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You are here: BAILII >> Databases >> Irish Court of Appeal >> Director of Public Prosecutions v Walsh [2019] IECA 297 (26 November 2019)
URL: http://www.bailii.org/ie/cases/IECA/2019/2019IECA297.html
Cite as: [2019] IECA 297
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Page 1 ⇓
President
McCarthy J.
Donnelly J.
COURT OF APPEAL
Record Number: 283/18
BETWEEN/
THE PEOPLE
(AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENT
-AND-
ANTHONY WALSH
APPELLANT
JUDGMENT of the Court delivered on the 26th day of November 2019 Ms. Justice
Donnelly
Introduction
1. The appellant was convicted on the 23rd October, 2018 of the murder of Dermot Byrne on
the 16th July, 2017.
2. The appellant appeals his conviction on two grounds: -
(a) That a transcript of a voice recording made by him on 17th July, 2017 should
not have been admitted in evidence, and
(b) that the jury was not properly directed on the burden of proof in respect of a
defence of provocation.
Background
3. The background facts are that the appellant and the deceased were unknown to each
other before the night of the 15th/16th July, 2017. The appellant was socialising with
friends in Swords and alcoholic drinks were consumed. The deceased was also socialising
and drinking alcohol in a number of establishments around the same time. The paths of
the appellant and the deceased crossed a number of times in the early hours of the
morning of 16th July, 2017. Apart from the actual killing of the deceased their
interactions were caught on CCTV.
4. The first interaction was an incident over a cigarette, the second interaction was where
the deceased appeared to challenge the appellant on the street but was pulled away from
the non-reactive appellant. A few minutes later, CCTV showed the deceased walking
alone in the same direction the appellant and his friends had already travelled.
5. About 45 minutes after that last sighting, 300 meters further up the street, the deceased
was found by a passer-by, naked and still breathing. Despite attempts to resuscitate him,
he was declared dead in an ambulance a few hours later.
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6. The prosecution relied on the evidence of the State Pathologist, Dr. Bolster, and on the
various admissions made by the appellant to prove the offence of murder; including
evidence adduced from the appellant’s Facebook Messaging page, which was downloaded
from one of his phones, purchased in the aftermath of the night of the 15th/16th July,
2017. The appellant was tracked down by investigating Gardaí, and was arrested on the
17th July, 2017, having left a trail of evidence in his wake. The appellant made
admissions at the time of his arrest, and during the course of interviews. The appellant
also gave a statement which was read into evidence as part of his interviews. These
admissions raised the issue of self-defence and provocation and both these defences were
before the jury for their consideration.
7. Dr. Bolster, forensic pathologist, gave evidence of multiple injuries on the deceased
(approximately 150 separate injuries), these included multiple bruises to the face and the
scalp, multiple fractures of all the facial bones, including the mandible or the lower
jawbone, bruising to both eyes, multiple bruising with abrasions and lacerations to the
upper limbs, lower limbs and body, multiple fractures of the ribs, inhalation of the blood,
extensive laceration to the liver and hematoperitoneum (blood in the abdominal cavity).
8. At the trial the appellant pleaded not guilty to murder but guilty of manslaughter. That
was unacceptable to the DPP and the trial proceeded. As it is relevant to one of the
grounds of appeal, the appellant was represented by a different senior counsel on the
appeal but retained the same solicitor and junior counsel.
The Appeal
Ground One
The learned trial judge erred in law and in fact in admitting evidence, namely, a
transcript of a verbal voice recording made by the Appellant on the 17th July, 2017.
9. As stated above, the prosecution relied on various admissions made by the Appellant to
prove the offence being tried, as well as the state pathologist’s evidence of the injuries
sustained to the deceased.
10. There were essentially three branches of such admission evidence.
11. The first set of admissions were by way of Facebook Messages. These messages had all
been transmitted on the 16th July, 2017. The first were a series of messages to ANR. In
these the appellant admitted that he had killed that fella in Swords last night; saying he
was “fucked”. He referred to the deceased just coming at him and giving him two
warnings. ANR asked the appellant if he gave him one dig and the appellant replied “tell
me about it, I do some damage. No gave him about 30”. There were then a number of
emojis in the messages. These were both crying emojis and smiling emojis.
12. In a second set of messages to FB he admitted to killing someone and said he wanted to
“get offside”.
Page 3 ⇓
13. In a third set of messages sent to KH, a photograph of a newspaper article referring to
the death was included. Again, the appellant said the deceased kept coming at him, that
he was in bits over it. He also sent a picture of his own injured knuckles. He was asked
why the deceased was naked and he said he did not have a clue.
14. The final part of the evidence was a transcript of a voice recording lasting 17 seconds
which was recorded by the Appellant and sent via Facebook Messenger to ANR. This was
apparently introduced late into the trial having only been retrieved from the phone late in
the day by Gardaí. The wording is as follows: -
“I’m going to fucking jail yeah. See that there about that poor old fella in Swords
last night that got bleeding kicked to death or something poor fucker, haha haha,
terrible carry on all right, fucking animals out there, haha haha.”
15. That final voice recording was timed as having occurred at 8:08pm when he was
travelling back in the taxi to his mother’s house. He was arrested there at 8:15pm.
According to the evidence at trial, the second and third set of messages referred to above
were clearly sent earlier in the evening. It is not entirely clear at what point the voice
message took place in the series of messages he was sending to Mr. Ryan, but it seems
to have been part of that conversation.
16. Admissions were made on his arrest on the 16th July, 2017 at about 8:17pm following his
arrival home in a taxi. He said “I didn’t mean it ma, I didn’t mean to kill him. It was only
a couple of straighteners. He kept coming at me. I told him to get away from me or I’d
murder him”. He was noted as being emotional at the time of his arrest.
17. The final admissions were made while in detention. The appellant made a voluntary
statement which was submitted to Gardaí through his then solicitor. In this statement he
said he recalled a confrontation. He said that he had gotten cornered and the man came
swinging punches and kicks at him. He tried to fight back but was rugby tackled to the
ground. They both exchanged blows and both fell to the ground. The appellant got to his
feet, but the deceased grabbed his leg and tried to bite him. He kicked him in the head
to get him away from him and he went unconscious. He said he didn’t intend to kill him.
He was defending himself. He expressed remorse.
18. An interview took place later that day when the appellant was questioned on the
statement. He stood over his statement and added little to it. He said that he himself
was caught with a nice few and that he literally had to knock him out to stop him. He
said it was a tragic accident.
19. Objection to the admissibility of the transcript of the voice recording was taken by counsel
on behalf of the appellant. He submitted that its value was more prejudicial than
probative as it did not contain an admission of any sort and at best it might be
characterised as kind of tasteless. The prosecution submitted that the probative value
exceeded its prejudicial effect.
Page 4 ⇓
20. The trial judge permitted its admission on the basis that it was probative of what
happened on the night in question. In terms of the prejudicial effect, the trial judge held
it was a finely balanced decision. She held that it did not show in any poorer light than
the previous evidence.
21. The trial judge agreed, in respect of character evidence, it is not permissible for the
prosecution to use the audio message in respect of the accused’s state of mind on an
occasion at that distance from the event in question.
22. On appeal, counsel for the appellant submitted that this message had to be seen in its
context. The voice message appears to have been overheard by the taxi driver and that
they were of questionable probative value and obviously prejudicial and going against his
character. In relation to prejudice, counsel submitted that any finely balanced evidence
had to fall on the said of the presumption of innocence.
23. In the view of this Court, this was evidence that was clearly relevant to the issue of what
had occurred on the night in question. The issue for the jury had been one of whether
this was manslaughter because of excessive self-defence or because of provocation. It
was a matter for the jury to decide if this actually amounted to an admission, but on its
face, it is clear that it was an admission. It was an acceptance of wrongdoing i.e. going
to jail, in the context of the death of the man in Swords who was kicked to death. insofar
as it is submitted that it was not an admission, this is rejected.
24. The primary issue before the trial judge was whether its prejudicial value outweighed its
probative value. The probative value refers to the weight of the evidence. Counsel for
the appellant submitted its weight was quite diminished in the context of all the other
admissions. It is important to examine what the meaning and context of what is
contained in the voice recording.
25. The reference to going to jail in this voice recording clearly related to the killing of the
deceased as it was linking to the second sentence in the transcript; i.e. that it was about
the death of the man in Swords. The appellant made admissions earlier that clearly
linked him to this death. What gave this particular admission significant weight was his
admission that the man was kicked to death. This was an admission that had to be seen
in the context both of the admissions before, which had only referred to punches, “one
dig” then “30 digs” and to his subsequent statement that he gave the deceased one kick.
This was an admission by him that he understood that he had kicked the man to death
and not merely punched him. It was also an important admission in the context of its
timing because it showed the evolution in his admissions as to what violence he had
inflicted on the deceased.
26. In respect of the issue of prejudice, the appellant submits that this showed him in a
callous light and was of a gratuitous nature to go before the jury. In the present case this
was evidence of an admission by the appellant as part of a series of conversations mainly
through social media messaging he had with his friends. It formed part of his developing
narrative of what had occurred less than 24 hours earlier; his unlawful killing of a man he
Page 5 ⇓
had never met before. It is difficult to see in that context how it could be said that his
own admissions on that very issue could be so prejudicial as to outweigh their probative
value. Normally, that would only occur where a completely gratuitous or irrelevant
matter was being put before the jury.
27. Occasionally however, there may be a situation where admissions directly relevant to the
case are so prejudicial that they must be excluded out of fairness towards an accused
person. This is far from such a situation. There was already evidence in the case of a
relatively callous indifference on the appellant’s part by the inclusion of smiling as well as
crying emojis after he had said that he did some damage to the deceased, that he “gave
him about 30”. These emojis came in the context of admissions where he had already
messaged to say he had killed the man. The “haha” comments or indeed the reference to
“fucking animals” must be viewed in that context.
28. A judge is entitled to take a view that an issue in a case is finely balanced. A judge is
often called upon to determine issues that a finely balanced. The issue is determined by
the application of the principles. The main principle at issue was whether this evidence
was more prejudicial than probative. There is no basis for holding that the trial judge
erred in law or in fact in deciding that the evidence was more probative than prejudicial
and in admitting this transcript of the voice recording into evidence.
29. The Court therefore dismisses this ground of appeal.
Ground Two
The learned trial judge erred in law and in fact in failing to correctly direct the jury on
the appropriate burden of proof in circumstances where a defence of provocation had
been raised.
30. The appellant submits that the trial judge was in error on the burden of proof in respect of
the defence of provocation. The trial judge said as follows: -
“In considering what happened on the street that night, if you conclude on the
evidence that Mr Walsh acting in self defence employed more force than was
reasonably necessary, but no more than he honestly believed to be necessary, then
you should return a verdict of guilty of manslaughter. If having considered the
issue of self defence, you are satisfied [beyond] a reasonable doubt that you may
convict of murder, then you should consider the issue of provocation. Before
finding the accused guilty of murder, the prosecution must establish beyond a
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.
There must be evidence of a sudden and temporary loss of self control rendering
the accused so subject to passion as to make him for the moment not master of his
mind. 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.
Page 6 ⇓
I must emphasise that this burden is not discharged merely by pointing to evidence
that the accused lost his temper or was easily provoked. You should examine the
evidence upon which the plea of provocation is put forward”.
31. In written submissions reliance was placed upon the fact that the appellant had relied on
both the defence of self-defence and the defence of provocation. It was submitted that
these issues are so highly interlinked that a jury is inevitably vulnerable to confusion
between the two, and in such circumstances, there is a duty on a trial judge to be utterly
vigilant in his or her charge to ensure any confusion is avoided.
32. In light of that submission, it is a particularly curious feature of this case that counsel for
the appellant at the trial made a requisition in respect of self-defence and the burden of
proof, but no requisition was made in respect of provocation. The trial judge did not
accept that she had erred and stated that she thought she had been fairly careful about
the burden remaining on the prosecution. She agreed however that she would remind
them the burden lay on the prosecution in considering the defence of self-defence.
33. The jury raised two questions during the course of their deliberations; they asked for the
judge to address them again on the definitions of murder and provocation. In respect of
provocation, the judge repeated her charge including the reference to the burden as
above. Again, counsel for the appellant made no requisition.
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.”
35. It is a striking feature that the same counsel drafted the notice of appeal which included
this ground. It appears that the appellant requested a new senior counsel to represent
him at the appeal. His present senior counsel submits that this is not the type of scenario
that was so deprecated in Cronin (No. 2). He referred to it as a type of halfway house
situation, there was no trawling of the transcript and there had been an early realisation
that there was an error and an appeal made on that basis.
36. Senior counsel for the appellant did accept that the importance of the reference to the
word “burden” in the charge, “did not strike those engaged in the trial as being of
accepted that the charge was “text book” on provocation. In this regard, it must be said
that it can only have been meant that it was “text book” other than this.
37. As was acknowledged in Cronin (No. 2), there has to be some error or oversight of
substance which is sufficient to ground an apprehension that a real injustice has occurred
before the court should allow a point not taken at trial to be argued on appeal. In Cronin
(No.2), it was stated that there had to be an explanation as to why the point was not
taken at trial. At best in the present case, there is an indication that the error in the
charge was only realised after the conviction and before grounds of appeal were drafted.
Page 7 ⇓
This does not appear to be a case where it can be construed as a situation where the
defence were trying to obtain a tactical advantage in not bringing this requisition to the
attention of the trial judge.
38. The issue is whether there has been an error of substance which grounds an
apprehension that a real injustice has occurred. At the outset, it can easily be rejected
that this was a case where the trial judge failed to differentiate between the two
defences. She did so scrupulously and warned the jury accordingly.
39. The core of the issue is that by reference to the burden not being discharged merely by
pointing to evidence that the accused lost his temper or was easily provoked, this
suggested an onus on the accused.
40. Is important to recall the basis on which a plea of provocation is left to a jury. In the first
place, the judge must decide if there is evidence capable of raising the issue of
provocation. Thereafter, it is a matter for the jury to determine the credibility of that
evidence. As Barrington J. stated in People (DPP) v. Kelly (Keith) [2000] 2 IR 1: -
“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 carefully to consider it and to decide whether it is or may be credible”.
41. Counsel for the appellant relied upon the following “model charge” indicated by Barrington
J. in Kelly above: -
“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
a reasonable doubt but also to negative beyond reasonable doubt any defence
raised by the accused.”
42. In her charge to the jury, the trial judge repeatedly referred to the burden of proof being
on the prosecution. She repeated this several times when charging them specifically on
the defence of provocation. Indeed, her final words to them when she repeated her
directions on provocation were as follows: -
“So I must emphasise it is a subjective test, not an objective test. If you find that
the accused was provoked, then the offence of murder is reduced to manslaughter.
And as in all matters, the burden rests with the prosecution.”
Page 8 ⇓
43. Her reference to a burden not being discharged merely by pointing to evidence that the
accused lost his temper or was easily provoked has to be seen in context. It was in the
context of referring to the evidence on which the defence had asked and were permitted
to raise provocation. This was evidence that the defence had pointed to the jury as
evidence of the provocation of the appellant to the legal standard i.e. total loss of control.
While this is not a burden in a legal or evidential sense, the reference in the course of the
charge to “burden” cannot be said to have indicated to the jury that the appellant had
borne any such burden. This was a particular use of the phrase to indicate that it was not
sufficient for the evidence to be that the appellant lost his temper or was easily provoked.
It was an invitation to the jury to examine that evidence, which examination is clearly
called for in the decision in Kelly above.
44. With the value of hindsight, including those who represented this appellant at trial, a
better way of phrasing this could have been used. Does this phraseology in an otherwise
“textbook” charge give rise to an apprehension that there is a risk of injustice? On careful
consideration, this Court is satisfied it does not do so. The charge was perfectly clear
throughout as to the burden remaining on the prosecution. It was repeated specifically in
the context of the defence of provocation. The use of this word in its context at the trial
did not strike any of the experienced practitioners on both sides (bearing in mind the duty
on counsel for the prosecution) that this charge was in any way defective or impinging on
the presumption of innocence. It is also clear that the last words the jury heard were that
the burden remained on the prosecution to disprove provocation.
45. This ground of appeal is also dismissed.
46. Accordingly, the Court will dismiss the appeal.
Result: Dismiss