility to act by an accused. Wherever an accused has voluntarily assumed a duty to act by reason of having undertaken the responsibility to care for that person he/she may be subject to criminal liability if he/she then subsequently fails to carry through on the responsibility that has been voluntarily undertaken.
48. The appellant says that he does not fall into any of the four categories that have been identified. There is no question here of a statutory responsibility. Nor, is there any question of contractual duty and there is no blood relationship between the deceased and this appellant. So far as the question of voluntary assumption of responsibility is concerned, the appellant says that far from undertaking to care for Mrs. Joel that he had made it clear at all times and right from the outset that he wanted her to leave the house.
49. It is necessary to see how this issue was dealt with by the trial judge in the course of his charge. He did so in these terms:
“Remember, you must look at the evidence individually, what is the case against each separately. And to establish this unlawful killing, the State are seeking to prove that each had a duty to care for Eleanor. Now how they had that duty, the State says, arises differently. For Eleanor is it because she was the daughter. It is because she invited her into the house, refused, as it were, to put her out or put her into a home and undertook her care. So that’s, the State says, where the duty arises. It’s different in relation to Jonathan Costen. He is the boyfriend or the partner, whatever you call it and he gets into the situation because of that relationship and because he is in the house and does he – the States says he undertakes the caring. Now, in relation to Jonathan, the defence say specifically in relation to his duty of care that, look, I’m the boyfriend there was constant trouble between me and my partner about how we would get her out of the house. I could not put her out. I asked the woman myself to go and I though I couldn’t do anymore. So, he says that even if there was a duty on me I did the best I could to get out of it. Now, the State says that is not true. So, first of all, are you satisfied in relation to both of them beyond a reasonable doubt that they had a duty of care, a duty to care in this case.”
50. The appellant submits that by reference to the judge’s charge the jury might well have concluded that Mr. Costen had voluntarily undertaken the care of Evelyn Joel and thereby assumed responsibility by the mere fact that he did not put her out of the house. It seems to the Court that there is some substance in that criticism. It would have been preferable if the charge had directed the attention of the jury to the question of whether Mr. Costen had involved himself actively in the care of his partner’s mother whether by checking on her or tending to her needs or whatever. Another possible way of approaching the case would be to say that Mr. Costen and Ms. Joel were a couple, a household and that they as a couple had voluntarily assumed responsibility for caring for Mrs. Joel. If the case had been put before the jury on that basis then obviously his efforts to exclude her from the house would be a relevant consideration.
51. There is a further point. The defence says that the trial judge misstated the defence case. The trial judge summarised the position of the defence as being “so, he (Mr. Costen) says even if there was a duty on me I did the best I could to get out of it”. Counsel for Mr. Costen says that was not the defence. Rather the defence was that Mr. Costen was not under a duty to Evelyn Joel. The defence case was that he had never assumed a duty to care for her and that throughout the time that she was in his house he repeatedly asked her to leave and asked his partner to get Mrs. Joel to leave.
52. The distinction between the defence that was actually presented and how the judge characterised the defence is a fine one but nonetheless a real one. It is true that this issue was not the subject of a specific requisition. But the question of what the judge had to say on the existence of a duty to care was the subject of a requisition. Counsel asked that the judge would tell the jury that there was no general duty of care. The judge felt that to go down that road would potentially give rise to confusion. The question of whether or not Mr. Costen owed a duty of care is a very significant issue indeed seen from the perspective of his legal team. It seems to the Court that it was understandable that the defence would have wanted it made clear to the jury that Mr. Costen could only be convicted if the prosecution had established beyond reasonable doubt that as an exception to the general situation, Mr. Costen had assumed a responsibility. It was desirable that it be made clear to the jury at the starting point, the general position, is that there is no obligation to care for another, but that there are exceptions to that and it was for the prosecution to establish beyond reasonable doubt that Mr. Costen came within one of those exceptional categories. Accordingly, on this ground Mr. Costen’s appeal succeeds.
53. In summary then, as each appellant has succeeded on a number of grounds the Court will quash both convictions.
The People (AG) v Crosbie and Meehan
[1966] IR 490
KENNY J. :
7 Sept.
John Crosbie, Patrick Meehan, James Meehan and William Bolger were tried in the Central Criminal Court before Mr. Justice Henchy and a jury in March, 1966, on a charge that they murdered Christopher Noel Murphy on the 21st of May, 1965. After a trial which lasted nine days the jury convicted John Crosbie and James Meehan of manslaughter and acquitted Patrick Meehan and William Bolger. The four accused had been tried with two others, Patrick Bradley and Michael Fagan, in the Central Criminal Court in November, 1965, when Mr. Justice Budd directed the jury to find Patrick Bradley and Michael Fagan not guilty and the jury disagreed on the charge against the four accused. An application for a certificate for leave to appeal against conviction and sentence by counsel for John Crosbie and James Meehan was refused by the trial Judge and they applied to this Court for leave to appeal. The arguments on the hearing of the appeal ended on the 27th July and the Court then stated that the applications for leave to appeal were refused and that the Court would give its reasons at a later date.
Christopher Noel Murphy was killed on the 21st of May, 1965, during a fight in what is called “the read room” in the docks in Dublin. The dockers seeking work meet in this room and those who are to be employed for the shifts during the day hear their names being read out by the representatives of the stevedores. Murphy was killed at 8.30 a.m. when there were about 500 persons in this room. His death was caused by a stab-wound inflicted on him by Crosbie who made a statement to the Guards in which he admitted that he had a knife with him at the time of the fight. There was abundant evidence on which the jury would have been entitled to find that the stab-wound which caused Murphy’s death was inflicted by Crosbie. A large number of witnesses were called by the prosecution: some of them had been in the read room when the fight occurred and the accounts which they gave of the sequence of the events differed in some details.
The accused, James Meehan and Patrick Meehan, are brothers. James lived at 15 Edenmore Grove, Raheny, Dublin, with two of his sisters, Ellen and Jean. Crosbie lived beside the Meehans, at 17 Edenmore Grove, Raheny: Patrick Meehan did not live in Raheny. James Meehan’s two sisters worked in a café at Burgh Quay and in May, 1965, a man
called Christopher Meier, who went to this café, had been offensive to them. They complained about this to James and Patrick Meehan and to Crosbie and on Wednesday, the 19th May, Crosbie assaulted Meier at the Labour Exchange in Gardiner Street. Crosbie intended to go to England on the evening of Friday, the 21st May, and the two Meehans, William Bolger and he decided that they would attack Meier in the read room on the Friday morning, the 21st May, when they knew he would be there. The four of them met on Friday morning and went into the read room. Crosbie was carrying a knife but there was no evidence that any of the other three accused knew this. James Meehan had a spanner which he described in his statement as being about a foot long and which he said he had “to defend myself.”
It is now necessary to give a description of the read room. There are three entrances into it, two on the east side and one on the west side. The two on the east are at the northern and southern ends of the east side while the entrance on the west side (called the stevedores’ door) is approached through a porch which is a small room at the south-west corner with doors on the north and south side of it. The two doors on the eastern side were sliding doors, while the stevedores’ door was on hinges. The porch was five feet by four feet and the northern and southern doors in it were closed throughout the fight. The read room was 75 feet, 6 inches, long and 68 feet wide. There are four stands in the room and from these the representatives of the stevedores, having climbed some steps, read the names of the dockers. Crosbie entered the read room by the lower door on the east side when Meier was standing near the stevedores’ door. The two Meehans, Bolger and Crosbie passed where Noel Murphy was standing and went towards Meier who was struck with a bar by James Meehan. Meier then ran towards the lower door on the eastern side of the room and escaped. Crosbie and the two Meehans were then attacked by three brothers, Liam Callaghan, Tony Callaghan and Joseph Callaghan, and Crosbie and James Meehan were driven into the porch. When Meier fled, Noel Murphy went down towards the porch and there was evidence that Noel Murphy was trying to separate Crosbie and one of the Callaghans in the porch while another of the witnesses said that Noel Murphy had got to the entrance of the porch when he was stabbed. Noel Murphy then staggered from the door of the porch into the read room, Crosbie came to the door of the porch leading into this room and Noel Murphy then said when Crosbie was standing near him:”He has a knife, he stabbed me.” There was no evidence that either of the Meehans or Bolger was near Crosbie or Noel Murphy whenthis remark was made. Crosbie, who had a knife in his hand, was then attacked by Michael Murphy who succeeded in getting it from him. Noel Murphy died on the 21st May as the result of a stab-wound on the right hand side of his chest.
In a statement which Crosbie made to the Guards he said:”I ran towards Myers (meaning Meier) and I got a wallop at his back with the bar. Then a melee started, someone jumped on my back. I tried to hit the man who jumped on me. I don’t think I struck him. I know the man who jumped on my back but I don’t like to give his name. Somebody else jumped in on me and a crowd dragged me into an alley way leading out of the read room. I didn’t get a chance to see who they were and I cannot name any of them. There was a general struggle in the alley way. Two or three were holding on to me. We struggled out of the doorway. The crowd were kicking and shouting and punching. They had a hold of me by the arm and the back of the neck. I could not do anything so I pulled out the knife. I had the knife in my hand. I pulled it out on a swing with my left hand and as I did a man jumped back away from me and cried out: ‘He has a knife, he has a knife.'” In a statement which James Meehan made to the Guards he said:”I approached Mears, my friends were standing behind me. I made a blow with the wrench at Mears and I missed. I made a second blow at him and I hit him on the shoulder. A general fight then developed. I was pushed into a doorway in the reading room by three brothers of the Callaghans and a few others. One of them was a fellow named Noel Murphy, a docker who lives on the south side of the city.”
The trial Judge gave the jury careful directions about the intent necessary to constitute the crime of murder, the inferences which they could draw about the common design of Crosbie, the Meehans and Bolger to attack Meier and to defend themselves against a counter-attack by Meier’s supporters, self-defence and provocation and as to the circumstances in which the killing of Noel Murphy could be manslaughter.
Counsel for Crosbie said that the trial Judge had misdirected the jury about the ingredients of manslaughter when he told them that they should apply the standard of the reasonable man when deciding whether Crosbie had done a dangerous act in producing the knife. Counsel asked the Court to hold that the much discussed decision in Director of Public Prosecutions v. Smith (1) was wrong and he cited the scathing criticism of it in the 1964 edition of Russell on Crime. The passages in the Judge’s charge to which counsel objected were:”The prosecution have to show that he(meaning Crosbie) did the fatal stabbing and that at the time he did it he intended not to cause death or serious injury but to cause an injury less than that or to use the knife for the purpose of frightening” (p. 17). “If you have not got this consideration of self-defence or inevitable accident, then you simply ask yourself the question: Did he kill him with the knife and at the time did he intend to cause him any injury or to use the knife for any purpose against the deceased man?” (p. 18). “If you use a knife as a weapon for the purposes of causing serious injury intentionally and death results it is murder. If you carry a knife for the purpose of frightening somebody and you kill that person in the process . . . that would be manslaughter unless one is covered by self-defence” (p. 34). “If you do not find him (meaning Crosbie) guilty of murder, you then consider the case of manslaughter. For that the prosecution must prove that he did the fatal assault, that he stabbed this man fatally and at the time he did so he intended not to cause serious injury but some injury less than that. You could also find him guilty of manslaughter if he killed under provocation; if his intention was not to cause serious injury, that he unlawfully caused an injury less than serious; or was using a knife to frighten or terrorise or put off others including Noel Murphy . . . then you could find him guilty of manslaughter” (p. 56). The trial Judge was asked to recall the jury when he completed his charge and when they returned, the Judge, in the course of his remarks to them, said:”I told you that if you found Crosbie not guilty of murder you pass on to the question of whether he is guilty of manslaughter and for that the State must prove he killed the deceased man with a knife and that, at the time he did so, he did the act with the intention of either causing him injury less than serious injury or that he had the intention of frightening or terrifying him at the time. That is correct, gentlemen, subject to this being made clear to you . . . that if you use something for the purpose of frightening or annoying somebody, it must be an act which, in the opinion of a reasonable person, is something likely to injure: the sort of use of a knife which, in the estimation of a reasonable person, is calculated to run a person, against whom he is using it, into the risk of some injury of some kind or whether if you are satisfied he took out the knife, not for the actual purpose of killing or committing serious injuryor if necessary any physical injurybut for the purpose of annoying or frightening the deceased man or any person around, but, if you think, in doing that, he should have realised that, in taking out the knife and using it in that way, a reasonable person would expect or feel that he could cause injuryto some of them, then he is guilty of manslaughter.”
A person who produces a knife with the intention of intimidating or frightening another and not for self-defence commits an assault and the act done is therefore unlawful. When a killing resulted from an unlawful act, the old law was that the unlawful quality of the act was sufficient to constitute the offence of manslaughter. The correct view, however, is that the act causing death must be unlawful and dangerous to constitute the offence of manslaughter. The dangerous quality of the act must however be judged by objective standards and it is irrelevant that the accused person did not think that the act was dangerous. In the opinion of this Court the statement of the law in R. v.Larkin (1), a decision of the Court of Criminal Appeal in England, at p. 219, is correct ill so far as it deals with the offence of manslaughter:”If a person is engaged in doing a lawful act, and in the course of doing that lawful act behaves so negligently as to cause the death of some other person, then it is for the jury to say, upon a consideration of the whole of the facts of the case, whether the negligence proved against the accused person amounts to manslaughter, and it is the duty of the presiding judge to tell them that it will not amount to manslaughter unless the negligence is of a very high degree; the expression most commonly used is unless it shows the accused to have been reckless as to the consequences of the act. That is where the act is lawful. Where the act which a person is engaged in performing is unlawful, then, if at the same time it is a dangerous act, that is, an act which is likely to injure another person, and quite inadvertently he causes the death of that other person by that act, then he is guilty of manslaughter.”
Counsel for Crosbie said that this view meant that a person could be guilty of manslaughter when he had no intent to do serious injury, that an intent to do serious injury was thereby attributed to a person accused of manslaughter and could not be rebutted while the effect of s. 4 of the Criminal Justice Act, 1964, is that the intent to do serious injury could be rebutted when the offence charged is murder. But the question in manslaughter is not whether the accused intended to do serious injury, for if he did, he is guilty of murder. The relevant intention in manslaughter is the deliberate doing of an act which is unlawful and which, judged by objective standards, is dangerous. Thus in a charge of manslaughter caused by the dangerous driving of a motor car, it is not a defence that the accused driver did not think that the driving was dangerous.In the opinion of this Court, the Judge’s charge in relation to manslaughter by Crosbie was correct.
Counsel for James Meehan submitted that the only evidence against his client that Crosbie had stabbed Noel Murphy was the statement by Noel Murphy, “He has a knife, he stabbed me,” and said that this statement should not have been admitted in evidence and alternatively that if it was, the Judge should have told the jury that it was evidence against Crosbie only and he relied on the decision in R. v. Bedingfield (1). In that case a woman rushed out of a room in which her throat had been cut by the accused and went into another room where she said something to those who were in it and Cockburn C.J., when sitting on Assize at Norwich, ruled that their evidence as to what she said was not admissible. This Court was not referred to the Irish decision in R. v. Lunny (2) in which Monahan C.J. seems to have taken a different view nor to the advice of the Privy Council in Lejzor Teper v. The Queen (3).
The Court is of opinion that evidence of the statement made by Noel Murphy immediately after he had been stabbed by Crosbie was admissible in evidence against all the accused, although it was hearsay, because it formed part of the criminal act for which the accused were being tried or for those who prefer to use Latin phrases, because it formed part of theres gestae. In Director of Public Prosecutions v. Christie (4)the accused was charged with indecently assaulting a boy who was five years of age. The boy’s mother stated that he left her at about 10 o’clock in the morning, that she saw him again at about 10.30 a.m. and that she took him across a field: the accused was then fetched after the mother had spoken to somebody else. The mother’s evidence was that the boy said”That is the man, Mum”, as they were going towards the accused. A policeman, who was standing near the accused asked what man and the boy then went up to the accused and gave a description of the acts which had been done: the accused then said:”I am innocent.” The policeman’s evidence was that the boy in answer to the question, “Which is the man,” went up to the accused, touched him on the sleeve and said:”That is the man,” and that the boy then gave an account of the acts done by the accused. The main matter debated in the case was whether the account given by the boy of what the accused had done to him was admissible in evidence and no objection seems to have been taken to the admissibility of the statement, “That is the man.” The Attorney General argued that the entire statement of the boy was admissible and relied on four separate grounds in support of this. One of these was that what the boy said was admissible as part of the res gestae. In the course of his speech Lord Reading C.J. said, at p. 566:”The statement under review formed no part of the incidents constituting the offence. It was not made whilst the offence was being committed orimmediately thereafter” (italics mine). “It took place after Christie had left the boy, and the mother had found him and taken him across the fields and had spoken to another man. In my view it was not so immediately connected with the act of assault as to form part of the res gestae.” In Lejzor Teper v.The Queen (1) Lord Normand when giving the advice of the Privy Council said, at p. 486:”The rule against the admission of hearsay evidence is fundamental. It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination, and the light which his demeanour would throw on his testimony is lost. Nevertheless, the rule admits of certain carefully safeguarded and limited exceptions, one of which is that words may be proved when they form part of the res gestae. The rules controlling this exception are common to the jurisprudence of British Guiana, England and Scotland. It appears to rest ultimately on two propositions, that human utterance is both a fact and a means of communication, and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words, and the dissociation of the words from the action would impede the discovery of truth. But the judicial applications of these two propositions, which do not always combine harmoniously, has never been precisely formulated in a general principle. Their Lordships will not attempt to arrive at a general formula, nor is it necessary to review all of the considerable number of cases cited in the argument. This, at least, may be said, that it is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it, in time, place and circumstances, that they are part of the thing being done, and so an item or part of real evidence and not merely a reported statement.” In the second edition (1963) of Professor Cross’ book on Evidence he wrote (at p. 466):”As the decisions stand, it is difficult to do more than say that the words proved under this head of the res gestae doctrine must directly concern the relevant event with which they are roughly contemporaneous.”
The words spoken by Noel Murphy were spoken within one minute of the stabbing. They related directly to the incident which was being investigated (the stabbing), and they were spoken immediately after it. If the words of Lord Normand are adopted, the words were so clearly associated with the stabbing in time, place and circumstances that they were part of the thing being done and so an item or part of real evidence and not merely a reported statement.
This Court is accordingly of opinion that the words spoken by Noel Murphy were admissible in evidence against all the accused.
The next ground of appeal advanced by Mr. Bell in the course of his closely-reasoned argument related to the apparent inconsistency of the conviction of James Meehan and the acquittal of Patrick Meehan and William Bolger. The trial Judge gave the jury directions as to the effect of provocation and of how it may reduce the crime of murder to that of manslaughter. What Meier did to the two Meehan sisters could not possibly be a provocation which would reduce the killing of Noel Murphy to manslaughter and the Judge’s charge in relation to provocation could have been understood by the jury as relating only to the provocation arising from the counter-attack by the Callaghans and Noel Murphy on Crosbie and the Meehans. Mr. Bell’s argument was:1, If it is assumed that the original common design of Crosbie, the Meehans and Bolger was to attack Meier and to defend themselves against a counter-attack by Meiers’ friends and if it is assumed that James Meehan was a party to this original common design until Noel Murphy was stabbed, the verdict means that the original common design was not to kill or to do serious injury and that the knife was not used with this common intention. There was, however, no difference in the cases against James Meehan, Patrick Meehan and Bolger and it follows that the jury could not have taken this view.
2, If, however, it is assumed that the original common design to do serious injury was shared by Crosbie and James Meehan only and if the jury accepted that Patrick Meehan and Bolger were not parties to it, they could acquit Patrick Meehan and Bolger but had to convict Crosbie and James Meehan of murder.
3, The jury did not, however, convict Crosbie and James Meehan of murder and therefore they must have taken the view that provocation reduced the charge of murder to manslaughter. Mr. Bell then argued that the provocation which led to the death of Noel Murphy was a novus actus interveniensand that the jury had not received any directions on this. At the trial the main case advanced by the prosecution was that there was a common design between Crosbie, the two Meehans and Bolger to attack Meier and to defend themselves against any counter-attack. We were referred to the decision of the Court of Criminal Appeal in England in R. v.Anderson and Morris (1). This Court accepts the view stated by Lord Parker C.J. in that case:”It seems to this Court that to say that adventurers am guilty of manslaughter when one of them has departed completely from the concerted action of the common design and has suddenly formed an intent to kill and has used a weapon and acted in a way which no party to that common design could suspect is something which would revolt the conscience of people to-day.”
But the verdict of the jury in this case shows that they must have rejected the view that there was a common design by the four accused to defend themselves against a counterattack and that they must have taken the view that the common design ended when Meier had been assaulted and had fled. The jury were, in these circumstances, entitled to consider the part which Crosbie and James Meehan took in the fight which developed after Meier had been assaulted, to treat that fight as something not connected with the common design and to convict James Meehan of manslaughter and to acquit Patrick Meehan and William Bolger. There were significant differences in the evidence against James Meehan and against Patrick Meehan and William Bolger which would justify this view and the verdict. The main differences were:1, there was evidence that Patrick Meehan and William Bolger had been dragged out of the porch and were fighting in another part of the read room before Noel Murphy was stabbed. 2, There was evidence that Liam Callaghan was struggling with Crosbie and James Meehan in the porch (Question 615, First Day). 3, The statement of James Meehan (which I have already quoted) shows that he was pushed into the porch by the Callaghans and by Noel Murphy. 4, The evidence of Liam Callaghan was that Crosbie and James Meehan were in the porch struggling with him. In our view the jury were entitled to conclude from the statement and the evidence that James Meehan was in the porch with Crosbie and was aiding him in his resistance to the counter-attack at the time when Noel Murphy was stabbed by Crosbie and that Patrick Meehan and Bolger were not there at that time.
If the jury took the view that the common design of the four accused was to attack Meier and that this design terminated when Meier had fled, then the provocation which consisted of the attack by the Callaghans and by Noel Murphy on Crosbie and on James Meehan would have reduced the killing of Noel Murphy from murder to manslaughter. This was a view which the jury were entitled to take on the evidence and if they did (as their verdict would seem to show that they did), the question of novus actus interveniens could not arise.
The whole of Mr. Bell’s elaborate argument on this aspect of the case was based on the submission that the common design of the four accused must be regarded as having continued up to the time when Noel Murphy was stabbed. Even if this was the case put forward by the prosecution, the jury were, in our opinion, entitled to bring in a verdict based on the view that the common design had ceased when Meier was attacked and the trial Judge put this way of viewing the case before the jury. He told them that they must consider the case against each of the accused and said (at p. 58):”If you find him (Crosbie) not guilty of murder, you then consider the case of manslaughter against them; but if you are satisfied beyond a reasonable doubt that Crosbie killed the deceased in circumstances consistent with either murder or manslaughter; whether they knew that Crosbie was going to cause an injury of some kind (an injury less than a serious one) to the deceased as one of Meier’s supporters; whether at that timethe time that the deceased was stabbedthey were knowingly giving aid or encouragementif you are not satisfied on these matters beyond a reasonable doubt they are entitled to a verdict of not guilty.” There was evidence upon which the jury were entitled to conclude that James Meehan was giving aid to Crosbie at the time when Crosbie stabbed Noel Murphy and much of this did not implicate either Patrick Meehan or William Bolger.
The People (Attorney General) v Dixon
Court of Criminal Appeal.
5 July 1951
[1952] 86 I.L.T.R 39
Maguire C.J., Maguire, Haugh JJ.
Maguire, C.J., delivered the judgment of the Court, and said:—
The applicant was tried in the Circuit Criminal Court before Mr. Justice Shannon, President of the Circuit Court and a jury on an indictment containing two counts, one of manslaughter and the other of dangerous driving. He was convicted on the first count and was sentenced to nine months’ imprisonment and ordered to be disqualified for life from holding a licence enabling him to drive a mechanically propelled vehicle. He applied through his counsel to the learned trial Judge for a certificate that his case was a fit case for appeal, this application was refused. The applicant now appeals against that refusal and asks this Court to quash the conviction on a number of grounds; in the alternative he asks that his sentence should be quashed as being too severe.
The case against the applicant was that on the date in question he was driving an empty lorry along the highway in the vicinity of the City of Dublin; he was one of a number of vehicles following each other along a stretch of road; the evidence given of the speed at which the applicant’s lorry and the other vehicles were being driven is that of a Mr. Haselbeck who was driving a car immediately in front of the applicant—he put the speed at which he himself was driving at between thirty and thirty-five miles an hour.
When the line of cars approached the junction at Monastery Cross, which is roughly of a “V” shape, the leading car slowed up preparatory to diverging from its course and going to the right in the direction of the bridge at Clondalkin. A bus was coming towards the junction, approaching from the direction of Clondalkin. The bus driver, observing that the cars were halted, accepted this as an indication that the way was clear for him, and continued on his course on to the main Naas-Dublin road. When the bus had almost passed Mr. Haselbeck’s car, the applicant’s lorry suddenly appeared on the road in front of the bus; the bus driver swerved to the left on to the footpath. The applicant’s lorry collided with the front of the bus and the bus was driven against the wall, with the unfortunate result that the little girl, Esther Traynor, who was walking down the footpath was crushed against the wall and lost her life.
The case against the accused mainly relied on by the prosecution was that the accused, when approaching the line of stationary cars was in a hurry to get to Kill to collect a load of sand, which he had to deliver in Dublin; that he seized the opportunity to pass the line of cars, swung out to the right and consequently got himself into the position that he was unable to avoid colliding with the bus, and was therefore responsible for causing the bus to swerve on to the footpath, causing the child’s death.
An alternative case was made against the accused, namely that, if he did not, as suggested, deliberately move out with the intention of getting past the cars in front of him, he swung out to avoid a collision with the car in front while travelling at so fast a rate that he was unable to control his own vehicle. In either view the accused might properly be found guilty of criminal negligence or in the alternative of dangerous driving.
The learned trial Judge reviewed the evidence and gave the jury a careful charge on the evidence, containing a direction with regard to the onus of proof and a direction with regard to what constitutes criminal negligence to which no exception has been taken on behalf of the applicant. The jury were absent for some time, and when they returned the foreman handed a note to the Judge which ran as follows:—
“If the jury are in doubt as to whether the accused deliberately intended to pass out the stationary cars ahead, should it have any bearing on our verdict on count No. 1?”
The Judge then proceded to give directions to the jury; with regard to the main portion of these directions no objection has been made on behalf of the applicant. The main ground of appeal is that the Judge slipped into a misdirection in the concluding portion of his remarks to the jury at this stage. The Judge gave the jury plainly to understand that any doubts they might have concerning the applicant’s deliberate intention to pass out the stationary cars would have a bearing on their verdict on the first count, and made clear to them that if they had a reasonable doubt whether that was how the applicant came to find himself where he was, the benefit of the doubt should be given to the applicant, and so far as the question of deliberate intention to pass out the stationary cars went, the applicant should be acquitted.
The trial Judge continued as follows, however:“But I don’t say it should acquit him because even if you all find that he had no intention of passing the stationary cars ahead you may be left with this position, that although he did not intend to pass them out, he should have realised that they had come to rest and that he was going so fast that he was unable to cope with the situation, that he should have realised it in the ordinary way.”
As I have already said, I think it is reasonably clear that the main case relied on against the applicant is that he intended to pass out the stationary line of cars and was, therefore, responsible for what happened, but that it was contended in the alternative that even if he did not intend to pass out the stationary cars, he was travelling so fast that he could not cope with the position in which he found himself and so was responsible for what happened.
Two objections were raised by the applicant to the passage quoted above. One is set forth in the first ground of the application for leave to appeal, that there was no evidence that the applicant was driving at an excessive speed. Mr. Hartnett has outlined, with the permission of the Court, an elaboration of that ground which might, perhaps, be more properly described as another ground, namely, that the trial Judge should have instructed the jury concerning the high degree of negligence necessary to make the applicant criminally liable for manslaughter, if the jury accepted the defence view that the applicant had not gone out deliberately to pass the stationary cars, and if they proceeded to consider the question of excessive speed.
This Court is of opinion that, having regard to the course which the case had taken and the difficulty which always surrounds cases of this sort it would have been more satisfactory had the trial Judge dealt more adequately and fully with this matter. In a sense, it was a new matter; the jury seemed to have directed their entire attention to the main case against the accused. If they were to be allowed to direct their attention to the new case of excessive speed, their attention should have been directed to the specific matters arising on the evidence bearing on the question whether the applicant’s speed was, in fact, excessive.
A very important element in favour of the applicant appears to have been overlooked in the Judge’s charge. Apart from the physical marks on the road, there was little, if any evidence from which the jury could gather what the applicant’s speed in fact was. Some of this evidence was in favour of the view that the applicant’s speed was not excessive.
With regard to the physical marks on the road, viewed from one aspect, these are capable of indicating a very fast speed on the lorry driver’s part, but viewed from another, might not indicate such a high degree of speed as would amount to criminal negligence. As Mr. Hartnett pointed out, there was some confusion concerning the length of the marks on the road, and concerning whether these were brake-marks produced by the application of the applicant’s brake or skid-marks made after the brake had been applied. It is only fair to say that Mr. Hannin made this matter more clear to the Court than it was at one time, but this is a matter to which the attention of the jury ought reasonably to have been drawn.
In the event, it is not necessary for this Court to deal with the other grounds of appeal. Leave to appeal is therefore granted, and the hearing of this application will be treated as the hearing of the appeal. The conviction against the applicant must be reversed and the sentence quashed; a new trial must be ordered, the costs of the appeal and new trial to be borne by the State.
The People (Attorney-General) v. Dunleavy.
[1948] IR 94
Court of Criminal Appeal.
15 May
DAVITT J. :
31 July.
This is an application by John Dunleavy for leave to appeal against his conviction on an indictment for manslaughter at the Dublin Circuit Criminal Court on 5th February, 1947, and against a sentence of eighteen calendar months’ imprisonment imposed upon him therefor by the learned Circuit Court Judge, Judge McCarthy. The accused was indicted that, on the 1st May, 1946, he unlawfully killed John Ryan. The case for the prosecution was that, about midnight on that date, the deceased man, while cycling along the main thoroughfare leading from Whitehall to Santry, on his own left-hand side of the road, within seven feet of the kerb, was run down by a motor taxi-cab driven by the accused. It was not alleged that the accused was driving at a fast rate of speed; in fact the evidence was that he was proceeding slowly; but the gravamen of the case against him was that, on an unlighted stretch, close to the city, of a main traffic artery over forty feet wide, he was driving without lights and within six or seven feet of the kerb on his own right-hand side.
The case for the applicant is that the learned Circuit Court Judge, in charging the jury, did not adequately or properly instruct them as to what constituted the crime of manslaughter by negligent driving, and as to what it was necessary for the prosecution to establish before the accused could be properly convicted.
The learned Circuit Court Judge based his instruction to the jury, as to the degree of negligence which the prosecution had to establish, mainly upon the observations of Hewart L.C.J. in Bateman’s Case (2). It is unnecessary fully to quote his instruction which is careful and conscientious and not very brief. The pith of his remarks is contained in the following passage:”In order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and shewed such a disregard for the lives and safety of others as to amount to a crime against the State and conduct deserving punishment; and, gentlemen, in the net result, what you have to decide is:did the accused, on the night of the 1st May, drive his car in such a way that his conduct was a danger to the public, in accordance with the statement of this Court?”The learned Judge did not explicitly tell the jury that a high degree of negligence on the part of the accused was essential.
Considering the charge as a whole, we are of the opinion that the jury were not instructed with sufficient clearness as to the different degrees of negligence, fraught with different legal consequences, of which a person may be guilty in driving upon the highway; nor of the very high degree of negligence on the part of an accused person, which the prosecution must establish in order to justify a conviction.
The crime of manslaughter, and in particular manslaughter by negligence, does not very readily lend itself to the task of precise and concise definition. It is, therefore, a matter of considerable difficulty to devise any brief formula of words, in which to instruct a jury, as to what constitutes this crime, which will be accurate and sufficient, and at the same time satisfactory for use upon all occasions. What is the most suitable direction must, to some extent, depend upon the circumstances of the particular case and the general course of the trial. It is well to bear in mind, as pointed out by Caldecote L.C.J. in R. v. Bonnyman (1), that what a jury requires is not a legal disquisition but a straightforward direction which will aid their common sense in arriving at a verdict upon the particular charge.
Notwithstanding the many fatal accidents which have accompanied the development of fast mechanised transport, there are few recently reported cases dealing with manslaughter upon the highway. During the earlier part of the last century, trial Judges usually approached the question of manslaughter from one or other of four points of view. Some considered that the crime was committed if death was occasioned by a trespass, or an act which was unlawful, or by negligence which amounted to an illegality. Others considered whether the fatal negligence was in breach of a dutytending to the preservation of life. Simple negligence or ordinary carelessness occasioning death was, in some cases, considered to amount to manslaughter. Some Judges on the other hand took the view that ordinary carelessness was not enough, and that the negligence causing death had to be “culpable” or “gross” or “criminal” before the felony could be committed.
The view that a simple act of ordinary carelessness which occasions death, in driving upon the highway, can justify a conviction for manslaughter, has not been acted upon for many years; and has been expressly negatived in many authoritative opinions, some of them very recent. The creation by Statute of such minor offences as careless or inconsiderate driving has rendered the doctrine of the unlawful act as a basis for the felony of manslaughter no longer serviceable in this connection. The modern approach to the matter is exemplified in the case of Tinline v. White Cross Insurance (1). There Bailhache J. said (at p. 330):”The crime of manslaughter in a case like this consists in driving a motor-car with gross or reckless negligence. Ordinary negligence does not make a man liable for manslaughter. No one has been able to define where the dividing line is to be drawn, but everyone agrees that it requires a high degree of negligence to make the offence manslaughter.” What appears to be an attempt at definition is the well-known passage from Bateman’s Case (2). Having referred to the practice of certain trial Judges of explaining to juries in manslaughter cases that, to justify a conviction, the negligence established must be “culpable,” “criminal,” “gross” or”wicked,” or deserving of some such epithet, the Lord Chief Justice continued (at p. 11):”But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.” That the Lord Chief Justice attached particular importance to this passage is to be inferred from the circumstance that later in his opinion (at p. 13) he repeats it almost word for word. In Andrews’s Case (3) he again refers to it and suggests that the last clause might, with advantage, be amended so as to read:”And shewed such a disregard for the life and safety of others as to amount to a crime against the State and to call for a conviction.”
[1948]
1 I.R. The People (Attorney-General) v. Dunleavy.
Davitt J. 100
Court of Criminal Appeal.
Though it is implicit in his opinion, it is in fact nowhere therein expressly stated that, to justify a conviction for manslaughter by negligence, it is necessary for the prosecution to establish on the part of the accused a high degree of negligence.
This Court is of the opinion that, with or without the amendment, the passage quoted, taken by itself, cannot be regarded as a satisfactory instruction to a jury as to the standard to apply in determining whether the negligence established in a particular case of death occasioned by negligent driving, is sufficient to justify a conviction for manslaughter, One might reasonably suppose that any jury empanelled to try a case of manslaughter would be aware that the defendant was charged with a crime; that they should not convict him unless they believed him guilty; and that conviction for crime usually entails punishment of some kind. It can add very little to their knowledge to tell them that the negligence established must amount to a crime, must call for a conviction, and must deserve punishment.
It does assist a jury to tell them that the negligence must go beyond a mere matter of compensation and be such as to shew a disregard for the life and safety of others. This direction does not, however, explain with sufficient clearness the high degree of negligence which is necessary. Negligence which exceeds the minimum requisite to establish civil liability may fall far short of what is necessary to establish manslaughter, and nevertheless be such as to shew a certain disregard for the life and safety of others.
The matter is clearly and correctly dealt with in Andrews’s Case (1). Having subjected the well-known passage from Bateman’s Case (2) to some not very stringent criticism, Lord Atkin proceeds to state that, in this class of case, simple negligence is not enough; that, for the purposes of the criminal law, there are different degrees of negligence and that a very high degree of negligence must be proved before the felony of manslaughter is established; that the degree of negligence which would be sufficient to establish the offence of dangerous driving under s. 11 of the Road Traffic Act, 1930, is not necessarily sufficient to establish manslaughter; and that it would be a misdirection to tell the jury that they might convict the accused if they were satisfied that the death in question was occasioned while the accused was committing, and because he was committing, an unlawful act such as the offence of dangerous driving. In that case, as is permissible in England, a count for dangerous driving was included in the indictment. This circumstance in no way prevents Lord Atkin’s remarks from applying with undiminished force to cases where a charge of manslaughter is alone preferred. Sect. 11 of the Road Traffic Act, 1930, is, in terms, very similar to our own Road Traffic Act, 1933, s. 51. Lord Atkin’s remarks as to the danger of equating the negligence sufficient for dangerous driving with that required for manslaughter are therefore of equal application here. He suggested that if any epithet were, in this class of case, to be used to qualify the negligence required, the word “reckless”while not entirely satisfactory appeared to be the most appropriate. This view was later, in Bonnyman’s Case (1)shared by Caldecote L.C.J.
The effect shortly stated of these four cases: Tinline (2), Bateman (3), Andrews (4), and Bonnyman (1) appears to be that a jury is properly directed, in this class of case, if they are told that simple negligence, in the sense of ordinary carelessness, is not enough; that a higher degree of negligence, such as would justify a conviction for the statutory offence of dangerous driving, is not necessarily sufficient; and that, to justify a conviction for manslaughter, the jury must be satisfied that the fatal negligence was of a very high degree and such as to be reckless or to amount to a reckless disregard for the life and safety of others. Such a direction has, we believe, been used upon many occasions by trial Judges in this country; and is, upon the whole, reasonably sound and workmanlike. It is not, however, in our opinion wholly free from criticism.
To say that a person is driving with a reckless disregard for life means that he does not care whether he kills anybody or not. Such a state of mind will ordinarily, but perhaps not universally, amount to general malice sufficient to justify a conviction for murder. To say that a person is driving with a reckless disregard for the safety of others, may mean no more than that he does not care whether or not he puts them in danger. This may amount to no more than dangerous driving. To associate these two ideas is not to achieve the desired mean, but possibly to import an ambiguity. On the other hand, if the reference to recklessness is merely omitted, the jury are hardly given all the assistance which they are entitled to expect.
This Court is of the opinion that a more satisfactory way of indicating to a jury the high degree of negligence necessary to justify a conviction for manslaughter, is to relate it to the
risk or likelihood of substantial personal injury resulting from it, rather than to attach any qualification to the word”negligence” or to the driver’s disregard for the life or safety of others. In this connection the American case of Commonwealth v. Welansky (1), a decision of the Supreme Court of Massachusetts, is of very considerable interest.
If the negligence proved is of a very high degree and of such a character that any reasonable driver, endowed with ordinary road sense and in full possession of his faculties, would realise, if he thought at all, that by driving in the manner which occasioned the fatality he was, without lawful excuse, incurring, in a high degree, the risk of causing substantial personal injury to others, the crime of manslaughter appears clearly to be established.
It may reasonably be assumed that any juror, sworn to try a case of manslaughter by negligent driving, will be aware that prosecutions of drivers for minor traffic offences, and civil actions for damages for personal injuries sustained in collisions upon the highway, are matters of common occurrence. Bearing this in mind, we are of opinion that whatever words are used by the trial Judge in his charge, the jury should be given clearly to understand as follows:
(a) That negligence in this connection means failure to observe such a course of conduct as experience shews to be necessary if, in the circumstances, the risk of injury to others is to be avoided,failure to behave as a reasonable driver would.
(b) That they must be satisfied that negligence upon the part of the accused was responsible for the death in question.
(c) That there are different degrees of negligence, fraught with different legal consequences; that ordinary carelessness, while sufficient to justify a verdict for a plaintiff in an action for damages for personal injuries, or a conviction on prosecution in the District Court for careless or inconsiderate driving, falls far short of what is required in a case of manslaughter; and that the higher degree of negligence which would justify a conviction on prosecution in the District Court for dangerous driving is not necessarily sufficient.
(d) That before they can convict of manslaughter, which is a felony and a very serious crime, they must be satisfied that the fatal negligence was of a very high degree; and was such as to involve, in a high degree, the risk or likelihood of substantial personal injury to others.
The learned Circuit Court Judge, in his careful and conscientious charge to the jury, placed far too much reliance upon the passage quoted from Bateman’s Case (1) and did not clearly impress upon them the necessity of being satisfied that the negligence proved against the applicant was of a very high degree. His instructions, taken as a whole, may reasonably have left the jury under the impression that, if the conduct of the applicant amounted to no more than the unlawful act of dangerous driving within the meaning of s. 51 of the Road Traffic Act, 1933, this was necessarily sufficient to justify a conviction for manslaughter.
For these reasons we consider that there has been a misdirection, and have seen fit to reverse the conviction and order a new trial.
People v Kehoe
[1992] ILRM 481
O’Flaherty J
This is an application for leave to appeal brought by Paul Kehoe. The applicant was convicted of the murder of Patrick Harvey on 1/2 March 1990, after a trial that lasted four days before Gannon J and a jury at the Central Criminal Court and which concluded on 26 October 1990, and for which he was sentenced to penal servitude for life.
There were a number of grounds of appeal but it is possible to say that the essential matter in controversy in this appeal has been the approach of the learned trial judge in his charge to the jury to the evidence of a psychiatrist, Dr James Behan, who was called on behalf of the defence.
The essential facts of this tragic case — tragic from the point of view of the deceased and his family; tragic also, it has to be said, from the point of view of the accused and his family — where the accused on a sudden impulse stabbed the deceased with a knife, are not in dispute. The case was presented by the prosecution with great fairness throughout and there was no suggestion that this was in any sense a cold-blooded killing, or that Paul Kehoe set out, having made careful preparations, to assassinate Patrick Harvey: that was never the prosecution case.
The facts, shortly stated, are that the accused had been friendly with Miss Sheila Murphy and she had had a child by him, and then, much to the accused’s distress, it appears that Pat Harvey who had up to then been his best friend appears to have started a relationship with Miss Murphy, and there is no doubt that this caused the accused acute jealousy and a form of suppressed rage which led, some short time before the actual events with which we are concerned, to the accused assaulting Pat Harvey by striking him some blows. Also, in a letter to Miss Murphy, the accused wrote that he had in his heart a wish to kill him (Harvey). So that was the background to his state of mind when, on the day of the occurrence, that is, on 1 March 1990, he met Miss Murphy and there appears to have been a certain amount of social intercourse between them, a considerable number of drinks were consumed and she invited him back to her apartment at Willow House, Mounttown Flats, Dun Laoghaire. There is no doubt that at that stage there was a good relationship between the two parties, and when he arrived at Miss Murphy’s apartment he went into the sittingroom, and then at a certain stage he went to the toilet, and he thought of going into one of the bedrooms with the idea of seeing his son, that is, the son to which he was the father and to which Miss Murphy was the mother. He went in and instead he saw Pat Harvey in the bedroom, and (at Vol. D of the transcript, at p. 23a) counsel asked him what effect this had on his feelings, when he discovered that it was not his baby that was there but that it was Pat Harvey (who was probably asleep), he said:
I couldn’t believe it. I was shocked. I was upset. I couldn’t understand why I was brought up there if he could have been there, you know? I shouldn’t have been brought up there.
Further when he was asked:
Now, you were shocked, you were upset. You were in the process of describing your reaction … Anything else you felt when you discovered the young man was in the bed and not the baby?
He said: ‘I just felt annoyed’.
The accused left the bedroom, went to the kitchen where he got a knife and ran back and stabbed Harvey. The accused’s actions afterwards are not of any great importance, except to say that on the next day he went and saw the gardaí and made a full statement which was in line with his evidence at the trial.
Now, it is clear from that that the only course the case could take was to come down to whether the accused was guilty of murder or manslaughter; the only defence the accused had was a defence of provocation. It is not necessary to review what is involved in that defence because it is accepted in this case that proper directions were given in accordance with the case of People (DPP) v MacEoin [1978] IR 27. The obligation on the prosecution, once such a defence is brought forward, is that the prosecution must establish beyond reasonable doubt that the accused was not provoked to such an extent that having regard to his temperament, character, and circumstances he lost control of himself at the time of the wrongful act. Then the jury should be told that they must consider whether the acts or words, or both, of provocation if found by them to have occurred, when related to the accused, bear a reasonable relation to the amount of force used.
If the prosecution prove beyond reasonable doubt that the force used was unreasonable and excessive, having regard to the provocation, the defence of provocation fails.
Provocation was the defence, and the only defence, as has been said, that the accused had in this case, and it was sought to buttress that defence by introducing the evidence of Dr Behan.
It is important to point out that Dr Behan was not called to establish a defence of insanity, or any form of mental illness or any form of derangement that might have occurred by the accused’s use of drugs and alcohol in regard to which it appears he had become dependent. While the evidence of a psychiatrist is, undoubtedly, relevant and admissible in such circumstances, as it will be if the defence of diminished responsibility or such is given recognition in our law it is clear to the court that Dr Behan could not in this case give any relevant, admissible evidence in relation to the state of mind, the temperament and these other matters that are referred to in MacEoin’s case, that the accused could not do himself. But he attempted to do so, and his approach, if it might be summarised, was to say that he had a great deal of experience of people who had been through emotional upset, people who had become involved with drink and drugs, and so forth, and that, therefore, he was in a strong position to give a clinical pronouncement on the reality of the defence that the accused man was putting forward.
At a certain stage, in cross-examination by the prosecution, Mr Mills SC put to him that really what he purported to give evidence about was properly a matter for the jury, Dr Behan justified his evidence by saying (at Vol. E of the transcript in answer to questions 153 and 154) that, having given a lot of thought to the case and from his experience of dealing with
people in and out of love, marriage break-up, all sorts of things, I feel that I have clinically, correctly, formulated the huge emotional distress this man went through, that it is within my sphere of expertise to do so, and within my sphere of knowledge and I have formulated that and told it to you. [He was] a man struggling with hurt, rejection, jealousy, rage, temper and the clinical indication which wouldn’t be apparent to ordinary people reading this correspondence [this was with Miss Murphy], but which would be apparent to me with my professional experience of indications of his endeavours to cope and you have this individual in this struggle and unfortunately, he was brought up to heights and then dropped down to depths that his personality couldn’t cope with so, respectfully, I would consider that it’s a proper clinical formulation.
The reference to the accused having been ‘brought up to heights’ was to the fact that they had had a happy day (he and Miss Murphy) and here he was, having seen Mr Harvey in the situation that he did, being plunged into the depths.
There is no doubt that Dr Behan was attempting to articulate in a fuller way what the accused had stated, rather briefly, viz his annoyance and upset but on which he based his defence of provocation.
The court is of the opinion that the accused’s defence was properly to be considered by the jury without such elaboration and that, further, in the course of his evidence it is clear that Dr Behan overstepped the mark in saying that he believed the accused did not have an intention to kill and that the accused was telling the truth. These are clearly matters four-square within the jury’s function and a witness no more than the trial judge or anyone else is not entitled to trespass on what is the jury’s function. This has been stressed over and over again in many cases, most recently in a decision of the Supreme Court in People (DPP) v Egan [1990] ILRM 780. So it appears to the court that the correct approach, where there is any doubt in the matter, is for the defence to canvass the view of the trial judge in the first instance as to whether psychiatric evidence is properly admissible, because the view of the court is that this was not a case for the admission of psychiatric evidence, and it would appear to be, as far as criminal cases are concerned, properly confined to the matters already mentioned, such as the defence of insanity or the like.
The Court of Appeal (Criminal Division) in England was confronted with a similar problem in a case of R. v Turner [1975] QB 834. The court was comprised of Lawton LJ, Neild and Cantley JJ. The facts were not dissimilar from this case, except that the provocation alleged was offered by a girlfriend of the accused’s and she, thinking that she was pregnant by him taunted him — at least he said that she taunted him — with the fact that she had relations with other men, and there was an attack made on her leading to her death. The course taken by the defence was to proffer to the trial judge a psychiatric report and to ask his ruling on it and he ruled that it was inadmissible and that ruling was upheld by the Court of Appeal. In the course of the judgment (at p. 841) the court dealt with the matter in this way. The court pointed out that what the psychiatrist intended to say was that the accused had a deep emotional relationship with the girl which was likely to have caused an explosive release of blind passion when she confessed her wantonness to him and that after he had killed he behaved like someone suffering from profound grief. The court took the view that these two points dealt with matters which are well within ordinary human experience. Lawton LJ, giving the judgment of the court, went on to say:
We all know that both men and women who are deeply in love can, and sometimes do, have outbursts of blind rage when discovering unexpected wantonness on the part of their loved ones; the wife taken in adultery is the classical example of the application of the defence of ‘provocation’; and when death or serious injury results, profound grief usually follows. Jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness are likely to react to the stresses and strains of life. It follows that the proposed evidence was not admissible to establish that the defendant was likely to have been provoked. The same reasoning applies to its suggested admissibility on the issue of credibility. The jury had to decide what reliance they could put on the defendant’s evidence. He had to be judged as someone who was not mentally disordered. This is what juries are empanelled to do. The law assumes they can perform their duties properly. The jury in this case did not need and should not have been offered the evidence of a psychiatrist to help them decide whether the defendant’s evidence was truthful.
It seems to the court that the law in Ireland is the same.
Nonetheless, the evidence of Dr Behan was profferred and was received in this case, and Mr Mills SC has told us that his dilemma was that he could not anticipate what evidence was going to be given and so was not in a position to take an objection to it. But the evidence having been profferred, complaint is made that the learned trial judge was rather scathing in relation to it, and to illustrate that it is well to refer to the passages of which complaint are made, and one is at the start of his charge to the jury, having made clear that his view of the evidence was not to influence them, in other words, having made clear that the matter of evidence and how they should assess it was a matter for them, the judge went on to say as follows:
I mention that initially because Mr Sorohan SC (for the defence) has concluded his address to you by laying a lot of emphasis on the evidence of a psychistrist who was telling you what he thought about the very issues you are being asked to try — and he is not a thirteenth juror; and you must be very careful to ensure that if you have to consider his evidence and to what extent you may consider it, that you do not allow it to override your own ideas about the evidence. That’s your function. I mention initially the nature of your function, that it’s yours, for the purpose of helping you to understand that from now on the case rests entirely with you.
Now, that was, it is said, the first salvo in the judge’s charge in relation to Dr Behan’s evidence, and then on the next day he went on to say:
You decide your case only on the evidence and on that I have to warn you, that not only have you been addressed by counsel, in addressing you about the evidence, with a lot of suppositions and hypotheses and fanciful notions about facts which didn’t come into the evidence, but a witness was called who did the same thing. You had a psychiatrist sitting in the box giving you a whole lot of evidence about people and ideas that he gleaned from reading the statement of what evidence was going to be offered, not on oath. He heard the evidence here and he purports to give us the opinion about the evidence which you are the persons only and you are the only ones who have to decide. So I have to warn you that that evidence is very suspect.
A particular criticism has been levelled at the use of the word ‘suspect’, but taking it in the context of the rest of the charge, we think it is clear that he was not saying that Dr Behan was a discredited witness, because he went on to say:
The psychiatrist was at a disadvantage that he was reading unsworn statements of evidence, of proposed evidence. He was interviewing the accused man who was awaiting his trial, who was under the trauma of having a trial before him, who as a man who, as you saw, had suffered consequent upon the whole event and was in that state, and that was his only source of information. He told you that himself. He didn’t speak to anybody else about the boy [meaning the accused] — what other people knew of him or what the history of him was, except from the boy himself and then while he was waiting for his trial — and then comes in here and sits and hears the evidence and starts talking to you about it as if he was one of you. When you are dealing with the evidence you go on sworn testimony of the witnesses which you have heard and whom you saw giving their evidence and whom you have heard being tested by examination and cross-examination. You have the benefit of your fellow jurors if you have any difficulty in remembering any of it or part of it or relating one to the other.
And then towards the end of his charge the judge said:
… I don’t propose going over the evidence of Dr Behan because, as I said earlier, an awful lot of that was theory based upon hypotheses for which he, on his own evidence, hadn’t got sufficient statements of fact which were verifiable or attempted to be verified and that is drawing inferences. He expressed a lot of ideas to you about the way the man may have behaved or the way he may have felt. The man himself didn’t say these things. I am not going to go back over them because I don’t want to repeat to you now the sort of things that shouldn’t have been put to you in evidence. You are the twelve jurors and Dr Behan is not one of them. So, so far as you are concerned, I am saying to you that if I were in your position I would not have any regard to Dr Behan’s opinions about what the element of intention was or was not. Because what you are doing, and what you have to do, is to consider the evidence you have heard here in court, and not from the point of view of whether Paul Kehoe has established anything at all, but only from the point of view of whether the State and the prosecution have sufficiently established, by the evidence that they have produced, the basic factor of an intention to do serious injury to the deceased or to kill him and that that was an intention which he had formed voluntarily and freely on his own will and that the consequences were such that he must have been able to recognise and intend those consequences. They are the elements. On all that it is a question of — has the State proved its case?
Reliance was placed on a decision of this Court (O’Higgins CJ, Finlay P and Doyle J) in People (Attorney General) v Shanahan 1 Frewen 417, where O’Higgins CJ, delivering the Judgment of the Court said at p. 420:
A trial judge in his summing up to a jury is entitled to indicate what his own views are, and if he chooses to do so to be critical of the accused and of his evidence. He must not, however, usurp or seek to usurp the function of the jury. It must be clear throughout, whatever he says to the jury, that it is they, not he, who will decide the case, and that his views are views only, to be discarded if the jury think proper and to be accepted only if they coincide with the view the jury forms.
Reliance was also placed on the case of People (DPP) v Doran 3 Frewen 125.
The court has two things to say about the submission which has been made on behalf of the accused and which is really at the heart of the appeal. It is encapsulated in ground 5 of the notice of appeal which states:
That as the evidence of Dr Behan was of critical importance to the defence and that counsel for the defence referred to the doctor’s evidence in some detail in his closing address, the learned trial judge failed properly or adequately to put the defence of the accused to the jury.
The court would wish to say, firstly, that at the very outset of his charge, without any doubt, the learned trial judge made clear that the findings of fact and their asssessment of the evidence was a matter exclusively for the jury and not for him. Secondly, and with regard to the other passages which have been quoted, it seems to the court that the judge was indicating to the jury the effect of Dr Behan’s evidence which is in accord with this Court’s assessment of his evidence. In other words, it is not so much that he was adversely commenting on Dr Behan’s evidence qua Dr Behan as a witness, but the judge was saying that his testimony could not prove or could not assist in proving anything that was not in the case already and put there by the accused. The judge was pointing out that the evidence of the psychiatrist had the infirmities that the Turner case predicated such evidence would have. So, in a sense, the learned trial judge was not adversely commenting on a witness as much as stating the correct law on the matter.
If one were to take the passage to the effect that the jury should not have any regard to Dr Behan’s opinion as simply a comment on a witness who had given relevant admissible evidence, the court is in no doubt that the judge would have done well to reiterate the warning that the matter was, in the last analysis, for the jury. Increasingly, it is the experience in this jurisdiction as it is in other jurisdictions that a trial judge abstains from offering any view of the evidence, good, bad or indifferent. That is not to say that trial judges are not entitled to offer a view, but more and more trial judges consider that juries are best left to see evidence through a glass clearly rather than to have it either magnified or diminished by the judge’s intervention.
*489
So, in summary, the court has reached the conclusion that this ground of misdirection, or mistrial, has not been made out. The court has carefully considered the other grounds of appeal, which are that there is a suggestion that the learned trial judge did not adequately direct the jury that all questions on disputed fact were for them but it is clear that he did make clear that the resolution of these matters was exclusively for the jury and the court is of the opinion that this ground has not been made out either.
We have also carefully considered the transcript of the trial in relation to the obligations that rested with the trial judge to put the defence case which is really one that was within the regime as laid down in People (DPP) v MacEoin and we are of the opinion that the trial judge was very careful to point out that the obligation was on the prosecution to prove an intention to kill or cause serious bodily harm and that once the defence of provocation was raised the onus of proof remained on the prosecution. It remained on the prosecution to disprove that the killing was provoked.
The court would not wish to conclude this judgment without making some comment on the way that the case was handled by both prosecution and defence and which was, as has already been said in the course of argument and at the outset of this judgment, a tragic case from everyone’s point of view. It was handled to the highest possible standards on behalf of the prosecution and defence and, unfortunately, it is only one of a number of these cases where there is a flare-up and there are tragic consequences and, often, unfortunately, related to circumstances which, when people have time to reflect, are very trivial compared with the enormous hardship and suffering that is visited on people afterwards. Defence counsel need have no concern but that they put forward everything that could possibly be urged on behalf of the accused and, indeed, more.
In the circumstances, the decision of the court is that application for leave to appeal should be refused.
Director of Public Prosecutions -v- Hussain
[2014] IECCA 26 (28 July 2014)
Accused/Appellant
Judgment of the Court delivered on the 28th July, 2014 by Mr. Justice Clarke.
1. Introduction
1.1 The main issue which arises on this appeal is concerned with the directions or charge given by the trial judge on a question of provocation. The tragic events which gave rise to the accused/appellant (“Mr. Hussain”) being before the Central Criminal Court occurred at about 2.00 pm on the 6th January, 2011. Arising from those events Mr. Hussain was charged with the murder of Muhammad Arif at 48 Fitzwilliam Court in Drogheda. In addition, Mr. Hussain was charged with assault causing harm (contrary to s.3 of the Non-Fatal Offences Against the Person Act, 1997), and, a separate charge of assault causing serious harm contrary to s.4 of that Act. Both of those later charges were in relation to his estranged wife Rashida Bibi Haidir. The s.3 allegation involved cutting wounds to the throat of Ms. Haidir. The s.4 charge related to a stab wound to her abdomen. Mr. Hussain did not deny that he inflicted the injuries which caused the death of Mr. Arif. He gave a less clear account concerning the injuries suffered by Ms. Haidir. In substance, the case which he made was that he had come across his estranged wife and Mr. Arif in circumstances suggesting that they were having an affair. He sought to argue at the trial that, as a result of such provocation, he lost his self control to such an extent as, it was argued, met the test for a potential finding of provocation such as would in turn have justified a jury in finding him guilty of manslaughter rather than murder.
1.2 The central issue in this appeal concerns the way in which the trial judge addressed the jury on the question of provocation. It will be necessary to deal with the precise terms of the judge’s charge in due course. However, the question of provocation was addressed on three occasions. First, in the course of the judge’s original charge to the jury. Second, in a recharge to the jury in circumstances where the trial judge, on being requisitioned by both prosecution and defence to recharge the jury on the question of provocation, had returned to the issue. Third, when the jury asked a question on the issue of provocation. It is common case that the trial judge’s initial charge on the issue of provocation was incorrect. The real issue between counsel on this appeal was as to whether or not this misdirection in law was cured by either or both of the subsequent statements made by the trial judge to the jury.
1.3 A second, and subsidiary, issue was argued on the appeal concerning certain photographic evidence which the trial judge permitted to be adduced but which, it was argued, ought have been excluded on the basis that it was more prejudicial than probative.
1.4 Further, it should be noted that counsel on behalf of Mr. Hussain brought a motion before the Court, on the occasion of the appeal, in which it was sought to argue a further ground of appeal which had not been included in the notice of appeal as had originally been filed. The ground sought to be argued was that the trial judge erred in his charge to the jury in that he directed them to assess recklessness in objective terms. Having considered the matter the Court decided that it would allow that ground to be advanced on the appeal. It follows that, in addition to the central ground of appeal concerning the judge’s charge on provocation, two further issues potentially arise being the admission of the photographic evidence and the judge’s charge on the issue of recklessness.
1.5 The Court proposes to turn first to the central issue of provocation and in that regard it is necessary to start by briefly outlining the law in this jurisdiction on provocation.
2. Provocation
2.1 Provocation operates as a partial defence which can reduce a charge of murder to manslaughter in situations where the accused suffers a sudden and temporary total loss of self control in response to provocation and commits the wrongful act in those circumstances. The position in this jurisdiction in respect of the defence of provocation is different from that which applies in England and Wales. At common law in the United Kingdom the test was an objective one (see R. v. Duffy [1949] 1 All E.R. 932). However, the defence is now the subject of statutory definition which has no counterpart in this jurisdiction. In that context it is necessary to turn to the Irish case law. In the judgment of this Court, delivered by Kenny J., People (DPP) v. MacEoin [1978] 1 I.R. 27, it was held that the consideration for the trial judge, before a plea can go to the jury, is whether there is:-
“any evidence of provocation which, having regard to the accused’s temperament, character and circumstances, might have caused him to lose control of himself at the time of the wrongful act and whether the provocation bears a reasonable relation to the amount of force used by the accused.” (p.34)
2.2 To succeed in the defence of provocation, a burden rests on the accused to establish the presence of the various elements of the defence (DPP v Davis [2001] 1 I.R. 146).
2.3 However, in MacEoin it was also held that:-
“the jury should be told that they must consider whether the acts or words, or both, of provocation found by them to have occurred, when related to the accused, bear a reasonable relation to the amount of force he used. If the prosecution prove beyond reasonable doubt that the force used was unreasonable and excessive having regard to the provocation, the defence of provocation fails”.
2.4 In People (DPP) v. Kelly [2000] 2 I.R. 1, Barrington J., delivering the judgment of this Court, noted that the court in MacEoin did not intend the last sentence from the passage cited to stand alone and imply a purely objective test. The question of whether there is a proportionality between the response to the provocation and the provocation itself can, however, be a factor which a jury can legitimately take into account but only in assessing the credibility of a case made to the effect that the accused had actually lost total control. In Kelly, Barrington J. said that:-
“The question they have to decide is not whether a normal or reasonable man would have been so provoked by the matters complained of as totally to lose his self-control but whether this particular accused with his peculiar history and personality was so provoked. At the same time they are entitled to rely upon their common sense and experience of life in deciding this as in deciding all other matters. If the reaction of the accused in totally losing his self-control in response to the provocation appears to them to have been strange, odd, or disproportionate that is a matter which they are entitled to take into consideration in deciding whether the evidence on which the plea of provocation rests is credible. “(p.11)
2.5 Thus, the law as it stands permits a plea of provocation to be put before a jury where evidence exists to suggest that the accused was actually provoked so as to suffer a temporary loss of control, and that his or her actions were in fact induced by the provocative conduct. Further, in assessing the credibility of the plea of provocation, the jury may have regard to the proportionality of the force used.
2.6 There was no dispute between the parties as to that legal position. It is against that background that it is necessary to turn to the way in which the trial judge addressed the question.
3. The Trial Judge’s Charge
3.1 In his initial charge to the jury the trial judge, when dealing with the question of provocation, said the following:-
“Provocation will reduce what, in the normal course of events, would have been a murder verdict back to the level of manslaughter. What is provocation? Provocation is constituted by words or actions or a combination of words or actions that so affect an accused person, having regard to his temperament, character and circumstances, that he so loses control of himself at the time that he carries out a particular wrongful act that he isn’t master of his own mind when he is doing that act. Now, when you consider provocation you have to – and it’s for the State to negative it – but you have to consider what is the temperament, character and circumstances of Mr. Hussain. Was he so provoked that he lost complete control of himself, that he wasn’t master of his own mind? You have to assess the circumstances of the case and you have to look at the circumstances of the case. You have to consider, well what is losing total self-control? Losing self-control does not occur – or I shouldn’t say does not occur, but simply losing one’s temper is not losing total self-control. A fit of jealousy does not constitute the loss of self-control. I can lose my temper with you and I can be totally aware of what I’m doing and I can be doing it knowing that you have annoyed me. I can get into a jealous rage and still be totally aware of what I am doing and be in total control of what I am doing. And we’re not talking about, as I say, what one might describe as a short tempered reaction. What occurred must happen suddenly. There must be no time for passions to cool and it must be, as I say, something whereby a person is no longer master of his own mind. The concept of provocation presupposes a non-functioning mind, a man doesn’t know what he’s doing. And before, in a case such as this one where the issue of provocation is being raised, before you can find the accused man guilty of murder, the prosecution must establish beyond reasonable doubt that the accused man was not provoked to such an extent that, having regard to his particular temperament, character and circumstances, he lost control of himself at the time of the wrongful act. You should consider whether the acts or words, or both, of provocation because it is suggested here that there is a combination, so to speak, of actions and words. If you find them to have occurred, when related to the accused, they are a reasonable relation to the amount of force used. If the prosecution has proved to your satisfaction beyond reasonable doubt that the force used was unreasonable and excessive, having regard to the provocation, then the defence of provocation fails.”
3.2 It was accepted before this Court by both sides that the statement made by the trial judge, in the last two sentences from the passage cited, to the effect that the defence of provocation would fail in law if the force used was unreasonable and excessive having regard to the provocation, was incorrect. That statement clearly implies that the jury should assess, objectively, whether the response to any provocation established was reasonable. That is clearly an incorrect statement of the law in this jurisdiction.
3.3 On being requisitioned by both sides the trial judge recharged the jury as follows:-
“As regards the question of provocation, I did tell you to consider whether the reaction was reasonable to the provocation, whether proportionality applied. Of course again I did advise you that the test was a subjective test. It’s not what’s in the mind of the reasonable man. It’s what was in Mr. Hussain’s mind. It might be better if you totally ignored what I had to say in relation to that but bear in mind, as I say, that it is a subjective test. It’s not what you, as a reasonable doubt man, might do but what Mr. Hussain, having regard to his personality, temperament and character, would consider reasonable in the circumstances.”
There is again a difficulty about the way in which the defence is explained in this recharge. In the final sentence the trial judge refers to what Mr Hussain “would consider reasonable”. That is not, of course, the test. The test is as to whether Mr. Hussain actually suffered a total loss of control, not whether he would have considered it reasonable to act in the way in which he did.
3.4 The trial judge was not, thereafter, further requisitioned on that issue.
3.5 However, the jury, through their foreman, asked for further clarification. As appears from the transcript of day 16 page 7 lines 25 – 34 and page 8 lines 1 – 3, the following exchange occurred between the foreman and the judge:-
“FOREMAN: If I may, your honour, I have had one request for a clarification.
JUDGE: Certainly.
FOREMAN: And it’s with regard to how does the view of a juror on the proportionality of a reaction affect the defence of provocation?
JUDGE: Well, I think I advised you that you should perhaps disregard the issue of proportionality because it is perhaps a two edged sword from the point of view that someone might perhaps say, well you know somebody couldn’t react in that manner, it’s way out of proportion but equally it could be said, well if they’re out of their mind obviously they will react in that manner and the issue of proportionality is really a matter for the mind of the accused man rather than the mind of a juror. It’s not a question of an objective view. It’s a subjective view. So, as I say, I think all told it might be better if you disregarded the issue of proportionality.
FOREMAN: Understood. Thank you.”
First it must be noted that the jury, in the light of the charge and the recharge, clearly remained unclear, as of that stage, about the defence of provocation. Although it may well have been in favour of Mr. Hussain, it was also incorrect of the trial judge to say to the jury that they should totally disregard proportionality. On the basis of the jurisprudence which has already been analysed, it is appropriate for the jury to consider the reaction of the accused to the events in question as part of their overall consideration as to whether they conclude, as a matter of fact, whether or not the accused did suffer a total loss of control. In addition it should be noted that no requisition was made to the trial judge arising out of his reply to the foreman’s request.
3.6 It being accepted that the initial charge of the trial judge was incorrect, the real question which arises under this heading is as to whether the mis-statement of law given in the initial charge had been adequately redressed, by either or both or a combination of the subsequent statements made by the trial judge to the jury, so that no real risk of the trial having been unfair remained. Before going on to assess that issue, it is also of some importance to have regard to the jurisprudence concerning points which, as the prosecution put it, are let lie at a trial. It is, therefore, appropriate to turn briefly to that jurisprudence.
4. Points Let Lie at Trial
4.1 This Court considered the question in People (D.P.P.) v. Cronin [2003] 3 I.R. 377, where, in a judgment delivered by Hardiman J., the Court concurred with a passage from People (DPP) v. Moloney, (Unreported, CCA, 2nd March, 1992) to the following effect:-
“We would wish to reiterate the jurisprudence of the court which has been in place for many years that there is an obligation on counsel on both sides, the prosecution and the defence, to bring to the attention of the trial judge any inadequacies they perceive in his directions to the jury. If an appeal is brought before this court on a point that has not been canvassed at the trial this court will regard any person making such a new point as having an obligation to explain why it is sought to be made on appeal when not made at the trial. That is not to say but that if the essential justice of the case calls for intervention we have an obligation so to intervene.”
In adopting that passage, Hardiman J. held, at p.391.:-
“The reason for this rule or statement of principle is not at all a technical one, or one merely designed to assist in the orderly conduct of trials and appeals. It is to ensure a proper relationship, based in reality, between the conduct of an appeal and the task on which the court is engaged, which is to say whether or not the trial was a safe and satisfactory one.”
4.2 On appeal Geoghegan J., on behalf of the Supreme Court, (see D.P.P. v. Cronin (No. 2) [2006] 4 IR 329) agreed with the view of Hardiman J. and held, at p.339 that he would agree:-
“with the view of the Court of Criminal Appeal that the applicant was defended with skill and competence at the trial. It would be wrong now to set aside the conviction on foot of matters which were deliberately never raised in requisitions unless this court were of the view that a fundamental injustice had been caused.”
4.3 It is, of course, true that the question of provocation was not allowed to lie still in this case. On the contrary both counsel sought a recharge of the jury on the point. The application of the general principle in such circumstances was considered by this Court in D.P.P. v. McGovern [2010] IECCA 79 where it was held:-
“This court should not entertain an application in respect of grounds which relate to the five requisitions which were acceded to and where the recharge was in the terms requested by the defence unless circumstances exist in which the court should entertain such grounds: the application may be entertained if there is an explanation for the failure to requisition the trial judge and the essential justice of the case so requires.”
4.4 Likewise, in D.P.P. v. Finnegan and Morrison [2011] IECCA 47, the question of seeking a further recharge where it was considered that an initial recharge had failed to adequately deal with an identified problem, was considered. In that case Macken J. stated:
“According to well established jurisprudence [see: DPP v. Cronin [2004] 4 I.R. 329] (sic), repeated on many occasions, the matter cannot now be sought to be raised in the course of this application, counsel having expressed themselves satisfied with the response given and there being no grounds advanced for explaining any error on the part of the defence team for failing to raise any further objection at the time of trial, and no suggestion of any error or oversight on the part of counsel.
4.5 In addition it is appropriate to have regard to People (DPP) v. Jason Kavanagh [2012] IECCA 65, where, at para. 55, the following is said:-
“The finality of a trial is at its conclusion. The question then arises as to when the trial is concluded. After a trial an accused person has a right of appeal. However, the only issues that may be raised on appeal are those raised and decided upon at the trial. Thus, the issues to be determined on an appeal are dependent on what transpired in the trial court”.
4.6 Apart altogether from the undesirability identified in the jurisprudence of allowing, in the absence of significant extenuating circumstances, a point which was not raised at trial from being made on appeal, it is also relevant to take into account the fact that those who are actually present during a judge’s charge and, indeed, recharge, are obviously in a better position to form a judgment as to whether a judge’s charge has adequately conveyed the true legal position to the jury. An appeal court, having only available to it dry words in a transcript, may not be in as good a position as those who are actually present to reach such a conclusion. An appeal court must clearly, therefore, be entitled to take into account and place significant weight on any absence of requisition to the trial judge in assessing whether, on an overall basis, the jury were given appropriate directions on the law.
5. Discussion
5.1 As already noted there is no doubt but that the initial charge by the trial judge to the jury mis-stated the law on provocation insofar as the charge told the jury that the test was what a reasonable man would do in response to the provocation in question. The Court is not persuaded that the recharge remedied the problem which arose from that charge. As already noted the trial judge used the phrase “would consider reasonable” when referring to the approach which the jury should adopt in assessing Mr. Hussain’s actions. Given the earlier statement on this issue by the trial judge in his charge to the jury, the continued use of the term “reasonable” (even though, on this occasion, referring to what Mr. Hussain might have considered reasonable rather than what an objective third party might have so considered) left a real risk that the jury would not have properly understood the true legal position. That such was the case is, perhaps, emphasised by the fact that the foreman returned to the issue in the question to the trial judge to which reference has already been made.
5.2 In the answer given by the trial judge to the foreman’s question, it is stated that proportionality is a matter for the mind of the accused man rather than the mind of a juror. But, in the Court’s view, this answer does not go far enough in making it clear that the question is not even as to what the accused might have considered proportionate but rather whether the accused in fact suffered a total loss of control. The lack of clarity on this point is particularly important in the light of the previous confusion about the issue.
5.3 The Court is, therefore, left with a very real concern that the initial misdirection to the jury was not adequately corrected by either or both of the recharge and the answer to the foreman’s question. The Court must, however, also take into account the fact that the trial judge was not invited to further recharge the jury either after the initial recharge or after the answer given to the foreman’s question.
5.4 At the appeal no real answer was given as to why, if it were considered that the issue of provocation had not been adequately dealt with in the recharge and/or in the answer to the foreman’s question, a further requisition to the trial judge was not made. That failure is particularly relevant in circumstances where the judge was, on other points, invited to further recharge the jury.
5.5 The Court must, of course, take into account the fact that this is not a point which was left entirely untouched at the trial. The problem with the judge’s original charge was clearly identified and a recharge sought. It seems to this Court that, perhaps, somewhat less weight needs to be attached to a failure to persist in a point once raised in comparison with a point not raised at all, although, it must be said, there is a clear duty on counsel to persist with any point which they consider has not been adequately dealt with by a trial judge in the absence of a clear ruling by the trial judge to the effect that there will not be a recharge on the point in question.
5.6 The Court also takes into account the fact that provocation was the central issue in this case. It was the principal issue to which the jury would have been required to direct their minds in considering whether to find the accused guilty or not guilty. A failure to correctly charge the jury on that central issue creates a much greater risk of injustice than an error in respect of a peripheral aspect of the case.
5.7 On the basis of the authorities earlier cited it is clear that the Court should only entertain a point concerning a judge’s charge, which was not made or persisted with at trial, if the Court is concerned that “a fundamental injustice” is at risk (as per Cronin No. 2) or “the essential justice of the case so requires” (as per McGovern).
5.8 In all the circumstances of this case, the Court remains concerned that there is a real risk of injustice and that the essential justice of the case does require the Court to pay significant regard to its concern that the jury may have remained under a significant misapprehension as to the proper legal basis on which they were to consider the key point in the defence case being provocation. In those circumstances the Court is of the view that the appeal should be allowed and a retrial directed. In those circumstances, it is appropriate for the Court to briefly comment on the two other points which were argued on this appeal for they may have some relevance to any retrial. The Court, therefore, turns first to the judge’s charge on recklessness.
6. Recklessness
6.1 In respect of recklessness the trial judge was requisitioned to recharge the jury. In that recharge the trial judge said:-
”a person acts recklessly with respect to a material element of an offence when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the individual’s conduct and the circumstances known to him, its disregard involves culpability of a high degree. So it’s a subjective test. It’s not the objective test. It’s the subjective test that applies if you have to consider the issue of recklessness. But on the evidence before you from Ms Haidir, she has said that the stabbings were intentional. You have the evidence from the accused man in relation to matters and there are occasions when he describes it as accidental. It’s not intended. So, if you are not satisfied beyond reasonable doubt that it was intended then you move on and you consider the issue of recklessness, whether or not you are satisfied beyond reasonable doubt that he acted recklessly. ” (Day14, p.52, lines 27-34 and p.53, lines 1-5)
6.2 It seems to this Court that the first part of that recharge is very closely modelled on the judgment of Henchy J. in the Supreme Court in DPP v. Murray [1977] 1 I.R. 360, where the following was said at p.403:-
“The test of recklessness in this context is well stated in the Model Penal Code—s. 2.02(2)(c)—drawn up by the American Law Institute:—
“A person acts recklessly with respect to a material element of an offence when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves culpability of high degree.””
6.3 The balance of what the trial judge said in his recharge on recklessness in this case does not seem to this Court to depart, in any material way, from the law as determined by the Supreme Court in Murray. The Court does not, therefore, see any basis for suggesting that the appeal could be allowed on the basis of that aspect of the charge. On that basis the Court now turns to the question of photographic evidence.
7. Photographic Evidence
7.1 The trial judge admitted in evidence seven photographs taken of Ms. Haidir in the immediate aftermath of the event which showed the nature of the injuries inflicted, two of which showed post operative scarring and suturing or stapling. The admission of that evidence was objected to on the basis that, it was said, it was more prejudicial than probative. The first point to be made in that context is that it is principally a matter for the trial judge to form a judgment, in the light of the state of the evidence as a whole and the issues which have emerged at the trial, as to whether a particular piece of evidence should be admitted where an objection of that type is raised. The trial judge is in the best position to make a judgment on such issues and this Court should only interfere with a trial judge’s decision in that regard in a very clear case.
7.2 On the facts of this case, there were issues before the Court as to the precise way in which the injuries to Ms. Haidir occurred and the number of abdominal injuries sustained by her. It was, therefore, open to the trial judge to form the view that, broadly speaking, contemporaneous photographs of the injuries might be of assistance to the jury in addressing those questions. In those circumstances it seems to the Court that the admission or otherwise of the photographic evidence in question was well within the range of options which were open to the trial judge. In those circumstances the Court would not propose to allow the appeal on that ground.
8. Conclusions
8.1 For the reasons set out in this judgment the Court is not, therefore, satisfied that either the ground of appeal based on the admission of photographic evidence or the ground of appeal based on the judge’s charge or recharge concerning recklessness give rise to any proper basis for upsetting the conviction.
8.2 However, and notwithstanding the fact that the matter was not fully pursued at the trial, the Court remains concerned that there is a very real risk of injustice by reason of the manner in which the central question of provocation was explained by the trial judge to the jury. It was common case that the initial charge to the jury by the trial judge incorrectly stated the law on provocation. For the reasons analysed in this judgment, the Court is not satisfied that this issue was adequately remedied by either, or both, the recharge by the trial judge or the answers given by the trial judge to a question from the foreman.
8.3 In those circumstances the Court proposes to allow the appeal and to direct a retrial.
The People v. Noonan
[1998] 1 I.L.R.M. 154 (CCA)
This is an application for leave to appeal against conviction brought on behalf of Paul Noonan who was found guilty of the murder of Edward Greene on 8 November 1995. The applicant was convicted by majority verdict on 24 July 1996.
The grounds of appeal were threefold but in essence there was one ground of appeal only namely that the learned trial judge misdirected the jury in respect of the law on the defence of provocation.
Senior counsel for the applicant on the appeal was not the same senior counsel who appeared for the applicant at the trial. The objections to the learned trial judge’s charge put forward both in written submissions and orally at the hearing of the appeal were not raised as requisitions at the trial itself. This Court, therefore, has to consider not only the question of whether the objections are well founded but also whether, having regard to the absence of any requisition in relation to them at the trial, the applicant should now be entitled to rely on them for the purposes of having the conviction quashed. The second question only arises if this Court takes the view that there was a serious misdirection of the jury which could warrant the quashing of the conviction and the ordering of a new trial. It is this question, therefore, which the court must first address.
As is well known the leading Irish case on the law of provocation is People (DPP) v. MacEoin [1978] IR 27. In that case the trial judge’s charge was objected to on the appeal both on the grounds that he had indicated to the jury that if the accused intended to kill or cause serious bodily harm, the defence of provocation could not arise and on the ground that the trial judge had explained the defence of provocation by reference to the objective test traditionally adopted in the English courts rather than a subjective test based on the type of person which the accused was. The Court of Criminal Appeal agreed with both objections to the charge but for the purposes of this case it is the second of them only which is relevant. Kenny J delivering the judgment of the court observed as follows at p. 34:
In the opinion of this Court the objective test in cases of provocation should be declared to be no longer part of our law. If the accused raises the defence that he was provoked and establishes that and nothing more, we do not mean that the prosecution must prove beyond reasonable doubt that he was not provoked. The nature of the provocation may not justify the force used judged by the accused’s state of mind. But the inquiry to be made by the judge first and then by the jury must centre not on the reasonable man but on the accused and his reaction to the conduct or words which are said to be provocative.
When the defence of provocation is raised, we think that the trial judge at the close of the evidence should rule on whether there is any evidence of provocation which, having regard to the accused’s temperament, character and circumstances, might have caused him to lose control of himself at the time of the wrongful act and whether the provocation bears a reasonable relation to the amount of force used by the accused
The last part of that passage caused some confusion in that on one view it might appear that the court was intending to discern two separate aspects to the defence of provocation, one the actual alleged act of provocation itself and secondly the reaction to it and that in the case of the latter some kind of objective test was being retained. If there was an ambiguity there it has been clarified by this Court in the recent case of People (DPP) v. Mullane, unreported judgment of the court delivered on 11 March 1997 by O’Flaherty J. The court pointed out that the impugned sentence in MacEoin related to credibility of testimony rather than to any suggestion that an objective standard was to be applied to one particular aspect of the defence. The trial from which this appeal arises took place before the judgment in Mullane’s case but this may not be of much importance in view of the fact that counsel for the applicant, Mr Charleton SC is alleging that the trial judge’s charge was not in accordance with MacEoin’s case no matter what interpretation was put on that case and therefore independently altogether of the point that arose in Mullane’s case. Broadly speaking, the main thrust of his criticism is that the learned trial judge in addressing the jury made use of English case law in such a way that it might confuse the jury into thinking that an objective test was relevant. It is therefore necessary to refer in some detail to the learned trial judge’s charge. In dealing with provocation the judge commenced his charge impeccably. He pointed out that it was now the law that the jury must look at the circumstances of the particular case and that each juror must put himself or herself in the shoes of the accused and say ‘what would I have done in his circumstances?’ He went on to specifically inform the jury that the test in Irish law was subjective and he explained that that meant that the jury was to have regard to the accused and all his circumstances. The provocation to which the accused was acting must, he said, be such that having regard to the particular accused’s character, temperament and circumstances caused him to temporarily lose control of himself to the extent that he ceased to be master of himself when he killed the victim. The accused must use no more force than is reasonable having regard to the effect the provocation had on him. The learned judge then put it another way by explaining to the jury that the inquiry was as to whether a particular person and in this case Paul Noonan ‘lost command of his actions’ or in other words whether he had lost his self-control. So far, so good but unfortunately the learned trial judge then proceeded to assist the jury by reading from English case law. Specifically he read out the following:
‘Culpable homicide’ — that is homicide where the person is guilty either of manslaughter or of murder — that would otherwise be murder may be reduced to manslaughter if the person who caused the death did so under provocation. Anything said or done may be provocation if: (a) in the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person but otherwise having the characteristics of the offender of the power of self-control having such control had he lost it was he justified, well that’s the wrong word, had he been provoked into losing it.
It would seem that the English case from which the learned trial judge was reading was Director of Public Prosecutions v. Camplin [1978] AC 705. In that case the House of Lords held that in relation to the defence of provocation which by that time was a statutory defence in England the jury was entitled to take into consideration those factors, including the age and physical characteristics of the accused, which in their opinion would affect the gravity of insults addressed to him and the degree of self-control to be expected of him as a reasonable person: and that accordingly the judge had erred in instructing the jury to pay no attention to the respondent’s age. But this was in no sense a decision in favour of the subjective test rather than an objective test. It was simply refusing to follow the extreme view taken by the House of Lords in Bedder v. Director of Public Prosecutions [1954] 2 All ER 801. In that case, the appellant who was sexually impotent attempted in vain to have intercourse with a prostitute who jeered at him and hit and kicked him. He then stabbed her with a knife and killed her. He was indicted for murder and pleaded provocation. At his trial he was convicted of murder. The House of Lords held that the test to be applied in determining whether there had been provocation sufficient to reduce the homicide from murder to manslaughter was that of the effect of the alleged provocation on the mind of a reasonable man and that in applying this test the hypothetical reasonable man did not have to be invested notionally with the physical peculiarities of the accused. Accordingly the reasonable man which the jury would have had to postulate under the objective test would not have been sexually impotent which the accused was. Understandably this decision came under heavy criticism and it was not followed in Camplin’s case — but in no sense, did Camplin’s case introduce a subjective test — it merely permitted the jury to invest the ‘reasonable man’ with the age and physical characteristics of the accused. For instance the decision in Camplin’s case did not permit a jury to have regard to an extreme bad temper on the part of an accused. Under MacEoin’s case, however, the jury would be bound to have regard to it. When, therefore, the learned trial judge read out to the jury in this case the following passage that is to say ‘anything said or done may be provocation if (a) in the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person but otherwise having the characteristics of the offender, of the power of self-control’ he was effectively giving a Camplin direction and not a MacEoin direction.
Unfortunately, the infirmity in the learned trial judge’s charge does not stop there. In a later passage in his charge he says as follows:
I will just read you some more paragraphs on what provocation is: ‘provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable man, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind’.
That passage clearly re-introduces the objective test. In yet another passage in the charge further on the trial judge also brings in the objective test. He gave the following quotation to the jury from an English Lord Chancellor:
It is of particular importance to consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool and to take into account the instrument with which the homicide was affected ….
The test laid down in MacEoin’s case rejects the concept of the reasonable man and concentrates on the accused himself. This does not of course mean that a jury is totally precluded from considering how a reasonable man might react. It may well be relevant to consider how a reasonable man might react in taking into account the overall credibility of the accused but that is quite a different use of the concept of the reasonable man. In the quotations relied on by the learned trial judge the objective test of the reasonable man is clearly being made a constituent element of the legal defence of provocation itself. After quoting from the English case law the learned trial judge quite properly returns to MacEoin’s case and reads the relevant passages from it to the jury but unfortunately it is impossible to escape the conclusion that a jury being told about two quite inconsistent tests, the English objective test and the Irish subjective test could be left in confusion. There are other parts of the charge which might possibly be objectionable having regard to the clarification of MacEoin’s case in Mullane’s case but it is not really necessary to consider these. This Court in People (Attorney General) v. Berber and Levey [1944] IR 405 effectively held that where ‘inconsistent’ instructions are given to a jury on a vital matter, it is impossible to be sure that a jury did not act on the incorrect direction and that accordingly a conviction in such circumstances ought to be quashed.
It would seem abundantly clear that if counsel for the defence had requisitioned the trial judge in relation to that part of the trial judge’s charge which related to the question of whether a subjective or objective test was to be applied to the defence of provocation, the learned trial judge would have been bound to recall the jury and explain the test again to the jury by reference only to MacEoin’s case. However, the requisition made related to a different aspect of the learned trial judge’s charge and not to the questions of objective or subjective test. That being so, this Court must consider whether the application for leave to appeal should be refused. There is absolutely no doubt that this Court can refuse to entertain an objection to a judge’s charge where that objection did not form the subject matter of a requisition. But it does depend on the particular circumstances of the case whether this Court takes that course or not. An obvious example where it might take that course would be where there might appear to have been a deliberate omission to raise the requisition for tactical reasons in the circumstances where perhaps other parts of the charge had been highly favourable to the accused. It is impossible in this case to conceive of any tactical reason why such obvious defects in the learned trial judge’s directions to the jury on provocation would not have given rise to a requisition if they had been adverted to. The court must only conclude that the requisitions were not raised due to an oversight. As the directions are crucial to a fundamental aspect of the defence, that is to say, the defence of provocation which if upheld would have reduced the murder to manslaughter the court considers that in the interests of justice the conviction ought to be quashed and a new trial ordered.
The People (Director of Public Prosecutions) v. James McDonagh
Court of Criminal Appeal
C.C.A.
Murray J.
31st May, 2001
This is application for leave to appeal against the accused’s conviction at the Central Criminal Court on the 9th October, 1998, for murder contrary to common law.
At the hearing of the application for leave to appeal, the accused presented his application on two grounds of which the first was stated to be the principal ground. This was that the learned trial judge erred in law in refusing to allow the jury to consider a verdict of manslaughter on the grounds of provocation notwithstanding that the accused in his defence had not relied on provocation. The second ground relied upon was that the learned trial judge erred in law in failing to direct the jury as regards the proper test to be applied when considering whether the accused acted with an intent to kill or cause serious injury and in particular that he failed to redirect the jury on the issue of a rebuttal of the presumption that a person shall be presumed to intend the natural and probable consequences of his conduct having regard to the provisions of s. 4 of the Criminal Justice Act, 1964. The offence of which the accused was convicted was the murder of his wife Sheila McDonagh on the 12th September, 1997, at Slieve Foy Park, Muirhevnamore, Dundalk, Co. Louth.
Before dealing with the grounds raised by the accused in his appeal, I will set out the facts of the case so far as relevant. Both the accused and his deceased wife were settled members of the travelling community. They had a home at 69 Slieve Foy Park, Dundalk, Co. Louth. The accused’s sister-in-law lived at no. 23 in the same park. In the late afternoon of the 12th September, 1997, a serious fight took place between the accused’s deceased wife, and his sister-in-law in front of the latter’s house at no. 23 Slieve Foy Park. The accused arrived on the scene. According to prosecution witnesses, the accused grabbed his wife by the hair, got her into a headlock and pulled her towards a low wall on the boundary with the adjacent house. The accused had forced his wife into a bending position over the wall when he reached into his pocket and took out a knife. He then stabbed her in the back, once. He then pulled out the knife and walked towards the house with the deceased staggering after him. She collapsed in the house and the accused lay beside her, he took her into his arms, said he was sorry and attempted to stop the bleeding. One witness gave evidence that the deceased said “get an ambulance, he is after stabbing me”, referring to the accused. The gardaà and an ambulance were called. The accused was arrested and his wife removed to hospital by ambulance where she later died from the stab wound. The accused gave evidence that he had consumed a significant amount of drink earlier in the course of that day, but I will deal with this later and other facts salient to the grounds of appeal.After his arrest, the accused was brought to Dundalk garda station where he gave several different accounts as to what had happened. In his first account, he claimed somebody else had stabbed his wife, that he knew who it was but that he didn’t wish to inform on them. He also said the whole thing was a mistake. In another account to the investigating gardaà he described separating his sister and sister-in-law from fighting, he took a knife off his wife, he was holding her, she tripped and it went through her jacket in the middle of her back when she just fell back. In a further account to the interviewing gardaà he stated that he tried to separate the two fighting women and that his deceased wife had a knife. He took the knife off her and “pegged it to the ground”. She fell on the knife. In a further account to the gardaà he described having separated the two fighting women, giving his wife a few slaps around the face. She pulled out the knife. He forced her over the small wall between the houses and took the knife from her right hand. He then had the knife in his right hand. He was getting up off her when she jumped backwards from the wall, came back against him and the knife went into her. He stated that he never meant to stab her.
In evidence at the trial, the accused stated that he separated the two fighting women and got his wife over the wall. He told her to keep quiet, to keep calm and not to give any reason to get the guards. She gave him “a few hits” and he gave her a couple of slaps to calm her – not with his fist. As soon as he had got his wife lying over the wall she had a knife in her hand. He took the knife off her. He let her loose at that stage. He had the knife in his right hand. She came back in an upright position and came back into the knife which entered her back. He took the knife out of her and threw it on the grass and put his hand up against the wound. He did not and had no intention to kill or seriously injure his wife.
One can only conclude from the verdict of the jury that they rejected the accused’s evidence that he had not stabbed his wife and accepted the evidence from prosecution witnesses that he produced a knife from his pocket, and deliberately stabbed her in the back.
At the conclusion of the evidence given at the trial counsel for the accused applied to the learned trial judge to allow the jury to bring in a verdict of manslaughter on the grounds of provocation of the accused. The learned trial judge refused to allow manslaughter on the basis of provocation to go to the jury essentially on the ground that there was no evidence including that of the accused on which the jury could bring in such a verdict.
Submissions
Counsel for the accused, submitted that notwithstanding that the accused did not put forward the defence of provocation in the case which he made or the evidence which he gave at the trial, the learned trial judge was bound to leave the issue of provocation once there was any evidence of provocation to be considered by the jury. He submitted that the test for a defence of provocation was a subjective one and not an objective one. In considering whether or not a defence of provocation has been established a jury would have to decide whether, having regard to the accused’s temperament, character and circumstances, the acts of the deceased were such that these caused the accused to loose control of himself. Applying the subjective test, a particular individual might even be provoked by the mere clicking of fingers. The jury in this case should have been allowed to consider whether it was reasonably possible that the accused had been provoked. In support of his submissions counsel relied on The People (Director of Public Prosecutions) v. MacEoin [1978] I.R. 27; The People (Director of Public Prosecutions) v. Bambrick [1999] 2 I.L.R.M. 71 and The People (Director of Public Prosecutions) v. Kelly [2000] 2 I.R. 1. He also made reference to The People (Director of Public Prosecutions) v. Halligan (Unreported, Court of Criminal Appeal, 13th July, 1998).
In the present case it was submitted there was evidence that the accused had a significant amount of drink taken, during the day, before he came upon the fight between his wife and his sister-in-law. He was in a dazed state afterwards and he immediately expressed remorse for what had happened. At one point he had told the gardaà that he had blacked out, that he had a history of blackouts particularly after excessive drinking and there was no evidence of prior hostility between the accused and the deceased. In the circumstances the trial judge ought to have left the jury to decide whether there was any reasonable possibility that the accused had been provoked. He did not run away. He assisted his wife at trying to stop the bleeding while waiting for the police and the ambulance – these are all factors which could have gone to the jury so that the issue of provocation could be considered by them. It was open to the jury to infer that “he flipped”. The fact that he was an inarticulate poorly educated person should be taken into account in applying the subjective test.
In relation to the second ground of appeal relied on by counsel for the accused, it was submitted that the learned trial judge failed to adequately direct the jury on the question of intent to kill or cause serious injury. The test is a subjective one and the learned trial judge failed to adequately direct the jury on this point and in particular to have regard to his attitude after the stabbing as evidence of an absence on his part of an intent to kill or cause serious bodily harm. In other words that they could conclude that the presumption under s. 4 of the Criminal Justice Act, 1964, is rebutted. This is notwithstanding his denial that he stabbed her in the first place.
Conclusions: First ground
It is quite clear from now well established authorities that the law applies a purely subjective test in relation to the issue of provocation in a murder trial. As stated by this court in The People (Director of Public Prosecutions) v. MacEoin [1978] I.R. 27 at p. 34:-
“When the defence of provocation is raised, we think that the trial judge at the close of the evidence should rule on whether there is any evidence of provocation which, having regard to the accused’s temperament, character and circumstances, might have caused him to loose control of himself at the time of the wrongful act …”
The application of the subjective test as laid down in The People (Director of Public Prosecutions) v. MacEoin [1978] I.R. 27 was followed and approved in The People (Director of Public Prosecutions) v. Mullane (Unreported, Court of Criminal Appeal, 11th March, 1997) and The People (Director of Public Prosecutions) v. Kelly [2000] 2 I.R. 1.
Accordingly, there was no issue in this case as to the subjective nature of the test to be applied concerning the defence of provocation in murder cases. Also it is clear from The People (Director of Public Prosecutions) v. Mullane (Unreported, Court of Criminal Appeal, 11th March, 1997) and The People (Director of Public Prosecutions) v. Kelly [2000] 2 I.R. 1 that it is for the trial judge in the first instance to decide whether there is any evidence on which such a defence could properly be allowed to be considered by the jury. What is in issue is whether the learned trial judge, having regard to the subjective test to be applied, ought to have allowed the defence of provocation to be considered by the jury in this case.
A further issue was raised, which for present purposes may be described as a subsidiary issue, namely whether a trial judge can permit the defence of provocation to be considered by the jury even where the defence has not been raised by or on behalf or the accused during the course of the hearing before the jury and in particular when he has relied on a defence which is in contradiction to the defence of provocation. This latter question had previously been raised before this court in The People (Director of Public Prosecutions) v. Halligan (Unreported, Court of Criminal Appeal, 13th July, 1998). In that case, the court decided the appeal on the sole question as to whether there was any evidence of provocation to be considered by the jury while reserving its position on thisoint of law. In this case also the court considers that the first question that it ought to consider is whether there was any evidence upon which the learned trial judge ought to have left the defence of provocation for consideration by the jury. In considering that question the court will have regard to the evidence as a whole since evidence of provocation may emanate from prosecution witnesses, the defence, or obviously both.
The issue falls to be addressed having regard to the nature of the defence of provocation. In The People (Director of Public Prosecutions) v. Kelly [2000] 2 I.R. 1 the nature of this defence was discussed. At p. 10 it is stated:-
“A successful defence of provocation, on the other hand, presupposes, at the critical time, the existence, not of a calculating mind, but of a mind subject to ‘a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not the master of his mind’.”
At p. 11 it is further stated:-
“If the accused has been permitted to raise a plea that he was so provoked by something done or said by the deceased victim, or by a combination of things done and said, as totally to lose his self-control, the trial judge will invite the jury to examine the evidence on which the plea of provocation is based.”
Later in the judgment the court observed that:-
“It will not be sufficient for the defence to show merely that the accused lost his temper or merely that he was easily provoked or merely that he was drunk though all of these may be factors in the situation. The loss of self-control must be total and the reaction must come suddenly and before there has been time for passion to cool. The reaction cannot be tinged by calculation and must be genuine in the sense that the accused did not deliberately set up the situation which he now invokes as provocation. To justify the plea of provocation there must be a sudden unforeseen onset of passion which, for the moment, totally deprives the accused of his self-control.”
Accordingly, it follows from the case law cited that provocation has two main elements, an act or series of acts of provocation (which may comprise in whole or in part of things said) leading to a total loss of self control at the time of the wrongful act.
What a trial judge has to decide when considering whether the defence of provocation should go to the jury, is whether on the state of the evidence it would be open to a jury to conclude that it was reasonably possible that the accused had been the subject of provocation which triggered off a total loss of self control having regard to the particular accused, given his state of mind, his personality and all the circumstances. (see The People Director of Public Prosecutions) v. Bambrick [1999] 2 I.L.R.M. 71 at p. 75).
Counsel for the accused submitted that in applying the subjective test one must take account of the fact that even the mere clicking of fingers, could, having regard to the susceptibilities of an individual in a particular case, be a cause of provocation.
If, as counsel for the accused contended, a mere click of fingers or some other act may subjectively provoke an accused, having regard to his temperament, character and circumstances, there must nevertheless be some evidence that it may have been for the accused a provocative act, that is to say, an act which caused him to suddenly lose control. The mere fact that a click of the fingers or some other act occurred during the course of a confrontation in which one person unlawfully kills another cannot always mean that the defence of provocation must be left to the jury. There may, of course, be some acts which by their very nature and the circumstances of the case which may be said to be inherently offensive and likely to cause anger or resentment but even then the evidence must be such as to give rise to the possibility that the accused may have been so provoked into losing control of himself at the time for provocation to go to a jury. Counsel for the accused relied on the statement of O’Flaherty J. in giving the judgment of this court in The People (Director of Public Prosecutions) v. Halligan (Unreported, Court of Criminal Appeal, 13th July, 1998), when he was considering the task of a trial judge in deciding whether or not to leave the defence of provocation to a jury “Today there is a low threshold test and the task of the judge is to decide whether there is any evidence at all which is fit to be considered by the jury.” O’Flaherty J. went on to cite with approval the ruling of the trial judge in that case who stated at p. 5 of the judgment:-
“The sad events which led up to the death of Mrs. Halligan are not in issue and have already been outlined by counsel for the accused. And that outline – and I think it would be proper for me to say there was perhaps motivation or a justification for anger in the accused. I think perhaps he was justified in feeling that he was being duped, that he was losing his house, that he took so much pride in and that his wife was slowly but surely selling off his property. He may well have resented that fact and it may have caused him a temper and indeed a temper such as would, and did, result in his biting his own lip so as to cause it to bleed. But what I see as lacking from the case is any suggestion that what led up the fight in the bedroom or subsequently, was of such an intensity or acuteness as to cause the accused suddenly and temporarily to lose control of himself so as not to be master of his mind. I pay particular attention to the fact there was the struggle in the bedroom but at a certain stage, on the accused’s own evidence, the deceased lady suggested that he go downstairs with her and they could have a cup of tea and she would clean up the blood on his lip and he agreed to that and she apparently set off down the stairs. And it was only when she came to the hall door, that she appears to have opened it and walked out and went outside and she started to run. And it was that act, it seems to me, that precipitated what followed thereafter. Now I do not think there is any case which has been made out which a reasonable jury could hold that there was a sudden and temporary loss of control on the part of the accused, so as for the moment not to make him master of his mind.”
In that case the accused could not remember the actual events which gave rise to the victim’s death and the trial judge ruled that this could not give rise to an inference that there was a sudden and temporary loss of control on the part of the accused. O’Flaherty J., in delivering the judgment of this court on the application for leave to appeal, expressly upheld the terms of the trial judge’s ruling and considered that it was a case where there was no evidence of provocation fit to be considered by the jury.
In this case counsel relied on a combination of circumstances in support of his submission that the defence of provocation should have been left to the jury which included the fact that the accused was an uneducated person, that he had a good deal of drink taken, that he was remorseful after the incident, that he seemed shocked or dazed when the gardaà arrived and that the act of stabbing was over very quickly.
As the judgments of this court in The People (Director of Public Prosecutions) v. Halligan (Unreported, Court of Criminal Appeal, 13th July, 1998) and The People (Director of Public Prosecutions) v. Kelly [2000] 2 I.R. 1 illustrate, while these are circumstances to be taken into account when applying the subjective test they are not sufficient in themselves to give rise to the defence of provocation. There still must be some evidence from which provocation leading to total loss of control could be inferred.
Turning to the evidence in this case. So far as evidence for the defence is concerned the only such evidence came from the accused himself. His version of what occurred is outlined above and was to the effect that he grabbed his now deceased wife for the purpose of calming her and he forced her to bend over a low wall. According to him what followed was an accidental stabbing. He did not give evidence to the effect that he was provoked or had lost control. In fact his evidence was very much to the contrary namely that he was in control of the situation.
Counsel for the accused referred to the fact that at one point during his interviews with the gardaÃ, during which the accused gave a variety of conflicting accounts as to what happened, that the accused stated that he was prone to blackouts and had a blackout. So far as this could be relevant to the question of provocation at all it is sufficient to say that whether one has a regard to the evidence given by the accused himself at the trial or only the other witnesses who witnessed the stabbing there was no evidential basis whatsoever upon which it could be considered that the accused had a blackout at the time of the offence. In any case the mere fact of a “blackout” does not give rise to an inference of provocation by the victim nor did the accused at any time suggest it was in any way related to provocation.
The question remains as to whether there is any evidence of provocation to be found in the evidence tendered on behalf of the prosecution and the circumstances surrounding the occurrence of the death and of course with due regard to the accused’s temperament, character and personal circumstances.
Even if for present purposes one leaves aside the evidence of the accused to the effect that the stabbing was an accident, there is no evidence that any act of the deceased provoked the accused or even if one were to speculate as to whether something which the deceased did might, subjectively, be capable of constituting a provocative act there was no evidence whatsoever that he may have lost control let alone to the extent that he was, at the time of the stabbing, “not master of his mind”. Indeed counsel for the accused did not refer to any specific evidence from a particular prosecution witness as a basis for the defence of provocation but relied on the broader contention that the possibility that the accused had been provoked could be deduced from the surrounding circumstances referred to above. To have left the defence of provocation to the jury on such a basis would have been to invite them to speculate without any evidence concerning provocation leading to a loss of control. The reality is that provocation was never an issue in this trial. There was simply no evidence from any quarter that the accused was provoked.
Accordingly, the court is of the view that the learned trial judge was correct in refusing the defence application to allow the defence of provocation to be left to the jury.
In view of the above conclusions it is not necessary to decide whether the fact that an accused gives evidence at his trial which does not raise or is in direct contradiction with a defence of provocation precludes the trial judge from allowing the defence of provocation to go to the jury even where there is other evidence on which the possibility of provocation could be inferred.
Second ground
At the hearing counsel for the accused submitted that the learned trial judge erred in law in failing to direct the jury with regard to the proper test to be applied when considering whether the accused acted with an intent to kill or cause serious injury and in particular, in failing to redirect the jury on the issue of a rebuttal of the presumption that an accused shall be presumed to have intended the natural and probable consequences of his conduct.
Section 4 of the Criminal Justice Act, 1964, provides as follows:-
“(1) Where a person kills another unlawfully the killing shall not be murder unless the accused person intended to kill, or cause serious injury to, some person, whether the person actually killed or not.
(2) The accused person shall be presumed to have intended the natural and probable consequences of his conduct; but this presumption maybe rebutted.”
No issue was taken with the learned trial judge’s direction, which was impeccable, on the presumption of innocence which the accused enjoyed or his directions to the jury on the onus of proof on the prosecution to prove its case beyond reasonable doubt. On the offence of murder the learned trial judge directed the jury as follows:-
“Now, as you have heard, the charge against the accused is one of murder … Simply stated the crime of murder involves the unlawful killing of another person. In other words, that the accused committed an unlawful act which caused the death of another. By s. 4 of the Criminal Justice Act, 1964, it is provided ‘where a person kills another unlawfully the killing shall not be murder unless the accused person intended to kill, or cause serious injury to, some person, whether the person actually killed or not’.
Now, ladies and gentlemen, essentially that means to be guilty of murder it is not merely sufficient to do the act which causes the death, the act must be done with a particular intention, either an intention to kill or an intention to cause serious injury. But as you will appreciate, it is not possible to look into somebody’s mind to see what their intentions are and accordingly, the Act, the Criminal Justice Act, 1964, by subs. 2 of that section provides – ‘the accused person shall be presumed to have intended the natural and probable consequences of his conduct but this presumption may be rebutted’. Therefore, if, for example, I pointed a loaded gun at someone and pulled the trigger. The likelihood is that I will kill or seriously injure that person therefore, I am presumed by law to have intended to kill or hurt. However, I can rebut or set aside that presumption if I were able to show that I believed that agun was loaded not with live ammunition but with blank cartridges. So that, as far as the law is concerned, murder is the unlawful killing of another person with intent to kill or do harm. A person is presumed to intend the natural consequences of what they do but they can rebut or set aside that presumption by evidence.”
Once again it is appropriate to recall that the defence of the accused was based entirely on his account that the stabbing was an accident. This was the case made in cross-examination to the relevant witnesses for the prosecution as well as by the accused himself in his own evidence. According to this defence it was his deceased wife who produced the knife and that it was she who backed i nto the knife, so to speak, while he was just holding it in his hand after he had disarmed her. He simply did not stab her. As the learned trial judge observed in his charge to the jury “accordingly, he is not saying I stabbed my wife, I did not intend to kill her or hurt her, so as to rebut the intention the natural consequences of his act, what he is saying, my wife was stabbed with the knife which I was holding at the time but not because of any positive act on my part which is different from trying to rebut the presumption of his intention.”
Essentially the accused’s submission is that even if the jury were satisfied beyond reasonable doubt that the accused, contrary to what he had said in his defence, had deliberately stabbed the deceased in the manner alleged that they should have been told that they could still find him guilty of manslaughter on the grounds that he did not intend to kill or cause serious injury.
Counsel submitted that even if the jury rejected the account of the accused and accepted the evidence of the prosecution witnesses as to the stabbing of the deceased by the accused there was also evidence from which they could conclude that he did not have the intention of killing her. In short there was evidence of rebuttal of the presumption referred to in s. 4 (2) of the Criminal Justice Act, 1964. He submitted that the trial judge should have acceded to his request for a redirection of the jury on this point.
It was not however, in issue that a deliberate stabbing by the accused gave rise to the presumption that there was an intention to kill or cause serious injury.
A trial judge when directing a jury as to the law and principles which apply by virtue of the provisions of s. 4 of the Act of 1964, is entitled and indeed must do so in the light of the actual evidence and circumstances of the case which is being tried.
In the course of his submission in relation to the judge’s charge of the trial counsel for the accused, in response to an observation from the learned trial judge that there was no evidence upon which the jury could rely to support a rebuttal counsel indicated that he relied on the statements such as “I did not intend to do it”, “I did not intend to stab her” and the accused’s evidence to that effect.
The learned trial judge ruled that this evidence of the accused was given in relation to the fact that he had not stabbed the deceased at all but that it occurred by accident. On the evidence before the court of trial the judge’s ruling cannot be faulted.
Similarly the court is of the view that the evidence according to which the accused had expressed remorse subsequent to the stabbing at the scene was not in itself, or, having regard to the evidence as a whole and his own evidence something from which a jury could properly be directed to rely on as evidence of rebuttal of the presumption.
In this case the fundamental issue was whether the fatal stabbing of the deceased was accidental or deliberate. The learned trial judge properly directed the jury as to the onus on the prosecution to establish beyond reasonable doubt that the stabbing was deliberate and not accidental. No issue is taken with his charge in that regard. The natural and probable consequence of a deliberate stabbing of the nature alleged was that there was at least intention to cause serious injury.
The application of ss. 4(1) and 4(2) of the Criminal Justice Act, 1964, was considered by this court in the case of The People (Attorney General) v. Keane (Unreported, Court of Criminal Appeal, 3rd February, 1975). In that case Walsh J. stated:-
“There can be no doubt on the evidence that the injuries inflicted upon the deceased were serious injuries. There is an onus on the prosecution also to show that the presumption that the accused intended the natural and probable consequence of his conduct has not been rebutted: see The People (Attorney General) v. Dwyer [1972] I.R. 416. In this case the only evidence dealing with the infliction of the injuries was that put forward in the prosecution case which showed that the deceased man was very severely beaten and that he was beaten around the head in a very severe manner, obviously with an on object capable of causing such serious injury. The evidence shows and is uncontradicted that a bottle was used to beat the man round the head and face and in the view of the court evidence for the prosecution clearly establishes that the presumption that the person who beat the accused around the head with the bottle intended to do him serious injury and has not been rebutted. The learned trial judge was quite correct in instructing the jury that there was no piece of evidence in the case which left open as a reasonable view or even as a reasonable possibility the fact that the injuries were accidental or were not intended to be caused and he was quite correct in telling the jury that if they came to the conclusionthat the death was caused by the assault upon Mr. Clifford that they should regard the homicide as murder.”
In this case there is no doubt on the evidence that the injuries inflicted upon the deceased were serious injuries. The evidence, once accident is excluded, clearly established the presumption that a deliberate stabbing of the deceased in the manner alleged was intended to do her serious injury and that it had not been rebutted. Having properly charged the jury as to the defence of accidental stabbing the learned trial judge was quite correct in telling the jury that if they came to the conclusion that the death of the deceased was caused by a non-accidental deliberate stabbing, they should regard the homicide as murder. He was accordingly, correct in ruling that there was no evidence of rebuttal within the meaning of s. 4(2) of the Act of 1964.
Having regard to the evidence at the trial this court is satisfied that the trial judge was correct in ruling that there was no evidence upon which the jury could conclude that there was a rebuttal of the presumption of the intention referred to in s. 4(2) of the Act of 1964 and accordingly, this ground of appeal also fails. The application is therefore refused.
People (DPP) v Delaney
[2010] IECCA 123
Judgment of the Court of Criminal Appeal delivered the 20th day of December, 2010 by Mr Justice Fennelly
On 15th May 2009, the applicant was found guilty by a jury presided over by Birmingham J in the Central Criminal Court in Dublin of the murder of one Anthony Cullen at Burmah Caravan Park, Mauritiustown, Rosslare, Co Wexford on 8th April 2007.
The applicant accepted throughout his trial that he had unlawfully caused the death of Anthony Cullen (hereinafter “the deceased”) by stabbing. He advanced the defence of provocation. The learned trial judge partially allowed that defence to be argued before the jury. He explained to the jury that, if they accepted that defence, the verdict would be manslaughter rather than murder. The principal complaint of the applicant on this application for leave to appeal is that the learned trial judge declined to permit the defence of provocation to be advanced on the full basis for which the defence had argued.
There are two further grounds, namely that the learned trial judge declined to permit the applicant to have shown to the jury a video recording of the garda interview of one of the prosecution witnesses, one Karl Thomas, and that the learned trial judge refused to correct some of the statements made by prosecuting counsel in his closing address to the jury.
The facts
The deceased met his death by stabbing with a knife about 3:30 am on Easter Sunday 8th April 2007 against a sordid background of alcohol and drug-fuelled debauchery. A group of young people met in a caravan of which the applicant had the use. The deceased was somewhat older, being 37 years of age when he met his death.
A number of people, who came to play various roles in the events of the night, had been drinking at a place called The Rocks near Wexford town from early afternoon on 7th April 2007 and were invited, or at least went to the caravan park, taking a 9 o’clock train, from Wexford to Rosslare. The applicant and his friend, Karl Thomas had permission to use the caravan. Kirsty O’Callaghan was the applicant’s girlfriend. Karl Thomas also had a girlfriend, Christine Emmerson. The deceased was accompanied by a friend called Aiden Duggan. The latter described the deceased as his nephew’s uncle. Also present were David Philips, whose nickname was Bidda, and a girl called Jody Black.
A great deal of drink was consumed particularly by the applicant, the deceased and Aiden Duggan. Some took cannabis or ecstasy.
In the course of the evening in the caravan, the behaviour of the deceased and Aiden Duggan became disorderly and unpleasant. This behaviour forms the essential subject-matter of the aspect of the defence of provocation which was disallowed by the learned trial judge. It consisted essentially of the following:
Aiden Duggan and the deceased engaged in a bizarre alternation of fighting, punching each other, then hugging and making up; Aiden Duggan struck the deceased particularly hard and also punched him and kicked him or stamped him on the head; although the deceased may have started this fighting, it does not appear that the applicant saw this;
the deceased, as he became more drunk, began falling around: he fell and knocked over a table and spilled drinks;
the deceased commenced making unwelcome advances to Kirsty O’Callaghan by feeling her leg: this caused Kirsty O’Callaghan to become upset; it also annoyed the applicant;
at a late stage, the deceased so lost control of himself that he soiled himself.
It is accepted that the evidence of provocation need not necessarily be given by an accused person. Nonetheless, it is the contents of the applicant’s own statements which were advanced at the hearing as the primary basis for the provocation defence. It is important, therefore, to quote his account of the fighting between the deceased and Aiden Duggan in his first statement to the gardaí. He refers to Aiden Duggan as “the blonde fella” and the deceased as Kojak. This is his description:
“We were all drinking in the caravan for a while and everything was okay. Then Kojak and the blonde-haired fellow started fighting. The blonde fella started boxing Kojak. I don’t know what they were fighting about. I don’t know what time it was. The blonde fella would hit Kojak a few times and Kojak would fall down and when he got up it was like everything was forgotten about. The blonde fellow was boxing Kojak in the face and kneeing him in the face. Kojak fell down then and when he got up, everything would be okay for a while. Then Kojak would say something and it would all start again. The red haired fellow joined in with the blonde lad and gave Kojak a few slaps as well. This happened about four or five times. Kojak was pissed out of his head and was falling all over the place. He was grabbing Kirsty’s leg and I was getting a bit annoyed about it. Kirsty tried to stop the two boys from hitting Kojak. Kojak had fell through the table and he had a cut over his left eye and it was bleeding but it wasn’t too heavy. I didn’t get involved in the fighting. Kojak went to the toilet and when he came out he fell again. I got up then and opened the caravan door and told him to go out and get some air. Kojak just fell out the door headfirst. I picked him up and put him sitting against the side trailer and he was mumbling.”
The deceased was ultimately removed from the caravan by the applicant and/or Karl Thomas. There are various versions of this event: he fell out; he was pushed out; he was thrown out with force. At this point, the deceased was totally drunk and, according to the applicant in one of his statements, “half conscious. Mumbling.” He was bleeding from a wound on his head. It was pitch dark outside the caravan.
It is important to note that it is common case that, immediately after the deceased had been ejected from the caravan by the applicant, the latter phoned an ambulance (according to Kirsty O’Callaghan she placed the call and handed him the phone) and told the ambulance service that there was a man there with an injury to his head and that he was bleeding.
Aiden Duggan, after a delay of about half an hour, went out. According to one witness, he stamped on the head of the deceased and returned inside the caravan. A second time, he went out to “assist” the deceased. The applicant was in the doorway of the caravan. There then occurred the event which, subject to argument and interpretation, provided the impulse for the applicant’s criminal act. Aiden Duggan angrily told the applicant to “fuck off” or “fuck you and your caravan.” The applicant, according to his statements, did not remember this remark. It is agreed that the applicant was at this stage in a rage. Aiden Duggan said that the applicant then said words to the effect: “get the blades.” Other witnesses attributed these words to Karl Thomas. Whether the applicant said this himself or Karl Thomas said it to him, it is common case that the applicant went back inside the caravan and took a knife from the kitchen part of the caravan. Aiden Duggan said that he himself was at this point leaving the scene, with the deceased coming along behind him.
It also appears that, after the deceased had been ejected, Karl Thomas had then commenced taunting him and hitting him with a sweeping brush.
The account given by the applicant in his own statement was:
“I went out, picked him up, put him on his side, rang an ambulance. My mate Carl was outside and he was hitting and fighting him. I don’t know. I was blanked out. I went out with a knife in my hand. I don’t know what then, I just—that was when I stabbed him twice with a knife.”
The deceased was then outside sitting on the ground; he was bleeding from a cut on his forehead. The applicant came out with the knife. Kirsty O’Callaghan tried to stop him, but he went ahead and did the stabbing. He then threw the knife away.
Counsel for the applicant placed especial reliance on passages from the garda evidence relating to the four statements made by him to the gardaí. He treated one passage, in particular, as fundamental to the complaint that the learned trial judge erred by failing to allow the issue of provocation to be considered by the jury. In order to understand this point, it is necessary to refer both to the direct evidence and the cross-examination of the garda witness. The context is that the gardaí were, during the interviews they conducted with the applicant, pressing him for an explanation for his stabbing of the deceased. The applicant’s account of the events which occurred outside the caravan after the deceased was ejected and leading up to his stabbing of the deceased was given in answer to garda questioning.
He was asked on several occasions what “triggered” the knife attack. The applicant gave an account on the following lines. Karl Thomas was hitting the deceased with a sweeping brush; he was laughing at him, hitting him on the sly; the deceased did not know who was hitting him. Kirsty O’Callaghan and Jody Black were telling Karl Thomas to stop. The applicant was drinking vodka, going in and out for glasses. Kirsty and Jody were arguing because Jody was supposed to be meeting Noel but she was with Bidda. The applicant also had an argument “over drink with Bidda.” The applicant also said that Karl was fighting with Aiden Duggan.
The applicant was repeatedly pressed by the gardaí to provide an explanation for the stabbing. He was asked what he intended to do when he had the knife in his hand, he said: “I just picked it up like a pen and marched out and done that (swinging with his left arm) and just thrown it away like that and I didn’t think about anything.” In response to repeated questions as to what had triggered the knife attack, he was usually unable to provide an answer. Once he answered: “I think Karl was fighting with Aiden.” He was specifically asked whether the reason was that the deceased “was groping Kirsty” and answered: “No, because that was earlier. She spoke to him and he stopped. Then he got too drunk.” At another point, when asked about Kojak “hitting on Kirsty earlier,” his response was: “That was hours before and it had only went on for a minute.”
Counsel for the applicant relied with particular force, on the following passage from the transcript, described in argument as fundamental. First there is the question put to applicant by the garda followed by the answer of the applicant:
“Question: but you’re not sure what actually triggered you to do that?” [And, describing the reaction of the applicant , he was indicating nodding no.]
“Question: Some kind of assault or abuse or fight or? And, he answers, “Don’t know. Just with everything that was going on, you know. Arguments and fights, bleeding people falling out the bleeding—of the bleeding caravan and all. I was just stressed out. I didn’t know what was going on. I just had a moment of red. I don’t know what had happened. I’m not even sure if the knife stuck in him, like. I don’t know.”
The applicant described his own condition as being, variously, “knackered,” “in a rage with the vodka,” that his “head was wrecked” and that he was getting “madder and madder.” He said that he “was a bit agitated because Karl was messing about with Kojak and the girls were arguing over boyfriends inside.”
Ruling on provocation by trial judge
At the conclusion of the evidence, counsel for the applicant applied to the trial judge to be allowed to present a defence of provocation on two distinct bases. The first, based on the earlier events inside the caravan: fighting between Aiden Duggan and the deceased, uncouth and violent behaviour, the falling about and drunkenness of the deceased and the inappropriate advances made to Kirsty. The second related to the abusive remarks of Aiden Duggan outside the caravan: telling the applicant to “fuck off.” This latter event was described as the trigger. It was submitted that, on the evidence, the applicant had intended to stab Aiden Duggan, but, as a result of mistake, he headed towards the deceased. Counsel also presented a combination of these two arguments: that the immediate response of the applicant to Aiden Duggan’s threatening language was to be seen in the context of repeated brutal and savage violence of Aiden Duggan against his friend, “Kojak.”
The learned trial judge thought that it would be hard to imagine a case where serious consideration could be allowed to be given to such grounds as providing a basis for a defence of provocation where the evidence was more problematic, thinner and less cogent than this case.
Concerning the events which had occurred inside the caravan, he considered that there was a complete lack of evidence of any sudden loss of self-control; the element of suddenness was absent insofar as that part of the history was concerned. There was clearly a period of cooling off, demonstrated especially by the fact that the applicant had gone to the aid of the deceased by calling for an ambulance. He said that he was quite satisfied that there was no basis for suggesting that the conduct of the deceased in the caravan could be regarded as evidence of provocation. He added that the notion of some form of group provocation, whereby a person, in the position of the deceased “being battered by another person is to be regarded as…. acting in conjunction with his batterer in providing provocation” verged on the absurd. Thus he rejected the argument for provocation on the first basis.
The second basis, in summary, was the evidence regarding the remark of Aiden Duggan: “Fuck off you, this isn’t how we do things here. Fuck you and your caravan.” He recalled the evidence of the immediate reaction by the applicant and the fact that it was pitch dark outside the caravan. He accepted there was scope for mistaken identity. On that basis, provided that the jury were satisfied that the applicant had been caused to suffer a sudden and temporary loss of control, the defence of provocation was open.
The jury were, accordingly, addressed by both prosecuting and defence counsel. They both dealt with the issue of provocation. The jury clearly did not accept the case made for the applicant, since they convicted of murder. More accurately, their verdict must be taken to mean that they were satisfied beyond reasonable doubt that the applicant had not been provoked by the remark made by Aiden Duggan, leading to the mistaken killing of the deceased.
The appeal
The principal ground of appeal is that the learned trial judge erred in refusing to allow the jury to consider the defence of provocation arising from the events that occurred inside the caravan, prior to the ejection of the deceased. It is submitted that the applicant lost control by reason of a combination of the actions and words of both the deceased and Aiden Duggan. The deceased and Aiden Duggan were jointly engaged in conduct that contributed to the provocation of the applicant over a period of hours and, although it was the words and actions of Aiden Duggan which were the trigger that immediately caused the sudden loss of control, the defence was available on the basis that the applicant intended to strike the deceased, Aiden Duggan, or either of them.
Insofar as any parts of the interviews with the applicant showed that he was not upset or angry about the earlier events at the time he lost control, these amounted, at most, to inconsistencies which were a matter for the jury to resolve. The learned trial judge, by refusing to accept this proposition, had trespassed on the domain of the jury.
The applicant was only required to reach a low threshold in order to have this aspect of the defence of provocation properly placed before the jury.
The law
The law with regard to the defence of provocation is well settled. Barrington J, delivering the judgment of this Court in People (Director of Public Prosecutions) v Kelly [2000] 2 I.R. 1, provided the following definition at page 10:
“A successful defence of provocation, on the other hand, presupposes, at the critical time, the existence, not of a calculating mind, but of a mind subject to “a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.”
At page 11, he added:
“It will not be sufficient for the defence to show merely that the accused lost his temper or merely that he was easily provoked or merely that he was drunk though all of these may be factors in the situation. The loss of self-control must be total and the reaction must come suddenly and before there has been time for passion to cool. The reaction cannot be tinged by calculation and it must be genuine in the sense that the accused did not deliberately set up the situation which he now invokes as provocation. To justify the plea of provocation there must be a sudden unforeseen onset of passion which, for the moment, totally deprives the accused of his self-control.”
This test had been traced back in several of the judgments to the judgment of Devlin J. (as he then was) in R. v. Duffy [1949] 3 All ER 932: “Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.”
In The People (Director of Public Prosecutions) v. MacEoin [1978] I.R. 27, this Court departed from that part of the dictum of Devlin J which treated the test as an objective one. The Court held that the test is a subjective one. In Kelly, the Court clarified earlier statements and ruled that the defence is not subject to any test of proportionality. The loss of control suffered by the accused person may be so total that his reaction is, indeed, disproportionate, and still come within the defence of provocation. It is clear, nonetheless, that the jury may test the credibility of the defence by asking itself whether anyone would react in such an extreme fashion to a minor event.
It is necessary to and inherent in the notion of sudden and total loss of control that the reaction must follow immediately upon the postulated provocative act. Hence the qualification that there shall not have been time for passions to cool. Reference was made in the course of argument to “battered wives” cases. If a woman has been subjected to prolonged ill-treatment or abuse, she may lose control on a particular ultimate intolerable act of the tormentor and kill him. If the other necessary elements of the test are satisfied, the defence of provocation may be permitted. It does not follow, however, that an act performed otherwise than in the heat of the moment, after an interval of time, will qualify.
It is, of course, also an essential feature of the defence that the provocation must come from the the deceased. Loss of control, however genuine, sudden and total, but caused by the actions of a third person does not qualify. Devlin J, in the passage quoted above, spoke of “some act, or series of acts, done by the dead man to the accused…” This does not preclude reliance in an appropriate case on the mistaken killing of a person other than the provoker. The accused may aim at his provoker and miss but kill another or may mistake the victim for the provoker. That is essentially the basis on which the learned trial judge allowed the defence to be advanced before the jury in this case. Aiden Duggan spoke the words which were (and indeed still are) treated as the trigger, but it was a pitch black night and it was possible that the applicant mistook the deceased for Aiden Duggan.
It is the function of the trial judge to decide whether there is evidence on which a jury might reasonably decide that the accused was provoked. He will not allow the matter to go before the jury, unless he is satisfied that there is evidence to support it. As has been frequently said, the threshold is a low one. Hardiman J, delivering the judgment of this Court in People (Director of Public Prosecutions) v Davis [2001] 1 I.R. 146 said, at page 156, “that the burden on the applicant is not a heavy one but it necessarily involves being able to point to evidence of some sort suggesting the presence of all the elements of provocation.” He added:
“Provocation is not an issue which will automatically go to the jury simply because the defence is invoked. The burden which rests with the accused is to produce or indicate evidence suggesting the presence of the various elements of the defence. This can be produced either through direct evidence or by inference from the evidence as a whole, but before leaving the issue to a jury the judge must satisfy himself that an issue of substance, as distinct from a contrived issue, or a vague possibility, has been raised.”
It follows that the learned trial judge is required to consider all the evidence and reach a conclusion as to whether there is evidence from which the jury might reasonably conclude that the accused committed the act which led to the death of the deceased because he had suffered a sudden and total loss of self control by reason of some words or acts of provocation done or spoken by the deceased.
Conclusion
The applicant invites this Court to hold that the learned trial judge was mistaken in law in declining to permit the jury to consider that the applicant was provoked into stabbing the deceased by reason of some act of the deceased, although it is accepted that the triggering event was the speaking by Aiden Duggan of the words: “fuck off” or “fuck you and your caravan.”
In considering this matter, the Court bears in mind that the learned trial judge heard the entire of the evidence directly from the witnesses given viva voce. A lot of the evidence was inconsistent and contradictory. Some witnesses, such as Karl Thomas, were obviously unreliable and even untruthful. There were inconsistencies between witnesses without their being untruthful. The applicant made four statements to the gardaí. In at least two of them, he did not give a truthful account, i.e., he did not admit that he had stabbed the deceased. The primary source of evidence that a person was provoked, given that the test is subjective, would normally be that person himself, although it is well-established that it may emerge from the evidence of others. Here, the applicant did not give evidence. His counsel relies on his own statements to the gardaí. It is not necessary in this case to consider the evidential status of exculpatory as distinct from inculpatory statements. It has been accepted that a distinction cannot realistically be made between those two aspects of a single statement.
The fact that the learned trial judge had the advantage, not enjoyed by this Court, of hearing all the evidence in a six-day trial must be borne in mind when considering the challenge to his ruling on the issue of provocation. The learned trial judge was not satisfied that there was sufficient evidence to go to the jury. It is for the applicant to demonstrate to this Court that he was wrong and, consequently, to point to any particular evidence which was not considered by the learned trial judge.
As to the fact of the applicant’s loss of control, there is no doubt. He reacted suddenly to the abuse hurled at him by Aiden Duggan and rushed to equip himself with a knife. He used the knife to stab the deceased, who was sitting, as he said himself, “half conscious” and “mumbling” on the ground. The applicant used many expressions to describe his state. He was “in a rage” or had a moment of madness. The killing was a sudden and irrational act. The applicant was in the grip of some passion, most likely largely due to drink, though that fact does not exclude the possibility of provocation.
The problem, then, is to find the reason for this loss of control. Insofar as the effects of the statement of Aiden Duggan are concerned, the jury have considered the matter of provocation. The applicant has had the full benefit of the judge’s ruling on that point. The jury must be taken to have been satisfied beyond reasonable doubt that the applicant was not provoked by those remarks to such an extent as to kill the deceased in mistake for Aiden Duggan.
The first thing that can be said with confidence is that the applicant did not, in any of his statements to the gardaí, say that he had been provoked into the act of stabbing the deceased by anything said or done by the deceased at any stage of that evening and night. Counsel for the applicant has not referred the Court to any statement made by him in any of his statements to that effect. This is the more striking in view of the fact that he was repeatedly and insistently pressed by garda questions to explain his homicidal act, i.e. to identify the “trigger” of his action. Nor is there any other evidence that he said anything on any other occasion to that effect.
The first and most notable aspect of the acts which took place in the caravan was that concerning fighting between Aiden Duggan and the deceased. The overwhelming aspect of that bizarre series of events is that the deceased was the victim. To the extent that there was evidence that the deceased struck the first blow, there is no evidence that the applicant was aware of that fact. The Court cannot accept that the role played by the deceased as the victim of battering by Aiden Duggan can conceivably amount to provocation by the deceased of the applicant. The proposition, to adapt the language of the learned trial judge verges on the absurd.
Insofar as the inappropriate touching by the deceased of Kirsty, the applicant’s girlfriend, is concerned, the only statements available from the applicant are to the effect that this was all spent or past. It can be accepted that such action is capable of, causing annoyance, and, indeed it probably did so, but there was no evidence—at least none has been drawn to the attention of the Court—to suggest that the applicant was under the continuing effect of such provocation at the time he stabbed the deceased. The statements made by the applicant—quoted above—are to the contrary effect.
The deceased was undoubtedly a nuisance. He was totally drunk, fell around, knocked over tables and drinks and, ultimately, soiled himself to such an extent that his company was no longer welcome. However, the reaction of the applicant was to help him, lift him or push him out of the caravan. Furthermore, crucially, the agreed evidence is that the applicant called or arranged for another to call an ambulance and that he lifted the deceased into a sitting position on the ground outside the caravan. The Court has not been referred to any evidence to show that the applicant was provoked into stabbing by the earlier behaviour of the deceased. The Court simply cannot accept that a man who was sitting in a semi-conscious condition on the ground, bleeding from his head and mumbling could be considered to be provoking the applicant by reference to or on account of his earlier disorderly and unpleasant behaviour. Indeed, none of his behaviour was even alleged to be directed towards the applicant.
At the hearing, counsel for the applicant submitted that the passage quoted at paragraph 17 above and described as “fundamental” to the applicant’s case shows more or less conclusively that the applicant was, in fact, provoked. The Court has considered this passage very carefully. The Court was invited to consider that the reference, in that passage—“arguments and fights, bleeding people falling out the bleeding—of the bleeding caravan and all. I was just stressed out. I don’t know what was going on. I just had a moment of red.”—demonstrated beyond doubt that the applicant was saying he had been provoked into stabbing the deceased to death by the earlier behaviour of the deceased. That submission depends essentially on the use of the plural, “fights,” whereas the only fight then going on was between Karl Thomas and the deceased whom he was taunting with a sweeping brush. When one looks at the full context of the statement, there were several “fights” going on. The applicant also referred to a fight between Karl Thomas and Aiden Duggan, but there were several quarrels taking place at the same time. At any rate, the passage contains no suggestion that the applicant was then being provoked by a “fight” which had taken place earlier in the caravan and in which, in any event, the deceased was the victim. It bears repeating, moreover, that none of the actions of the deceased in the caravan were directed against the applicant.
The learned trial judge was most convinced by the fact of the applicant’s call for an ambulance that any passion, assuming there to have been any in the mind of the applicant, had cooled.
The Court does not accept that the learned trial judge was in error. His ruling on the evidence of provocation was within his power. In summary there was ample evidence from which the jury would have been entitled to conclude that the applicant was in the grip of an uncontrollable passion when he stabbed the deceased and equally that provocative words were spoken to him by Aiden Duggan immediately before he committed that act. What is missing is any evidence to connect the deceased either with the words spoken by Aiden Duggan or with any provocative words or acts directed towards the applicant.
The Court rejects this ground of appeal.
The video issue
Karl Thomas was called as a witness for the prosecution. It was generally accepted that his evidence was unsatisfactory and probably not truthful. Thomas was, or had been, a friend of the applicant. Counsel was concerned at some form of taint by association so far as the applicant was concerned. He cross-examined Karl Thomas on his statement to the gardaí. The prosecution made a somewhat half-hearted attempt to have Karl Thomas treated as a hostile witness, However, the evidence of the witness concluded following cross-examination by counsel for the applicant.
On the following day, counsel for the applicant applied for leave to have shown to the jury some extracts from the video recording of Karl Thomas’ garda interview. Having been prepared originally to permit this procedure, the learned trial judge effectively changed his mind. He considered that it would involve the production of hearsay evidence to the jury.
The Court is satisfied that the learned trial judge was correct in his ruling. Counsel had cross-examined the witness on his written statement. It is, of course, permissible to cross-examine a witness as to statements made by him on another occasion. The production of the video would have been a quite different procedure. What the defence wanted to do was to produce before the jury and without going into evidence an independent piece of evidence as to what the witness had said on another occasion. It was, at the very least, a departure from the normal rules of evidence. It would have involved production before the jury of evidence of what the witness had said in his garda interview. The Court is satisfied that the learned trial judge’s ruling was within his jurisdiction.
Prosecution speech to the jury
This complaint is that counsel for the prosecution, in his closing address to the jury, misstated the law with regard to provocation. Counsel applied to the trial judge for a ruling to the jury correcting these statements. The judge declined to do so. It is accepted that the trial judge correctly directed the jury as to the legal elements of provocation. Counsel for the defence also addressed the jury. It appears that the main point of the complaint is that prosecution counsel in some manner equated the acts of an accused person under the influence of provocation with an automaton.
It was not correct to use the expression “automaton.” A person killing another under what amounts in law to provocation is still acting intentionally. The position is that he has ceased to have control over his actions. Thus, the prosecution misstated the position in law. However, the learned trial judge correctly referred to the existence of intention. The trial judge is the best person to decide on the likely effect of a particular use of phrase in counsel’s speech. In the view of the Court, the learned trial judge properly exercised his discretion on this matter.
The People v. Kelly
[2000] 2 I.L.R.M. 426 Barrington J
This is an appeal against conviction brought pursuant to a certificate of the trial judge by Keith Kelly who was on 9 May 1997 found guilty, before Flood J and a jury in the Central Criminal Court, of the murder of Melanie Gleeson on 31 October 1995.
The appeal raises an important issue as to how a trial judge who has allowed a defence plea of provocation to go to a jury, should charge the jury on that subject. It is clear from the charge of the learned trial judge that he took meticulous care to charge the jury on the lines laid down by this Court in People (DPP) v. MacEoin [1978] IR 27 and People (DPP) v. Mullane Court of Criminal Appeal 1996 No. 75, 11 March 1997 while at the same time stressing that the test to be applied to the question as to whether the accused had been so provoked as to lose his self control and kill the deceased was a subjective one and not an objective one. Mr MacEntee SC, for the accused, submitted that passages which the trial judge felt obliged to quote from the decisions in MacEoin and Mullane still retained traces of the objective test and tended to contradict the trial judge’s statement that the test was a subjective one. The foreman of the jury twice asked the trial judge to redirect them on the issue of provocation. One of the matters on which he asked for specific assistance was ‘the use of excessive force in relation to provocation’. The jury, after being out for four hours and 20 minutes, found the accused guilty of murder by a majority verdict of ten to two.
It was in this context that the trial judge granted the certificate of leave to appeal. He said (at book 4 of the transcript p. 60):
I want to make it quite clear that this Court has followed the law as laid down by the Court of Criminal Appeal. I in no sense give myself the right to in any way abrogate the view or the decision of the Court of Criminal Appeal in either decision. But I do consider that it is appropriate to grant the certificate of leave to appeal in the circumstances of this case.
The defence did not go into evidence. But the trial judge ruled that there was sufficient evidence of provocation on the State’s case to allow the plea of provocation to go to the jury. The problem then arose as to how the trial judge was to charge the jury on the issue of provocation. The trial judge charged the jury in accordance with the principles laid down by this Court in People (DPP) v. MacEoin [1978] IR 27 and People (DPP) v. Mullane Court of Criminal Appeal 1996 No. 75, 11 March 1997 making clear his own view that the test to be applied by the jury on the issue of provocation was a subjective one. The defence however objected to the judge’s charge on the basis that some of the passages which the trial judge felt obliged to quote from People (DPP) v. MacEoin and People (DPP) v. Mullane could give the impression that the test to be applied was, at least in part, an objective one.
The law
Prior to the decision of our Court of Criminal Appeal in People (DPP) v. MacEoin the question of whether a defence of provocation had been established was determined by ‘the objective test’. This test was enunciated by Devlin J and specifically approved by Lord Goddard delivering the judgment of the English Court of Appeal in R. v. Duffy [1949] 1 All ER 932. The relevant passage reads as follows:
Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.
This formula was clearly the basis for s. 3 of the English Homicide Act 1957 which reads as follows:
Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.
The Irish Court of Criminal Appeal in People (DPP) v. MacEoin consciously rejected the objective test and purported to substitute a subjective test.
Dealing with the duty of the trial judge the court said (at p. 34 of the report):
When the defence of provocation is raised, we think that the trial judge at the close of the evidence should rule on whether there is any evidence of provocation which, having regard to the accused’s temperament, character and circumstances, might have caused him to lose control of himself at the time of the wrongful act and whether the provocation bears a reasonable relation to the amount of force used by the accused.
Dealing with the way in which the trial judge should charge the jury the court said (at p. 34):
If there is evidence on which the jury could reach a decision favourable to the accused on this issue, the trial judge should allow the defence to be considered by the jury and should tell them that, before they find the accused guilty of murder, the prosecution must establish beyond reasonable doubt that the accused was not provoked to such an extent that, having regard to his temperament, character and circumstances, he lost control of himself at the time of the wrongful act. Then the jury must be told that they must consider whether the acts or words, or both, of provocation found by them to have occurred, when related to the accused, bear a reasonable relation to the amount of force he used. If the prosecution prove beyond reasonable doubt that the force used was unreasonable and excessive having regard to the provocation, the defence of provocation fails.
The problem with the formulation of the test in both the passages quoted is that it appears to apply a subjective test to the question of whether the accused was so provoked that he lost his self control and then to apply an objective test to his reaction to being so provoked. In the first passage quoted the trial judge is asked to enquire ‘whether the provocation bears a reasonable relation to the amount of force used by the accused’.
The second passage quoted appears to suggest that the jury must be told that they must consider whether the acts or words, or both, of provocation found by them to have occurred, when related to the accused, bear a reasonable relation to the amount of force he used. It then continues:
If the prosecution prove beyond reasonable doubt that the force used was unreasonable and excessive having regard to the provocation, the defence of provocation fails.
This last sentence, if it stood on its own, would suggest a purely objective test. But the court can hardly have intended this and the passage must be placed in context. It would make no sense to suggest that a man who had been so provoked that he had lost his self control should measure his reaction and use no more than reasonable force in response.
That the court did not intend such a result is clear from a passage which appears at p. 34 of the report and which reads as follows:
In the opinion of this Court the objective test in cases of provocation should be declared to be no longer part of our law. If the accused raises the defence that he was provoked and establishes that and nothing more, we do not mean that the prosecution must prove beyond reasonable doubt that he was not provoked. The nature of the provocation may not justify the force used judged by the accused’s state of mind. But the inquiry to be made by the judge first and then by the jury must centre not on the reasonable man but on the accused and his reaction to the conduct or words which are said to be provocative.
In the later case of People (DPP) v. Mullane Court of Criminal Appeal 1996 No. 75, 11 March 1997, O’Flaherty J attempted to emphasise that the test laid down in People (DPP) v. MacEoin was a subjective one. He quoted the last passage cited above from that case and emphasised the words in italics.
In his conclusion (at p. 7) he introduces the concept of ‘credibility’ to reconcile the apparent conflict in the MacEoin decision. He states:
The court concludes that the impugned sentence in MacEoin really comes down to credibility of testimony rather than to any suggestion that the accused’s conduct is to be once more judged by an objective standard. That latter construction would go contrary to everything else that is contained in the judgment. Where a person reacts violently to some alleged provocation, then a judge should pose to the jury the question: did the accused react in a way that bore a reasonable relation to the provocation offered as far as his temperament, character and circumstances were concerned, or was this an attack in which the provocation did not justify the force used — judging such force from the accused’s state of mind.
He again emphasises, in the context of credibility, that the test in the MacEoin case is totally subjective. He says:
The MacEoin case, having laid down the subjective test, does not part from it. However, the impugned sentence is capable of creating in the minds of a jury the impression that they might approach the matter by reference to the standard of a reasonable person. That was not intended in the judgment: the trial judge is required to make it clear to the jury at all times that they must decide matters by reference to the state of mind of the accused. That is not to say, as the judgment makes quite clear, that simply because an accused asserts that he was provoked and lost control, that the jury must necessarily accept that. Of course, they are not required to accept such an assertion. They must make up their minds as to what credibility they afford to the version put forward by the accused, or any witnesses that he may call on his behalf.
He adds a word of caution for a trial judge explaining the MacEoin case to a jury:
The trial judge obviously meant well in repeating the very words of the judgment in MacEoin but it must always be remembered that the words of a judgment are not as if they were embodied in a statute.
The judgment in MacEoin was intended to guide trial judges. This is especially true in the case of a possible verdict of manslaughter, an offence which is capable of such a variety of manifestations, ranging from a case which will border on murder to one which will come nearer to misadventure than to homicide.
In the later case of People (DPP) v. Noonan [1998] 2 IR 439; [1998] 1 ILRM 154 Geoghegan J giving the judgment of this Court again emphasised that the test laid down in MacEoin and Mullane was a subjective test but again referred to the issue of credibility. In a passage, at pp. 444/159 of the report, he states:
The test laid down in MacEoin rejects the concept of the reasonable man and concentrates on the accused himself. This does not, of course, mean that a jury is totally precluded from considering how a reasonable man might react. It may well be relevant to consider how a reasonable man might react to taking into account the overall credibility of the accused, but that is quite a different use of the concept of the reasonable man. In the quotations relied on by the learned trial judge, the objective test of the reasonable man is clearly being made a constituent element of the legal defence of provocation itself. After quoting from the English case law, the learned trial judge quite properly returns to MacEoin and reads the relevant passages from it to the jury, but unfortunately it is impossible to escape the conclusion that a jury being told about two quite inconsistent tests, the English objective test and the Irish subjective test, could be left in confusion.
The Noonan case also decided that ‘inconsistent’ instructions given to a jury in a vital matter require that a conviction be quashed. In this the court was following the earlier decision of the Court of Criminal Appeal in People (AG) v. Berber and Levey [1944] IR 405.
The objective test
It is quite clear from the above analysis of the Irish authorities that this Court, following the MacEoin case, has adopted a purely subjective test in relation to the issue of provocation in a murder trial. In this respect Ireland differs from all the other common law countries which have attempted to apply the objective test though at times they appear to have attempted to marry the objective and subjective tests in a manner which has produced difficulties of its own. This Court has looked at the position in Australia, the United Kingdom, Hong Kong, India, Malaysia and New Zealand. Among the cases it has considered are Stingel v. R. (1990) 171 CLR 312; Masciantonio v. R. (1995) 183 CLR 58; Green v. R. (1997) 191 CLR 334; Luc Thiet Thuan v. R. [1996] 2 All ER 1033; R. v. Humphreys [1995] 4 All ER 1008; R. v. Thornton (No. 2) [1996] 2 All ER 1023; R. v. Smith [1998] 4 All ER 387; R. v. Morhall [1995] 3 WLR 330; R. v. Acott [1997] 1 All ER 706 and others. A study of these cases has convinced us that the problems associated with applying the objective test are at least as formidable as those associated with the subjective test. We have not however quoted from these authorities because this Court has already decided to apply the subjective test and by quoting from authorities based on the objective test we might end up by giving ‘inconsistent’ signals of the kind which have already created confusion in relation to the issue of provocation.
Appellant’s submissions
The wording of the appellant’s grounds of appeal follows that of the trial judge’s certificate and is as follows:
Whether the learned trial judge was correct in law, in the course of directing the jury on the law relating to provocation, in reading to the jury passages from the judgments of the Court of Criminal Appeal in People (DPP) v. MacEoin 1978 and People (DPP) v. Mullane, unreported judgment 11 March 1997 delivered by O’Flaherty J thereby telling the jury that provocation failed if the jury believed that the provocation did not bear a reasonable relationship to the amount of force used by the accused,
Or whether
The learned trial judge should have directed the jury unambiguously that where, as the learned trial judge had ruled, there was evidence capable of raising the issue of provocation, that manslaughter was the appropriate verdict unless the prosecution negatived provocation by satisfying the jury beyond reasonable doubt that the words and/or acts alleged by the defence to constitute provocation were not reasonably capable of causing the accused to lose his self control so that he was no longer master of his own mind and therefore could not stop himself from doing the acts which caused the victim’s death.
In the course of his written and verbal submissions Mr MacEntee accepted that the trial judge made an extremely conscientious effort to charge the jury fairly on the issue of provocation. However he submitted that inherent ambiguities in passages which the trial judge quoted from the MacEoin and Mullane cases were likely to, and did in fact, confuse the jury. In particular he submitted that once a jury accepts that there was a reasonable possibility that the accused may have been so provoked as to lose his self control there is no place for a test of proportionality between provocation and response whether the test being applied is objective or subjective. If a person loses his self control in a given situation how can he be said to be amenable to any test of proportionality? The two concepts are mutually exclusive. To the extent that proportionality is to be considered at all, it should be considered only as anterior and precedent to the loss of self control. He also submits that the concept of ‘proportionality’ is not a helpful one and tends to confuse rather than assist a jury dealing with the issue of provocation.
He accepts, of course, that there must be evidence capable of raising the issue of provocation. He also accepts that the jury are entitled to examine the provocation in the context of considering whether the accused did or did not lose his self control. This is a question of credibility. But if the jury are satisfied that the accused has, or may have, lost his self control the violence of the accused’s reaction to the provocation is irrelevant.
Mr MacEntee also invited this Court to reformulate the principles enunciated in MacEoin and Mullane in such way as would take into account the submissions advanced in the present appeal and in such a fashion as to simplify directions to a jury so as to avoid the kind of confusion which, he says, clearly affected the minds of the jury in the present case.
The prosecution submissions
Mr Vaughan Buckley SC, for the Director of Public Prosecutions, submits that, post MacEoin/Mullane, this jurisdiction has one of the most liberal regimes in the common law world from an accused’s perspective with regard to the issue of provocation. No other jurisdiction has adopted an absolute subjective test because, he says, in that eventuality once the accused relied on provocation and showed that anything capable of being provocative had happened, the defence would almost invariably succeed as the accused had obviously been subjectively provoked because he had killed his unfortunate victim.
He also submitted that it would be almost impossible for the prosecution to satisfy a jury that the words and/or acts alleged by the defence to constitute provocation were not reasonably capable of causing the accused to lose his self control. He further submitted the test proposed would be more akin to that of irresistible impulse.
Conclusion
This Court has not to decide whether the test to be applied in a murder trial in which a trial judge has ruled admissible a defence plea of provocation for the purpose of reducing a possible verdict of murder to a possible verdict of manslaughter, is objective or subjective. That matter has been already decided in the MacEoin case and the Mullane case. The problem with the MacEoin case is not with the decision itself but in the way the decision is worded. The difficulty of the wording has not been totally removed by the judgment in the Mullane case. For that reason we consider that a trial judge dealing with a plea of provocation in a murder trial, should follow the MacEoin case but he may not find it necessary, or helpful to the jury, to quote from it.
It is interesting to note that the court in MacEoin based its decision partly on the earlier decision of People (AG) v. Dwyer [1972] IR 416 where the Supreme Court held that, where a person accused of murder raised a plea of self defence but had used excessive force in his defence with the result that he killed his assailant the test to be applied was a subjective one not an objective one. The fact that the court was following the decision in People (AG) v. Dwyer may in part explain some of the language used in the MacEoin decision. At p. 33 of the report Kenny J states as follows:
The accused’s contention was that if he used the amount of force which he thought necessary, he should not be convicted of murder even if a reasonable man would think it was excessive. Here again we have the contrast between the subjective and the objective test. On appeal the Supreme Court decided that, when self defence is raised, the correct charge to a jury is that if they come to the conclusion that the accused used more force than was reasonably necessary but no more than he honestly believed to be necessary they should return a verdict of guilty of manslaughter. This seems to us to have been a decisive rejection of the objective test in a branch of law closely allied to provocation.
Comparisons can be made between the defences of self defence and provocation. But there is one vital distinction. Self defence presupposes the existence in the accused of a calculating mind even if it is a mind operating under stress. If under these circumstances the accused has used more force than was reasonably necessary to defend himself but no more force than he, in the stress of the moment, thought to be necessary he can invoke the defence of self defence to reduce the case from one of murder to one of manslaughter. In this context the concept of ‘excessive force’ will be central to the jury’s deliberations. If they consider that the force used was more than a reasonable man would consider necessary but no more excessive than the accused, in the agony of the moment, considered necessary, then the jury will bring in a verdict of manslaughter.
A successful defence of provocation, on the other hand, presupposes, at the critical time, the existence, not of a calculating mind, but of a mind subject to ‘a sudden and temporary loss of self control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind’. In this context the usefulness of the concept of ‘excessive force’ is equivocal. On the one hand the jury, looking at the provocation, might say ‘Surely the accused was not provoked by that to use such excessive force against his victim’. On the other hand they might say ‘Surely this force was so excessive that the accused must have been totally out of control when he used it’.
In the course of his charge to the jury the trial judge will have told the jury that, in a criminal case, the burden of proof rests on the prosecution to prove its case beyond reasonable doubt. This burden always remains on the prosecution and never shifts.
If the accused has been permitted to raise a plea that he was so provoked by something done or said by the deceased victim, or by a combination of things done and said, as totally to lose his self control, the trial judge will invite the jury to examine the evidence on which the plea of provocation is based. He will point out to them that they are not obliged to accept this piece of evidence anymore than they are obliged to accept any other evidence in the case. They are obliged however to carefully consider it and to decide whether it is or may be credible. The question they have to decide is not whether a normal or reasonable man would have been so provoked by the matters complained of as totally to lose his self control but whether this particular accused with his peculiar history and personality was so provoked. At the same time they are entitled to rely upon their common sense and experience of life in deciding this as in deciding all other matters. If the reaction of the accused in totally losing his self control in response to the provocation appears to them to have been strange, odd, or disproportionate that is a matter which they are entitled to take into consideration in deciding whether the evidence on which the plea of provocation rests is credible.
This Court can only give the trial judge general guidance as to the principles to be applied. It is for him to relate these principles to the concrete evidence before the jury and to point out that there is a certain threshold of credibility. It will not be sufficient for the defence to show merely that the accused lost his temper or merely that he was easily provoked or merely that he was drunk though all of these may be factors in the situation. The loss of self control must be total and the reaction must come suddenly and before there has been time for passion to cool. The reaction cannot be tinged by calculation and it must be genuine in the sense that the accused did not deliberately set up the situation which he now invokes as provocation. To justify the plea of provocation there must be a sudden unforeseen onset of passion which, for the moment, totally deprives the accused of his self control.
But in the final analysis, the trial judge will tell the jury, it is their job to decide not whether a normal man or a reasonable man would have lost his self control in these circumstances but whether this particular accused in his situation with his peculiar history and personality was provoked, or may have been provoked, to such an extent as totally to lose his self control.
If they find that the accused was so provoked their duty is to bring in a verdict of manslaughter rather than murder.
If after their examination of the evidence relied on by the defence they entertain a reasonable doubt as to whether the accused may have been so provoked then they examine the prosecution case to see if the prosecution has satisfied them beyond a reasonable doubt that the alleged provocation could not, or in fact did not, cause the accused totally to lose his self control in the manner alleged, always remembering that the onus on the prosecution is not only to prove its case beyond reasonable doubt but also to negative beyond reasonable doubt any defence raised by the accused.
If they find that the prosecution has succeeded in convincing them beyond reasonable doubt that the provocation alleged could not or in fact did not provoke the accused to the extent that he totally lost his self control then their duty is to bring in a verdict of murder rather than manslaughter.
If, on the other hand, at the end of the case they still entertain a reasonable doubt that the accused may have been sufficiently provoked by the matters alleged as totally to lose his self control then their duty is to bring in a verdict of manslaughter rather than murder.
I should like to repeat that there has been no criticism of the trial judge in this case. He clearly attempted to charge the jury in a most fair, careful and conscientious manner and following the jurisprudence of this Court. Nevertheless there is serious danger that the jury may have received ‘inconsistent’ messages from the judge’s charge. Clearly he himself was concerned that this might have been the case and that is why he gave the certificate of leave to appeal and may also explain the form the certificate took. A further ground for unease is the jury’s request for further assistance in relation to ‘the use of excessive force in relation to provocation’.
In all the circumstances this Court is of the view that the judge’s charge was unsatisfactory and that there is a risk that the conviction is unsafe.
Under these circumstances this Court considers that it should quash the conviction and order a new trial.
The People v. Davis
[2001] 2 I.L.R.M. 65
The court is satisfied, and has already so ruled, that this application for leave to appeal must be dismissed. However, we believe that two of the issues raised related to matters of general importance on which we wish to express a view in somewhat more detail than might otherwise be required. It is also appropriate to deal with a third topic, that of causation.
The defendant seeks to appeal against his conviction for the murder of Mary Doogue on 20 October 1995. The grounds of appeal actually urged that the hearing before us may be summarised as follows: there was insufficient evidence that the death of the deceased was caused by actions which could be attributed to the accused; the learned trial judge failed to put the defence of provocation properly to the jury; and the jury should have been discharged at the request of the defence after a number of photographs showing him heavily chained, and certain editorial comments, had been published in different newspapers.
(1) Causation
It is convenient to deal with the issue of causation first. The evidence plainly established that the deceased had been savagely assaulted, especially by kicking, by the defendant shortly after midnight on 19/20 October 1995. Particularly savage kicks were delivered to the unfortunate woman’s genital area, but she seems to have been kicked all over the upper body. She was brought home, carried by the defendant over his shoulder like a sack of potatoes, and seems to have fallen from this position. There is some, but unsatisfactory, evidence suggesting that she may have fallen down the stairs in her house. There was also evidence that at an earlier stage on the evening of the 19th, about 10 p.m., she had been given a lift into Athy from Carlow by a lady who noticed tears in her trousers and whom she told that she had been chased by two fellows. This witness, however, specifically stated that she did not notice any injuries on the deceased. Finally, there was a suggestion that injuries to her ribs might have been caused in an attempt to resuscitate her when she suffered a heart attack taking her to hospital in the early evening on 20 October.
Each of these alleged alternative causes of injury is utterly lacking in credibility as a possible source of any significant part of the multiple injuries which the unfortunate deceased lady sustained. She had no injuries whatever when seen just before and just after 10 o’clock by the lady who gave her the lift and by her babysitter, respectively. There is only the defendant’s statement to suggest that she fell down the stairs and he first described her doing so in the presence of the babysitter, which is simply false. Dr John Harbison, the State Pathologist, virtually excluded the other two episodes as causes of significant trauma in the course of his conspicuously fair minded evidence in which he considered every possibility put to him. On the other hand, the injuries he observed are absolutely consistent with the defendant’s own description of the appalling assault he perpetrated on her. In particular the kicks to the genital area, causing rupture of the bladder and gross damage to the tissue in the area are uniquely consistent with the defendant’s action, and with no other event known or suggested to have occurred on the evening in question. The head and brain injuries, shoulder injury and trauma to the body are also consistent with this, on the defendant’s own description.
The cause of death was heart failure secondary to severe shock which was itself the cumulative result of the injuries described and in particular the very severe pain associated with them. Of these, probably the most significant contributor was the bladder and pelvic injuries. It seems overwhelmingly probable the defendant’s attack was the sole cause of all significant injuries. In point of law, however, it is unnecessary to go so far: it is sufficient if the injuries caused by the defendant were related to the death in more than a minimal way. There was ample evidence on which the jury could be satisfied beyond reasonable doubt that these injuries were the sole or principal cause of death and it is clear from the verdict that they were so satisfied. The only other cause of injury suggested remotely capable of serious effects is the alleged fall down the stairs and the jury were quite entitled to disbelieve the account of this given by the defendant to the gardaí. He did not give evidence at the trial.
Accordingly we are quite satisfied that the jury’s verdict finding the defendant guilty of murder was one amply supported by the evidence. The challenge to it based on the proposition that there was insufficient evidence to allow a conclusion that the defendant caused the deceased’s death is based on nothing but mere speculation with no remotely sufficient basis in fact.
Prejudicial publicity
On four occasions in the course of the trial different newspapers carried photographs of the defendant entering or leaving court when he was both handcuffed and chained to a prison officer. These photographs were naturally a matter of concern to the defence, and it is clear from the transcript that this concern was shared by the prosecution and by the judge himself. The latter expressed in unambiguous terms his disapproval of the photographs and his earnest desire that the publication should not be repeated. If these concerns were communicated to the newspapers (and the press were represented throughout the trial) they were entirely ignored. The learned trial judge requested that his concerns be drawn to the attention of both the Director of Public Prosecutions and the Attorney General and we have been told that this was done. No step appears to have been taken on foot of such communication.
The overwhelming, uncontradicted and high quality evidence in this case allows us to be entirely satisfied that in the particular circumstances these publications did not bring about a situation in which the trial was unsatisfactory. It is scarcely conceivable that any other verdict could have been come to. For this reason we do not propose to quash the conviction on the basis of the appearance of prejudicial material in the media. The appearance of such material, however, has become more than an occasional feature of media coverage of criminal trials and we therefore propose to address it in this judgment.
The public depiction of any person, but particularly an unconvicted prisoner, wearing the double restraints which are now commonly used in the prison service is a depiction of him in a position of humiliation and indignity.
This is a matter of common experience and has been chronicled by many who have been so depicted or exposed. No-one who has read Oscar Wilde’s description of being made to stand in chains on a railway station platform during a transfer from one prison to another can doubt this. The effect, both on the restrained person and on the public perception of him has been recognised in a number of instruments dealing with the treatment of prisoners.
The European Prison Rules, basically a set of model prison rules to which, according to the Department of Justice’s report The Management of Offenders — A Five Year Plan [1994] Ireland has subscribed, have certain provisions of interest. At paragraph 50.1 it is provided that:
Where prisoners are being removed to or from an institution, they shall be exposed to public view as little as possible, and proper safeguards shall be adopted to protect them from insult, curiosity and publicity in any form.
The same instrument at paragraph 39, prohibits the use of ‘handcuffs, restraint jackets or other body restraints’ except in three circumstances. Two of these relate to medical situations or situations requiring medical authorisation. The third is:
… if necessary, for precaution against escape during a transfer, provided that [the restraints] shall be removed when the prisoner appears before a judicial or administrative authority unless that authority decides otherwise.
There are almost identical provisions in the U.N. Rules for Treatment of Prisoners.
In Ireland, the Rules for the Government of Prisons (1947) provide at regulation 17:
A prisoner shall be exposed to public view as little as possible while being removed from or to prison. In order to avoid exposure while passing through the public streets, he shall, if necessary, be conveyed in a closed vehicle.
Part XIII of these rules relates to ‘restraints’. Rule 77 provides:
Irons or other means of restraint shall not be used except of such patterns and in such manner as may be approved by the minister.
It is quite clear from the foregoing that, in Ireland and internationally, it is a recognised humanitarian value that prisoners shall be protected from what is variously described as ‘exposure to public view’, and ‘insult, curiosity and publicity in any form’ as well as from excessive or unnecessary use of restraints. This specific provision in two international instruments that handcuffs etc. shall be removed when a prisoner is appearing before a judicial or administrative authority is of interest.
In France the ‘loi de 15 juin, 2000’ renders actionable, at the suit of the person affected, the publication of a depiction of a person ‘handcuffed or fettered’. Interestingly, the same law by an earlier section prohibits the publication of depictions offensive to the dignity of a victim of crime.
The thinking behind these provisions requires exposition. It can only be this: the dignity of the individual, and the perception that he is a participant in judicial proceedings with specific rights, and on a footing of equality with other participants, is inconsistent with his appearing there chained, manacled, handcuffed and chained, or otherwise manifestly restrained. It is difficult to distinguish in principle between depictions of the prisoner in this condition during judicial proceedings and depictions of him in the same condition shortly before proceedings begin, or shortly after they conclude.
Nevertheless such depictions are extremely common and appear to be prized by the media. On the day on which this judgment was drafted, one of the national newspapers carried a picture of a prisoner taken in such a way and from such an angle as to place his manacled hands and the chain connecting him to a prison officer in the centre of the foreground of the picture. In parts of the United States there is an unfortunate custom described colloquially as ‘Perp Walk’ whereby a prisoner, often just arrested, is laden with chains of various sorts and made to walk some distance in this condition at a prearranged or usual place, often between a police station and a court. He or she is there available to be photographed and, depending on the notoriety of the case, the photographs may be widely disseminated. This is widely recognised as an objectionable custom both because it is profoundly traumatic for the defendant and because it gives, and is perceived to give, the prosecution a considerable advantage by the deliberate skewing of the perception of the defendant.
It has not been suggested that the exposure of prisoners which happens in this country is deliberately organised as happens in parts of the United States. Nevertheless, despite the provisions in the Irish prison rules and the international instruments quoted above, exposure of defendants in restraints to public view, including that of photographers, is a daily occurrence. The layout and design of many court buildings, including the Four Courts, is not such as facilitates the protection of prisoners from such exposure as the prison rules and other instruments clearly envisage, but this obstacle is not insuperable.
Personal experience of defending persons who are so treated, including persons subsequently acquitted or against whom charges are subsequently dropped, confirms the harrowing nature of this experience to the individual prisoner. Especially to a prisoner who has never been in contact with the criminal justice system previously, the experience is an overwhelming one and of itself tends to break his spirit. It is an experience which lingers in the memory, sometimes causing profound disturbance long after the proceedings are over.
On this appeal, the court is not concerned with the propriety of the restraints used, or of their general application at least to male prisoners regardless of their record or the nature of the charges against them, or other such matters. We are not even concerned with the apparent ignoring of the imperatives in the prison rules and other instruments against public exposure. These matters may arise in other proceedings. What is directly in issue here is the repeated publication of pictures of a prisoner under restraint, during his trial, and the apparent defiance of the trial judge’s earnest and repeated requests, supported by both prosecution and defence, that such publications should not occur.
Every defendant suffers some degree of disadvantage simply by reason of the fact that he is accused. If he is incarcerated prior to and during the trial, the disadvantage is greater. The cardinal principle that a person is presumed innocent until proven guilty requires that a court should take all practical steps to ensure that such a person suffers no avoidable prejudice purely by reason of being accused or incarcerated.
It has never been the custom in this country for a defendant to be made to stand trial in prison garb. Indeed, prison rules positively require that an unconvicted prisoner be entitled to wear his own clothing, if suitable and available, in court and out of court. Why is this? The answer is twofold: to avoid stigmatisation and to maintain the dignity of the individual. Brennan J of the United States Supreme Court has said:
Identifiable prison garb robs an accused of the respect and dignity accorded other participants in a trial and constitutionally due the accused as an element of the presumption of innocence, and surely tends to brand him in the eyes of the jurors with an unmistakable mark of guilt (Estelle v. Williams 425 US 501).
In the United States cases dealing with prison garb, some judges have argued against defendants being required to wear it, on the basis of an analogy with physical restraints. Thus in Eaddy v. The People 151 Colo 48 the Supreme Court of Colorado said:
We believe the mind of a prisoner would be as much disturbed and his mental faculties as much confused and embarrassed by carrying on his person such brand of incarceration [in that case, a uniform marked ‘county jail’] as by physical shackles, and that a prejudice against a prisoner might equally well be created thereby.
This analogy is just as apt in reverse. If, on principle, we do not require incarcerated defendants to wear convict garb, they clearly cannot (in the absence of obvious need) be compelled to appear in court in shackles. And what distinction can be drawn between the need to prevent this, and the need to prevent them from being so depicted in photographs taken shortly before or after such appearance? The latter is every bit as humiliating to the individual and every bit as prejudicial. And the publication of the depiction is much wider than the original exposure.
In the Canadian case of R. v. McArthur 34 OTC 370 it has been held that:
The current state of our law and the administration of criminal justice in this country includes the presumption that shackling of an accused during the course of his or her trial is per se prejudicial to the accused. The … principle of our criminal justice that any accused person is presumed innocent until proven guilty is … tested severely by the use of any visible restraint during the conduct of a trial.
The court believes that this is the position in Ireland also.
It is clear from the cases cited above that it has been recognised for many years, and in various jurisdictions, that the shackling of a prisoner has an adverse effect both on his dignity and subjective well being and on the perception of him by the community as a whole and potential jurors in particular. There will obviously be cases where, despite these factors, restraints will be necessary, and the court is not presently concerned with the propriety of the routine application of restraints or the nature of such restraints. The court has already expressed concern at the apparent breakdown of arrangements to protect prisoners, including prisoners so restrained, from publicity including the attentions of photographers, despite the fact that such protection seems strongly mandated by prison rules. Such protection would also, at least by implication, appear to be required by persons in garda, as opposed to prison, custody.
The point now arising for consideration is the repeated publication of photographs of the defendant wearing restraints, despite the learned trial judge’s requests that these publications be not repeated.
Such publications are, in the court’s view, capable of amounting to contempt of court. In the first place, they may tend to undermine the dignity and resolution of the accused; in the second place they are capable of conveying a prejudicial perception of him. These factors are quite sufficient to permit a trial judge, in the exercise of his inherent powers to ensure that the trial conducted before him is fairly conducted, to request or require that such publication, or further publications of this sort, do not occur. The fact that the learned trial judge’s repeated requests in this regard were ignored is a matter for regret.
The court wishes to draw to the attention of anyone whom it concerns the contents of the prison rules and other instruments regarding the treatment of prisoners; the profound values, based fundamentally on respect for human rights and dignity, which underlie the need to ensure proper treatment for prisoners and other accused persons; and the strong possibility, to say the least, that publications in breach of requests such as those made by the trial judge in the present case may amount to contempt. It is hoped that, by referring to such matters in a case such as the present, where it is inappropriate to take further action, difficulties may be avoided in the future. It is perhaps important to stress that the consideration which allows this Court to decline to interfere with the present conviction on this ground would not be relevant to a consideration of whether or not a contempt had been committed, or whether prison rules or other mandatory requirements had been breached.
Provocation
It is with some trepidation that the court ventures into the territory of provocation. Experience has shown that, at least since the law in Ireland diverged so markedly from that in other common law countries with the decision of the Court of Criminal Appeal in Director of Public Prosecutions v. MacEoin [1978] IR 27, there has been a good deal of difficulty in practice in dealing with cases where provocation is, or is claimed to be, an issue. Nevertheless, the facts of this case make it inevitable that the topic be revisited.
We would adopt the statement about provocation contained in paragraph 4.02 of Mr Peter Charleton’s work Offences Against The Person (Dublin, 1992). The passage incorporates certain phrases from authorities and aptly summarises others. He says:
Where the accused, in killing the victim, acts under the influence of provocation his crime will amount only to manslaughter, and not murder, notwithstanding that the accused intended to kill or cause serious injury. The test in Irish law is subjective. The provocation under which the accused was acting must be such that having regard to the particular accused’s character, temperament and circumstances, it causes him to temporarily lose control of himself to the extent that he ceased to be master of himself when he killed the victim. The accused must use no more force than is reasonable having regard to the effect the provocation had on him.
If the defence of provocation properly arises in a case, an onus devolves on the prosecution to prove beyond reasonable doubt that the defendant was not acting under provocation, as that term is understood in law. But the topic does not arise automatically: as Messrs McAuley and McCutcheon put in their book Criminal Liability (Dublin, 2000) p. 851:
The general principles governing defences apply: a burden rests with the accused who must be able to show that provocation is a live issue or, as Lord Devlin put it, who must produce a credible narrative of events suggesting the presence of the various elements of the defence.
It is clear that this may be done either by direct evidence including the accused’s own evidence, or by inference from the evidence as a whole.
This preliminary issue, which decides whether the question of provocation will be left to the jury, is to be determined by the trial judge by an assessment of the evidence to determine if there is an issue fit to be left to the jury. A useful approach might well be for the judge to consider whether or not a jury would be perverse in finding that there had been provocation, on the evidence available.
In making this determination the trial judge must bear in mind that issue of credibility of evidence, as opposed to its existence, are for the jury and not for him. He must also bear in mind that before provocation becomes an issue in the case, fit to be left to the jury’s determination, there must be evidence (direct or inferential) suggesting the presence of all elements required for the defence.
In the present case, the learned trial judge was addressed on the question of provocation at the end of the case for the prosecution. The relevant passages are in book 10 of the transcript. At that stage, the evidence for the prosecution had finished and Mr White SC, for the defendant, had indicated that he would not be going into evidence. It is of course essential, as was pointed out in MacEoin, that the question whether provocation should or should not be left to the jury is to be dealt with at the close of all the evidence.
The learned trial judge did not of course have the benefit of the decision of this Court in DPP v. Kelly [2000] 2 ILRM 426. We wish, however, to reiterate some of what was said in that case as indicating matters of which there should be some evidence for the jury’s consideration before the issue of provocation is left to them. There must be evidence of ‘a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind’ (at p. 436) and there must be some evidence that the loss of self-control was ‘total’ and that the reaction came ‘suddenly and before there [was] time for the passion to cool.’ This burden is not discharged merely by pointing to evidence that ‘the accused lost his temper or merely that he was easily provoked or merely that he was drunk though all of these may be factors in the situation’ (p. 436).
In this particular case, in urging the learned trial judge to leave the issue of the provocation to the jury, Mr White relied on a number of factors. One of these was that, while being interviewed by the gardaí, he was said by one of them to be ‘loud of voice’ but subsequently calmed down and apologised. That, said Mr White, ‘perhaps paints a picture of the man’. He also relied on the defendant’s statement, in answer to a question by the gardaí:
I was so vexed I kept kicking her, I don’t know how many times I kicked her. I was in a rage when she told me it was none of my business where she was.
The learned trial judge also refers to the possibility that the defendant might have been aggrieved by the fact that the deceased lady had spent some of the day drinking in Athy, and some at an unknown location, when the defendant might have thought she should have been at home minding her children and preparing an evening meal.
It appears to us that that evidence falls far short of meeting the requirements for permitting provocation to go to the jury. We entirely accept that the burden on the defendant is not a heavy one but it necessarily involves being able to point to evidence of some sort suggesting the presence of all the elements of provocation. Provocation is not an issue which will automatically go to the jury simply because the defence is invoked. The burden which rests with the accused is to produce or indicate evidence suggesting the presence of the various elements of the defence. This can be produced either through direct evidence or by inference on the evidence as a whole, but before leaving the issue to a jury the judge must satisfy himself that an issue of substance, as distinct from a contrived issue, or a vague possibility, has been raised.
The facts proved in the course of the prosecution case showed that the defendant had returned from work in the late afternoon of 19 October 1995 to the house that he shared with the deceased to find her absent. He went in search of her but did not find her. He returned home again after about an hour and a half. He washed, changed and left again at approximately 9.00 p.m., at which time he was angry. He consumed a number of drinks during the course of the evening before meeting up with the deceased at around midnight. He was observed by a number of people none of whom noticed anything remarkable about his condition during this period. Later, about midnight, he found the deceased on the public street in Athy, assaulted her, asked her where she had been and was told it was none of his business. They were briefly approached by the gardaí, who were reassured by the deceased. Shortly afterwards she ran off and was pursued by the defendant. She fell, got up again and kept running. The defendant eventually caught up with her whereupon she informed him ‘that she was after getting her own back on him.’ The defendant kicked her. She refused to tell him where she had been and who she had been with and he kicked her again.
It seems to this Court that it is difficult to regard the elements of provocation as established even on a suggestive basis by this narrative, combined with the other matters mentioned by Mr White and the learned trial judge. There was no assertion by the accused to the gardaí that he had completely lost control of himself as a result of what was done or said and of course there was no assertion in evidence to that effect because the defendant did not give evidence. The defendant was already pursuing the deceased with a clear intent of assaulting her before the words most heavily relied upon were spoken at all. A condition of being ‘vexed’ or even ‘in a rage’ does not remotely approach evidence suggestive of the total loss of self-control which alone can palliate a fatal assault, on the basis of provocation.
The totally subjective criteria for the defence of provocation have been criticised by a number of commentators who express concern that it places an exceptionally onerous burden on the prosecution. This is because once an accused relies on provocation and gets over the low threshold required before it can be considered by the jury, the defence, they say, would almost invariably succeed as an accused had obviously been subjectively provoked because he had killed his unfortunate victim. Critics of the subjective test have also said, and it was submitted in Director of Public Prosecutions v. Kelly, that it would be almost impossible for the prosecution to satisfy a jury that words or acts alleged by the defence to constitute provocation were not reasonably capable of causing the accused to lose his self-control.
The subjective test has been well-established in Irish law for more then 20 years and it is not appropriate for this Court to discuss its merits or drawbacks. Nor do we think that it places the prosecution in quite so difficult a position as some commentators have suggested, because decisions of the courts, exemplified in Kelly have also established a number of constraints on the defence the chief amongst which is the necessity for the preliminary test to be met.
There is another aspect of the subjective test which, perhaps, also eases the prosecution’s position. Precisely because the test is entirely subjective, and because the courts since MacEoin have rejected the standards of the reasonable man in favour of an entirely subjective standard, it is not sufficient to show that there is evidence suggesting that words or acts have occurred which might have provoked some notional person, or might have provoked the notional reasonable man. It is necessary that there should be some evidence, whose credibility will fall to be assessed by the jury, that the particular accused was in fact provoked to the extent of total loss of self-control, that he killed the deceased while in this state, in response to the provocation, without there having been time for his passion to cool.
The defence of provocation does not operate in such a way as to allow any person who kills another in a fit of temper to establish that much and no more, and then defy the prosecution to exclude the reasonable possibility of provocation. He must show some, even weak or limited, evidence of all the elements of provocation as that phrase is understood in law, and usually this will involve focusing, inter alia, on the distinction between vexation, temper, rage or cognate emotions and provocation in its technical sense.
So to define the scope of the initial burden lying on the defendant is not, of course, to say that a person relying on the defence of provocation must necessarily himself give evidence at the trial. He may be able to surmount the low threshold otherwise, as by third party evidence (whether for the defence or the prosecution), medical evidence, his own statements to the gardaí or others or in some other way. But the defence must be raised, and not merely invoked.
It does not seem to this Court that that was done in this case, and we do not believe there was remotely sufficient evidence to justify the leaving of provocation for consideration by the jury. However, the fact that the learned trial judge did in fact leave it to the jury was clearly in ease of the accused. It is also clear that he did so with misgivings specifically about the topic to which we have drawn attention above: the fact that he had no evidence of the accused’s character or temperament other than the statement quoted above as to the state in which he perpetrated this savage attack.
In the event, the jury rejected the defence of provocation as they were fully entitled to do.
Before leaving the subject of provocation in general, we wish to make an observation which is clearly obiter in relation to the purely subjective test. The defence of provocation is one which has changed greatly from its earliest manifestations at the beginning of the common law era to the form in which it is presently found in Ireland. Messrs McAuley and McCutcheon, in their book which is cited above, traced its historical origin still further back, to classical times, and have demonstrated that the law has always recognised degrees of guilt in culpable homicide. Nor is this a merely academic exercise: the subject is one which can only be understood historically. Thus viewed, it is clear from the cases that the defence was a concession to the acknowledged weaknesses of human nature and in particular an acknowledgement, based on experience over centuries, that there were specific events calculated to rob a person of his self-control.
For many centuries the law proceeded on the basis of defining those events and very occasionally expanding their number. Such very dramatic events as finding a spouse in the act of adultery or a child in the process of having an act of sexual abuse perpetrated on him emerged in that way. A study of the events regarded as having this effect shows that they were all events which, on the basis of experience, might be regarded as likely to have a dramatic effect even on a reasonable and self-controlled person.
In the middle of the twentieth century the emphasis shifted from specific events capable of having the requisite effect, to the effect itself. If, it was argued, the defendant was in fact deprived of self-control, did it matter how this state was brought about? This shift of emphasis from cause to effect led, throughout the common law world, to the acknowledgement that words as well as actions could provoke and, in one degree or another, to the admission of subjective factors as being relevant for the consideration of a judge or jury considering provocation. In Ireland, as already noted, an extreme form of subjectivity was judicially accepted, to the exclusion of the standards of the reasonable man from the principal question in provocation. That standard, however, remained relevant on the question of credibility.
We think that it may, perhaps, require restatement. First that the defence is in the nature of a concession. Second, that the concession is based on policy considerations which may change from time to time. These considerations may dictate that the defence should be circumscribed or even denied in cases where it would allow to promote moral outrage. Messrs McAuley and McCutcheon give an illustration (at p. 877) of the difficulty which can arise where a defence of provocation is based on characteristics of the accused which are socially or morally repugnant:
An illustration is the case of the defendant who holds white supremacist beliefs and who genuinely believes that it is the greatest insult for a black person to speak to a white person unless spoken to first. On being spoken to by a black person he becomes enraged and kills while in the throes of his bigoted passion. Tested subjectively he has been provoked but there is no reason why the law’s compassion should be extended to him, given that his beliefs are not merely unreasonable but are morally repugnant. The strictly subjectivist terms in which Irish law has expressed the defence lend themselves to allowing the plea to the racist, yet it is safe to assume that the courts did not have cases of this type in mind when they set about reformulating the law.
A similar and perhaps equally topical example might be a person prone to uncontrollable reactions to any challenge to him when he is driving a car.
There is, it seems to us, a minimal degree of self-control which each member of society is entitled to expect from his or her fellow members: without such a threshold, social life would be impossible. It appears to this Court that the development of ‘road rage’ and of cognate types of socially repugnant violent reaction, with an incidence sufficiently great to have attracted a special name, emphasises factors which were perhaps not so common at the time of MacEoin. This however will be for another court to address authoritatively.
Finally, objection was taken to the learned trial judge’s charge in so far as it related to provocation. It was submitted on behalf of the accused that at a certain point in his charge to the jury the learned trial judge mentioned the phrase ‘sticks and stones will break my bones but names will never hurt me’. It was submitted that, as a result of the use of this phrase, the learned trial judge gave the jury to understand that words could not be the basis of provocation, as a matter of law.
What the learned trial judge actually said was as follows:
There is an old adage ‘sticks and stones may break my bones but words will never hurt me’. It is a matter for you as to whether you consider that with this particular individual that old adage did not apply, that the telling him that in the circumstances that he was with some drink taken but where she had a considerable amount of drink taken during the day, that the words, taunts perhaps as a word to describe those words as one reads them in that statement or as it is alleged that he spoke them to the gardaí in that interview, that those words caused him to lose self-control, and not just that he chose to lose his self-control, that he deliberately put aside his inhibitions to do violence to another human being, but that he actually did lose his self-control and momentarily was for the time when he was kicking her, if you find that you do believe that he did kick her, that he was beside himself and unable to control himself, and not that it is simply wilful loss of self-restraint and self-control.
It seems to this Court that the phrase or adage was not intended by the learned trial judge to convey, and could not have conveyed, any more to the jury than an invitation to consider whether or not the words in the particular circumstances did amount to provocation. The adage refers more to a coping mechanism for dealing with taunts more than anything else. It is very far removed indeed from a direction or recommendation to the jury that they should not regard words as capable of constituting provocation: indeed, the passage specifically envisages the contrary.
DPP v Zhao Zhen Dong
[2015] IECA 189
Judgment of the Court delivered on the 26th day of June 2015, by
Mr. Justice Birmingham
1. On the 5th December, 2012, Zhen Dong Zhao was convicted by a jury (a majority verdict of ten to two) of murdering Noel Fegan, at Wellington Quay, Dublin, on the 20th May, 2011. The question of “provocation” occupied a central position at trial and now the only issue on this appeal relates to how the trial judge dealt with the question of provocation in his charge.
2. The ground of appeal as originally formulated was “that the learned trial judge erred in law and fact in the manner in which he explained and charged the jury in respect of the issue of provocation”. On the 30th April, 2015, the day before the appeal was heard, a notice of motion was brought on behalf of the appellant to expand upon the ground so that it would read “that the learned trial judge erred in law and fact in the manner in which he explained and charged the jury in respect of the issue of provocation and further, the learned trial judge’s charge should have been carefully tailored to circumstances and facts of the instant case, furthermore the jury were inadvertently misdirected in relation to these matters”. At the outset of the appeal, when the application to amend was moved, the Court indicated that in its view, the application was unnecessary since the ground of appeal as originally formulated provided adequate scope for advancing any and all criticisms which the appellant wished to make of the trial judge’s charge.
3. In his oral submissions to this Court, counsel on behalf of the appellant referred to and sought to criticise certain remarks made by prosecution counsel during the course of her closing speech. In a situation where there had been no criticism of the prosecution closing speech at the trial, where the issue had not been raised in the notice of appeal or even in the notice of motion of the 30th April, the Court refused to permit the argument to be advanced. The Court so refused, despite the fact that counsel for the appellant contended that the closing words of the amended ground of appeal “furthermore, the jury were inadvertently misdirected in relation to these matters” was sufficient to cover the issue. In the Court’s view, anyone reading the notice of appeal and seeing the reference to misdirection would have believed that what was being sought to canvass was an alleged misdirection on the part of the trial judge.
4. Before turning to examine in detail what the trial judge had to say about provocation, it is appropriate to refer briefly to the background to the trial. The basic facts are that the appellant, who is a Chinese national who has made his home in Ireland, was running a small business, an internet café and call shop on Wellington Quay in Dublin. The centre provided computers and telephones for customers to use in order to make phone calls or access the internet. On the 20th May, 2011, the deceased, Mr. Noel Fegan, along with a friend of his entered the call centre and the deceased proceeded to use a telephone as he was anxious to return a call which he had received from his daughter. Having made his telephone call, the deceased went to leave the premises without paying for it. The appellant indicated to the customer that he would have to pay for the use of the telephone. The deceased suggested, untruthfully it would appear, that he had been unable to connect to the number that he had dialled and that as a result there was no payment due. The appellant who was sitting behind a computer screen at the entrance to the shop showed the deceased on the computer screen that, contrary to what was being claimed, the call had in fact connected and as such that there was a requirement for payment. The deceased threw one or more coins on the counter, which did not cover the cost of the call.
5. There were a number of witnesses to the incident and their accounts do not tally in all respects. However, it is clear that an argument ensued and that in the course of that, the deceased man struck the appellant by slapping him in the face. There was some evidence that the first slap was, or certainly may have been, delivered by the appellant. The deceased left the premises. Again there was some disagreement as to whether he ran out of the premises or was pushed out. One way or another, he ended up on the ground outside and again there was a disagreement as to whether he tripped or fell or whether he was dragged or wrestled to the ground. While the deceased was on the ground, he received a number of kicks from the appellant, including kicks to the head area.
6. CCTV footage and telephone records make clear that the entire incident was a very brief one. CCTV footage shows the deceased entering the appellant’s premises at 15.50.03 and then at 15.53.39, that is 3 minutes and 36 seconds later, the accused is seen kicking the deceased on the ground outside the premises. During the intervening period, the accused had made a phone call which lasted 89 seconds and terminated at 15.52.32. The argument between the deceased and the appellant took place over 1 minute and 7 seconds. The actual physical altercation outside the shop which resulted in the death of Mr. Fegan took place in a very short period indeed of perhaps 10 seconds or less.
7. At 4.55 pm on the 20th May, 2011, the appellant was arrested and brought to Pearse Street garda station where he was interviewed (with the assistance of a Chinese interpreter) on four occasions.
8. The defence did not call evidence, but following the close of the prosecution case, counsel for the accused submitted that the jury should be permitted to consider the issue of provocation. Very properly and realistically, having regard to the low threshold that applies in such cases, the application was not opposed by the prosecution and accordingly, the question of the defence or partial defence, as it is sometimes referred to, of provocation was addressed by counsel on both sides in their closing speeches and by the trial judge in his charge.
9. The issue on this appeal therefore, is how the trial judge dealt with the issue of provocation in his charge, in response to requisitions and in responding to questions asked by the jury.
10. The trial judge, McCarthy J., turned to the issue of provocation having addressed the ingredients of the crime of murder, including the mental elements of the offence. When dealing with the provisions of s. 4 of the Criminal Justice Act 1964, which he did without referring to the section by name, the judge stressed to the jury that they were dealing with Mr. Zhao and not anyone but him, that they were concerned with Mr. Zhao’s subjective state of mind rather than the objective state of mind of an average person, a reasonable person. Having touched on the issue of self defence, which he correctly said had not been pushed very much, he turned directly to the question of provocation. Given the centrality of this to the present appeal, as it is in reality the only issue in the appeal, it is appropriate to quote from this section of the charge in some detail:-
“The second issue which arises, and – is that of provocation. This also has been described as a concession to human weakness. And again, if the provocation arises in the legal sense, and I am going to explain it to you now, if provocation arises in the legal sense, again it causes a reduction, so to speak, of a conviction or charge from murder down to manslaughter and not, as it were, in either case a complete acquittal. And provocation, as I think one of my most esteemed colleagues, Mr. Justice Carney, is a veritable judicial graveyard in legal terms, but I am going to read out a passage and I will elaborate it – upon it as may be necessary, from one of the decisions of the courts, which is hopefully clearly one which sets out the law in relation to the matter.
‘It will not be sufficient for the defence to show merely that the accused lost his temper or merely that he was easily provoked or merely that he was drunk, though all of these may be factors in the situation. The loss of self control must be total and the reaction must come suddenly and before there has been time for passion to cool. The reaction cannot be tinged by calculation and it must be genuine in the sense that the accused did not deliberately set up the situation which he now invokes as provocation. To justify the plea of provocation, there must a sudden, unforeseen onset of passion which, for the moment, totally deprives the accused of his self control.’
I will read that again ‘It will not be sufficient for the defence to show merely that the accused lost his temper or merely that he was easily provoked or merely that he was drunk, though all of these may be factors in the situation’. So, I say two things about that. It will not be sufficient for the defence to show, lest there be any doubt about it that does not mean that there was any responsibility on the accused, to make out or prove any defence of provocation. The responsibility of the prosecution is to exclude, negative, rule out any defence of provocation, beyond a reasonable doubt and the same applies, of course in the context of self defence. It would not be the responsibility of the accused, for example, to show, in the sense of the issue of self defence, as it has arisen here that he thought the force he was using at the relevant time was reasonable. What would be required would be that the prosecution would find it – would need to exclude beyond a reasonable doubt that state of mind on his part. I trust that is clear, because if there was anything else, it would mean that there would be some responsibility case on the accused. I actually think that phrase is meant in a different way. You, know, in other words, it doesn’t – it actually watered down the rule. But anyway I hope that’s clear to you.
Now this man lost his temper lose- loss of temper – provocation merely is easily provoked or drunk, for example. The position is – those are just examples, the position is that if you take a person, when you are dealing with the state of mind, either in the context of provocation or self defence, or intention, or in any aspect of the case where you have to judge his mental state, as you find him, as I said, this man, with his experience of life, with his strengths, his weaknesses, his baggage. You take it – you take them both – you have regard to all of that, including the particular circumstances on the occasion in question. So, therefore, you can see that if you were not to do that, then in this instance you would be failing to focus solely on the man who is before you. When I speak about his background, his baggage, and otherwise, of course I mean also not just the type of person he is, but his experience in business, his experience in the shop, the problems he has had and so on all of that is part of the background. I don’t tell you what emphasis to place on any of these issues. I merely tell you, as a matter of principle, on the evidence, all of these matters are potentially relevant, because you decide what’s relevant.
In any event I read on:
‘The loss of self control must be total and the reaction must come suddenly and before there has been time for passion to cool.’
Well I can’t really add to that can I? The reaction: ‘The reaction cannot be tinged by calculation and it must be genuine . . .’ Well obviously: in the sense that the accused did not deliberately set up the situation which he now invokes as provocation. To justify the idea of provocation there must be a sudden unforeseen onset of passion which, for the moment, totally deprives the accused of his self control. So that then, ladies and gentlemen is the defence of provocation.”
11. The judge then concluded his charge and, in the ordinary way, an opportunity was provided for requisitions. The prosecution had none. The defence had a number. First, counsel expressed a preference for the judge actually quoting s. 4 of the Criminal Justice Act 1964. The significance of that being from an accused person’s point of view, as he contended, was that it contained a specific statement that an offence shall not be murder unless a specified intent was present. Counsel commented that the court had indicated to the jury that if they were not satisfied beyond a reasonable doubt that there was an intent to kill or cause serious injury, then obviously it was not murder but it might well be manslaughter. This, he observed, was, as it were, the first route to manslaughter. At this point the judge interjected to inquire had he not said that and counsel responded “. . . I think you did in fairness, but I think that it is important just in the context of what I am going to say next”. Counsel then continued as follows, and this is of some significance in the context of the present appeal:-
“Because that is the first route to manslaughter. If, thereafter, the jury were to determine that there was an intention to kill or cause serious injury, then the question of provocation arises and I know the court dealt with both provocation and self defence, perhaps somewhat equally in terms of emphasis, but provocation is certainly the matter that is of greatest concern to me. While the jury quoted one passage from the People v. Keith Kelly, in my respectful submission, the court did not actually tell the jury, first of all what is provocation, how it arises and then, as it were relate the principles to the concrete evidence before the jury and, in my submission, there is approximately a page and a half of Kelly which includes a passage that you did quote which, in effect, deals with all these issues and that commences at p. 11 of the report in the Irish Reports.”
12. At that stage counsel for the defence physically handed a copy of the report in People v. Keith Kelly [2000] 2 I.L.R.M. 426, to the judge commenting that it was as close as we have to a model charge. After some discussion between the trial judge and defence counsel, the trial judge asked counsel to remind him again what was the second point which counsel had said was related to the third. Counsel responded:-
“Well – the first point was attached to a definition and the second point then was that unless they are satisfied in relation to an intention to kill or cause serious injury, then they cannot – beyond a reasonable doubt, they cannot find murder. But the – that relates then to the third point which is the provocation which is that even if they were to be satisfied beyond a reasonable doubt that there was an intention to kill or cause serious injury that the jury then had to consider provocation.”
13. Counsel observed “I am asking for the full blooded definition and direction on provocation, rather than anything any shorter” adding “and I think the passage that is outlined even contemplates that the court should, as it were, identify the matter, whether relevant matters in the evidence before this court”. After some further exchanges counsel for the defence continued:-
“The one particular point that I would ask the court to address, and it is also a part evidentiary point, in the context of the provocation warning is that the provocation warning refers to something sudden and before – before passion has a time to cool. I do think the time log is important in this case, and the court did refer to the phone records and the fact that the call commenced at 15.51, in fact 03, but 15.51 that lasted some 88 seconds thereafter. Which would have it concluding at approximately 15.52 and a half or 15.52.32 in precise point and that the next relevant viewing is on the CCTV where the – what transpires to be the accused is visible at 15.53.39, which is 1 minute and 7 seconds later.”
14. Counsel then proceeded to urge the judge to deal with the times that could be established from the automatic records and CCTV. In reply to the requisitions raised by the defence, counsel for the prosecution, as far as provocation is concerned, indicated that she believed that the passage that the judge had referred to from Kelly was the passage which was regarded as definitive. She said that she had no difficulty with the longer passage being read, but that she would point out that there is material in the larger passage that needs to be tied in with the facts of the case. When the judge interjected to say that defence counsel wanted him to refer to one particular aspect which was the time element, counsel responded that she would have a difficulty with that because it was absolutely the law that the intent to kill or cause serious injury can be formed within seconds and she did not want the jury to be left with the impression that because it was a short time frame that the necessary intent for murder could not have been formed. She queried whether the CCTV covered the full incident and therefore the full time frame, referring to the testimony of an eye witness which put the incident as taking a minute or just less than a minute. The judge indicated that he was not going to go into the times and CCTV footage itself in detail, because the question was so fundamental that it was impossible to imagine that the jury would not be placing emphasis on times and CCTV footage for itself. Following some further exchanges between counsel and the trial judge the jury was brought back to court. The judge began by dealing with the mental element of murder, on this occasion referring specifically to the provisions of s. 4 of the Criminal Justice Act 1964. He turned then to the question of provocation in these terms:-
“In relation to the – we then pass to the question of intent – of provocation and I have been asked to read out to you a passage from our law reports in relation to that, just to be absolutely clear about it, because it is a thing which has given rise to considerable difficulty in the past, quite a long passage, but I believe it is straightforward enough. If the defence of provocation arises on the basis of something done or said by the deceased victim, or by a combination to things done and said, to mean that the accused has totally not – to cause the accused totally lose his self control, the trial judge, meaning me, may invite the jury to consider the evidence on which the plea of provocation is based, so, I am now stating the most rudimentary fact of all, that you should look at the evidence to look and decide whether the whole of the evidence in the case and the provocation – the plea is based. He – is stated in the third person “he will point out to them that they are not obliged to accept this piece of evidence, that upon which is relied upon, either wholly or primarily on the basis of the provocation defence. He would point out to them that they are not obliged to accept this piece of evidence anymore than they are obliged to accept any other evidence in the case. They are obliged, however, carefully to consider it and decide whether or not it may be credible. The question they have to decide is not whether a normal or reasonable man would have been so provoked by the matters complained of as totally to lose self control, but whether this particular accused, with his particular history and personality was so provoked, they are entitled to rely upon their common sense and experience of life in deciding this, as in deciding all other matters. If the reaction of the accused in totally losing his self control in response to the provocation appears to them to have been strange, odd or disproportionate, this is a matter which they are entitled to take into consideration in deciding whether the evidence on which the plea of provocation rests is credible. The court can only give to the trial judge general guidelines, as to the principles to be applied. It is for him to decide these principles, to relate these principles to the concrete evidence before the jury and to point out that there is a certain threshold of credibility. It will not be sufficient for the defence to show merely that the accused lost his temper or merely that he was easily provoked or merely that he was drunk, though all of these may be factors in the situation. The loss of self control must be total and the reaction must come suddenly and before there has been time for passions to cool. The reaction cannot be tinged by calculation. It must be genuine in the sense that the accused did not deliberately set up the situation which he now invokes as provocation. To justify the plea of provocation, there must a sudden unforeseen onset of passion, which for the moment totally deprives the accused of his self control. But in the final analysis, the trial judge will tell a jury it is their job to decide whether or not a normal man or a reasonable man would have lost his self control in these circumstances. It is their job to decide not whether a normal man or a reasonable man would have lost self control in those circumstances, but whether this particular accused, in his situation, with his peculiar history and personality was provoked, or may have been provoked, to such an extent as totally to lose his self control. If they find the accused was so provoked, their duty is to bring in a verdict of manslaughter rather than murder. If after the examination of the evidence relied upon by the defence, they entertain a reasonable doubt as to whether the accused may have been so provoked, then they examine the prosecution case to see if the prosecution has satisfied them, beyond a reasonable doubt, that the alleged provocation could not or in fact did not cause the accused totally to lose his self control in the manner alleged, always remember that the onus on the prosecution is not only to prove its case beyond reasonable doubt, but also to negative, beyond a reasonable doubt, any defence raised by the accused. If, in fact, they find the prosecution has succeeded in convincing them beyond a reasonable doubt that the provocation alleged, could not or in fact did not provoke the accused to the extent that he totally lost his self control, then their duty is to bring in a verdict of murder rather than manslaughter. If, on the other hand, at the end of the case, they still entertain a reasonable doubt that the accused may have been sufficiently provoked by the matters alleged, as totally to lose his self control, then their duty is to bring in a verdict of manslaughter rather than murder.’ Just to add to that, it is the law, of course, that one may form the intention, relevant intention, on the spot, effectively.
15. The judge then continued:-
“Now, I did not – the issues which are relevant, I told you that what you think is relevant, is what is relevant, is what you think is relevant and that remains the position. And there is – it is – there are pieces of evidence in every case, which perhaps, are not rationally considered to be of any or much relevance. So, therefore, it is very hard for me to single out pieces of the evidence which might be particularly germane to the question of provocation, because all of the evidence must be considered by you, if only to dismiss it. But in that context, there are two aspects which have been brought to my attention of being of particular assistance to you in that regard and that is obviously the time frame within which all these events occurred and obviously the contents of the accused’s mind as he elaborated it when he was being interviewed by the gardaí. So I have been asked to refer specifically to refer to these two aspects in the present context.”
16. The judge then brought his remarks to a close by dealing with housekeeping issues that would arise if the jury were anxious to view the CCTV footage.
17. The deliberation of the jury took place over two days. When the court reconvened following the overnight break the judge indicated that he had been asked two questions by the jury that he would define provocation again for them and also deal with the definition of serious injury. He also said that the jury had asked for a print out or some statement of the law. The judge dealt with the question of provocation by reading once more the passage from Kelly that had earlier been read to the jury.
18. This appeal really nets down to a complaint that the jury was not told expressly and explicitly that the defence of provocation was still available even in a situation where there was an intention to kill or to cause serious harm. There is no doubt that the defence is available even in situations where there is an intention to kill or cause serious injury and indeed it is only in a situation where such an intention is present that the issue of provocation will fall to be considered at all. This is because unless the prosecution has proved beyond reasonable doubt there was indeed an intention to cause serious harm or to kill the offence will not have been murder. If, however, the prosecution have proved beyond reasonable doubt that the accused intended to cause serious harm or to kill and the defence of provocation is being relied upon, the offence committed may, but will not necessarily, have been one of murder. To convict of murder, the jury would have to be further satisfied, to the standard of proof beyond reasonable doubt, that the accused was not provoked to the extent that he totally lost his self control. If the jury is left with a reasonable doubt on the issue as to whether the accused was, or might have been, so provoked, there obligation would have been to return a verdict of manslaughter. See, in that regard, the recent decision of this Court in DPP v Cahoon [2015] IECA 45 where the judgment of the court was delivered by Ryan P.
19. There are distinctions between this case and the Cahoon case. In Cahoon there was an explicit misdirection on this point at an absolutely crucial stage of the trial: the recharge of the jury following requisitions. Moreover, in Cahoon the language of the recharge which contained the clear error that provocation negated the intention to kill or cause serious injury arose from a clearly expressed, though mistaken, view by the trial judge in relation to the issue.
20. In this case there is no comparable clear misdirection. Significantly, neither prosecution counsel or defence counsel raised any specific requisition on this point. The absence of requisitions is always a matter of significance and this is very particularly so in a case such as this one was, where counsel on both sides were highly experienced. However, the absence of requisitions has never been regarded as an absolute bar to a point being raised successfully on appeal. The real relevance of the absence of requisitions is that it provides an indication that a point now sought to be raised on appeal and now said to be important did not strike those engaged in the trial as being of significance.
21. Reading the charge as a whole, this Court is left with some degree of disquiet. Time and again the judge returned to the subjective nature of the defence. He pointed out to the jury and stressed to them that they were concerned with how the incident that had developed had impacted on Mr. Zhen Dong Zhao, that they were not at all concerned how the incident might have affected an average man or a reasonable man. There is no doubt the care with which that aspect of the charge was approached is admirable indeed. However, the issue of the interaction of the requisite intent for murder and the defence of provocation was never really spelled out for the jury. In particular it was never made clear to them that it was not necessary that the circumstances which had or might have provoked the defendant had done so in a manner which meant that he did not intend to kill or cause serious harm. Equally, it was never made clear to the jury that it is precisely in cases where there is indeed an intention to kill or cause serious harm that the issue of the defence of provocation arises for consideration. It is, however, the case that overall it was a careful charge delivered by a trial judge who was obviously very conscious of the complexities of the law in the area of provocation. In these circumstances, when, after the trial, a charge is subjected to criticism on a particular aspect which had not been the subject of requisition, a court may well be disposed to conclude that the point being raised was not one of substance in the context of the run of the trial and that the court should decline to intervene.
22. However, the present case was a particularly finely balanced one. In those circumstances, it was particularly important that the jury should have the assistance of a charge that was clear, comprehensive and easily understood. On this one aspect, the charge was not as clear as it might have been and reading the charge as a whole there has to be a concern that a jury might have been confused and might have believed that they had to consider whether the provocation to which the appellant was subjected prevented him from forming an intention to kill or cause serious injury. In these circumstances the Court is of the view that the appropriate course of action is to quash the conviction and order a re-trial.
23. The Court would add one final observation and does so in a very tentative manner indeed. In a complex area of the law, and undoubtedly provocation is such an area, it is understandable that judges would look to the possibility of reading extracts from authoritative decisions of the superior courts. A number of very experienced trial judges have followed this practice over many years. However, this Court would express some doubts as to whether that is necessarily the most effective method of communicating to the jury what the real issues are in a particular case. It is entirely a matter within the trial judge’s discretion, but there may be something to be said for judges, in cases of complexity, giving an outline in advance of what he or she intends to say in the charge, thus offering an opportunity for comment and observations by counsel.
DPP v Cahoon
[2015] IECA 45
JUDGMENT of the Court delivered by The President on the 4th day of March 2015
Introduction
1. On 1st May 2012, the appellant was convicted of murdering Ms. Jean Quigley on 26th July 2008, at an address in Derry City. The trial took place in the Central Criminal Court pursuant to the provisions of the Criminal Law (Jurisdiction) Act 1976. The appellant admitted killing Ms Quigley but denied it was murder because he did not have the intention to kill or cause serious injury or, alternatively, by reason of provocation.
2. Three issues arise in this appeal concerning the learned trial judge’s charge to the jury before and after requisitions. First, the appellant alleges that the judge’s instruction on the law in respect of provocation was incorrect. Secondly, he argues that the judge made a significant error of fact in regard to police questioning of him, which had an adverse impact on his position in the eyes of the jury. Thirdly, he contends that the charge as a whole was unbalanced in that the judge spent a disproportionate amount of time on the prosecution case compared with that of the defence.
Background
3. The appellant and the deceased, Ms. Quigley, had a relationship that began around mid-March 2008, and continued until early July. They had not lived together but he had often stayed overnight at her home and she had sometimes stayed at his apartment. At the time of her death she was ten weeks pregnant with his child. The relationship broke down in mid-July but some communication continued and they met and spent time together in two public houses in Derry on the night of Wednesday 23rd July. Ms. Quigley went home alone at about 2.30 am on the Thursday morning, but before the babysitter left the appellant arrived and stayed for a short time. Following his departure, the appellant and Ms. Quigley exchanged text messages for some hours. There were more text messages on Friday 25th.
4. In the early hours of 26th July, after a night out with friends, the appellant took a taxi from the city centre area of Derry to a place close to the home of Jean Quigley. He made his way into her home in circumstances that are a matter of dispute. At 6:30am, he called a taxi using a false name and alighted close to the building where his own apartment was located.
5. Later on the same day, at about 1.00pm, Jean Quigley’s body was discovered and the police were notified and began investigating the crime. It was clear that the victim had been strangled and she also had other signs of injury on her body. Police found that the lock on an inner door was broken. DNA tests established that the appellant and the deceased had had? sex, and such tests made other connections between the appellant and the scene.
6. When the police came looking for the appellant following the discovery of the body of Jean Quigley, he had disappeared.
7. Gardaí arrested the appellant in Donegal town on 5th August 2008. They questioned him about the death of Jean Quigley but nothing of evidential value came of it in circumstances in which the appellant chose to rely on his constitutional right to silence, as Counsel expressed it at the hearing of the appeal.
The Trial
8. The trial took place in the Central Criminal Court, pursuant to the Act of 1976. The appellant made formal statutory admissions for the purpose of his trial of which the most important was that he had killed Ms. Quigley. He gave evidence. His defence included a plea of provocation that arose in the following circumstances. He said that he and Ms. Quigley had had sex on two occasions, which was consensual, and which involved one or other being voluntarily restrained. They smoked cigarettes together between the occasions when they had intercourse. When they were having sex for the second time, his mobile phone rang and subsequently Ms. Quigley asked who had called and became very angry when he told her the name of the caller, a woman who was a friend of his. He said that Ms. Quigley shouted at him demanding that he leave immediately. He refused, because he maintained that she had agreed to his staying overnight and he was not accepting her change of mind. During these angry exchanges, he testified, Ms. Quigley said that the baby she was having was not his and that she was going to have an abortion. He said that she repeated these statements. The appellant then gave the following evidence:
“That’s when I lost it, I just grabbed her.
Q. You lost it. What do you mean by you lost it?
A. I snapped, I just saw red and grabbed her.
The appellant went on to describe his reaction further:
“Q. And can you tell us, when you say you grabbed her, can you give us more detail on that?
A. I just grab her, like. I put my hand here and put my hand here and just grabbed her and pushed her on the bed and grabbed her by the throat then.
Q. And why did you do that?
A. Just I don’t know, I lost it. I just wanted her to stop saying the things she was saying, like, to be quiet, like. It just riled me up, so it did.
Q. Sorry, what was that you said?
A. She just riled me up, she got me mad, like. I just lost it.”
Under cross-examination, the appellant said:
“Well, I just lost control, I don’t know. I just seen red and snapped and that was it.”
“Yes, I lost control, I didn’t know what I was doing, you know what I mean.”
“Yes, I wasn’t thinking straight, you know.”
9. Provocation is a partial defence reducing murder to manslaughter. There is a low threshold test for it to arise, but the topic does not arise automatically. It may arise either by direct evidence including the accused’s own evidence or by inference from the evidence as a whole. It is a preliminary matter to be determined by the trial judge by an assessment of the evidence to determine if there is an issue fit to be left to the jury. When it does arise, the prosecution must prove beyond reasonable doubt that the accused was not provoked so as to suffer total loss of control, see People (D.P.P.) v. Davis [2001] 1 I.R. 146. In light of the evidence, the trial judge decided that the issue of provocation should be left to the jury.
Charge on Provocation, Requisition and Recharge
10. The judge dealt with the issue of provocation early in his charge, in terms that are not subject to criticism on this appeal, as follows:
“In the present instance, ladies and gentlemen, the accused man has admitted, as I say, to the killing, but he says that what occurred was a matter that occurred as a result of provocation. Now, provocation, ladies and gentlemen, is a partial defence to a charge of murder. It does not entitle a person to an acquittal. But it entitles a person to have what otherwise would be a murder conviction left at the level of manslaughter. And what is provocation? Provocation consists of either words or actions or a combination of words and actions, which, having regard to the accused man’s temperament, character and circumstance, cause him to lose control of himself at the time of the act, so that at the time he lost control of himself, he was not the master of his own mind.
Now, a short tempered reaction is not provocation. One can have a short tempered reaction, and one can be totally in control of what one is doing. One can know precisely what one is doing and one can know precisely what they have in mind when they’re doing it. But to be provocation, it must be a sudden loss of complete control, as I say, so that one is not master of one’s own mind, at the time the killing is carried out. And having regard, ladies and gentlemen, to where the onus of proof lies in a criminal case, now where an issue of provocation of raised by the defence, it is for the State to satisfy you, beyond reasonable doubt, that the accused man was not provoked, and that is what they have set out to do in this case.”
11. The judge also dealt with a point that he considered had arisen as a result of the cross-examination of the accused, from which he took it that prosecuting counsel was suggesting that the accused man had tailored his evidence in respect of provocation following a perusal of the book of evidence and in order to fit in with the evidence. The judge thought that since the trial was being conducted in the State, and not Northern Ireland, the accused must have been transferred to this jurisdiction in circumstances where he had not been questioned by the police in Northern Ireland or by the Gardaí in the State. The judge told the jury that “there was no account requested of the accused man as regards events and, as I say, it wasn’t until the matter came to court that an account was given.” In fact, the appellant had been questioned at length by Gardaí, but had exercised his right to remain silent.
12. Counsel for the appellant requisitioned the judge at the end of the charge, seeking to have the jury recalled so that the judge could emphasise to them the subjective nature of provocation. The fundamental point that counsel wanted to have reiterated, or more fully emphasised than had been done earlier, was that provocation was not to be decided by reference to the standard of a reasonable person, but according to the nature and character and disposition of the particular accused person, and he submitted that the judge had not sufficiently made that clear in his charge.
13. There was a discussion in the course of the requisition application in which a difference emerged between Counsel and the judge. Counsel for the accused, Mr. Paul Burns S.C., submitted that there was a distinction to be drawn between a person’s intention to kill or cause serious injury and the issue that arises on provocation. He said that an accused person who raises the defence of provocation may have the intention to kill or cause serious injury. Moreover, unless the person has the intention to kill or cause serious injury, the question of provocation is not going to arise. Murder requires an intention on the part of the perpetrator to kill or cause serious injury and if that is absent the verdict is manslaughter. It follows that the intention to kill or cause serious injury is something that must be present before provocation comes to be considered. The judge said that provocation meant that there was no murderous intention because the accused was not master of his mind.
14. The relevant part of the exchange on provocation during the requisition is as follows:
“JUDGE: Mr Burns, the defence have not tried to ride two horses here.
MR BURNS: Yes.
JUDGE: They have solidly nailed their colours to the mast of provocation.
MR BURNS: And lack of intent.
JUDGE: Provocation is the defence in this case, Mr Burns.
MR BURNS: Well, you recollect that when I closed to the jury, I said to them, if they weren’t satisfied about the intention, and I would have in terms of how the jury might approach the matter.
JUDGE: The jury have been told how they must approach it, what the State must prove.
MR BURNS: Yes. Well, the Court, of course, can disregard what I’m saying, the suggestion that first they have to look at the mens rea, if they’re satisfied if they’re not satisfied that he had an intention to kill or cause serious injury, then it is manslaughter.
JUDGE: Well, what is the natural or probable consequence of grabbing somebody by the throat and holding them by the throat while they’re struggling.
MR BURNS: That’s for the jury to determine.
JUDGE: I know it is, Mr Burns, but it’s self evident.
MR BURNS: Well, I still am saying to the Court, the Court should tell them if they’re not satisfied that his intention was to kill or cause injury, serious injury, then the prosecution have not established the necessary mens rea and the verdict should be manslaughter. Even if they are satisfied that he intended to kill or cause injury, then they go on to consider the question of provocation. That’s
JUDGE: The whole concept of provocation is that there is no intention, because the man is not master of his own mind.
MR BURNS: Yes, but they the appellate courts have said that it is not a question of provocation negating intent, that isn’t that isn’t the nature of the defence, that you can intend and yet still have provocation, that it is not that’s why even if the prosecution satisfy you as to what the intent was, you still go on to consider provocation. Because obviously if you come to if you come to a conclusion on the first test that the prosecution haven’t satisfied you about intent, well then clearly it’s not murder and it’s only if they have satisfied you about intent that you go on to consider provocation and whether there was a loss of control as a result of provocation. Those are my requisitions, Judge.”
15. The judge recalled the jury and gave them a further instruction about provocation. He had earlier correctly stated that for provocation to have existed the accused person had to experience a complete loss of control so as “not to be master of his mind”, and that once the question was raised it was a matter for the prosecution to prove beyond reasonable doubt that that was not the situation. He told the jury:
“In relation to the issue of provocation, ladies and gentlemen, I think I’ve made it clear to you that it is not the effect that the words or actions might have on the reasonable man, but they are the effect of the words or actions on the particular individual, having regard to his nature, temperament, character and the circumstances. I think I made that clear, just in case I haven’t made it clear, ladies and gentlemen. And, of course, the question of the loss of control, and not being master of his mind, applies at the time he is committing the act. And, in that regard, ladies and gentlemen, the accused man gave evidence to you. He said, on a number of occasions, that he had lost it, that he’d lost control, that he did not know what he was doing. But that’s a matter for you to consider, ladies and gentlemen, in the context of the entirety of the evidence that he gave and the description he gave as to what was happening.
As I said to you, ladies and gentlemen, the position is one whereby the State have to if they’re to secure a conviction for murder, they must establish (1) an unlawful killing and then they must upgrade, if I might use that expression, manslaughter from that level of an unlawful killing, to murder by showing that the accused man intended to kill or to cause serious injury. So, that is the position and if you’re satisfied, ladies and gentlemen, that that is the position, that there wasn’t that in the normal course of events, what happened was such that there would have been an intention to kill or cause serious injury, but having regard to provocation or loss of self control, no such intent was there, because what provocation presupposes is that you don’t have a rationalising mind. You’re somebody who doesn’t know what he’s doing, doesn’t realise what he’s doing, he’s just completely out of control. He’s not master of his own mind at the time the events happen. And, as I say, it’s for the State to negative that and the State say to you that they have negatived it when you look to the entirety of the events and the circumstances of what happened.” [Italics added]
The Submissions
Appellant
16. The first submission that the appellant makes is that the trial judge was mistaken in law in his charge on the defence of provocation. During the charge to the jury, it was felt by defence Counsel that there was insufficient emphasis placed on the fact that it was a subjective test. During exchanges in requisition between the trial judge and Counsel, it became clear that the trial judge felt that provocation negated the need for mens rea: “The whole concept of provocation is that there is no intention, because the man is not the master of his own mind.” In his recharge, the trial judge said to the jury that “…no such intent was there, because what provocation presupposes is that you don’t have a rationalising mind.” It is submitted that this is a misunderstanding of the law of provocation, and that provocation does not equate to the absence of mens rea.
17. In People (D.P.P) v. Bambrick [1999] 2 I.L.R.M. 71, the Court of Criminal Appeal held that these were two separate concepts. It is submitted that given this direction, the jury could only have found that provocation would succeed as a defence if there was no intention. It was submitted that the jury should first have been asked to decide whether there was intent; if not, it was a case of manslaughter. It was only if this issue was decided affirmatively that the jury should have gone on to decide on the defence of provocation, and the error of the trial judge prevented the appellant from gaining the legal protection of such a defence.
18. The second point is that there was a misstatement of fact as to the circumstances of the questioning of the appellant. The appellant argues that this left it open for the jury to draw an adverse inference from the appellant’s exercise of his right to remain silent, which is of course impermissible, following People (D.P.P) v. Finnerty [1999] 4 I.R. 364. Counsel for the appellant argued during requisitions at the trial that this was not a matter which could be rectified by further direction due to the risk of compounding the error.
19. The third submission is that the summing up by the trial judge was unbalanced because there were 45 lines of transcript devoted to the prosecution case as opposed to 14 lines summing up the defence position. It is therefore argued that not only did this summation lack balance, but it also gave the impression that the trial judge felt the appellant’s evidence was not credible.
Respondent
20. The respondent does not take issue with the manner in which the appellant has set out the law on provocation. In response to the claim as to the lack of clarity on the issue of the subjective nature of the test, the respondent points to the recharge on that issue. In addition, Counsel for the respondent cited People (D.P.P) v. David Bourke [2013] IECCA 2, where the Court of Criminal Appeal, albeit obiter, approved a charge on provocation which he described as being “almost identical.” However, it does not appear from the judgment of the Court in that case that the trial judge expressly told the jury that provocation, if present, meant that there could not be murderous intent.
21. On the issue of conflating mens rea with provocation, the respondent submits that the trial judge dealt with the issues of intention and provocation separately, referring to and explaining first the concept of mens rea, before later turning to provocation, and showing that it is a partial defence which reduces murder to manslaughter. It is further submitted that the recharge of the jury continued this dual approach, and that the overall tenor of the charge as a whole would have left the jury under no misapprehension. Counsel for the Director did not, however, contend that it was a correct statement of law that the effect of provocation is to prevent the formation of murderous intention.
22. On the second ground, the respondent submits that although there was a factual misstatement, at no point did the trial judge invite the jury to draw an adverse inference. The impression given was that the failure to give an account was as a result of the cross-jurisdictional nature of the circumstances of his arrest rather than a decision of the appellant, an impression which may have had a positive effect for the appellant. The respondent also submits that the case of Finnerty was qualitatively different from the present case in that the jury were never informed that the appellant had chosen to remain silent. The issue of tailoring his account to suit the book of evidence did not arise because the appellant failed to give an account to the Gardaí but was raised as an independent proposition in cross-examination and in his closing speech by prosecuting Counsel.
23. In regard to the suggested imbalance of the charge based on the length of respective summations, the respondent contends that that is of no relevance and the proposition is unsupported by specifics. The charge must be viewed as a whole and the trial judge fairly presented the defence and used a significant and sufficient part of his instruction in describing the appellant’s own evidence at trial. There is no obligation on the trial judge to lay out every piece of evidence in a summation.
Discussion
24. The question of the proper charge in regard to intention when provocation is in issue was considered in the leading case that changed the law in this jurisdiction, People (D.P.P.) v MacEoin [1978] I.R. 27. There it was held that the defence of provocation is decided by a subjective test considering only the particular accused’s character, temperament and circumstances. Although in that respect our law has been described as unique in the common law world and it has given rise to judicial and academic criticism, on the specific question that arises in this appeal the judgment reflects a common approach with other jurisdictions and with subsequent decisions. In MacEoin the Court of Criminal Appeal held that it was a misdirection to instruct the jury that provocation had to be such as to render the accused incapable of forming an intention to kill or cause serious injury.
25. That Court in more recent times confirmed the position in People (D.P.P.) v. Bambrick [1999] 2 ILRM 71, as follows:
“The question of intention is of course something that must be dealt with in the learned trial Judge’s charge when explaining to the jury the meaning and effect of Section 4 of the Criminal Justice Act, 1964 including the presumption of intention relating to the natural and probable consequences of conduct and the possibility of a rebuttal of that presumption. The question of provocation is separate and distinct from the question of intention. If there was provocation that may reduce the killing from murder to manslaughter notwithstanding that the accused person intended to kill or cause serious injury.”
In People (D.P.P.) v. Curran (unreported, Court of Criminal Appeal 14 December 2011), the Court said:
“The intersection (or more correctly the lack of it) between the question of intent to kill, and the defence of provocation was also clarified in DPP v. Bambrick [1999] 2 ILRM 71 which made it clear that these were two separate concepts. A person who successfully raised the defence of provocation had, ex hypothesi, the requisite intent to commit murder.”
26. It is widely acknowledged in common law jurisprudence that the defence of provocation may apply in the presence of an intention to kill arising from the provocation. The legal interpretation of provocation as something that prevents the formation of murderous intention has historical support but since the latter part of the twentieth century the conventional understanding is that provocation and intention are discrete concepts.
27. The law on provocation has its complications and its difficulties, but they do not arise in this case. The law is not in dispute. Provocation consists of a sudden, temporary and complete loss of control such that the person is not “master of his mind.” The appellant in this case emphasises the distinction between the formation or existence of murderous intent and the issue of provocation. The point he makes is that the absence of an intention to kill or cause serious injury defeats a charge of murder and leaves only manslaughter. But there can be an intention, which would or could be inferred from the conduct of the accused by way of inference, that a person intends the natural and probable consequences of his actions or it could be that the person, in the view of the jury, had express as opposed to implied murderous intent. Such a mental state is not incompatible with provocation. If the intention is absent for whatever reason, the case is not one of murder but of manslaughter. But provocation arises as an issue when the case would otherwise be murder, that is, in the presence of intention to kill or cause serious injury whether deduced by way of inference from actions or found to have existed in some more express manner.
28. In this case, the judge’s original charge to the jury on provocation was correct and no complaint is made about it in this appeal; that is the direction on provocation in the body of the judge’s charge. Counsel for the defence submitted that the judge had inadequately expressed the subjective element of the test, although that does not appear from the transcript to be justified, and sought by way of requisition that the judge would expatiate on that aspect in further direction to the jury. The judge did so, and again the direction on subjectivity cannot be faulted.
29. The judge went on to make further comments, however, that give rise to this, the principal part of the appeal. The judge told the jury that provocation prevented a person from forming the necessary murderous intention. That was wrong according to the authorities, and as explained above confuses or conflates two separate legal concepts. Therefore, that part of the judge’s direction was incorrect as a matter of law.
30. The question then arises as to whether this misdirection could have misled the jury. It is, after all, a matter of a small number of words which come after a substantial direction on the law and the facts which is not challenged as to correctness on provocation. It is possible to argue, therefore, that this direction did not make any difference to the verdict of the jury. There are difficulties, however, in relation to that possibility.
31. The charge to the jury where provocation is in issue should be viewed as a whole and in its full context. In People (D.P.P.) v. Curran [2011] IECCA 9; [2011] 3 IR 785, the issue was the language used in assigning the burden of proof as to the defence of provocation, and the Court held that:
“This court, however, cannot accept that the charge taken as it must be, in its full context, was defective. It must be remembered that the charge was delivered orally to the jury and heard by them over an extended period of two days. The question in any case is how the jury may have understood the judge’s instructions on the law. It is important therefore to view the charge as a whole, and seek to assess the impact it, and any passage contained in it, may have had on twelve individuals who are hearing it for the first time, albeit assumed to be listening attentively. It is not desirable to select individual words or phrases and subject them to a detailed almost semiotic analysis if a jury would not have done so in the moments in which they heard the charge.
. . . . . . .
There is no doubt that giving a clear instruction to a jury on the tangled law of provocation is not an easy task since it involves instructing a jury on unfamiliar concepts, and on the task of considering whether a prosecution had proved a negative beyond a reasonable doubt.”
The Law on Section 3(1) of the Criminal Procedure Act 1993
32. Section 3(1) of the Criminal Procedure Act 1993 is the statutory basis for the jurisdiction of an appellate court when hearing an appeal against conviction. It provides:
“On the hearing of an appeal against conviction of an offence the Court may-
(a) affirm the conviction (and may do so, notwithstanding that it is of opinion that a point raised in the appeal might be decided in favour of the appellant, if it considers that no miscarriage of justice has actually occurred), or
(b) quash the conviction and make no further order, or
(c) quash the conviction and order the appellant to be re-tried for the offence, or
(d) quash the conviction and, if it appears to the Court that the appellant could have been found guilty of some other offence and that the jury must have been satisfied of facts which proved him guilty of the other offence
(i) substitute for the verdict a verdict of guilty of the other offence, and
(ii) impose such sentence in substitution for the sentence imposed at the trial as may be authorised by law for the other offence, not being a sentence of greater severity.”
33. The phrase in parentheses in s. 3(1) (a) is commonly known as the proviso because of its origin in earlier legislation. It is accepted that an error in the conduct of the trial should not allow the application of the proviso, where, as was found in D.P.P. v C(E) [2006] IECCA 69, the issue was seen “as going to a central and critical aspect of [the] whole case.”
34. In Fitzpatrick and McConnell v. D.P.P. [2012] IECCA 74, the Court of Criminal Appeal held that:
“The proviso has been part of Irish law since the creation of the Court of Criminal Appeal. It does not, however, invite a court of appeal to make its own value judgment as to the guilt or innocence of the appellant. If there has been a fundamental error in the conduct of the trial and there has been a lost chance of acquittal, then the court cannot apply the proviso simply because it is of the opinion that under the proper trial the appellant would have been convicted. If a departure from the essential requirement of the law has occurred that goes to the root of the proceedings, then the appeal must be allowed.”
Conclusions
35. It is obviously not a sufficient answer to the appeal on this ground to find that the words were few and might not have had an impact. The Court would have to be satisfied that they did not actually influence the jury. Secondly, these words came in the course of a brief re-charge just before the jury went back to their room to consider their verdict, and it is at least arguable that their location in the scheme of the judge’s instructions gave them a prominence that they might not otherwise have had. Thirdly, although only the judge’s words to the jury are relevant, it is, nevertheless, of some significance, and in the appellant’s contention of real relevance, that the views the judge expressed on the subject of provocation actually reflected his own erroneous understanding of the matter as revealed in the exchanges with Counsel in the course of the requisitions. If the jury applied that part of the judge’s instruction on the law, they would have employed an incorrect test in deciding the case.
36. This Court is not concerned with the legitimacy of the claim in respect of provocation. It is sufficient that the trial judge permitted the issue on the basis of the evidence in the case, and there was such evidence given by the accused man. The issue, therefore, for the Court is whether it can legitimately or even rationally conclude that this clear misdirection on the subject of provocation can be ignored on the basis that it was practically incapable of having influenced the jury. Provocation was the major issue in the case and the prime topic in the recharging by the judge so the jury’s attention had to be focused on the very question. The incorrect part of the re-charge was brief but it was relevant to the specific defence [and it was incorrect]. In these circumstances, the conclusion is irresistible that the misdirection on provocation at the least could have influenced the jury in their consideration of the case. This ground of appeal must therefore succeed.
37. The conviction must therefore be set aside. It is unsafe and unsatisfactory because the judge made an error in what he told the jury about provocation. That was the principal issue in the case; indeed, on the judge’s own view it was the only issue in the case. Since the critical question in the case was provocation and the judge addressed himself to that specific question when he recalled the jury, a mistake at that stage came at a very important point.
38. The appellant also submitted that the trial judge left it open to the jury to draw an adverse inference from the accused’s failure to give an earlier account, which invited an inference from silence not permitted by People (D.P.P.) v. Finnerty [1999] 4 I.R. 364. In that case, the Supreme Court held that it was an impermissible interference with the accused’s right to silence to tell the jury that the accused person made no comment or reply to questions while in Garda custody:
“That right would, of course, be significantly eroded if at the subsequent trial of the person concerned, the jury could be invited to draw inferences adverse to him from his failure to reply to those questions and, specifically, to his failure to give the questioning gardaí an account similar to that subsequently given by him in evidence. It would also render virtually meaningless, the caution required to be given to him under the Judges’ Rules.”
The trial judge told the jury that the appellant was not questioned while in Garda custody for legal reasons because the right to extradite a person was solely for the purpose of being charged and brought before the court and not for questioning. He later said that there “was no account requested of the accused man as regards events and, as I say, it wasn’t until the matter came to court that an account was given”.
39. The statement by the judge to the jury that the accused man could not have been questioned by the Police Service of Northern Ireland or the Gardaí because of the Criminal Law (Jurisdiction) Act 1976 was an error. The fact was that the accused had been questioned by the Gardaí but nothing emerged material to the case because of the appellant’s choice to remain silent in respect of the circumstances of the suspicious death of Ms. Quigley. He was entitled to do that, and in normal circumstances no reference could have been made to that posture. There was no obligation on him to furnish answers. He was entitled to rely on his Constitutional right to remain silent. The reason why no reference can be made to such a position is because a jury might draw inferences adverse to an accused from his silence, even though he was perfectly within his rights to do so. The problem, therefore, was how the judge’s misstatement could be corrected without having the correction cause more damage that the original error. The passage in the charge was addressing prosecution Counsel’s suggestion that the accused had tailored his evidence to suit the case he was making by reference to the book of evidence. The judge offered the explanation about how the Act operated. In this respect, the judge was endeavouring to counter what he thought might be a potential unfairness to the accused.
40. The decision to do nothing to put the facts right in this regard seems to the Court to have been correct because embarking on any correction would have been fraught with peril. The judge’s comments were favourable to the appellant and quite the opposite of prejudicial. The Court’s view is that this issue, although unfortunate as an error, did not render the trial unsatisfactory and could not justify upholding the appeal. It would not have been helpful or fair to the accused to say that he had been questioned by the Gardaí but had remained silent, or had not said anything relevant even though he was perfectly entitled to do so.
41. As to the balance of the charge in point of time and words devoted respectively to prosecution and defence cases, the Court is quite satisfied that this point does not have any validity. The trial judge put the prosecution case and the defence case adequately and fairly, and his charge cannot be impugned on the basis that the time spent on the prosecution was disproportionate or in any sense unfair. Counsel for the appellant did not press this issue as being sufficient to stand on its own or as comparable in importance with the first and principal ground of appeal.
42. The Court will accordingly allow the appeal, quash the conviction and order the appellant to be re-tried for the offence pursuant to Section 3(1)(c) of the Criminal Procedure Act 1993.
Approved: Ryan P.
People (DPP) v Almasi
[2018] IECA 372
JUDGMENT of the Court delivered on 26th July 2018 by Mr Justice Edwards.
Introduction
1. The appellant in this case was charged with a single count of the murder of Mr Joseph Dunne (“the deceased”) on the 16th of May 2014 at Harbour View, Naas, Co. Kildare. On the 24th of February 2016 he was arraigned and pleaded not guilty. Following a 12 day trial he was convicted on the 10th of March 2016 by a majority jury verdict.
2. On the 16th of March 2016, the appellant was sentenced to the mandatory penalty of life imprisonment pursuant to s. 2 of the Criminal Justice Act, 1990.
3. The appellant now appeals against his conviction.
Summary of the evidence before the jury
4. On the 16th of May 2014, the deceased had been consuming alcohol in a place known as the Harbour which was on the canal and in the proximity of the main street in Naas, Co. Kildare. At approximately 10.30 p.m., the deceased, together with at least four other persons, made their way back from the canal to take the bus to Kildare town. It was established in evidence that the deceased was quite drunk and in a bad mood and that as the group proceeded, the deceased confronted another man who he did not know, with a view to provoking him into some sort of violent altercation. He was persuaded by his friend to desist from this and was guided away. The group then passed by the appellant’s van which was parked outside his residence. As he was passing the appellant’s van, the deceased apparently struck the appellant’s van in some fashion and then continued on. There was a conflict on the evidence as to how many times the appellant had struck the van. However, it was clearly established that the appellant’s van was interfered with.
5. The appellant, who worked as a courier driver, had arrived home from work a short time earlier and had just finished showering when he heard the noise of his van being struck. He picked up a baseball bat which was sitting at the doorway of his house and pursued those he believed had been involved in striking his van. The appellant told the Gardaí at interview that this baseball bat had not been purchased by him but had been in the house when he had rented it and moved in.
6. The group, including the deceased, became aware of the appellant pursuing them and ran away, scattering in a number of directions. The appellant pursued the deceased. CCTV footage was available and used at the trial which showed the deceased running while being pursued by the appellant who was holding the baseball bat in his right hand.
7. The deceased ran past a restaurant known as the Vie De Châteaux. A number of witnesses to this chase gave evidence at the trial. One such witness was Maria Flood who at the time having emerged from the restaurant with her husband, had returned to their car which was parked nearby and had just sat into the vehicle when she saw people in front of her and heard shouting. She described seeing a young fellow in a blue and white tracksuit top, a girl in a white hoodie top and another girl. She gave evidence that she then heard a shout of “what are you doing with the baseball bat?” and a reply coming “you broke my car” . The young fellow, who was doing the shouting, was being pulled back by one of the girls. She was able to give a description of the person who had replied “you broke my car” and agreed in cross-examination that she had said in her statement that he had a baseball but that “he was holding it down” . She agreed she did not see him swinging it. She said that shortly after the exchange she had witnessed that “it all dispersed” .
8. The trial court also heard from Donal Dockery, who had also dined at the Vie De Châteaux restaurant, accompanied by his wife and some friends. Towards the end of his meal he had gone outside for a cigarette and a coffee. His evidence was that he “could see some people on the opposite side of the road, opposite the patio where we were sitting, one either side of a vehicle…. And they were arguing.” He said: “Both men were agitated” and that “[o]ne of them was carrying a baseball bat” . Mr Dockery had also heard one man saying “[s]top messing with my car” and the person opposite saying “[d]rop the baseball bat and come over here” . He gave evidence that “they were both aggressive towards each other” , and that the man with the baseball bat was concerned about his car. He heard him say that “[t]his has happened before” and that “I’ve had enough” . Mr Dockery stated that he then went over and said to them “look, stop this, there’s no need for this” but that they ignored him and were shouting loudly at each other. Mr Dockery’s evidence was then that, a short time later, as he and his party were leaving the curtilage of the restaurant, “the guy with the baseball bat had gone to the left, down towards the canal, to the harbour. And we looked up towards the right and there was a guy lying just right at the corner of the adjacent building, lying on the ground. So we went over to him and he was alive when we went there, because I grabbed his hand and we called 999, because we could see he was bleeding.”
9. A number of witnesses who had been with the deceased, gave evidence as to the striking of the deceased by the appellant. There was a conflict on the evidence as to whether the appellant had struck the victim more than once. The evidence of Mickey McDonagh, Gavin Breen and Zoe Drewitt was that the appellant hit the deceased with the bat on one occasion. However, Alannah Piercy gave evidence that the appellant hit him once in the head, and then “Jo Jo [i.e., the deceased] hit to the ground and your man hit him again to the head” . Under cross-examination Ms Piercy initially accepted that she had stated to the Gardaí that “He only hit JoJo once” .. however, she then stuck to her assertion given in evidence that the deceased had been struck twice. She then purported to blame the Gardaí for mis-recording what she had said.
10. The jury also heard evidence from Dr Michael Curtis, Deputy State Pathologist, who testified that the injuries suffered to the deceased’s head were consistent with the interpretation that he had been struck once with the baseball bat, and that the deceased had been struck by the tip of the descending baseball bat, striking at the rear of his head, causing him to fall to the ground. Dr Curtis gave very detailed evidence of his examination of the deceased and of various small injuries to the head and neck. He also gave evidence of abrasions and other injuries to the hands and other limbs of the deceased. He said that these were in keeping with what he described as “a collapse, or fall or terminal collapse” . His evidence was also that the deceased had been struck by a blow to the upper occipital region of the back of the head, centrally and this had resulted in a comminuted depressed skull fracture. There was a left sided haematoma amounting to 100grams of blood clot which had caused pressure effects on the brain with brain swelling and left sided tentorium herniation. In layman’s language this meant the brain was displaced and pushed against a rigid membrane, namely the tentorium membrane, leaving a groove on the surface of the brain. In addition, there was a subarachnoid haemorrhage into the brainstem area. Any bleeding in this area is irritant to the vital centres controlling basic functions such as heartbeat, blood pressure and respiration and causes rapid death.
11. There were other marks of injury on the body including abrasions on the face and head which were possibly indicative of the deceased’s involvement in a scuffle. Dr Curtis also stated that a toxicology report indicated that the deceased had a blood alcohol level of 231 mg. per cent, a urine alcohol level of 362 mg. per cent and that no drugs were detected.
12. Dr Curtis gave the cause of death as blunt force trauma to the head. He offered the opinion that the injury was infinitely more likely to have been caused by a blow with a baseball bat rather than a fall. He was asked to deal with evidence that the baseball bat did not reveal any traces of the deceased’s blood or DNA and he offered the opinion that the first blow with an implement usually does not lead to a contamination with blood or tissue. On cross-examination he confirmed that the toxicology confirmed a high level of alcohol. He also confirmed that the injury was consistent with being struck by the very tip of the baseball bat.
13. Garda Stephen Flaherty told the jury that he was on patrol duty on the night in question along with his colleague Garda David Maher. Having received a call at approximately 10.20pm on the evening in question, Garda Flaherty was one of the Garda who arrived at the scene. He gave evidence of coming to the scene and speaking to the appellant. He then related that he cautioned him and asked him again if he had witnessed anything and he noted the replies which were:
“Coming home, I parked my car behind garage. I went into house for sugar. This was after work; I finished at 21:30 in TNT Dublin. I heard bang, bang, bang. Four guys, one girl were outside my house and they were damaging my car. I came out with baseball bat and they started running. I ran towards restaurant after one guy and two had been quick and ran. I ran past restaurant. I followed him. He fell to the floor and I turned for the others in the car. I understand I have been cautioned.”
The appellant then signed these notes.
14. The appellant was arrested for the offence of assault causing serious harm pursuant to. s. 4 of the Non-Fatal Offences Against the Person Act 1997. He was brought to Naas Garda Station where he was detained under s. 4 of the Criminal Justice Act 1984. He was interviewed at length while in detention, and made a number of admissions. He admitted that he had given chase to a group of youths who had been interfering with his vehicle and that on running out the door he had picked up and carried with him a baseball bat. He was adamant that he had not swung the baseball bat at the deceased, nor had he struck the deceased. When shown CCTV footage in one of the interviews, he accepted that it showed that he had swung the bat in the direction of the deceased, but claimed to have no recollection of doing so. The following exchange then ensued:
“Q. Do you think it’s possible that the very tip of the bat hit Joe’s head?
A. I don’t know.
Q. Do you think it’s possible?
A. I don’t know, I ddn’t feel it hitting him. It’s possible but I didn’t feel I reached him.
Q. Do you think you caused this man to die?
A. Definitely it wasn’t deliberately.
Q. Was it an accident?
A. Most likely it was an accident.
Q. Do you accept that you swinging this bat caused this man to die?
A. It could be possible but I didn’t realise I reached him or hit him.”
15. The appellant denied at all stages during interview that he had been in a rage, but conceded that he had been angry when he saw his vehicle being interfered with. However, he maintained that he had not given chase out of anger. He maintained that he had exhibited aggression when giving chase, not because he was angry but because “it’s my opinion that if I would talk to them nicely or politely they could attack me” . He added “I wasn’t angry, the point of shouting and running was to scare them” , and further that “[m]y only option was to chase them away. I couldn’t do anything else and I had to act aggressively to that male behind me because I saw he wasn’t afraid of me or the bat in my hand.”
16. On the 18th of May 2014, he was charged with assault causing harm pursuant to s.3 of the Non-Fatal Offences Against the Person Act 1997. On the 20th of August 2014, the charge was amended on the directions of the DPP to one of murder. On that date, the appellant was charged with murder, having been cautioned in the usual manner. As indicated at the outset of this judgment, the appellant was ultimately convicted of murder and is appealing against this conviction.
Grounds of Appeal
17. The appellant relies on five grounds as set out in their amended Notice of Appeal, dated the 8th of December 2017. They are as follows:
(i). The learned trial Judge erred in directing the redaction of memoranda of interview to exclude questions put by Gardaí in interview;
(ii). The learned trial Judge erred in directing that portions of the interview of the applicant were irrelevant and could not be put in evidence before the jury;
(iii). The learned trial Judge erred in law and in failing to permit the partial defence of provocation to be considered by the jury;
(iv). The learned trial Judge erred by failing to inform the jury that they could fail to agree on a verdict after the jury had been deliberating for over two days;
(v). The learned trial Judge erred in refusing to allow a witness, Michaela Walker, to give certain evidence relating to the demeanour of the deceased.
Grounds (i) and (ii).
18. It is convenient to deal with these together. The background to these complaints is to be found on day 6 of the trial when issues were canvassed with the court concerning what documentary exhibits should be permitted to go to the jury. It was explained to the trial judge that both sides had analysed the videos of the interviews with the appellant and the memoranda of those interviews and it was clear that the written records did not accurately reflect what was on the video record. Significant passages were omitted. A complete and accurate record had been agreed between the parties. However, counsel for the respondent was applying to have certain segments of the full memoranda of interviews, and the related video, ruled inadmissible and that therefore only a redacted version of the written memoranda should be permitted to go to the jury.
19. The basis for the objection was that the impugned material comprised certain statements made, and questions asked, by the interviewing Gardaí, particularly during the third and fifth interviews in time, that were premised upon, or asserted, matters of disputed fact (e.g., that the appellant had not intended to kill the deceased, and that the killing had been an accident) that were not conceded by the prosecution and which went to the ultimate issue.
20. Counsel for the respondent highlighted some of these statements to the trial judge. For instance, the trial judge was referred to page 7 of interview 3, where the following exchange took place:
[INTERVIEWING GARDA] Q: ” We know you are not telling the truth. A young man is dead. I’m not saying it to be bad. Everything happened so fast. It could happen to any of us. I feel sorry for the position you’re in. What happened happened so fast, it could happen to anyone. I feel sorry for you for the position you’re in. We want you to tell us the truth. I know you’re not a bad man. You have to think. You need for you to tell us the truth. This happened so fast. You didn’t mean to kill that man. If you don’t tell us the truth all it shows is that you have a bad heart towards what happened. It will look better. Tell us what happened. We know why you arc lying. We understand that. I think you are lying because your life got crazy. For you future (sic) this is a bad situation. This goes to Dublin, in Dublin they read it and go: he lied all the way. Do you understand what a callous heart is? The person who reads this will never meet you and they will read it and think this man does not care, he has no compassion. This is your opportunity to tell the person reading it how you feel about what happened last night, I can see you want to tell us”
[APPELLANT] A: “A young person is a death, is a tragedy but I didn’t kill him.”
21. Later on in the same interview, the following further exchanges occurred:
[INTERVIEWER] Q: “We understand you are scared – you should show you care. You meant to scare him, you swung, you didn’t mean to hit but you did. Think. You ran after him and hit him. Think of that man’s family.”
[APPELLANT] A: “I’m continuously thinking about it”
[INTERVIEWER] Q: “Truth will help this family. Please think, truth is important, it shows the person in Dublin everything went wrong and you didn’t mean what happened.”
[APPELLANT] Q: “I’m sorry about everything that happened but I didn’t hit him.”
[INTERVIEWER] Q: “People will understand what happened. It’s a tragic accident. Last night’s like a car crash. I understand you didn’t run out to hit that man. It won’t go away, there is a man dead. If it goes to court how is it going to look that you said no all the time. Tell the truth. Are you aware of where the cameras are at the Harbour?”
[APPELLANT] A: “You will not see me hit him.”
[INTERVIEWER] Q: “Did you swing at him?
[APPELLANT] A: “I wouldn’t swing the bat either.”
22. The respondent’s application was to have these statements, and similar type statements of which there were some others, on the part of the interviewer ruled inadmissible, and that the record to go to the jury should be redacted leaving only the appellant’s responses to the jury. This application was resisted by counsel for the appellant, for obvious and understandable reasons. It was argued on the appellant’s behalf that providing the answers without the full questions that had elicited the answers would deprive the jury of essential contextual information. It was submitted that an accused was entitled to have the full un-redacted memoranda of his/her interviews placed before the jury.
23. The trial judge delivered the following ruling: –
“What’s in issue really are the matters contained in interviews three and in interviews five and what I’m told is that the memo is the ordinary type and then the matters that are in bold have been added and it’s only some of those matters that are in dispute between the prosecution and the defence. And it does seem to me, without having to go through them individually, that any place in those documents three and five where comments are made that they should not be allowed to go to the jury, that’s comments by gardaí, then they should not be allowed go to the jury. Now, I hope it’s not necessary for me to go through them and excise all of that and I hope that can be agreed but I’m ruling that where there are comments by gardaí as to what they think or what they don’t think or indeed the man in Dublin that those matters should not be allowed go to the jury because I think the rules of evidence do have to be strictly observed.”
24. In arguendo before us on this appeal, counsel for the appellant submitted that the trial judge’s decision to accede to the application to redact the statements or comments of the interviewing Gardaí, was unsound and unfair to the appellant. It was again submitted that the appellant was entitled to have the jury consider all that occurred in his interviews and to view his admissions in their proper context. Counsel for the appellant argued that the whole purpose of the Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations, 1997, is that, where there is a dispute as to the accuracy of the written memorandum of interview, the recorded version is to be relied upon. The regulations themselves require the recording of all statements and utterances.
25. In response to the respondent’s argument at trial that the comments of the Gardaí represented Garda “opinion evidence” on the “ultimate issue”, counsel for the appellant argues that such a characterisation is a misrepresentation of the reality as these remarks immediately precede and inspire answers on which the prosecution sought to rely. Consequently, the appellant submits that the jury were deprived of the context in which the answers were given and presented with an inaccurate picture to the detriment of the accused. Counsel for the appellant also submits that the trial judge did not give a sufficiently reasoned explanation as to why she was accepting the submission of the respondent and not that of the appellant in respect of this application.
26. In support of his argument, counsel for the appellant drew the Court’s attention to certain remarks of the late Hardiman J in The People (Director of Public Prosecutions) v McCowan [2003] 4 IR 349, where he stated (at 354) that: –
“Presumably [the Gardaí] ask a question about the offence because they attach some importance to it and if they deem it in their wisdom necessary to ask the same question several times, there is no reason why it should not be recorded on each occasion. Only thus will a true flavour of the interview be given.”
27. Counsel for the appellant also relies on the decision of the Supreme Court in The People (Director of Public Prosecutions) v Diver [2005] 1 IR 270, where it was stated, in the context of an issue concerning a general failure to record denials, that there was an obligation on Gardaí to record interviews in as complete a fashion as possible, and that:
“It must be a fair record of what was said and it is important to provide sufficient context to allow for an evaluation of what is said, especially where, as here, the accused was allegedly making ambiguous or inconclusive verbal statements and manifesting symptoms of distress. Audio visual recording is, of course, infinitely superior.”
Decision
28. We are satisfied that the trial judge’s ruling was correct. One of the trial judge’s functions is to ensure a trial in due course of law, i.e., a trial that is fair to both sides. It is long established that interviews may be redacted in the interests of ensuring fairness to an accused person. Accordingly, it is well established that where the memorandum of an interview refers to previous misconduct by, or previous convictions on the part of, the accused, those memoranda should be suitably redacted to remove the unfair and/or inadmissible material, before being allowed to go to the jury. We see no reason why, equally, redaction of material that might unfairly prejudice the prosecution’s case should not also be permitted, provided that that can be done without significant impingement upon the ability of the accused to defend the charge by all legitimate means open to him/her.
29. We have carefully considered all of the redactions made in this case in response to the trial judge’s ruling. Counsel for the appellant has not identified any specific redaction that has unfairly prejudiced the defence. Though much was made of claims that the jury were denied relevant context, it has not been demonstrated to us that any of the appellant’s answers to questions that were ultimately redacted were capable of misinterpretation, or of being misunderstood, because the jury were denied the full context in which those answers had been elicited so as to be thereby deprived of relevant admissible evidence. It would not have been open to the defence, for example, to have put it to an interviewer that he/she believed that the accused had not intended to kill the deceased, or that he/she had concluded that the killing had been an accident, as these opinions, if acknowledged, would breach the ultimate issue rule.
30. As will be seen from the illustrations quoted, the impugned questions were typically highly compound ones. The expedient was adopted of redacting numerous objectionable clauses while still leaving an unobjectionable core query. We are satisfied that in the circumstances of the case this form of redaction, and other simpler redactions that were performed, were effective in removing any unfairness to the prosecution without impacting on the meaning of the answers given, or otherwise distorting the appellant’s responses. We recognise that in another case it might well be shown that a denial of full context could be of critical importance. However, we are fully satisfied that that was not the case here.
31. We make no comment whatever on the specific interviewing techniques that were employed in this case. Police interviewers are entitled to conduct interviews with suspects in a robust fashion, providing certain lines are not crossed, and they are not bound to adhere to any rules of evidence, of etiquette, of decorum, of good manners, of protocol, of good taste, or of political correctness, in how they question such suspects. It is, after all, the interrogation of a police suspect. What is absolutely impermissible, however, is that the manner of interviewing should be oppressive, or coercive of the will of the interviewee by subjecting him/her to fear of prejudice, or by offering him/her the hope of advantage. In this case no complaint was raised either at trial, or before us, alleging oppression or coercion through fear of prejudice or inducement. The only complaint was of alleged unfairness in terms of the ability of the appellant to mount his defence, by reason of the admission of certain of his answers at interview where the jury were denied full contextual information in terms of receiving the fully formulated questions which elicited those answers. We are satisfied that the allegation of unfairness was not made out.
32. In the circumstances we dismiss grounds of appeal no’s (i) and (ii).
Ground (iii)
33. At the close of the prosecution’s case, on day 7 of the trial, counsel for the appellant made an application that the partial defence of provocation be allowed go to the jury. Counsel for the appellant, in a lengthy submission to the trial court, submitted that provocation as a possible partial defence should be allowed go to the jury on the facts of the present case. It was acknowledged that the accused in interview did not assert an intentional killing arising from an explicit claim that he had been provoked. However, it was submitted that the defence was inferentially available from the surrounding evidence and the entire circumstances of the case and was not dependent on an express assertion by the appellant.
34. Counsel for the appellant pointed in particular to the evidence of interference with the appellant’s van; the assertion that this was not the first time that this had occurred; previous incidents in which the appellant’s peaceable enjoyment of his property had been interfered with; the reason given for why the baseball bat was at the door; the situation of and with respect to the appellant’s residence; the fact that the van was very important to him, and that he needed it both for his job as a courier and for transporting the dogs that he breeds. Counsel submitted:
“Whilst he is getting dressed, as I indicated, he has stated that the noises were continuing outside. He gets dressed. He gives chase. He takes possession of the bat, the presence of which at the door he accounts for as being due to previous incidents which concerned him. This is in effect one constant movement, getting dressed, moving. There’s no time during which there was an effective cooling off period, if I could put it that way. He proceeds and the CCTV shows him chasing at speed the deceased. Mr Breen goes one way and then comes back and the entire matter is over in a matter of seconds. In the fourth interview at page 4 he confirms that he was angry at the interference as anyone would.
In terms of the core incident itself the evidence is of a quick chase and a single blow to the head of the deceased. In terms of Mr Almasi’s demeanour there is evidence of him beforehand by I think Ms Augonaiskene of shouts about breaking my car. The Court will recall that her evidence was split into two time periods, that she initially, on hearing shouting, went to look out on the canal basin side of her house and then subsequently, on hearing more noise, looked out the front by which stage the deceased was on the ground. What I say is of particular importance is the precise sequence of events. It’s apparent that a blow was struck and almost immediately Mr Almasi and Mr Breen engage in confronting each other around the car and the evidence of a number of witnesses, to include Ms Ryan, indicates that the accused is repeating “What have you done to my car? What have you done to my car?” and Ms Flood confirms that both men appear to be chasing around the car. And what I say the significance of that is that it shows a very agitated demeanour of Mr Almasi immediately after this incident.
There’s one other specific aspect in respect of the manner in which Mr Almasi has addressed this issue in interviews and the Court has heard that what he says to the gardaí is that he didn’t strike a blow, that Mr Dunne was outside his reach, that he thought he was outside his reach, he didn’t feel it and what I ask the Court to consider is this, the frame of mind of a man who, if the jury found intentionally struck Mr Dunne with the intention to cause him serious injury, immediately turns to Mr Breen and gets involved in an argument constantly repeating ‘You’ve damaged my car, you’ve damaged my car’ and the non recollection, where he says he cannot remember raising the bat, he cannot remember striking Mr Dunne, that non recollection is in my respectful submission to the Court relevant and consistent with a total loss of self control to the extent that he is no longer master of his own mind.”
35. This application was resisted by counsel for the respondent on the basis that the partial defence of provocation could not arise on the facts of the case.
36. Having heard argument on both sides, the trial judge ruled as follows: –
“… on balance I think that this is not a case where the strength of the evidence would support the defence of provocation going to the jury. I think on balance, taking all matters into consideration, the evidence points certainly to a rage but taking into account the whole of the evidence and the actions of the accused man before and after the event it seems to me that it’s not a case where it has been established that there was a total loss of self control and in those circumstances I have to say I don’t think there is sufficient evidence to allow sufficient evidence in this particular case to allow the defence of provocation to go to the jury”.
37. It has been argued before us on behalf of the appellant that the trial judge applied the wrong test, in that she seemed to be of the view that it had to be “established” that there was a total loss of self-control, before she would be justified in permitting the partial defence of provocation to be considered by the jury.
38. In submissions to this Court, counsel for the appellant has drawn our attention to, and relies upon, the following passages from The People (Director of Public Prosecutions) v Davis [2001] 1 I.R. 146 at 155:
“…whether the question of provocation will be left to the jury, is to be determined by the trial judge by an assessment of the evidence to determine if there is an issue fit to be left to the jury. A useful approach might well be for the judge to consider whether or not a jury would be perverse in finding that there had been provocation, on the evidence available.
In making this determination the trial judge must bear in mind that issues of credibility of evidence, as opposed to its existence, are for the jury and not for him. He must also bear in mind that before provocation becomes an issue in the case, fit to be left to the jury’s determination, there must be evidence (direct or inferential) suggesting the presence of all elements required for the defence.”
And (at 156):
“We entirely accept that the burden on the applicant is not a heavy one but it necessarily involves being able to point to evidence of some sort suggesting the presence of all the elements of provocation. Provocation is not an issue which will automatically go to the jury simply because the defence is invoked. The burden which rests with the accused is to produce or indicate evidence suggesting the presence of the various elements of the defence. This can be produced either through direct evidence or by inference from the evidence as a whole, but before leaving the issue to a jury the judge must satisfy himself that an issue of substance, as distinct from a contrived issue, or a vague possibility, has been raised.”
39. The respondent has referred us to the Court of Criminal Appeal decision in The People (Director of Public Prosecutions) v Curran [2011] 3 IR 785, wherein that Court reviewed the general law on provocation. We note that in Curran the Court commented thus with respect to its earlier decision in Davis:
“[21] The decision of this court in The People (Director of Public Prosecutions) v. Davis [2001] 1 I.R. 146 is very important therefore in providing guidance to courts in ensuring that the structure for the defence is maintained. It emphasises that it is only those cases where provocation as properly defined is genuinely being raised that should be permitted to go to the jury. The court also laid emphasis on ensuring that all the elements of the defence, and in particular those features which distinguish true provocation from mere uncontrolled rage, are maintained. As the judgment pointed out, at p. 158, provocation will involve focusing ‘inter alia on the distinction between vexation, temper, rage or cognate emotions and provocation in its technical sense’. A condition of being ‘vexed’ or even ‘in a rage’ does not remotely approach evidence suggesting the ‘total loss of self-control which alone can palliate a fatal assault’. On the contrary, it was necessary that there should be some evidence whose credibility will fall to be assessed by the jury, that, as stated at p. 158, ‘the particular accused was in fact provoked to the extent of total loss of self-control, that he killed the deceased while in this state, in response to the provocation, without there having been time for his passion to cool’. This should also be understood in the context, as outlined at p. 160, that there is a ‘minimal degree of self-control which each member of society is entitled to expect from his or her fellow members: without such a threshold, social life would be impossible’. This is important and valuable guidance. In the words of Hardiman J., at p. 158:-
‘The defence of provocation does not operate in such a way as to allow any person who kills another in a fit of temper to establish that much and no more, and then defy the prosecution to exclude the reasonable possibility of provocation. He must show some, even weak or limited, evidence of all the elements of provocation as that phrase is understood in law, and usually this will involve focusing, inter alia, on the distinction between vexation, temper, rage or cognate emotions and provocation in its technical sense.’
40. We accept Davis as correctly stating the law. The burden to be discharged was not a legal one, but an evidential one in the sense of raising the issue by demonstrating the existence of at least some evidence at a sufficient level of cogency, which could be direct or circumstantial or a combination of both, that the appellant may have acted in circumstances where, having been subjected to a provocation, he had totally lost his self-control. In that regard, it has been expressly acknowledged in a number of cases that the threshold in terms of sufficiency of cogent evidence is low, but that there is nonetheless a threshold to be crossed, before a trial judge would be justified in permitting a jury in a murder case to consider the partial defence of provocation. As Lord Devlin put it in Lee Chun-Cheun v R. [1963] A.C. a party seeking leave to rely on provocation must put forward “a credible narrative of events” suggesting the presence of the various elements of the defence. There must be sufficient evidence for a jury to find that it was a reasonable possibility that the accused may have acted in circumstances where, having been subjected to provocation, he had totally lost his self-control.
41. To be fair to the trial judge, she spoke repeatedly about “the strength of the evidence” and the “sufficiency of the evidence” , suggesting an appreciation on her part that there was a threshold. The issue in this case is whether the trial judge applied too rigorous a standard, and in effect regarded the threshold as being higher than that which is in fact required to be met, by requiring the available evidence to be such that it “established” that there had been a total loss of self-control.
42. We consider that evidence suggestive, but not going so far as to establish it, that the appellant had totally lost his self-control due to provocation would have been sufficient to meet the threshold. It was not for the trial judge to determine, even on a preliminary basis, whether the appellant had in fact totally lost his self-control due to provocation; merely whether some cogent evidence existed tending to suggest that that might have been the case. Nothing, beyond the existence of a threshold level of evidence of reasonably cogency, i.e., a credible narrative of events suggesting the presence of the various elements of the defence, was required to be “established” .
43. However, when the totality of the trial judge’s remarks are considered, it is clear that what she had intended to convey was that such evidence as existed did not, in her view, go so far as to suggest a total loss of self-control. Rather, her assessment, which would have been a finely balanced call, was that it only went so far as to suggest the existence of a rage short of a total loss of self-control, and that would not meet the threshold, low though it might be.
44. In the circumstances we are satisfied that the trial judge did not apply too rigorous a standard in assessing whether the defence of provocation should have been allowed to go to the jury. There is no basis for concluding that she was guilty of any error of principle in the exercise of her discretion.
45. Accordingly, we are not disposed to allow the appeal on ground no (iii)
Ground no (iv).
46. The jury spent 11 hours and 13 minutes deliberating before reaching a majority verdict of guilty of murder. At the lunch break on day 11 of the trial, the jury having already spent 7 hours deliberating, counsel for the appellant raised the issue as to whether “the Court might intend advising [the jury] of the possibility of a disagreement if no outcome is [reached]” . The trial judge declined to do so at that point on the basis that the jury had recently said that more time would be of assistance.
47. Later that afternoon, after dealing with a question from the jury, in which they requested a definition for “terminal collapse” , the issue was raised again by counsel for the appellant where he expressed concern that “members of the jury may, due to the length of the deliberations, feel themselves forced to go with a majority if there is such a divide between them.”
48. The jury had earlier, just before 3pm on the previous day, i.e., day 10, been told that it was open to them to bring in a majority verdict of not less than ten of them.
49. In light of the renewed expression of concerns by counsel for the appellant, the trial judge stated that she would ask the foreman whether a verdict had been reached and in the event that no verdict has been reached, “then what I intend to say to the foreman of the jury is that I directed them initially that what I required was a unanimous decision. I then directed them that I required a decision in which any ten or any 11 of them agreed or they could still come back to me with a majority [sic] decision. And I’m simply going to say that anything else is called a disagreement” .
50. Counsel for the respondent indicated that such a course of action would be against the authorities on this issue and that he would like to address the Court on the law before she said anything to the jury on the issue of disagreement. The trial judge decided that she would refrain from saying anything to the jury at this juncture and would adjourn the matter until the following day, at which time the parties could address the court on the law if necessary.
51. On the morning of day 12 of the trial, both sides agreed that the authorities were clear that the decision as to whether or not to inform the jury of the possibility of disagreement was a matter exclusively within the discretion of the trial judge, having regard to all of the circumstances of the case. The trial judge then proceeded in the manner that she had proposed. Approximately, two hours later, the jury returned with a majority verdict of guilty.
52. Counsel for the appellant submits that, on the particular facts of the present case, the two requests by counsel for the defence to notify the jury of their right to disagree should have been acceded to by the trial judge. It was conceded that the decisions in The People (Director of Public Prosecutions) v Cahill [2001] 3 IR 494, and; The People (Director of Public Prosecutions) v Byrne (February 24th 2003 CCA 3004) are authority for the proposition that a trial judge does not have to inform a jury, as a matter of principle, of “a right to disagree” ; Moreover, in Byrne it had been stated that “trial judges should not go out of their way to sow in the minds of juries the seed of the wrongful belief that there is some intermediate verdict between guilt or innocence which they can arrive at, namely of disagreement” . Nevertheless, counsel for the appellant contended, what was involved here was a net issue as to whether fairness required, in the circumstances of the case, that the jury should have been expressly informed, as originally suggested to the trial judge, that they could disagree.
53. Counsel for respondent has submitted in reply that the trial judge was best placed to make the assessment as to whether the jury was having difficulty in reaching a verdict and how this should be addressed. It would have been clear to the trial judge in this case, both from the jury foreman’s affirmative response to the question as to whether more time would be of assistance, and the later seeking by the jury of additional substantive assistance by way of a question to the trial judge, that the jury remained engaged in diligent deliberations. This was not suggestive of hopeless deadlock.
54. We agree with the submission made by counsel for the respondent. While deliberations had been going on for some time, there was no indication of hopeless deadlock. It is correct to say that the trial judge was best placed to decide how best to proceed in terms of apprising the jury of the possibility of a disagreement. We consider that the instructions given to the jury by this trial judge were appropriate and that they are not to be legitimately criticised. We consider there was no unfairness in her approach, or in allowing the jury to deliberate for as long as they did.
55. We therefore dismiss ground of appeal no (iv).
Ground no (v).
56. On day two of the trial, the prosecution called Michaela Walker. Before she was sworn in to give her evidence the prosecution had made it known to the defence that they proposed not to lead portions of her proposed evidence, and that they would object to any attempt by the defence to cross examine her upon the matters in controversy, on the basis that it represented inadmissible evidence, both in terms of not being relevant and also pursuant to s.1A(a) of the Criminal Justice (Evidence) Act 1924 (“the Act of 1924”) as inserted by s.33 of the Criminal Procedure Act 2010 (“the Act of 2010”).[Prosecuting counsel incorrectly referred in his submission to s.31 of the Act of 2010, but it is clear from the context that he had intended, and was understood by all concerned, to be referring to s.1A(a) of the Act of 1924 as inserted by s.33 of the Act of 2010].
57. The defence were unhappy with the prosecution’s proposed means of proceeding, and in the circumstances the prosecution asked that the trial judge conduct a voir dire and rule on the correctness or otherwise of the position that the prosecution wished to adopt.
58. Section 1A(a) of the Act of 1924, as inserted, provides:
“Where a person charged with an offence intends to adduce evidence, personally or by the person’s advocate, of a witness, including the person, that would involve imputations on the character of a prosecution witness or a person in respect of whom the offence is alleged to have been committed and who is either deceased or so incapacitated as to be unable to give evidence, or evidence of the good character of the person—
(a) the person may do so only if he or she—
(i) has given, either personally or by his or her advocate, at least 7 days’ notice to the prosecution of that intention, or
(ii) has applied to the court, citing the reasons why it is not possible to give the notice, and been granted leave to do so,”
59. In the course of the voir dire the prosecution particularised the portions of Ms Walkers’s statement in the Book of Evidence that they wished not to lead. The objectionable part her statement, from the prosecution’s perspective, was her claim that at one stage she saw the deceased “smash a glass bottle of Bud or Bulmers, a brown bottle anyway off the wall. I saw him put the broken top piece into his hoody pocket, he was smiling and laughing when he put it into his pocket.” The prosecution contended that it added nothing of relevance to any issue that the jury would have to consider, and that the defence wanted it in solely for the purpose of blackening the character of the deceased. Moreover, no notice of an intention to seek to elicit and to rely upon such evidence had been served by the defence within the seven day period specified by the statute, nor had any application been made to the trial judge for permission to do so on the basis that it had not been possible to serve the required notice, and explaining why that was so
60. Counsel for the appellant submitted to the trial judge that it was not for the prosecution to pick and choose the evidence that they wished to lead. In response, counsel for the respondent submitted that it was indeed the prosecution’s entitlement to choose what evidence they intended to lead, and what evidence they did not intend to lead. Counsel for the respondent adopted the position that he was not disposed to lead the evidence in controversy in chief as it was inadmissible, and further he was entitled to object on the same basis to any attempt by the defence to cross-examine it into the case.
61. The trial judge ruled that it seemed to her that these particular facts were not relevant but could only serve to blacken the character of the deceased, and she ruled that they should be omitted from the witness’s proposed evidence on that basis. The appellant now seeks to have the matter re-visited on appeal, and submits that the trial judge’s ruling was erroneous. The case is made that the evidence was relevant in that it was part of the overall context in which the killing of the deceased had taken place, and that it tended to corroborate or support the defence’s contention that the deceased had been out to cause trouble and that this disposition had culminated in his involvement in a confrontation with the appellant which he had provoked by interfering with the appellant’s vehicle.
62. In reply, the respondent maintains that, in circumstances where the broken beer bottle had not been produced to the appellant, and the appellant was unaware of it, and it formed no part of, or played no role in, the actual confrontation which resulted in the death of the deceased, it was irrelevant and of no probative value.
63. We agree with the submission made on behalf of the respondent and consider that the proposed evidence was correctly ruled to be inadmissible.
64. In the circumstances we are not disposed to uphold ground of appeal no (v).
Conclusion
65. In the circumstances outlined we dismiss the appeal.
People (DPP) v Solowiow
[2018] IESC 9
Judgment of Mr. Justice John MacMenamin dated the 14th day of February, 2018
1. The apparently straightforward issues in this appeal touch on questions which date back many centuries. As far back as the medieval period, courts had to consider how the law might mitigate the effect of a finding of homicide, when a conviction for murder would lead to the imposition of the death penalty. Judicial thinking evolved so that, under law, a “subjective” element was introduced to the concept of intent when there was a finding of homicide. The law recognised the partial defence of provocation. But how should the law give recognition to this question? This remains a controversial issue. (See the recent observations of Charleton J. in DPP v. Heffernan [2017] 1 I.R. 82, at p.91, and the earlier remarks of O’Donnell J. in the Court of Criminal Appeal in The People (DPP) v. Curran [2011] 3 IR 785; also see Law Reform Commission, Consultation Paper on Homicide: The Plea of Provocation, LRC CP 27-2003; and particularly, Law Reform Commission, Report on Defences in Criminal Law, LRC 95-2009).
2. Some commentators, pointing to “individual” issues, such as type of personality and gender, criticise the defence as lacking in certainty and objectivity. These considerations form the background to this appeal.
3. The appellant (hereinafter “the defendant”) was charged with murder. He relied on the defence of provocation. He told lies immediately afterwards about what happened. The question which arises directly here is as to how, on this charge of murder, when the defence raised was provocation, the judge at this trial should have dealt with the lies which the appellant told in the immediate aftermath.
4. Counsel for the defendant contends that the trial judge should have explicitly charged the jury to the effect that lies of this type may be as consistent with a defendant who has been “provoked” in the legal sense, as one who has been guilty of murder. It is said that the trial judge failed to draw this distinction in his charge to the jury, and that as a consequence the charge was fundamentally flawed.
5. The general issue as to how a jury should be instructed in the case of lies out of court arose in the seminal decision of R v. Lucas [1981] QB 720, from which is derived the eponymous “Lucas warning” as to how such lies should be dealt with in the charge to the jury.
6. Lucas itself, and subsequent application of the principles identified there, establish that, in an appropriate case, it will be necessary that the judge sufficiently instruct a jury that a defendant may have told lies for a number of different reasons, such as shame and embarrassment; and that the very fact of having told lies out of court is not to be equated with an admission of guilt.
7. But applying this precept in a trial for murder when provocation is raised is not always easy. The judge must gauge the context and the content of the warning. An over-elaborate charge to a jury, posing many questions and sub-questions, each based on contingent answers to prior questions, makes the jury’s task significantly more difficult. The scales must be weighed fairly between prosecution and defence.
8. This is, too, an area where one must guard against the inapposite citation of precedent. This caveat arises for two reasons. The first is obvious, that each trial and charge is to be looked at in its own unique context. But, second, authorities cited to this Court from the courts of England and Wales must be carefully considered, arising as they do against a different statutory background regarding the partial defence of provocation in murder cases. In our law, the test remains predominantly a subjective one. (See DPP v. MacEoin [1978] I.R. 27). The situation in England and Wales governed by statute imposes a more nuanced “reasonable person” test. (See U.K. Homicide Act, 1957; and later s.54 Coroners & Justice Act, 2009).
9. Where the defendant has told lies, a judge must consider the context of those lies. There is a range of possibilities as to why the lies were told. When there are lies, a warning will almost always be necessary. But the precept does not always lend itself to easily expressed bright line or “one size fits all” jurisprudence. The nature, timing and the context of the lies is a consideration. The lies may be to the very forefront of the entire case; but this is not always so. A “Lucas warning” is not some form of mantra, or formula of words in the same form, for all purposes. The warning is, rather, to be tailored according to the context in which it arises. Such lies may relate to the issue of whether a defendant actually committed the offence at all, or, alternatively, more directly relevant here, to the nature of the defence, when the fact of homicide is not in issue. The weight and content of the warning is to be measured against the proximity of the lies to the offence. Some lies, by their timing or their nature, will be less important or essential in the charge than others. Where the lies go to the core of the case, a judge may have to engage in a fuller form of Lucas warning. Where necessary, the judge may have to point out that the lies may be as consistent with provocation as with murder, and that the jury should be satisfied beyond reasonable doubt on this question. The question then is, what form of warning was necessary on the facts of this case?
10. Seen in isolation from its own particular factual context, Lucas recognises a simple but vital principle. It is that juries must be warned that lies told by a defendant out of court should not be equated with guilt of the offence with which the defendant is charged in court, and that defendants may tell lies for reasons other than simply trying to exculpate themselves. The fact of telling lies, therefore, should not, of itself, be taken by a jury as corroboration of guilt. To make this illogical deduction or leap is, in the words of one commentator, “impermissible reasoning”.
11. The task of framing the terms of a warning is quintessentially one for the trial judge, although he or she may wish to hear submissions from counsel as to its format and content. But neither prosecution nor defence is entitled to words of their own choosing. In general, however, it is difficult to conceive of a situation where, nowadays, when defendant’s lies out of court are part of the case, a judge would not give such a warning. A complete failure to do so would undoubtedly put the propriety of a trial at high risk. It is a matter of basic fairness.
12. In this case the judge did give a “modified Lucas warning”. A simplistic analysis of this appeal could portray the main issue as being reducible to the absence of just one sentence in the judge’s warning. The defence now says that, on the facts, the judge should have told the jury that a defendant who has been provoked may have as strong a reason for telling lies, as a person who has actually committed murder, and that the jury should be satisfied that the lies derived from a realisation of guilt of murder. In fact, the judge’s modified warning was quite extensive, and took up to 30 lines in the transcript. The overall charge itself was detailed and fair. Counsel who acted for the defendant at the trial suggested there should be a warning. In fact, the judge said he was already minded to warn the jury about the defendant’s lies, and did so. Different counsel appeared on this appeal.
13. A second issue also arises for consideration. It is the extent to which this Court should apply the well-known dicta of Kearns J., speaking for the Court, in The People (DPP) v. Cronin (No. 2) [2006] 4 IR 329. This precludes the raising of issues on appeal in criminal cases which were not the subject matter of a requisition at the trial. There is, in fact, a telling connection between these two points which becomes evident. As counsel for the respondent (“the Director”) points out, defence counsel did not requisition on the form of warning given at the trial. The question which arises is as to why? There is no explanation available. But one inference might be that counsel did not consider that, in the context, there was anything objectionable in the judge’s warning.
14. Consequently, yet a further matter must be considered: that of context. The points and issues do not exist in a vacuum or as abstract propositions. They are to be seen in the context of this trial. It is necessary to set out the relevant circumstances of the case, as it was presented before the jury.
15. In fact, as matters turned out, the paramount issue during the trial was not the question of the defendant’s lies in the immediate aftermath of the offence, but rather his own credibility as a witness when he was called to testify as to the events on the night and following morning in question. There was pathologist’s evidence as to the severity of the deceased’s injuries. This testimony, largely uncontested, was irreconcilable with the defendant’s own account about what he did on the night. This case is distinct from others also, in that, by the time of the trial, it was not in dispute that the defendant had killed his partner, Mary Ryan. The sole issue for determination was whether the verdict should be murder or manslaughter.
16. The defendant was convicted of the murder after an eight day trial in the Central Criminal Court before McCarthy J. The evidence showed that the defendant and Ms. Ryan had been involved in a relationship for some time. They lived together in a flat in the centre of Dublin. The relationship between them was not always an easy one. The deceased had a serious drinking problem. She could become “difficult” and argumentative when she took too much drink. This had led to her engaging in disruptive behaviour in the couple’s flat on a previous occasion, which led to trouble with the neighbours, and complaints to An Garda SÃochána.
17. As a result, the landlord told the defendant and Ms. Ryan that they would have to leave the flat. He told them this on the 18th May, 2012. During that day, the defendant and the deceased were with friends at a flat in another part of town. The two returned to their flat in the evening. They had both had a lot to drink.
18. During the evening of the 18th May, 2012 there was a row in the flat. The row escalated into violence. The defendant accepted he was angry with Ms. Ryan, because they both might find themselves on the streets with nowhere to live. Yet he wanted to continue living with the deceased. He was worried that her disruptive history might be a problem in obtaining alternative accommodation. The defendant had been offered a place to live in Portobello, but this offer was not open to the deceased. In a violent struggle which ensued, Ms. Ryan sustained serious injuries which caused her death. The defendant was charged with murder. The defence relied, inter alia, on provocation and lack of intent to murder.
19. Provocation may arise as a defence in circumstances where an accused has suffered a temporary and sudden loss of self-control, such that he was unable to prevent himself from committing the homicide.
20. In raising the defence at this trial, counsel had to deal with the fact that, in the immediate aftermath of the homicide, the defendant gave an entirely fictitious account as to what happened on the night. He gave this account on two occasions; first, to friends in a telephone call on the morning of the 19th May, and later, to members of An Garda SÃochána.
21. In the phone call, he told his friends a fabricated story that Mary Ryan had sustained her fatal injuries when she was attacked in the street by three men, some 50 metres away from their own flat. In fact, the forensic evidence showed that the deceased sustained her injuries in the flat. The defendant was arrested on the day following the death. He persisted in this false account in the first six garda interviews. Ultimately, he accepted that he had killed the deceased. From then on, his involvement in the homicide was no longer in issue. The real question for the jury was as to his intent or state of mind.
22. But in the trial, the defendant faced further difficulties. He gave evidence. His narrative of the struggle in the flat simply did not tally with the serious injuries which the deceased sustained. He claimed Mary Ryan had started the fight and had attacked him. But his account was irreconcilable with the severe injuries to her face and body, and significant brain damage. The deceased had been grabbed by the throat in such a forceful manner that two cartilage bones in her neck were fractured.
23. A further issue for the defence was the delay in seeking help. While the fatal fight apparently took place during the night or early morning of the 18th May, 2012, the defendant did nothing in the immediate aftermath to get emergency aid for the deceased, who was obviously seriously injured. In fact, he only sought emergency assistance at 11 a.m. on the morning of the 19th May, 2012, after he had spoken to his friends. Such background features were not easily reconcilable with a “sudden loss of control”, following which the defendant came to his senses. He never satisfactorily explained why he did not call an ambulance immediately. Instead, in the morning, when he first telephoned his friends, he told them what the counsel for the Director described as a “cock and bull” story about the alleged attack by three men. By the time the matter went to the jury, the complexion of the case had considerably changed; this was as a result of the credibility of the defendant’s own evidence.
24. It was necessary to call the accused in an attempt to make out the defences of provocation and lack of intent. But his direct evidence was inconsistent with the ascertainable facts. The account he gave came nowhere near explaining the nature of the deceased’s facial, cranial and bodily injuries. But more directly, there was, in fact, little significant evidence of the defendant having suddenly lost control of his faculties, such that a defence of provocation, or lack of intent, could properly arise. The provocation defence was, therefore, well-nigh unsustainable. The judge allowed the issue go to the jury nonetheless.
25. The defendant accepted he slapped the deceased on the face, but denied striking her more than once with his fist. Blood was found in a number of locations in the flat, as well as on the deceased. The defendant admitted grabbing Mary Ryan by the throat, but he claimed, not in such a way as to kill her. One can therefore fairly describe the question of the judge’s charge on the lies as being on a secondary issue; at one remove from the main question which the jury had to determine, that is, the defendant’s own credibility as a witness, a question on which they were to apply their own judgement. The issue, therefore, was simply whether the jury believed the defendant’s account of what happened on the night. The lies related to whether the defendant had been involved in Mary Ryan’s death: that question was no longer in issue.
26. The defence was not assisted either by the fact that the defendant introduced a further and new element in his description of the struggle. He testified the deceased had tried to get out of the flat, and had threatened to burn the whole building down. He gave this evidence for the first time in the witness box. In cross-examination he accepted he had not previously told the gardaà about this threat, but said that he understood that the deceased was threatening something, and had mentioned a fire extinguisher. There was indeed some evidence that an incident involving a fire extinguisher had occurred, but this was on a previous occasion.
27. In describing the aftermath, the defendant said that later he saw Mary Ryan lying fully clothed on the bed with blood on her face. He testified that, in the early morning, he tried to assist her, but claimed that she was “sleeping” at that stage. He accepted that he might have caused some injury to her throat, but denied that this could have intentionally caused her death, as he had no intention to strangle her. He said that the deceased went “to sleep” after the struggle. She had woken during the night or in the early morning to ask him for a glass of water. He did not check her later on in the morning, but rather, he said, went to the shops. He testified that when he came back from the shops, the deceased looked “very bad”, and that he left a lighted cigarette on the bedside table where she lay fully clothed. When he shook her arm, he discovered that there was no reaction. His contention was that it was then he called his friends and told them the untrue story. He accounted for his lies by saying he was afraid. The jury convicted him of murder.
The Court of Appeal
28. The appeal came before the Court of Appeal (Birmingham J., Sheehan J., Edwards J.). That Court dismissed all the grounds of appeal in a detailed judgment. Edwards J. pointed out that the defendant’s written submissions criticised the modified Lucas warning given by the trial judge for not adverting to the specific explanation given by him for the lies which he told, and that the warning had, rather, recited in general terms, explanations that, in undefined circumstances, defendants might lie. Edwards J. pointed out that the trial judge had, in fact, referred to what the defendant had said in explanation for lying; that is, that he was afraid, and the trial judge had told the jury precisely that. The problem was that, in the explanation, the defendant himself had claimed that everything was “okay” during the night. But later, this statement in itself raised questions. Edwards J. quoted the trial judge as charging the jury to this effect:
“He, [the accused] said that everything was okay during the night time into the morning hours. He was afraid later and then thought about telling the gardaà about the three guys. It was put to him that he had put that story together by the time he had phoned his friend. He said he didn’t know whether or not she was going to die.”
One can see from this passage that, in fact, the defendant’s explanation as to why he told the lies was very cursory.
29. The defendant was represented by experienced counsel at the trial. As pointed out earlier, counsel did not requisition on the warning. The judge brought the jury through the defence evidence, as far as that evidence went. The defendant’s involvement in the homicide was clear. The issue for the jury was equally clear. It was either murder or manslaughter.
30. Edwards J. considered the context of the judge’s warning as to the defendant’s lies. He observed that, in the particular circumstances of the case, the lies were not as significant as they might have been in other cases. They went to the question of whether it was the defendant who had killed Ms. Ryan. But, by the time of the trial, this fact was not in issue. He observed that this was not to say that the lies were completely irrelevant. Obviously, they potentially impinged on the defendant’s credibility, and any damage to his credibility did not assist in making out the defence of provocation. However, the Court of Appeal went on to conclude that, on balance, the trial judge’s warning to the jury on the lies had, in fact, been more than adequate.
31. The Court of Appeal were, obviously, fortified in their conclusion by the fact that there had been no requisition on the issue. At no stage has it been suggested that the omission to seek a requisition on this issue was due to error or inadvertence. No explanation was furnished for this omission to the Court of Appeal, or to this Court, as is required, in order to come within the exceptional principles identified in Cronin.
Application for Leave to Appeal to this Court
32. On the application for leave to appeal, this Court determined that two issues properly fell to be determined. As put in the application, the phraseology of the first point is very complex indeed. Thus, this Court was asked to determine whether, in the factual context of this trial, the judge had sufficiently explained to the jury that the fact that the accused had lied in earlier accounts to An Garda SÃochána regarding Mary Ryan’s death should not, of itself, be treated as evidence that could provide proof of his guilt of murder, as opposed to manslaughter, but rather that such evidence could go to the credibility of the accused, and in that context be taken into account by the jury in assessing, on the basis of all of the evidence, whether the prosecution had negatived provocation to the criminal standard. Such detail, length and complexity would have involved a series of questions, and sub-questions being put to the jury in the charge. The wording is, undoubtedly, derived from R v. Richens [1994] 98 Cr. App. Rep. 43. But, Richens, and the other illuminating English authorities cited, were decided in a different statutory and factual context from this case. The Cronin issue is considered later in this judgment.
The Issues in this Appeal
33. What form of warning was, in fact, necessary? It is not in dispute that a modified Lucas warning was given. It was quite detailed. The defendant says there was a failure to contextualise; or to direct the jury, that as the accused had committed the homicide, lies which indicated that he was guilty of killing the deceased were not prescriptive of a lack of provocation. It is said there was also a failure to contextualise the defendant’s explanation as fear, and, even now at risk of repetition, an omission to direct the jury that, in order to rely on such lies as evidence of guilt, the jury would have to be satisfied beyond reasonable doubt that such lies went towards disproving provocation, such as being a deliberately false account intended to support the existence of provocation, and were not open to any other reasonable explanation, such as fear of disclosing the killing. In essence, the case is that the trial judge should have used the wording applied in Richens. He was certainly not asked to do this at the trial, or to adopt any particular phraseology.
34. However, even as a preliminary observation, one might almost say these criticisms are themselves decontextualised. The points made are not sufficiently connected to the true issues which the jury had actually to decide. Those issues were extremely obvious, and did not, in my view, require the degree of prescription or elaboration now suggested. It can be said that the prosecution did rely on the lies, as the factual context of the case did effectively touch on the lies as corroboration in the charge of murder. But these had not figured large in the trial. It is self-evident from their content that the lies had nothing to do with the question of provocation. Instead, they came within a quite different category, one mentioned earlier, as relating to the question of whether the defendant had actually killed Mary Ryan – a fact which was no longer in issue at the trial. The judge’s charge on the defendant’s credibility was fair, when the true issues were simply those of provocation or lack of intent, the defendant’s much earlier and immaterial lies out of court can almost be described as “background”.
The Lucas Warning
35. Standing back from the facts of this case, it is clear that the core principle in R v. Lucas [1981] QB 720, is that, where an accused’s lies are capable of constituting corroboration, the jury must be instructed that there are many possible reasons why people lie, and that, before relying on the lie in question, it must be satisfied that the motivation behind the lie was a realisation of guilt, and a fear of the truth.
36. But the subsequent English authorities relied on in this appeal, arrived at under the different legislation, are not only themselves fact-specific, but share a common characteristic; that is, where the decisions on appeal expressly, or by clear implication, had concerns on the overall balance of the judge’s charge taken as a whole. The real issue in the judgments is the apprehension of “impermissible reasoning”, where the jury was left in a situation where, without sufficient guidance, they might jump to the conclusion that, in the case of provocation, the lies of an accused equated to guilt of murder.
37. Lucas, on its own facts, established that, first, the lie must be identified in the context of the circumstances and events said to indicate that it constitutes an admission against interest; second, that in order to constitute corroboration, it must be shown it was deliberate, and related to a material issue; third, again on the facts, it is necessary to show that what was said was a lie by evidence other than that of an accomplice who is to be corroborated, that is to say, by admission, or by evidence from an independent witness (see Lucas [1981] QB 720, at p.724).
38. In those circumstances, the Court of Appeal of England and Wales held the jury was to be instructed that it must be satisfied that the motivation for the lie was a realisation of guilt, and a fear of the truth. Thus, a judge should remind a jury that there may be many reasons why people lie, such as, shame, desire to conceal other disgraceful behaviour from family members, panic, misjudgement, bolstering up a just cause, indignation at the suggestion of having done something wrong, or in an effort to hide that an accused or others might have engaged in other wrong conduct. There is, too, the possibility of a failure of recollection at interview, which on cross-examination, an appellant does actually recollect. Not all of those circumstances applied here by any means. Hence, what was needed was a modified warning.
39. The importance of a warning of this general nature is has been explained. The risk is that a jury might jump to the conclusion that simply because an appellant told lies, he is, ipso facto, guilty of the offence. (See, generally, Coonan & Foley, The Judge’s Charge in Criminal Trials, (Dublin, 2008); 33-68 et seq; 41-02 and 33-72; McGrath, Evidence, 2nd Ed., (Dublin, 2014); 4-269 to 4-277; JS v. DPP [2013] IECCA 41). But this appeal can be decided only on the question of the judge’s charge on the specific facts which arise.
40. The way in which English law evolved on warnings in the case of provocation is well illustrated by Richens itself, and subsequent decisions. In Richens, the Court of Appeal of England and Wales (Criminal Division) held that, if the issue of provocation was left to a jury, the judge should, if relevant, give a direction as to the possible effect of any lies told by the defendant to the police in relation to the issue of provocation. This was not the case here: the lies were not directly relevant in the way that they were in Richens.
41. Richens was a case where the circumstances showed that not only could the partial defence of provocation arise, but have a close connection with the offence. The judgment concerned a 17 year old accused, who, the defence claimed, was enraged that the victim claimed that the defendant’s girlfriend, who he had raped, had actually consented to have sex. Both the defendant and the girl disposed of the body. The defendant maintained a false account of what occurred for a considerable period. Critically, the accused denied any involvement at all in the crime. He was arrested 17 days after the crime and on the following day admitted his involvement.
42. But, the trial judge’s charge in Richens differs fundamentally from that in the instant case. In Richens, the judge had simply not sufficiently directed the jury as to how, as a matter of law, they should regard the lies that the accused admitted he had told about his movements and involvement in the offence of murder. In a case where the lies were very relevant, the trial judge had, without any sufficient warning, effectively invited the jury to consider the accused’s lies as being potentially probative of the prosecution case. This was not the factual situation in this appeal.
43. In the circumstances just described, the English Court of Appeal held that a person who has killed by reason of loss of self-control may have almost as strong a reason for attempting to conceal what he did, and to lie about his involvement, as a person who had killed deliberately. The appeal court concluded, that the jury should, on those facts, have been alerted to that possibility, and should be told that they should be sure that there was not some other possible explanation for the lies, which destroyed their potentially probative effect.
44. Similarly, in R v. Jefford [2003] EWCA Crim. 1987, the Court of Appeal pointed out that the trial judge had indicated that it was not automatic that the jury should disbelieve the defendant and count this towards the prosecution’s case, but beyond that, gave the jury no guidance, simply leaving it up to them what conclusion they should draw from the appellant’s different accounts. Jefford was, again, a case where, in the context of the charge, taken as a whole, a fuller warning was held necessary. It was again a situation where impermissible reasoning might have occurred.
45. In R v. Miah [2003] EWCA Crim 3713, a very complex murder case with multiple accused, the Court of Appeal of England and Wales was constrained to hold that, where provocation was raised on the then current English law, a trial judge should deal with lies told out of court in upwards of seven different contingencies, each of which should have been put to the jury. (cf. para. 47 of the judgment). What is the position in our law?
Case Law
46. In McGrath, Evidence, 2nd Ed., (Dublin, 2014) the learned author comments that the Irish jurisprudence on this issue is more “embryonic” than that in the neighbouring jurisdiction. I would prefer to use the word “contextualised”. (See McGrath, para. 4-277).
47. It is hard, now, to envisage, in a case on these or similar facts, any circumstances in which a judge would decide against giving a modified Lucas warning. But it is necessary to remind oneself of the true issues, and evidence the jury had to face in this case. The extent of the warning must be determined by the factual context and prominence of the lies to the case.
48. The way Lucas has been properly applied in Irish law is well illustrated by two cases. In The People (DPP) v. Brady (Unreported, Court of Criminal Appeal, 5th May, 2005) the accused who was charged with a sexual offence had told the gardai who questioned him about the offence that he had been at work at the time of the assault, but thereafter admitted he had been present, although he denied assaulting the complainant.
49. In those circumstances, the Court of Criminal Appeal, correctly, considered it obvious that the fact that the accused had given a completely false “alibi” account, which was certain to discredit him in the eyes of the jury, was an appropriate case for the jury to be warned along the lines set out in Lucas. The Court observed that this was not simply something to be dealt with in regard to the burden of proof. It was, rather, something specific which was going to weigh with the jury, and upon which they should have been directed, in light of the way in which the evidence could be used against the applicant. In those circumstances, it was up to the jury to be satisfied, beyond reasonable doubt, that being the general standard of proof, that there was no innocent, that is to say, no non-criminal explanation, for the untruthful answers.
50. More recently, in The People (DPP) v. Curran [2011] 3 IR 785, O’Donnell J., in the Court of Criminal Appeal, made a number of observations which are very pertinent, although again not going so far as to hold that a question as to whether a Lucas warning should always be given to a jury was definitively settled. In Curran, the Court of Criminal Appeal was in no doubt that there were cases in which it would be appropriate to give a warning, particularly where the accused admits or concedes at or before the trial that an earlier account given was false and untruthful. (See O’Donnell J.’s judgment at page 808). The judgment in Curran makes clear that an admission or proof that an accused has been telling lies can have a potent impact upon a criminal trial. Such an admission brings with it the natural tendency to assume that, if it had been established that the accused was lying on a previous occasion, then there was no reason that the accused was telling the truth when in court. In such circumstances, it was necessary to remind the jury that they should not necessarily make the “leap” from an acknowledgement of lying to a determination of guilt. I agree with each of these observations, noting that the instant appeal is a case where a detailed warning was given. (See also JS v. DPP [2013] IECCA 41).
51. Other judgments on the question are based on their own facts. In The People (DPP) v. Doyle [2006] IECCA 163, and The People (DPP) v. Tuohy & Wallace [2006] IECCA 153, the Court of Criminal Appeal expressed the view that it was not necessary that, in each and every case in which lies had been told, there was a positive obligation on the trial judge to give a specific direction in the course of his or her charge to those lies. Each case in this area is highly fact specific. I confine myself to observing, therefore, that in this appeal a modified Lucas warning was, undoubtedly, necessary.
52. If, therefore, there is a real risk the jury may move from lies to a conclusion of guilt, a warning must be the proper course. The question arises then, was the warning in this case fundamentally deficient as a result of faulty wording or significant omission? It is desirable that a warning given should be contextualised, but to what degree is that always necessary, or even possible? Where necessary, a trial judge should, undoubtedly, instruct the jury that the prosecution should satisfy them beyond reasonable doubt that the particular statements relied on were deliberate falsehoods, and not due to mistake, confusion, or some erroneous but nonetheless legitimate and genuine belief on the part of the accused. One can envisage circumstances in which a jury might have to be given a warning, as to whether or not a defendant was complicit in the event at all. There are, indeed, a myriad of hypothetical possible circumstances in which a detailed warning may be necessary, and where, in some cases of murder, a distinction would have to be drawn between lies which may be consistent with provocation, and lies which may be evidence of guilt of murder. But is that the situation here? Was the jury given sufficient warning?
The Judge’s Charge on the Issue
53. The judge’s charge on the defendant’s lies was phrased in the following terms:
“Now, there is a commonsensical proposition of which you will all be aware, which is of course that one can tell lies, potentially for a number of different reasons, not necessarily indicative of guilt. And you must therefore bear that proposition in mind when considering whether or not the lies constitute evidence of guilt on the part of the accused. There are, to put it shortly, other reasons why people might tell lies. It is a matter of common sense.
In many instances of course, there is a debate as to whether lies have actually been told, but this has not in fact been in debate in the present case. So I just want to tell you perhaps in a little more precise terms.
Yes, now, one of the judges has put the matter in this way, that the judge should warn you quite clearly that a person – and I do so, that a person may have lied for a reason other than his guilt, such as something that he wishes to conceal from his family because it might disgrace him in the eyes, for example, of members of his family. That is … merely an example of the type of lie which might be told indicative of something other than guilt… You must be satisfied that the motivation for the lie is a realisation of guilt and fear of the truth. Every case of course is dependent on its own facts, but you will know that people may lie for many reasons other than guilt, including shame, a desire to conceal disgraceful behaviour from their family, an attempt to bolster up a just cause, out of panic, misjudgement, confusion, out of indignation at the suggestion that they have done wrong when they haven’t, or an attempt to hide the fact that they or others have been engaged in what we call other criminal wrongful conduct. So in this particular instance some of these factors, might as a matter of principle, be present and they are what you bear in mind, well as much as anything else, which as a matter of commonsense may recommend itself to you, which is a matter for you, when you are deciding on the significance, so to speak, of the admitted lies told by the accused.” (line 7 to 34, page 14, and lines 1 to 4, page 15, day 7).
54. The charge, as a whole, was detailed and fair. It is not to be parsed and analysed with a view to finding some small detail or omission which contains a flaw of no significance. One might rhetorically ask what more should the judge have said on the basis of the evidence before the jury? It is, theoretically, possible to criticise the charge on the basis that the omission of what I might characterise as a Richens warning. But this charge did contain a detailed warning in a case where the issue was entirely obvious: was the defendant guilty of murder or manslaughter? The judge took care to ensure that the jury were aware of the fact that the defendant accounted for his lies on the basis that he was afraid, and then “thought about telling the gardaà about the three guys.” He accounted for the fact that he told his friends the lies, on the basis that he did not know whether or not the deceased was going to die. The judge gave the essence of the Lucas warning. He gave illustrations of the application of the warning. And, by the time of the trial, what was in the lies was not in dispute, and was by then a secondary issue. It was clear that the defendant had committed a homicide, and did not dispute that. It was no longer the central issue.
55. The question must be, how material was the omission of this one hypothetical sentence, which counsel for the defendant now suggests? Was the charge fundamentally flawed? In my view, it was not. No injustice was done in this case. One must assess the relationship of the lies both in time, and in their nature, to the circumstances of the offence. The jury might have paid regard to the lies, but this was not the central consideration when in the trial itself the vista had changed. This case does not concern theoretical possibilities. It must be anchored in its own facts. I do not consider the omission to be fatal to the charge or the subsequent conclusion.
Cronin Case
56. It is necessary now to turn briefly to the second aspect of this appeal. The principles which were identified by this Court in Cronin (No. 2) [2006] 4 IR 329. Cronin, as is well known, establishes that only in circumstances where the court was of the view that, due to some error or oversight of substance, a fundamental injustice had occurred, should the court allow a point not raised at trial be argued on appeal. In addition, an explanation must be furnished as to why it was not raised at trial.
57. As Kearns J. observed in Cronin:
“Without some such limitations, cases will continue to occur where a trawl of a judge’s charge years after the event will be made to see if a point can be found which might have been argued or been the subject matter of a requisition at the end of the judge’s charge at the original trial, even though competent lawyers at the trial itself did not see fit to do so. It is an entirely artificial approach to a review of a trial and one totally disconnected from the reality of the trial itself. …”
58. As pointed out earlier, the defendant was represented by experienced counsel. They faced a difficult task, not rendered easier by the defendant’s own evidence. Cronin requires an explanation be given to a trial court for the failure to raise a point at the trial itself. It is clear that the requirements of Cronin are not satisfied in this appeal. No reason has been advanced as to why there was no requisition on the warning. It is, in fact, reasonable to conclude no requisition was made because the charge to the jury was fair, and the trial judge had furnished the jury with an extensive modified warning against impermissible reasoning, adverting, as he did, to the accused’s explanation for his lies.
59. I would, therefore, dismiss this appeal, and affirm the conviction for murder. Neither of the issues raised can succeed.
The People v. MacEoin
[1978] IR 27
Kenny J.
17th April 1978
The accused, Sean MacEoin, was tried in the Central Criminal Court before Mr. Justice Butler and a jury on the charge that on the 25th April, 1976, he murdered Patrick Hyland; he was found guilty. The accused applied unsuccessfully for a certificate of leave to appeal and he now appeals to this Court. At the end of the argument, the Court said that leave to appeal would be given, that the application for leave would be treated as the hearing of the appeal, which would be allowed, and that a new trial would be ordered. The Court indicated that it would give its reasons for its decision at a later date: this we now do.
As the accused, when giving evidence, admitted that he had struck the deceased with a hammer, and as his counsel told the jury in his closing speech that the only issue they had to decide was whether the accused was guilty of murder or manslaughter, it is not necessary to deal with the history of the relationship between the two men in any detail. In 1973 the accused was serving a sentence of imprisonment in Mountjoy; he met the deceased there and became friendly with him. The deceased invited the accused to the deceased’s flat at No. 12B Upper Sean MacDermott Street, Dublin, and the accused visited him there periodically. At the beginning of April, 1976, the deceased requested the accused to come to live with him in the flat and the accused agreed to do this; the accused moved his belongings from where he was living and went to reside in the flat. Both of them were unmarried. The deceased drank heavily and, when drunk, spoke loudly to himself and became aggressive.
On Saturday the 25th April, 1976, the accused was not working and he went to a number of public houses: he went back to the flat at intervals and, when he did, he found the deceased there. The accused had about 1420 pints of stout during the day before he finally returned to the flat at about 11.30 p.m. where he found the deceased sitting at a table with a bottle of wine on it and talking to himself. The accused made up a makeshift bed for himself (there was only one bed in the flat) and got into it. After some time the deceased came towards the bed shouting: “You are going” and “You are going now.” When the accused sat up in the bed, the deceased produced a hammer from behind his back and hit the accused on the head with it. The hammer fell on the floor and the two of them struggled for it. The accused got it and the deceased started to punch him. In evidence the accused said that he was terrified because the deceased looked dangerous; he then said:”I simmered over and I completely lost control of myself.” He hit the deceased on the head with the hammer and the deceased fell on the floor. The accused then stooped down and in a rage hit the deceased a number of blows (which he estimated from three to six) with the hammer on the head and killed him.
The accused now appeals to this Court on the grounds that the trial judge’s charge to the jury on the issue of provocation was incorrect and that the judge’s answer to the jury was erroneous when they returned and asked for “a clear definition of murder and manslaughter.” His counsel also advanced the argument that the view expressed by the trial judge and in all the reported English cases (that the provocation relied on had to be such that it would provoke a reasonable man and that, in addition, it actually provoked the accused) was not the law in this country. Counsel asked us to abandon the “objective” test and to declare that the law was that if what was relied on as provocation actually provoked the accused (whether it would provoke a reasonable man or not) the prosecution had to prove beyond reasonable doubt that it did not.
Section 4 of the Criminal Justice Act, 1964, is the background to much of the trial judge’s charge. That section reads:
“(1) Where a person kills another unlawfully the killing shall not be murder unless the accused person intended to kill, or cause serious injury to, some person, whether the person actually killed or not.
(2) The accused person shall be presumed to have intended the natural and probable consequences of his conduct; but this presumption may be rebutted.”
The first passage in the trial judge’s charge to which objection is taken arose out of his explanation to the jury of s. 4, sub-s. 2, of the Act of 1964. That passage reads: “. . . and so in this case if it is established to your satisfaction that the accused man struck the deceased repeatedly over the head with a hammer to the extent of causing the type of fractures that have been described in the evidence, then the only logical the only reasonableresult of that action must be either to kill or to cause serious bodily harm. But that is a presumption which can be rebutted and the suggested rebuttal in this case is that, although it is conceded that the accused did in fact rain these blows with a hammer on Paddy Hyland’s head, at the time he was so terrified for his own safety that he was acting in self defence and that he was so provoked by the attack which Paddy Hyland had made on him that he suffered loss of control over his own mind so as to inhibit him, to prevent him, to render him unable to form any intention and, least of all, an intention either to kill or cause serious bodily harm.”
The trial judge thus told the jury that the provocation had to be such that it made the accused unable to form an intention to kill or cause serious bodily harm. Indeed, the view which the judge expressed to the jury later was that if there was an intention to kill despite the provocation they should find the accused guilty of murder, and that it was only when the provocation removed the desire to kill or cause serious bodily injury that it could reduce the crime to manslaughter. This was the law which was expressed by Viscount Simon in Holmes v. Director of Public Prosecutions 3 at p. 598 of the report and which was stated in the 34th edition (1959) of Archbold’s Criminal Pleading, Evidence and Practice at para. 2503 in a passage which is based upon Viscount Simon’s speech. However, in our view it is incorrect: the provocation relied on usually is one, if not the sole, cause of the formation of the intention to kill or cause serious injury to another. To speak of provocation negativing or depriving a man of the intention to kill or cause serious injury is to confuse cause and result.
The passage in Viscount Simon’s speech is inconsistent with the advice of the Privy Council in Attorney-General for Ceylon v. Perera 4 in which Lord Goddard, at p. 206 of the report, said: “The defence of provocation may arise where a person does intend to kill or inflict grievous bodily harm but his intention to do so arises from sudden passion involving loss of self-control by reason of provocation.” In Lee Chun-Chuen v. The Queen 5 Lord Devlin, when giving the advice of the Privy Council, said at p. 228 of the report: “Their Lordships think it right to reaffirm the law as stated by Lord Goddard and to do so with special reference to Lord Simon’s dictum, to which Lord Goddard did not advert.” The same view was expressed by Gibbs J. in the High Court of Australia in Straker v. The Queen 9 at p. 108 of the report: If the directions of the learned trial judge on the subject of intention led the jury to think that they could not return a verdict of manslaughter by reason of provocation if they were satisfied that the appellant had an intention to kill or to cause grievous bodily harm, the directions would, of course, have been erroneous.”
It follows that the dichotomy which the trial judge in this case put before the jury on three occasions between the existence of an intention to kill or cause serious injury and the effect of provocation does not exist, and that an intention to kill or cause serious injury is consistent with provocation and does not prevent this defence from reducing murder to manslaughter unless the prosecution prove that the accused was not provoked.
This would be sufficient to dispose of this appeal, but on the retrial, the question will arise as to whether the provocation must be acts or words which would cause a reasonable man to be provoked so that he temporarily loses control of himself and which actually cause the accused to cease to be master of himself (the objective test) or whether it is sufficient for him to raise a case that he was provoked by what was done or said whether it was such as would provoke a reasonable man or not (the subjective test). Therefore, we consider that we should deal with this ground.
The objective test was first explicitly stated (p. 338) by Keating J. in R. v.Welsh 10 : “The law is, that there must exist such an amount of provocation as would be excited by the circumstances in the mind of a reasonable man, and so as to lead the jury to ascribe the act to the influence of that passion.” The best modern statement of this view is to be found in the judgment of Devlin J. (as he then was) in R. v. Duffy 11 : “Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.” This formulation of the objective test has been approved by the House of Lords and the Privy Council on many occasions: Mancini v. Director of Public Prosecutions 12 ; Holmes v.Director of Public Prosecutions 3 ; Bedder v. Director of Public Prosecutions 13 and Lee Chun-Chuen v. The Queen .5 It had become so much part of the accepted doctrine of the courts in England that it was accepted by the legislature there by s. 3 of the Homicide Act, 1957, which provides: “Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.” The effect of this section is thus stated at para. 2499 of the 36th (1966) edition of Archbold’s Pleading, Evidence and Practice in Criminal Cases: “The test to be applied is whether the provocation was sufficient to deprive a reasonable man of his self-control; not whether it was sufficient to deprive of his self-control the particular person charged.” The objective test was also approved by a majority of the High Court of Australia in Moffa v. The Queen 14with a strong dissenting judgment from Mr. Justice Murphy. We were not referred to any Irish authority on the matter and so we have now to determine which test should be applied.
The objective test is profoundly illogical: we assume that the reasonable man whom it propounds as the criterion is not the accused. If he were, the question would not be whether the reasonable man would be provoked but whether the accused was provoked. But what are the characteristics of this reasonable man? Is he to be endowed with the knowledge and temperament of the accused? Words which would have no effect on the abstract reasonable man may be profoundly provocative to one having knowledge of what people say about him. A hot-tempered man may react violently to an insult which a phlegmatic one would ignore. These are difficulties which those who support the objective test have never attempted to answer.
The objections to the objective test have been so cogently stated by Murphy J. in his dissenting judgment in Moffa v. The Queen 14 that I hope that a somewhat lengthy quotation from his judgment (at p. 242 of the report) will be excused:
“The ‘reasonable’ or ‘ordinary’ man test.
This test requires the accused’s behaviour to be of the standard which a reasonable or ordinary man would exhibit. This is used in addition to the subjective test . . .
Objections to the Test.
The test cannot withstand critical examination. It is not clear whether the reasonable or ordinary man, if he was subjected to the same provocation, would (or might) have lost control, or would have lost control to the extent of killing the deceased, or would have lost control to the extent of killing in the manner he did. Is he a complete stranger subjected to the provocative conduct or a person in the same circumstances as the accused? To be in the same circumstances, he should be taken to be in the same relationship with the deceased (in this case, a marital relationship) and must have experienced the relationship. In a case such as this, he should have lived the life of the accused, or it would be impractical to speak of what a reasonable or ordinary man would do in the circumstances. For example, it might have been an unbearable insult to a person of the accused’s origin to be called ‘a black bastard.’ Once the full circumstances are taken into account, the objective test disappears because it adds nothing to the subjective test. For this reason, those who adhere to the objective test have rigidly excluded individual peculiarities of the accused (for example, low intelligence, impotence, pugnacity).”
Our law as to one aspect of self-defence was stated by the Supreme Court in The People (Attorney General) v. Dwyer 2 and provides a useful analogy on the so-called objective or reasonable-man test. In that case the accused was charged with and convicted of murder. The killing occurred in the course of a brawl in which many (including the accused and the dead person) were involved. The trial judge told the jury that if the accused, though acting in self-defence, killed through using more force than was reasonably necessary in the circumstances, the verdict should be guilty of murder. This direction was approved by this Court. The accused’s contention was that if he used the amount of force which he thought necessary, he should not be convicted of murder even if a reasonable man would think it was excessive. Here again we have the contrast between the subjective and the objective test. On appeal the Supreme Court decided that, when self-defence is raised, the correct charge to a jury is that if they come to the conclusion that the accused used more force than was reasonably necessary but no more than he honestly believed to be necessary they should return a verdict of guilty of manslaughter. This seems to us to have been a decisive rejection of the objective test in a branch of law closely allied to provocation.
The application of the objective test to provocation has been severely criticised in many text-books of high repute and by eminent writers on criminal law. In the standard text-book on criminal law (Smith and Hogan) the authors submit the test to a devastating analysis and suggest that it should be abolished and a purely subjective criterion applied-see the second edition of that work at pp. 213215. The same approach is adopted in Russell on Crime (12th ed., ch. 29) and by Professor Glanville Williams in an article entitled “Provocation and the Reasonable Man” in the 1954 volume of the Criminal Law Review.
In the opinion of this Court the objective test in cases of provocation should be declared to be no longer part of our law. If the accused raises the defence that he was provoked and establishes that and nothing more, we do not mean that the prosecution must prove beyond reasonable doubt that he was not provoked. The nature of the provocation may not justify the force used judged by the accused’s state of mind. But the inquiry to be made by the judge first and then by the jury must centre not on the reasonable man but on the accused and his reaction to the conduct or words which are said to be provocative.
When the defence of provocation is raised, we think that the trial judge at the close of the evidence should rule on whether there is any evidence of provocation which, having regard to the accused’s temperament, character and circumstances, might have caused him to lose control of himself at the time of the wrongful act and whether the provocation bears a reasonable relation to the amount of force used by the accused.
If there is evidence on which the jury could reach a decision favourable to the accused on this issue, the trial judge should allow the defence to be considered by the jury and should tell them that, before they find the accused guilty of murder, the prosecution must establish beyond reasonable doubt that the accused was not provoked to such an extent that, having regard to his temperament, character and circumstances, he lost control of himself at the time of the wrongful act. Then the jury should be told that they must consider whether the acts or words, or both, of provocation found by them to have occurred, when related to the accused, bear a reasonable relation to the amount of force he used. If the prosecution prove beyond reasonable doubt that the force used was unreasonable and excessive having regard to the provocation, the defence of provocation fails.
Provocation can never reduce a wrongful killing to anything except manslaughter: it can never justify an acquittal. For these reasons we allowed this appeal and directed a new trial.
D.P.P.-v- Stephen Delaney
[2010] IECCA 123 (20 December 2010)
THE COURT OF CRIMINAL APPEAL
Fennelly J.
Budd J.
O’Keeffe J.
BETWEEN
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
AND
STEPHEN DELANEY
APPLICANT
Judgment of the Court of Criminal Appeal delivered the 20th day of December, 2010 by Mr Justice Fennelly
On 15th May 2009, the applicant was found guilty by a jury presided over by Birmingham J in the Central Criminal Court in Dublin of the murder of one Anthony Cullen at Burmah Caravan Park, Mauritiustown, Rosslare, Co Wexford on 8th April 2007.
The applicant accepted throughout his trial that he had unlawfully caused the death of Anthony Cullen (hereinafter “the deceased”) by stabbing. He advanced the defence of provocation. The learned trial judge partially allowed that defence to be argued before the jury. He explained to the jury that, if they accepted that defence, the verdict would be manslaughter rather than murder. The principal complaint of the applicant on this application for leave to appeal is that the learned trial judge declined to permit the defence of provocation to be advanced on the full basis for which the defence had argued.
There are two further grounds, namely that the learned trial judge declined to permit the applicant to have shown to the jury a video recording of the garda interview of one of the prosecution witnesses, one Karl Thomas, and that the learned trial judge refused to correct some of the statements made by prosecuting counsel in his closing address to the jury.
The facts
The deceased met his death by stabbing with a knife about 3:30 am on Easter Sunday 8th April 2007 against a sordid background of alcohol and drug-fuelled debauchery. A group of young people met in a caravan of which the applicant had the use. The deceased was somewhat older, being 37 years of age when he met his death.
A number of people, who came to play various roles in the events of the night, had been drinking at a place called The Rocks near Wexford town from early afternoon on 7th April 2007 and were invited, or at least went to the caravan park, taking a 9 o’clock train, from Wexford to Rosslare. The applicant and his friend, Karl Thomas had permission to use the caravan. Kirsty O’Callaghan was the applicant’s girlfriend. Karl Thomas also had a girlfriend, Christine Emmerson. The deceased was accompanied by a friend called Aiden Duggan. The latter described the deceased as his nephew’s uncle. Also present were David Philips, whose nickname was Bidda, and a girl called Jody Black.
A great deal of drink was consumed particularly by the applicant, the deceased and Aiden Duggan. Some took cannabis or ecstasy.
In the course of the evening in the caravan, the behaviour of the deceased and Aiden Duggan became disorderly and unpleasant. This behaviour forms the essential subject-matter of the aspect of the defence of provocation which was disallowed by the learned trial judge. It consisted essentially of the following:
Aiden Duggan and the deceased engaged in a bizarre alternation of fighting, punching each other, then hugging and making up; Aiden Duggan struck the deceased particularly hard and also punched him and kicked him or stamped him on the head; although the deceased may have started this fighting, it does not appear that the applicant saw this;
the deceased, as he became more drunk, began falling around: he fell and knocked over a table and spilled drinks;
the deceased commenced making unwelcome advances to Kirsty O’Callaghan by feeling her leg: this caused Kirsty O’Callaghan to become upset; it also annoyed the applicant;
at a late stage, the deceased so lost control of himself that he soiled himself.
It is accepted that the evidence of provocation need not necessarily be given by an accused person. Nonetheless, it is the contents of the applicant’s own statements which were advanced at the hearing as the primary basis for the provocation defence. It is important, therefore, to quote his account of the fighting between the deceased and Aiden Duggan in his first statement to the gardaí. He refers to Aiden Duggan as “the blonde fella” and the deceased as Kojak. This is his description:
“We were all drinking in the caravan for a while and everything was okay. Then Kojak and the blonde-haired fellow started fighting. The blonde fella started boxing Kojak. I don’t know what they were fighting about. I don’t know what time it was. The blonde fella would hit Kojak a few times and Kojak would fall down and when he got up it was like everything was forgotten about. The blonde fellow was boxing Kojak in the face and kneeing him in the face. Kojak fell down then and when he got up, everything would be okay for a while. Then Kojak would say something and it would all start again. The red haired fellow joined in with the blonde lad and gave Kojak a few slaps as well. This happened about four or five times. Kojak was pissed out of his head and was falling all over the place. He was grabbing Kirsty’s leg and I was getting a bit annoyed about it. Kirsty tried to stop the two boys from hitting Kojak. Kojak had fell through the table and he had a cut over his left eye and it was bleeding but it wasn’t too heavy. I didn’t get involved in the fighting. Kojak went to the toilet and when he came out he fell again. I got up then and opened the caravan door and told him to go out and get some air. Kojak just fell out the door headfirst. I picked him up and put him sitting against the side trailer and he was mumbling.”
The deceased was ultimately removed from the caravan by the applicant and/or Karl Thomas. There are various versions of this event: he fell out; he was pushed out; he was thrown out with force. At this point, the deceased was totally drunk and, according to the applicant in one of his statements, “half conscious. Mumbling.” He was bleeding from a wound on his head. It was pitch dark outside the caravan.
It is important to note that it is common case that, immediately after the deceased had been ejected from the caravan by the applicant, the latter phoned an ambulance (according to Kirsty O’Callaghan she placed the call and handed him the phone) and told the ambulance service that there was a man there with an injury to his head and that he was bleeding.
Aiden Duggan, after a delay of about half an hour, went out. According to one witness, he stamped on the head of the deceased and returned inside the caravan. A second time, he went out to “assist” the deceased. The applicant was in the doorway of the caravan. There then occurred the event which, subject to argument and interpretation, provided the impulse for the applicant’s criminal act. Aiden Duggan angrily told the applicant to “fuck off” or “fuck you and your caravan.” The applicant, according to his statements, did not remember this remark. It is agreed that the applicant was at this stage in a rage. Aiden Duggan said that the applicant then said words to the effect: “get the blades.” Other witnesses attributed these words to Karl Thomas. Whether the applicant said this himself or Karl Thomas said it to him, it is common case that the applicant went back inside the caravan and took a knife from the kitchen part of the caravan. Aiden Duggan said that he himself was at this point leaving the scene, with the deceased coming along behind him.
It also appears that, after the deceased had been ejected, Karl Thomas had then commenced taunting him and hitting him with a sweeping brush.
The account given by the applicant in his own statement was:
“I went out, picked him up, put him on his side, rang an ambulance. My mate Carl was outside and he was hitting and fighting him. I don’t know. I was blanked out. I went out with a knife in my hand. I don’t know what then, I just—that was when I stabbed him twice with a knife.”
The deceased was then outside sitting on the ground; he was bleeding from a cut on his forehead. The applicant came out with the knife. Kirsty O’Callaghan tried to stop him, but he went ahead and did the stabbing. He then threw the knife away.
Counsel for the applicant placed especial reliance on passages from the garda evidence relating to the four statements made by him to the gardaí. He treated one passage, in particular, as fundamental to the complaint that the learned trial judge erred by failing to allow the issue of provocation to be considered by the jury. In order to understand this point, it is necessary to refer both to the direct evidence and the cross-examination of the garda witness. The context is that the gardaí were, during the interviews they conducted with the applicant, pressing him for an explanation for his stabbing of the deceased. The applicant’s account of the events which occurred outside the caravan after the deceased was ejected and leading up to his stabbing of the deceased was given in answer to garda questioning.
He was asked on several occasions what “triggered” the knife attack. The applicant gave an account on the following lines. Karl Thomas was hitting the deceased with a sweeping brush; he was laughing at him, hitting him on the sly; the deceased did not know who was hitting him. Kirsty O’Callaghan and Jody Black were telling Karl Thomas to stop. The applicant was drinking vodka, going in and out for glasses. Kirsty and Jody were arguing because Jody was supposed to be meeting Noel but she was with Bidda. The applicant also had an argument “over drink with Bidda.” The applicant also said that Karl was fighting with Aiden Duggan.
The applicant was repeatedly pressed by the gardaí to provide an explanation for the stabbing. He was asked what he intended to do when he had the knife in his hand, he said: “I just picked it up like a pen and marched out and done that (swinging with his left arm) and just thrown it away like that and I didn’t think about anything.” In response to repeated questions as to what had triggered the knife attack, he was usually unable to provide an answer. Once he answered: “I think Karl was fighting with Aiden.” He was specifically asked whether the reason was that the deceased “was groping Kirsty” and answered: “No, because that was earlier. She spoke to him and he stopped. Then he got too drunk.” At another point, when asked about Kojak “hitting on Kirsty earlier,” his response was: “That was hours before and it had only went on for a minute.”
Counsel for the applicant relied with particular force, on the following passage from the transcript, described in argument as fundamental. First there is the question put to applicant by the garda followed by the answer of the applicant:
“Question: but you’re not sure what actually triggered you to do that?” [And, describing the reaction of the applicant , he was indicating nodding no.]
“Question: Some kind of assault or abuse or fight or? And, he answers, “Don’t know. Just with everything that was going on, you know. Arguments and fights, bleeding people falling out the bleeding—of the bleeding caravan and all. I was just stressed out. I didn’t know what was going on. I just had a moment of red. I don’t know what had happened. I’m not even sure if the knife stuck in him, like. I don’t know.”
The applicant described his own condition as being, variously, “knackered,” “in a rage with the vodka,” that his “head was wrecked” and that he was getting “madder and madder.” He said that he “was a bit agitated because Karl was messing about with Kojak and the girls were arguing over boyfriends inside.”
Ruling on provocation by trial judge
At the conclusion of the evidence, counsel for the applicant applied to the trial judge to be allowed to present a defence of provocation on two distinct bases. The first, based on the earlier events inside the caravan: fighting between Aiden Duggan and the deceased, uncouth and violent behaviour, the falling about and drunkenness of the deceased and the inappropriate advances made to Kirsty. The second related to the abusive remarks of Aiden Duggan outside the caravan: telling the applicant to “fuck off.” This latter event was described as the trigger. It was submitted that, on the evidence, the applicant had intended to stab Aiden Duggan, but, as a result of mistake, he headed towards the deceased. Counsel also presented a combination of these two arguments: that the immediate response of the applicant to Aiden Duggan’s threatening language was to be seen in the context of repeated brutal and savage violence of Aiden Duggan against his friend, “Kojak.”
The learned trial judge thought that it would be hard to imagine a case where serious consideration could be allowed to be given to such grounds as providing a basis for a defence of provocation where the evidence was more problematic, thinner and less cogent than this case.
Concerning the events which had occurred inside the caravan, he considered that there was a complete lack of evidence of any sudden loss of self-control; the element of suddenness was absent insofar as that part of the history was concerned. There was clearly a period of cooling off, demonstrated especially by the fact that the applicant had gone to the aid of the deceased by calling for an ambulance. He said that he was quite satisfied that there was no basis for suggesting that the conduct of the deceased in the caravan could be regarded as evidence of provocation. He added that the notion of some form of group provocation, whereby a person, in the position of the deceased “being battered by another person is to be regarded as…. acting in conjunction with his batterer in providing provocation” verged on the absurd. Thus he rejected the argument for provocation on the first basis.
The second basis, in summary, was the evidence regarding the remark of Aiden Duggan: “Fuck off you, this isn’t how we do things here. Fuck you and your caravan.” He recalled the evidence of the immediate reaction by the applicant and the fact that it was pitch dark outside the caravan. He accepted there was scope for mistaken identity. On that basis, provided that the jury were satisfied that the applicant had been caused to suffer a sudden and temporary loss of control, the defence of provocation was open.
The jury were, accordingly, addressed by both prosecuting and defence counsel. They both dealt with the issue of provocation. The jury clearly did not accept the case made for the applicant, since they convicted of murder. More accurately, their verdict must be taken to mean that they were satisfied beyond reasonable doubt that the applicant had not been provoked by the remark made by Aiden Duggan, leading to the mistaken killing of the deceased.
The appeal
The principal ground of appeal is that the learned trial judge erred in refusing to allow the jury to consider the defence of provocation arising from the events that occurred inside the caravan, prior to the ejection of the deceased. It is submitted that the applicant lost control by reason of a combination of the actions and words of both the deceased and Aiden Duggan. The deceased and Aiden Duggan were jointly engaged in conduct that contributed to the provocation of the applicant over a period of hours and, although it was the words and actions of Aiden Duggan which were the trigger that immediately caused the sudden loss of control, the defence was available on the basis that the applicant intended to strike the deceased, Aiden Duggan, or either of them.
Insofar as any parts of the interviews with the applicant showed that he was not upset or angry about the earlier events at the time he lost control, these amounted, at most, to inconsistencies which were a matter for the jury to resolve. The learned trial judge, by refusing to accept this proposition, had trespassed on the domain of the jury.
The applicant was only required to reach a low threshold in order to have this aspect of the defence of provocation properly placed before the jury.
The law
The law with regard to the defence of provocation is well settled. Barrington J, delivering the judgment of this Court in People (Director of Public Prosecutions) v Kelly [2000] 2 I.R. 1, provided the following definition at page 10:
“A successful defence of provocation, on the other hand, presupposes, at the critical time, the existence, not of a calculating mind, but of a mind subject to “a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.”
At page 11, he added:
“It will not be sufficient for the defence to show merely that the accused lost his temper or merely that he was easily provoked or merely that he was drunk though all of these may be factors in the situation. The loss of self-control must be total and the reaction must come suddenly and before there has been time for passion to cool. The reaction cannot be tinged by calculation and it must be genuine in the sense that the accused did not deliberately set up the situation which he now invokes as provocation. To justify the plea of provocation there must be a sudden unforeseen onset of passion which, for the moment, totally deprives the accused of his self-control.”
This test had been traced back in several of the judgments to the judgment of Devlin J. (as he then was) in R. v. Duffy [1949] 3 All ER 932: “Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.”
In The People (Director of Public Prosecutions) v. MacEoin [1978] I.R. 27, this Court departed from that part of the dictum of Devlin J which treated the test as an objective one. The Court held that the test is a subjective one. In Kelly, the Court clarified earlier statements and ruled that the defence is not subject to any test of proportionality. The loss of control suffered by the accused person may be so total that his reaction is, indeed, disproportionate, and still come within the defence of provocation. It is clear, nonetheless, that the jury may test the credibility of the defence by asking itself whether anyone would react in such an extreme fashion to a minor event.
It is necessary to and inherent in the notion of sudden and total loss of control that the reaction must follow immediately upon the postulated provocative act. Hence the qualification that there shall not have been time for passions to cool. Reference was made in the course of argument to “battered wives” cases. If a woman has been subjected to prolonged ill-treatment or abuse, she may lose control on a particular ultimate intolerable act of the tormentor and kill him. If the other necessary elements of the test are satisfied, the defence of provocation may be permitted. It does not follow, however, that an act performed otherwise than in the heat of the moment, after an interval of time, will qualify.
It is, of course, also an essential feature of the defence that the provocation must come from the the deceased. Loss of control, however genuine, sudden and total, but caused by the actions of a third person does not qualify. Devlin J, in the passage quoted above, spoke of “some act, or series of acts, done by the dead man to the accused…” This does not preclude reliance in an appropriate case on the mistaken killing of a person other than the provoker. The accused may aim at his provoker and miss but kill another or may mistake the victim for the provoker. That is essentially the basis on which the learned trial judge allowed the defence to be advanced before the jury in this case. Aiden Duggan spoke the words which were (and indeed still are) treated as the trigger, but it was a pitch black night and it was possible that the applicant mistook the deceased for Aiden Duggan.
It is the function of the trial judge to decide whether there is evidence on which a jury might reasonably decide that the accused was provoked. He will not allow the matter to go before the jury, unless he is satisfied that there is evidence to support it. As has been frequently said, the threshold is a low one. Hardiman J, delivering the judgment of this Court in People (Director of Public Prosecutions) v Davis [2001] 1 I.R. 146 said, at page 156, “that the burden on the applicant is not a heavy one but it necessarily involves being able to point to evidence of some sort suggesting the presence of all the elements of provocation.” He added:
“Provocation is not an issue which will automatically go to the jury simply because the defence is invoked. The burden which rests with the accused is to produce or indicate evidence suggesting the presence of the various elements of the defence. This can be produced either through direct evidence or by inference from the evidence as a whole, but before leaving the issue to a jury the judge must satisfy himself that an issue of substance, as distinct from a contrived issue, or a vague possibility, has been raised.”
It follows that the learned trial judge is required to consider all the evidence and reach a conclusion as to whether there is evidence from which the jury might reasonably conclude that the accused committed the act which led to the death of the deceased because he had suffered a sudden and total loss of self control by reason of some words or acts of provocation done or spoken by the deceased.
Conclusion
The applicant invites this Court to hold that the learned trial judge was mistaken in law in declining to permit the jury to consider that the applicant was provoked into stabbing the deceased by reason of some act of the deceased, although it is accepted that the triggering event was the speaking by Aiden Duggan of the words: “fuck off” or “fuck you and your caravan.”
In considering this matter, the Court bears in mind that the learned trial judge heard the entire of the evidence directly from the witnesses given viva voce. A lot of the evidence was inconsistent and contradictory. Some witnesses, such as Karl Thomas, were obviously unreliable and even untruthful. There were inconsistencies between witnesses without their being untruthful. The applicant made four statements to the gardaí. In at least two of them, he did not give a truthful account, i.e., he did not admit that he had stabbed the deceased. The primary source of evidence that a person was provoked, given that the test is subjective, would normally be that person himself, although it is well-established that it may emerge from the evidence of others. Here, the applicant did not give evidence. His counsel relies on his own statements to the gardaí. It is not necessary in this case to consider the evidential status of exculpatory as distinct from inculpatory statements. It has been accepted that a distinction cannot realistically be made between those two aspects of a single statement.
The fact that the learned trial judge had the advantage, not enjoyed by this Court, of hearing all the evidence in a six-day trial must be borne in mind when considering the challenge to his ruling on the issue of provocation. The learned trial judge was not satisfied that there was sufficient evidence to go to the jury. It is for the applicant to demonstrate to this Court that he was wrong and, consequently, to point to any particular evidence which was not considered by the learned trial judge.
As to the fact of the applicant’s loss of control, there is no doubt. He reacted suddenly to the abuse hurled at him by Aiden Duggan and rushed to equip himself with a knife. He used the knife to stab the deceased, who was sitting, as he said himself, “half conscious” and “mumbling” on the ground. The applicant used many expressions to describe his state. He was “in a rage” or had a moment of madness. The killing was a sudden and irrational act. The applicant was in the grip of some passion, most likely largely due to drink, though that fact does not exclude the possibility of provocation.
The problem, then, is to find the reason for this loss of control. Insofar as the effects of the statement of Aiden Duggan are concerned, the jury have considered the matter of provocation. The applicant has had the full benefit of the judge’s ruling on that point. The jury must be taken to have been satisfied beyond reasonable doubt that the applicant was not provoked by those remarks to such an extent as to kill the deceased in mistake for Aiden Duggan.
The first thing that can be said with confidence is that the applicant did not, in any of his statements to the gardaí, say that he had been provoked into the act of stabbing the deceased by anything said or done by the deceased at any stage of that evening and night. Counsel for the applicant has not referred the Court to any statement made by him in any of his statements to that effect. This is the more striking in view of the fact that he was repeatedly and insistently pressed by garda questions to explain his homicidal act, i.e. to identify the “trigger” of his action. Nor is there any other evidence that he said anything on any other occasion to that effect.
The first and most notable aspect of the acts which took place in the caravan was that concerning fighting between Aiden Duggan and the deceased. The overwhelming aspect of that bizarre series of events is that the deceased was the victim. To the extent that there was evidence that the deceased struck the first blow, there is no evidence that the applicant was aware of that fact. The Court cannot accept that the role played by the deceased as the victim of battering by Aiden Duggan can conceivably amount to provocation by the deceased of the applicant. The proposition, to adapt the language of the learned trial judge verges on the absurd.
Insofar as the inappropriate touching by the deceased of Kirsty, the applicant’s girlfriend, is concerned, the only statements available from the applicant are to the effect that this was all spent or past. It can be accepted that such action is capable of, causing annoyance, and, indeed it probably did so, but there was no evidence—at least none has been drawn to the attention of the Court—to suggest that the applicant was under the continuing effect of such provocation at the time he stabbed the deceased. The statements made by the applicant—quoted above—are to the contrary effect.
The deceased was undoubtedly a nuisance. He was totally drunk, fell around, knocked over tables and drinks and, ultimately, soiled himself to such an extent that his company was no longer welcome. However, the reaction of the applicant was to help him, lift him or push him out of the caravan. Furthermore, crucially, the agreed evidence is that the applicant called or arranged for another to call an ambulance and that he lifted the deceased into a sitting position on the ground outside the caravan. The Court has not been referred to any evidence to show that the applicant was provoked into stabbing by the earlier behaviour of the deceased. The Court simply cannot accept that a man who was sitting in a semi-conscious condition on the ground, bleeding from his head and mumbling could be considered to be provoking the applicant by reference to or on account of his earlier disorderly and unpleasant behaviour. Indeed, none of his behaviour was even alleged to be directed towards the applicant.
At the hearing, counsel for the applicant submitted that the passage quoted at paragraph 17 above and described as “fundamental” to the applicant’s case shows more or less conclusively that the applicant was, in fact, provoked. The Court has considered this passage very carefully. The Court was invited to consider that the reference, in that passage—“arguments and fights, bleeding people falling out the bleeding—of the bleeding caravan and all. I was just stressed out. I don’t know what was going on. I just had a moment of red.”—demonstrated beyond doubt that the applicant was saying he had been provoked into stabbing the deceased to death by the earlier behaviour of the deceased. That submission depends essentially on the use of the plural, “fights,” whereas the only fight then going on was between Karl Thomas and the deceased whom he was taunting with a sweeping brush. When one looks at the full context of the statement, there were several “fights” going on. The applicant also referred to a fight between Karl Thomas and Aiden Duggan, but there were several quarrels taking place at the same time. At any rate, the passage contains no suggestion that the applicant was then being provoked by a “fight” which had taken place earlier in the caravan and in which, in any event, the deceased was the victim. It bears repeating, moreover, that none of the actions of the deceased in the caravan were directed against the applicant.
The learned trial judge was most convinced by the fact of the applicant’s call for an ambulance that any passion, assuming there to have been any in the mind of the applicant, had cooled.
The Court does not accept that the learned trial judge was in error. His ruling on the evidence of provocation was within his power. In summary there was ample evidence from which the jury would have been entitled to conclude that the applicant was in the grip of an uncontrollable passion when he stabbed the deceased and equally that provocative words were spoken to him by Aiden Duggan immediately before he committed that act. What is missing is any evidence to connect the deceased either with the words spoken by Aiden Duggan or with any provocative words or acts directed towards the applicant.
The Court rejects this ground of appeal.
The video issue
Karl Thomas was called as a witness for the prosecution. It was generally accepted that his evidence was unsatisfactory and probably not truthful. Thomas was, or had been, a friend of the applicant. Counsel was concerned at some form of taint by association so far as the applicant was concerned. He cross-examined Karl Thomas on his statement to the gardaí. The prosecution made a somewhat half-hearted attempt to have Karl Thomas treated as a hostile witness, However, the evidence of the witness concluded following cross-examination by counsel for the applicant.
On the following day, counsel for the applicant applied for leave to have shown to the jury some extracts from the video recording of Karl Thomas’ garda interview. Having been prepared originally to permit this procedure, the learned trial judge effectively changed his mind. He considered that it would involve the production of hearsay evidence to the jury.
The Court is satisfied that the learned trial judge was correct in his ruling. Counsel had cross-examined the witness on his written statement. It is, of course, permissible to cross-examine a witness as to statements made by him on another occasion. The production of the video would have been a quite different procedure. What the defence wanted to do was to produce before the jury and without going into evidence an independent piece of evidence as to what the witness had said on another occasion. It was, at the very least, a departure from the normal rules of evidence. It would have involved production before the jury of evidence of what the witness had said in his garda interview. The Court is satisfied that the learned trial judge’s ruling was within his jurisdiction.
Prosecution speech to the jury
This complaint is that counsel for the prosecution, in his closing address to the jury, misstated the law with regard to provocation. Counsel applied to the trial judge for a ruling to the jury correcting these statements. The judge declined to do so. It is accepted that the trial judge correctly directed the jury as to the legal elements of provocation. Counsel for the defence also addressed the jury. It appears that the main point of the complaint is that prosecution counsel in some manner equated the acts of an accused person under the influence of provocation with an automaton.
It was not correct to use the expression “automaton.” A person killing another under what amounts in law to provocation is still acting intentionally. The position is that he has ceased to have control over his actions. Thus, the prosecution misstated the position in law. However, the learned trial judge correctly referred to the existence of intention. The trial judge is the best person to decide on the likely effect of a particular use of phrase in counsel’s speech. In the view of the Court, the learned trial judge properly exercised his discretion on this matter.