Judgment Title: D.P.P.-v- Anthony Barnes
Composition of Court: Hardiman J., Hanna J., Feeney J.
Judgment by: Hardiman J.
Status of Judgment: Approved
Outcome: Refuse application
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THE COURT OF CRIMINAL APPEAL
Hardiman J. 55/06
THE DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT of the Court delivered the 21st day of December, 2006, by Mr. Justice Hardiman.
Mr. Richard (Dick) Forrestal aged 69 years was stabbed to death in his house at Carrigavantry, Tramore, Co. Waterford, on the afternoon of the 21st July 2005. He was killed by Anthony Barnes, the applicant for leave to appeal in these proceedings. Barnes, together with another man called Andrew Halligan had come to the house on that day to burgle it having first checked it out sometime previously. They knew that a man lived alone there, that he was an old man and they assumed from the fact that he was engaged in the equine business that he had money. They apparently entered the house in the belief that there was no one there, which was true. But just after four minutes past two on the afternoon of the 21st July Mr. Forrestal returned to his house. He was dropped off there by a friend, Mr. Louis Murphy, a very active octogenarian, precisely at that time. Mr. Murphy then went off to get diesel for his car and to collect another person: the two of them together with Mr. Forrestal were going to have lunch in the latter’s house. Mr. Forrestal had been dropped off so that he could start preparing the lunch, he having bought some fish for that purpose.
When Mr. Forrestal and the other person, Mr. Kent, returned to the house at twenty five past two they found an appalling situation. The outer door “was driven off the hinges” and when the inner door was opened its travel was stopped by the dead body of Mr. Forrestal, lying with the feet against the door.
There was no account of what had happened in the house other than that of the applicant, Anthony Barnes. His fellow burglar, Halligan, a young man with more than thirty convictions for burglary alone, claimed to have left the house before the stabbing. Barnes account will be discussed in detail below. It is, however, common case than Barnes and Halligan were in the house to commit burglary. Barnes defence was one of self defence: he claimed in statement to the Gardai that he and Halligan had been disturbed by Mr. Forrestal who had (his accounts vary) either come at him with a knife or had come at him and then left the room in which he was confronting Barnes and got a knife, or come at him, dragged him from a window through which he was trying to escape, threw him onto a bed and left the room to get a knife. Barnes claims to have disarmed Mr. Forrestal and stabbed him to death in self defence. The principles of law bearing on this situation – an admitted burglar who slays the householder in purported self defence – compose the substance of this appeal.
Mr. Forrestal was a bachelor who had lived in Carrigavantry all his life. He had some rental property and a herd of cattle but his principal interest and occupation was the breeding of horses. “He was a horse man through and through”, according to his friend Mr. Murphy. He was a successful breeder and had horses in training who apparently raced with some success. But he was a man of remarkably simple life living in a small house with only basic equipment. He was a religious man, a teetotaller, devoted to his animals and one who rose at 5.30 each morning. He was a kindly and popular figure if a little eccentric. Horses apart, his standard of living was far below what he could easily have afforded. For the most part he lived alone but for some months Mr Murphy had been living with him. Shortly before the events which are the subject of the case Mr. Murphy had moved to another house belonging to Mr. Forrestal because a family member was expected to move in with Mr. Forrestal. Though eccentric in the way described above, there is no doubt that he was more than competent in business, as a farmer and above all as a horse breeder. In Mr. Murphy’s evidence he summed up Mr. Forrestal’s lifestyle with understated eloquence “Dick lived in his own world – and it was excellent”. He was a strong, healthy and active man for his years.
On the day of the killing Mr. Forrestal rose at his usual hour and later had breakfast with Mr. Murphy in the house. It may be of some significance, in view of what later happened, that he followed his invariable custom of clearing and washing the knives and other items used for breakfast and put them back on the table. He then travelled, with Mr Murphy, some distance to a yard where he had horses in training. It should be noted that they travelled in Mr. Murphy’s car leaving Mr. Forrestal’s 1999 Mondeo outside his house.
They remained at the trainers’ until 12 o’clock. At that time they left to attend a funeral of a local girl who had been tragically killed in a bomb explosion in Turkey. They left the funeral at about a quarter to two and returned to the house after a small detour. Mr Murphy put the time of their arrival back at the house precisely four mines past two o’clock in the afternoon. Mr Murphy did not then enter the house but simply let Mr. Forrestal out of the car and after a little badinage drove off to collect Mr. Kent as already explained.
The foregoing details of Mr. Forrestal’s personality and way of life, and his activities on the day of his death, may have some relevance in considering the account of events later offered by Mr. Barnes. It may also be noted that, according to Mr. Murphy whom there is no reason to doubt, Mr. Forrestal had suffered some four or five burglaries in the past. He did not keep any substantial amount of money around the house but used cheques for his transactions apart from ordinary shopping. He would keep the money for that sort of purpose on him. The knife with which he was killed was one of two identical knives which he and Mr. Forrestal used when eating, and which were kept on the kitchen table when out of use.
Mr. Murphy described the condition of the house, as he saw after finding the body, as being “like the war effort passed through. It was in – it was tossed, hopelessly tossed”. He said “the house was in a – was ransacked. Dick’s bed was upside down. Presses were knocked over. Tables were turned upside down. My bedroom across the way that had nothing to do with Dick’s house was ransacked. My bed was turned over. My table was turned over. There was a beautiful mahogany wardrobe. Three four doors were tore off it, for whatever they were searching for.”
The television was upside down on the floor. The door to Mr. Forrestal’s room was off its hinges. All this suggests a violent and frenzied search.
It appears that the first witnesses to come on the scene – Mr. Murphy, some gardaí and perhaps others, were of the opinion that Mr. Forrestal had been shot because of the size of the wounds apparent. The State Pathologist, Dr. Marie Cassidy, who examined the body later in the evening of the 21st, was of the opinion that he had been stabbed, and this turned out to be accurate.
The circumstances in which these wounds were inflicted are the factual nub of the case. They only eye witness is the burglar who inflicted them, Anthony Barnes. He did not give evidence but made various statements to the gardaí.
The wounds of the deceased.
This topic requires some attention having regard to the contentions subsequently made by Mr. Barnes.
The main injuries were to the trunk. There were four stab wounds and a puncture wound. Two of the injuries were deeply penetrating and between them injured both lungs, the aorta, the main blood vessels and the oesophagus or gullet and the windpipe. There were also minor incised wounds or cuts to the left forearm and the hand, consistent with being defensive wounds.
The main wounds were as follows:-
(a) A stab wound to the right of the chest three centimetres below the right nipple. It was diagonal, measuring 2.3 centimetres. It tracked downwards and backwards. It had penetrated the rib cage between the fifth and sixth ribs slicing into the upper body of the sixth rib. It continued to the right lung where it ended. The anatomical depth of this wound was seventeen centimetres.
The other wounds, being three stab wounds and a puncture wound were over the front of the left shoulder. They were clustered together in a small area about three by two inches. Only one of these penetrated deeply. This was:
(b) A horizontal wound of 3.5 centimetres just below the collar bone. The direction of the wound was downwards and backwards. This wound penetrated the rib cage between the first and second ribs and detached a thin sliver of bone from the upper border of the second rib. From there on there were two separate tracks, one continuing down and across the top of the upper lobe of the left lung, going on into the aorta. The second track continued across the body through the left hand side of the wind pipe and into the oesophagus. The unchallenged evidence in relation to this wound was that the knife had been partly withdrawn and then plunged back in again, thereby creating the second track. The maximum anatomical depth of this wound was fifteen centimetres.
(c) The next wound was also on the left hand side of the chest four centimetres below the one described at (b) above. This was a vertical wound, running up and down, and measuring two and a half centimetres. It went from the deceased’s right towards the left arm pit. It did not touch any major structures or organs. Its anatomical depth was ten centimetres.
(d) The next wound was just below the left collar bone, one centimetre above the previous wound. This was a shallow wound 1.2 centimetres wide which did not injure any major structure or organ. Behind this wound was a shallow puncture wound.
Internal examination of the body showed mainly the damage from the two deeply penetrating wounds, (a) and (b) above. The first was on the right hand side of the chest and the second on the left. The right sixth and left second ribs were damaged. The left chest cavity was awash with fluid, with a lesser quantity on the right chest cavity. The trachea or wind pipe showed a 1.2 centimetres stab wound through its left side with abundant blood in the airways. The pathologist said “in other words blood had tracked in and he was choking on that blood”.
The pathologist concluded that the deceased had died after a knife assault. The cuts on the left forearm and hand were consistent with defence injuries. She explained that term as follows:
Dr. Cassidy said that the most relevant wound had penetrated the rib cage and sliced across and through the left lung to injure the aorta or main blood vessel. “There was a large gaping hole in the aorta which had poured blood into the chest cavity. He had lost a considerable quantity of blood from the injuries. There was a substantial quantity of blood just under one litre, inside his chest. His clothing was soaked in blood and there had been a pool of blood on the floor beside his head when he was found. There were also wounds in his wind pipe and gullet and blood had leaked into both causing him to choke on blood”.
From certain aspects of the blood staining, the pathologist concluded that the deceased had been upright, at least temporarily, while he was bleeding. She said “the injury to the left forearm may have been caused as the knife was being plunged down towards his chest over the obstructing forearm if his arm was held in front of his body in a defensive manner. The injuries to his left hand suggest that at some time during the assault he had grasped the knife blade. There were no injuries, no knife injuries, on the right hand”.
The doctor then drew attention to an area of fresh bruising on the inside of the right upper arm. This, she said “could have been caused by the arm being gripped and held firmly. It is possible that during the knife assault he had been grabbed or held by his right arm with such force that he was unable to use his right arm to defend himself”.
Dr. Cassidy described this area of bruising as “blotchy bruising, pale blue bruising on the inside of his arm, just below the armpit”.
She said that that area of the arm “is an area which we would classify as being a protected area, because it’s not the place where would find injuries if you bump into something of if someone bumps you or strikes you. This part is protected by the inside of your chest. So to find an injury on the inside of the upper arm means it has been deliberately inflicted usually. Therefore, the most common way in which this type of injury is caused is by someone grabbing you by the arm”.
Dr. Cassidy said that this suggested to her the possibility of more than one assailant.
In cross-examination Dr. Cassidy agreed that the knife produced to her, of which more will be said later, was consistent with causing the wounds she found on Mr. Forrestal.
Speaking of the vital organs injured, she said that the damage to them wouldn’t necessarily cause the deceased to have collapsed immediately. “He would be capable of movement for a short period of time. He had a very large wound in his aorta. That’s going to lose a loss of blood very rapidly. It is very likely he is going to collapse because he has lost such a large quantity of blood. He could be capable of some movement immediately afterwards,” before, that is, he choked on the blood.
Dr. Cassidy confirmed to defence counsel that the deceased “might have even been capable of continuing to struggle with his attacker for a short time before he collapsed”. In relation to the bruising to the arm, she confirmed that it could have been caused in the course of the struggle. The wounds to the left forearm and hand were consistent with being caused during a struggle for or with the knife. The more serious of these wounds might reflect the parties moving in the course of the struggle. The pattern of bleeding onto the clothing suggested that the deceased had been upright at some point before he collapsed. The bruising was mostly fresh and all would have occurred within 24 hours of death. The bruises had the appearance of having occurred at around the same time. The bruising to the left inner arm, specifically, consisted of two areas, one measuring 5 by 8 centimetres and just below that an area measuring 4 by 3 centimetres. She said “It’s an indication that that there’s been pressure applied to the inside of the upper arm and most likely that’s by the fingers”.
The defendant’s versions of events.
The defendant did not give evidence at his trial. However he made a number of statements, and had a number of questions and answer sessions with the gardaí. All of these, the inculpatory and exculpatory parts, were before the jury and it was conceded that the jury could accept or reject the statements or any part of them. However, for reasons elaborated below, the defence submitted on the hearing of this appeal that this Court, unlike the jury, is bound to approach the legal issues in the case on the basis that the defendant’s account of the facts was true. Apart from the legal issues discussed below this has the elementary difficulty that the defendant at different times gave different accounts on various matters, some of them centrally important.
The defendant went to a garda station in Waterford, accompanied by his father, on the afternoon of the 22nd June, the day after the killing. Very shortly afterwards he made a statement in which he described going by himself to rob Mr. Forrestal’s house. On this occasion he said:
He said that he had put his foot through the window and tried to get through the window “but he pulled me back.” He then said:
In this interview, beginning about 4 o’clock in the afternoon of the 22nd, he conceded that he had stabbed the man “two or three times”. He said that he had dropped the knife in the house. He said that he had later heard on the news that the man had died. He then burnt his clothes in a fireplace at home. He told his mother the next morning what had happened. Asked to describe how he tried to stop the man pushing in the door of the box room he said “I had the palms of my hands against the door”. When he was asked “Did he say anything to you?” he said:
He said that after he had told his mother she had telephoned his father who had told him to give himself up and accompanied him to the garda station.
The defendant gave a further interview to gardaí at about 6.30pm on the same day. He denied going to the Waterford dole office to sign on on the previous day. He described driving to the house. He said he had stolen £20 from the Mondeo car. He described searching the house “I searched around for a good while”. Asked specifically whether there was anybody else in the house with him he said “No there was nobody with me. Fuck it anyway I’ll only get ten years.”
A major change was the account of where the knife came from. He said he had run into the box room and “Yer man got a knife and came in after me”. Asked where the man got the knife he said “He picked it up off the table”. He said the table was in front of the door of the box room. He protested that he only went to rob the house “There was no attempt to kill the man”. Speaking of the door to the box room he said “I pulled it in when I saw him with the knife. He said that the door closed into him. He said “He hit the door by the hinges with his shoulders and came in on top of me”. Asked to describe what happened next he said:
On this occasion he told the guards that he had never seen Mr. Forrestal before the previous day. It was put to him that Andrew Halligan had been with him on the burglary to which he said “I want to see his statement first”. He next admitted that Andrew Halligan had driven him to the Forrestal house, and admitted that it was Halligan who had kicked in the window of the box room and not himself as he had previously said. He admitted that he had told his mother what he had done the previous night, and not that morning. He said that Halligan had called on him that night and said that the man was “after dying” and that they should hand themselves in. He had told Halligan that he had bitten Mr. Forrestal on the hand, but that wasn’t true. Asked why he had said it he said “I don’t know, because I’m a dope”. He said that a cut which was on his right middle finger was caused by his running through bushes the previous day.
There was a further interview with gardaí the following morning. On that occasion he said that he had gone out to Mr. Forrestal’s house on the previous Tuesday “just having a look”. He said he had met Mr. Forrestal and asked him were there rabbits in the field. Mr. Forrestal had warned not to let any greyhounds out around his land “or I’ll shoot them”. Asked again to explain what had happened he said:
It will be seen that these accounts vary in a number of ways. The first is whether he was alone or with another person, later identified as Halligan. While he was denying that anyone else had been present, he claimed that it was he who had kicked out the window, (actually kicked out by Halligan, and was in the act of trying to get through it when Mr. Forrestal grabbed him. He later changed this account, when the presence of Halligan was admitted. He said that he was in the kitchen (where the knives were) when the man came in. He first said that the man had left him on the bed in the box room and gone to get the knife, later that the man had taken up the knife after they had struggled in the kitchen. He said that he had dropped the knife in the room, but later agreed that he had taken with him and dropped it in a field. He said that the man, obviously Mr. Forrestal had said “I’ll kill you”, but he said this only in answer to a question as to whether he had said anything. He said that he had tried to stop the door being pushed in with his (Barnes) palms against the door but no marks of this were found by the gardaí. The door was found off its hinges, but so were other doors in the house. This damage had not been present when Mr. Forrestal and Mr. Murphy left the house. Evidence (to which objection was taken on other grounds), established that Barnes had in fact signed on at the dole office though he denied this. Finally, he said he had gone home after escaping from the area but there was evidence (excluded by the learned trial judge and discussed below) suggesting that he and Halligan had gone to rob a collection box from other premises on their way home.
This conflict between the parties makes it necessary to analyse the nature of burglary in a dwellinghouse and the permissible responses to it. It will then be necessary to compare with the result of this exercise with the legal instructions given by the learned trial judge to the jury in this case.
Counsel on both sides have spared no diligence or ingenuity in researching their respective positions and cases ancient and modern, and from various far flung countries have been urged upon us. This expenditure of labour was necessary because, curiously enough, there is no modern Irish authority on this topic: counsel for both sides were agreed upon that proposition. This makes it necessary for the Court to examine, in the contemporary Irish context, a problem which has troubled courts of law since time immemorial: the nature of the offence of burglary and the permitted response of a victim of that offence.
Burglary.Burglary is presently constituted by s.12(1)(a) of the Criminal Justice (Theft and Fraud Offences) Act, 2001:
part of a building as a trespasser and with intent to commit an arrestable offence, or
(b) having entered any building or part of a building as a trespasser, commits or attempts to commit any such offence therein.
(3) A person guilty of burglary is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 14 years or both.
(4) In this section ‘arrestable offence’ means an offence for which a person of full age and not previously convicted may be punished by imprisonment for a term of five years or by a more severe penalty.”
Barnes and Halligan were charged as follows, in count 2 of the indictment of the present case:
In acting in this way, Barnes was not merely committing a crime but was invading Mr. Forrestal’s constitutional rights. Article 40.5 of the Constitution, under the heading “Inviobility of the dwelling” provides as follows:
This is a modern Irish formulation of a principle deeply felt throughout historical time and in every area to which the Common Law has penetrated. This is that a person’s dwellinghouse is far more than bricks and mortar; it is the home of a person and his or her family, dependents or guests (if any) and is entitled to a very high degree of protection at law for this reason. Most of the cases on the topic relate to the restrictions which this puts on the State itself (most obviously the police force) in entering a person’s home. But the home is, of course, also entitled to protection from criminals. This form of protection, indeed, was to the forefront of the concern of law makers in the early days of the Common Law.
Before going further, it is necessary to note an anomaly in our law. There is a recent statutory codification of the law relating, amongst other things, to self defence and defence of property in the Non-Fatal Offences against the Person Act, 1997, and in particular Sections 18 to 20 thereof. But this applies only, as the title suggests, to the use of non-lethal force. Where homicide has occurred (whether of the burglar, or the proprietor in a case like this) one must still resort to the Common Law. But useful analogies can, on certain aspects of the topic, be drawn from the Statute. Section 18 provides:
(b) to protect himself or herself or (with the authority of that other) another from trespass to the person; or
(c) to protect his or her property form appropriation, destruction or damage caused by a criminal act or from trespass or infringement; or
(d) to protect property belonging to another from appropriation, destruction or damage caused by a criminal act or (with the authority of that other) from trespass or infringement; or
(e) to prevent crime or a breach of the peace.
Each side of the present litigation has put before the Court many statements of the original Common Law position of burglars and householders. The latter term, of course, embraces the owner or lawful occupier of every sort of premises from a palace to a shack and regardless of whether he is the full owner, a tenant or a licensee or other form of permissive occupant. In a very ancient case the following was said:
(1329) F Coron. 305.
A person lawfully defending himself or his habitation is not bound to retreat or to give way to the aggressor before killing him; he is even entitled to follow him and to endeavour to capture him; but if the aggressor is captured or is retreating without offering resistance and is then killed, the person killing him is guilty of murder”.
This Court wishes to make it clear, in the absence of other express Irish authority to this effect, that to the extent that the Common Law permitted the killing of a burglar by a householder simply for being a burglar, and no matter what the other circumstances, it no longer does so in this jurisdiction. It has not done so for at least 70 years. Many social and historical reasons could be cited to support this conclusion but in reality it is unnecessary to cite more than one: the Constitution of Ireland. This provides at Article 40.3.1:
But this is by no means the end of the matter.
This Court cannot accept the contention made on behalf of Anthony Barnes that a burglary is a serious offence but not, in and of itself, an act of aggression. In argument Mr. Jeremy Maher S.C. for the applicant heavily emphasised the fact that Barnes had spied out the land in advance, had approached the premises carefully and generally taken precautions to ensure, as far as he could, that the premises were unoccupied when he entered them.
It seems clear to us that a burglar would prefer, in his own interests, to enter empty premises rather than an occupied house. But that cannot take from the fact that every burglar runs the risk that the householder may be present even though the burglar thinks he is not, or that the occupant, though at first absent, may return to his own house as he is manifestly entitled to do.
An occupier in the presence of a burglar (whether the burglar knows that he is there or not), is in a position of very acute difficulty. Firstly, his dwellinghouse has been violated and this is not merely a crime at law but an invasion of his personal rights. Such a thing, especially if repeated, may in itself gravely undermine the wellbeing even of a strong and healthy occupant, and still more that of an older or feeble one. The offence of burglary committed in a dwellinghouse is in every instance an act of aggression, an attack on the personal rights of the citizen as well as a public crime and is a violation of him or her.
Furthermore, particular circumstances may gravely worsen the position of the householder. He or she may have the care of and responsibility for children or old and sick people in the house or likely to come there. He may himself be aging or elderly, apprehensive or even terrified out of his wits. He has no idea what the burglar will do or whether he is violently disposed or not. Common knowledge will have told him that certain burglaries are committed by drug addicts whose behaviour may be randomly vicious or wholly unpredictable. The circumstances may be such as render it difficult or impossible to summon assistance: he may have no telephone or be afraid to attract the attention of the burglar, or provoke his rage, by using one.
It is sometimes said that the rights of householders as recognised at Common Law, even with the major qualification laid down above, reflect an earlier era when life was “nasty brutish and short” and armed gangs roamed the countryside, with the forces of law often at a great distance. This is historically true. But it is also necessary to say, in the words of an English academic authority:
Having considered the older authorities, the Act of 1997 and the realities of the position of a victim of burglary as they appear to us, we draw the following legal conclusions.
Every burglary in a dwellinghouse is an act of aggression. The circumstances may make this element of aggression more or less patent but the violation of a citizen’s dwellinghouse is just that, a violation and an act of aggression no matter what the other circumstances.
A person who commits such a violation exposes himself to various legal penalties, if he is detected and convicted. But that is not the limit of his exposure. Although he is not liable to be killed by the householder simply for being a burglar, he is an aggressor and may expect to be lawfully met with retaliatory force to drive him off or to immobilise or detain him and end the threat which he offers to the personal rights of the householder and his or her family or guests. And this is so whether the dwellinghouse which he enters is, or appears to be, occupied or unoccupied when he breaks into it.
The propositions just set out derive from the nature of the dwellinghouse itself, and its constitutional standing as a place required by the dignity of the human person to be inviolable except in accordance with law. Though a dwellinghouse is property and often indeed the most valuable piece of property an individual citizen possesses, it would be quite wrong to equate it with other forms of property such as money or moneys worth or other pieces of personal property. Though these may have a sentimental as well as a cash value, and may in certain circumstances be important or even essential for the individual who owns them, a dwellinghouse is a higher level, legally and constitutionally, than other forms of property. The free and secure occupation of it is a value very deeply embedded in human kind and this free and secure occupation of a dwellinghouse, apart from being a physical necessity, is a necessity for the human dignity and development of the individual and the family. It is in this sense that people who have been the victim of burglaries often speak of feeling personally debased by the experience. If Mr. Forrestal, in this case, had not disturbed the burglars but come back later to find his house in the state described by Mr. Murphy, it is not all difficult to imagine his very predictable feelings at seeing his bed upside down, his television thrown on the floor, the doors of the house and rooms and furniture within it thrown off their hinges and every private nook and cranny violently searched.
The considerations set out in the last paragraph equally explain why burglary must always be an act of aggression. In reality, it is amongst the worst acts of aggression the individual citizen is likely to encounter. Moreover, Mr. Forrestal was a country man whose occupation and interests alike constrained him to live in the country in a somewhat isolated position and was worse off to that degree than one who lived in an apartment or an estate of houses in urban citizens.
It should be understood that, in the circumstances of this case, it is unnecessary to discuss whether a building of another sort, the curtilege of a building, a garden, a farm or an orchard partake of the same, or any, particular status.
As noted above, the special protection afforded to the dwellinghouse dates back to time immemorial. It has been expressed in various ways, none perhaps so well known, even outside legal circles as that in Semaynes case (1604) 5 Co. Rep. 91a:
There are consequences of the special status of the dwellinghouse and of its importance to the human dignity of its occupants. Amongst the most relevant of these is that, as has been held by the Courts of Common Law for centuries, a person in his dwellinghouse can never, in law, be under an obligation to leave it, to retreat from it or to abandon it to the burglar or other aggressor. Thus, Sir Matthew Hale said (I Hale P.C. 486):
It is, in our view, quite inconsistent with the constitutional doctrine of the inviolability of a dwellinghouse that a householder or other lawful occupant could be ever be under a legal obligation to flee the dwellinghouse or, as it might be put in more contemporary language, to retreat from it. It follows from this, in turn, that such a person can never be in a worse position in point of law because he has decided to stand his ground in his house.
Degree of force.
We have already held that burglary is an act of aggression by its nature, and that a burglar may be met with retaliatory force to drive him off or to immobilise or detain him and to end the threat which he offers to the personal rights of the householder and his or her family or guests. That is easy to say in general terms, but in individual cases the question will immediately arise, what degree of force may the householder deploy to those ends?
It is, of course, impossible to lay down any formula with which the degree of force can be instantly calculated. Nor, in our view, would it be just to lay down a wholly objective standard, to be judged by the standards of the hypothetical reasonable person.
The victim of a burglary is not in the position of an ordinary reasonable man or woman contemplating what course of action is best in particular circumstances. He may be (and Mr. Forrestal actually was) aging, alone, confronted with numerous and/or much younger assailants (Barnes was almost exactly fifty years younger than his victim). In almost every case the victim of burglary will be taken by surprise. The victim will, therefore, be in almost every case shocked and surprised and may easily be terrified out of his wits. To hold a person in this situation to an objective standard would be profoundly unjust.
Equally, however, it cannot be left to every person himself to lay down for himself how much force he or she is entitled to use. There must be both a subjective and an objective component in the assessment of the degree of force proper to be used by the victim of a burglar. There is, in our opinion, a very useful analogy here to be drawn with a statutory criteria for the use of non-lethal force.
Section 18 of the Non-Fatal Offences against the Person Act, 1997, provides as follows
In argument in the present case, Mr. Maher S.C. contended that, on the basis of that statutory provision, Mr. Forrestal would have been committing an offence in applying any force at all to Mr. Barnes. We do not believe that this argument is well founded, most obviously because it depends (as Mr. Maher did not at all conceal) on the proposition that Barnes, though a burglar, was not an aggressor. For the reasons given above we would reject this contention: every burglar is an aggressor. But even apart from that it would be observed that the statutory formula itself partakes of both a subjective element - force “such as is reasonable in the circumstances as her or she perceives them to be…” and an objective element - the provisions of s.1(2) of the 1997 Act which require a court or jury to have regard to the presence or absence of reasonable grounds for the belief that the level of force used was no more than was reasonably necessary in the circumstances. But it must always be borne in mind that the burglar must take the occupant as he finds him and that in many cases it will in practice take the deployment of grossly disproportionate force, or evidence of actual malice (as in the well known Martin case in Great Britain) to fix the householder with liability. He or she has, after all, been deliberately subjected to an experience which will shock even the most robust and might make many irrational with terror.
The position of the burglar.
Considering the heinous and inherently aggressive nature of the crime of burglary in a dwellinghouse, there is an air of improbability about the burglar, the initial aggressor, relying on the defence of self defence when he has violently killed the householder. A consideration of the facts of this case increases that aura of improbability. Mr. Forrestal can have lived only a very short time after he disturbed the burglars in his house. That his discovery of the burglars was a complete surprise to him is, on the facts of the case, indisputable. On Barnes’s own account, the only direct eye witness account which must naturally be narrowly scrutinised, his killing of Mr. Forrestal must have taken place in the few minutes after the latter’s re-entering the house. A consideration of the authorities suggest that there is scope, but narrow scope, for the defence of self defence by the burglar in those circumstances.
At Common Law the killing of a householder by the burglar would have been murder as an unlawful homicide perpetrated in the course of committing a felony. In the case of an ordinary assault in a public place or at any event outside either party’s dwelling, scope for self defence by an aggressor against a person who, initially at any event, was the victim is very constricted. This is because of the principle of “self generated necessity”, which, as we shall see, is reflected, in the case of non-fatal injuries, in s.18(7) of the Non-Fatal Offences against the Person Act, 1997:
Common Law formulations of the same concept - the Principle of self generated Necessity - include;
(1 Hawkins c.28)
“Justifiable homicide is of diverse kinds,
1. Such as is owing to some unavoidable necessity, without any will, intention or desire or without any inadvertence or negligence in the party killing, and therefore without any shadow of blame”.
(Blackstone, Commentaries on the Laws of England (1830) Volume IV p.178).
As we have seen above, one of the submissions made by Mr. Maher on the hearing of this appeal was that this Court, unlike the jury at the trial, was bound to accept the veracity of the defendant’s account in considering the facts to which the legal principles of self defence by a burglar should be applied.
Mr. Maher supported this argument with a proposition of limpid clarity: Barnes account was the only account available.
There are a number of factual observations which first occur on this topic. Firstly Barnes is a man of proven dishonesty who, apart from being a burglar, told a number of undoubted lies in the course of his statements to the gardaí. He did not give evidence in court and therefore was not subjected to cross-examination. He had every reason to portray Mr. Forrestal as the attacker: if he did not do so, his conviction for murder was inevitable. Finally and most tellingly of all it is clear, having regard to the way in which the jury were charged, that Barnes account of Mr. Forrestal launching a lethal attack on him with no provocation other than the burglary was rejected by the jury, as they were fully entitled to do. Not merely were they entitled to do it in their sole discretion but one can see numerous reasons, to do with the account itself and the overall circumstances of the killing, why they might have done so. Moreover, having regard to the manner in which the jury were charged, they must have come to the conclusion, not merely that they were unconvinced by Barnes’s account of killing the householder in self defence, but were positively satisfied, beyond reasonable doubt, that his account was false.
The reason why Barnes account in the form of statements to the gardaí is the only account available is an obvious one: he killed the only person who could contradict him. He killed him in circumstances of great violence, giving rise to the injuries described above. If Mr. Maher is correct, and this Court is bound to accept the account Barnes gave to the gardaí, then he has obtained a positive benefit from killing Mr. Forrestal: his account is beyond contradiction.
Furthermore, Mr. Maher’s argument has the rather odd consequence, if correct, that this Court must approach the factual issues on a basis completely different to that open to the jury, when the exercise on which this Court is engaged is that of deciding whether the jury’s verdict was safe and satisfactory.
It does not appear to us that the Court is constrained in the manner contended for by Mr. Maher. On the contrary, since it is clear that the jury had disbelieved the exculpatory aspects of Barnes’s statement, and there were ample rational grounds for them to do so, it seems to me that this Court is bound by that finding.
It may be that, if another case of this sort presents itself, it would be possible to argue that the rights of the householder to his life and to the inviolability of his dwelling are inadequately protected by a rule which fails to differentiate, in addressing the onus of proof, between a fight in a public place and the position of a burglar who kills a householder in the house which he is burgling. It may be that, in so doing, the burglar has placed himself in the position where he has exclusive knowledge of the cause of the householder’s death. If this is so then the burden of proof might be regarded as devolving upon the burglar to establish self defence. The case would appear to be a stronger one than Minister for Industry and Commerce v. Steele  IR 304, because the point could not arise unless it had been proved or admitted that the defendant was actually in the process of a burglary. But the point does not arise in the circumstances of the present case.
The charge to the jury.
As noted above, the learned trial judge’s charge in this case proceeded wholly on the basis of the judgment of this Court in Dwyer’s case. On the basis of that authority it is clear that once a defendant intending to plead self defence has met the evidential burden, the onus is on the prosecution to prove beyond reasonable doubt that the killing was not in self defence. This proposition could fairly be described as very well known. Nevertheless the learned trial judge on two occasions in the course of his charge informed the jury that the position was otherwise and that, self defence being a defence, the onus of establishing it rested on the defendant, and that the standard of proof according to which he had to discharge this onus was the balance of probabilities. This misdirection is repeated twice and occurs both before and after the reading of two statements of the law contained in a very lengthy extract from two of the judgments in Dwyer. From these the true position is perfectly clear.
As one would expect, this error was made the subject of requisitions by both sides. The learned trial judge did not go into the matter in any great detail in argument but as he put it “took their word for it”. He then recharged the jury, and did not shrink from describing what he had previously said as “a very very serious error”. He then told them, tersely it is true but I would have thought unmistakably, what the true position was.
To hold that this correction, prefaced as it was by an unusually abject confession of error, rendered the verdict unsafe or unsatisfactory, would require one to conclude that the jury had simply ignored the correction. We see no reason to believe that they would have done that and it is only fair to add that the terms of the learned trial judge’s correction seem to us to make it impossible to think that the jury would have ignored it, or that it could have escaped their attention. Indeed, the piece of evidence which the jury wished to have read back to them, that relating to the bruise on the unfortunate Mr. Forrestal’s right upper arm on its inner aspect, is consistent with a proper and diligent attention to a salient feature of their task, on the basis upon which they were charged.
It is of course true that, bearing in mind this Court’s findings in relation to the position of householder and burglar, that the learned trial judge’s charge (in the absence of any invitation to do so) did not address the subtleties of this position at all. It did not seriously address the fact that the deceased was a householder whose premises the defendant was burgling, and the legal consequences of that state of affairs. But having regard to those consequences as we have found them to be, it seems quite clear that the defendant was considerably advantaged by the learned trial judge’s omission to go beyond the general terms of the decisions in Dwyer, and to address specifically the consequences of the defendant being a burglar.
Other points arising.
Mr. Maher relied on a number of other points in a critique of the conduct of the trial. We are satisfied that none of them were such as would render it unsafe or unsatisfactory. But certain of the points raised call for comment.
There is, unfortunately, no doubt that in the course of the trial (but in the absence of the jury) the learned trial judge twice made somewhat arch and oblique comments about the fact that neither senior nor junior counsel for the defence was wearing a wig. They contended and, very creditably, counsel for the prosecution agreed, that the learned trial judge’s remarks were open only to the construction that he was displeased that Mr. Maher and his junior Mr. Michael Delaney were not wearing wigs.
The wearing of wigs.
Section 49 of the Courts and Courts Officers Act, 1995, provides as follows:
We were invited to consider this point as a component of a more general allegation of cumulative prejudice.
In our view it is inconsistent with respect for the proposition that counsel may not be required to wear wigs to make arch (or any) remark about whether they are so equipped or not. A judge is in a powerful position; some of his powers are discretionary; advocates less doughty and experienced than Mr. Maher and Mr. Delaney might feel constrained in the interests of their client to conform with the judge’s obvious preferences in this regard. Needless to say there is no question in the conduct of this case of the slightest bias, or even appearance of bias in the conduct of the trial, but that is not the point.
Mr. Maher submitted that, though the remarks were made in the absence of the jury, they can only have had a discouraging effect on his client who, before the case had begun properly saw his counsel in some form of conflict with the judge. We do not think that this is a real apprehension. The remarks, though plain as a pikestaff to any lawyer, were obliquely couched and cannot have meant anything to the defendant. Moreover, the record of the trial makes it perfectly clear that Mr. Barnes, a person in a position of very great difficulty which he brought on himself by his decision to burgle a dwellinghouse, was defended not merely competently but doughtily, ingeniously, and eloquently. Both on reading the transcript and on hearing the arguments addressed at this appeal, the Court was moved to admiration of the defence afforded to Mr. Barnes. Some criminal cases start and develop in a way which favours the defence: this one developed in the opposite way but the defence team never flinched. Mr. Maher’s response to the first remark about wig wearing by the learned trial judge was, we venture to say, an entirely appropriate one.
The Appeal Court.
Another painful topic which arises clearly from a reading of the transcript is that the learned trial judge took the opportunity on several occasions, mostly in the absence of the jury, to make unfortunate remarks about the Court of Criminal Appeal. These remarks tended to personalise to the individual trial judge the actions of the appeal tribunal and were altogether unfortunate and undignified.
Other matters arose which we regard as incapable of having rendered the trial unsafe or unsatisfactory. Objection was taken to the admission of one of two photographs of the body of Mr. Forrestal in the place where it was found - the other was excluded at the request of the defence. This was a case where it was clearly necessary, in dealing with an event which happened in a small house, to show the precise position of the body, especially when that was not the location in which the fatal injuries were said to have been inflicted. Having regard to the fact that Mr. Barnes admitted burglary and admitted having stabbed the householder, the sudden access of delicacy which led to objection being taken to this photograph is not readily comprehensible. To regard it as having affected the jury adversely to Mr. Barnes would be to credit them with no sense of justice, and no common sense at all. We absolutely decline to do this.
Similarly, objection was taken to the admission of evidence about no palms prints being found on the door which Barnes said he supported by pressing his palms to it, on the basis that it was not in the Book of Evidence. In our view this was a topic plainly very likely to come up having regard to the nature of the defence and of the statements made. There was a full opportunity to cross-examine and indeed the defence secured an admission that fingerprints and marks of that sort were delicate and easily eradicated. I am not clear why such great objection was taken to the prosecution’s proving the fact that Barnes had indeed “signed on” at the dole office though he had denied doing so to the guards. We are also satisfied that, while not ideal, the method of proving his signature by comparison with another document bearing it was quite legitimate. It will be noted that he did not deny signing either document. It is not clear, furthermore, on what basis the learned trial judge excluded the evidence of the robbery of the collection box after leaving Mr. Forrestal’s house. This is surely evidence of “subsequent conduct”. While it is also evidence of a commission of another crime, that factor is surely outweighed by its relevance in countering the portrayal of Barnes as a man fleeing after a lethal attack. But this observation, of course, is obiter.
For the reasons set out above the Court will dismiss the application for leave to appeal.