THE COURT OF APPEAL
Neutral Citation: 2022 IECA 305
Court of Appeal Record No. 152/2020
President
McCarthy J
Kennedy J
BETWEEN/
THE PEOPLE (AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENT
AND
KIERAN GREENE
APPELLANT
JUDGMENT of the Court delivered on the 11th day of November 2022 by Mr Justice McCarthy
1. This is an appeal by Mr Greene against his conviction on the 25th of February 2020 for the murder of Patricia O'Connor (his partner's mother) on the 29th of May 2017. The murder occurred at the home which the appellant shared with the deceased, her husband Augustine, Mr Greene's partner Louise (the deceased's daughter) and their three children. One Stephanie O'Connor was also a daughter of the deceased but did not reside in the same house. One Keith Johnston had been Louise O'Connor's partner and by him she had had two children. Neither Mr Johnston nor their children resided there either.
2. Augustine O'Connor, Louise O'Connor, Keith Johnston and Stephanie O'Connor were charged and tried with the appellant for the offence of impeding Mr Greene's apprehension or prosecution for that murder contrary to sections 7(2) and (4) of the Criminal Law Act, 1997. Mr O'Connor pleaded guilty to the offence at the commencement of the trial and the others were convicted. The appellant's contention that he should be tried separately was rejected.
3. The evidence against the appellant was based on his admissions to the Gardaí.
4. On the 1st of June 2017 Augustine O'Connor and a Richard O'Connor reported to the Gardaí that the deceased was missing. This gave rise to a missing persons inquiry. Between the 10th of June 2017 and the 14th of June 2017 human body parts were discovered in the Dublin and Wicklow mountains in several locations (nine in all). The body parts were not initially thought to be those of the deceased but were in due course identified as such. Fifteen parts were found. In the course of the post mortem it was established that there were no defensive wounds to the body and that certain dismembered portions thereof exhibited cut bones and soft tissue to the point where it was conceived (on the expert evidence of the State Pathologist), that some portions the body had been dismembered with the aid of a power tool such as a power saw. Others were conceived to have been dismembered leaving a different residue and it was conceived that those portions were dismembered with the use of a handheld saw. Dr Curtis took the view that death resulted from blunt force trauma to the head, and in particular a minimum of three blows. He concluded that such blows had been struck to the head with a solid implement giving rise to a number of scalp lacerations and a fracture.
5. The appellant attended at Rathfarnham Garda Station voluntarily on the 12th of June 2017 and made extensive admissions over a number of days. The core proposition in his interviews in June 2017 was that he was engaged in a struggle in the bathroom of the family home and was struck on more than one occasion by the deceased with a hurley. He in turn obtained the hurley and hit her on a number of occasions in the course of the struggle. Subsequently they both fell to the floor and continued the struggle - both were said by him to have banged their heads on the tiles. He contended that he had acted in self-defence (and indeed the alternative verdict of manslaughter was left to the jury on that ground); he took sole responsibility not merely for the homicide but for cleaning the house to hide the crime and, said that he had taken the body by car and buried it in a shallow grave. He returned there some days afterwards, recovering the body, dismembering it and scattering parts in various locations.
6. After he had been arrested and charged with murder and whilst he was in prison on remand on the 9th of December 2017 the appellant made a request to speak to the Gardaí again. In the course of the interviews then conducted, as a consequence of that request, he said, contrary to his earlier admissions, that, in fact, the fatal blows were inflicted upon the deceased by Augustine O'Connor, who arrived at the scene during the struggle and that he bore no responsibility for her death but that he had agreed to take such responsibility. He further stated that he was assisted in the disposition of the body and in particular dismemberment by Mr Johnston. Ultimately, it was on this basis that he sought to defend the case and there is a sense accordingly in which he relied on a so-called "cut-throat" defence.
7. He said that Augustine O'Connor had intervened and hit the deceased twice with an iron bar in the nature of a crowbar; the deceased, he alleged, had sought to strike Mr O'Connor with the hurley. He alleged that the latter said to him at the scene that he had been defending the appellant and that the appellant "could take the rap for this". It was for that reason that he took responsibility for what had occurred. Needless to say the admissions made by him were evidence only against him and not the co-accused.
8. Extensive evidence was of course given as to the immediate circumstances in which the co-accused had sought to cover up the homicide including the false assertion that the deceased had gone missing. Other steps were taken to give the impression that the latter was true with a view to excluding any engagement either in the murder itself or thereafter. There was no evidence of engagement in the homicide against any party other than the appellant.
9. The sole count on the indictment against the appellant was one of murder. The particulars given in each count against the co-accused are clear in describing their involvement. In the case of Augustine O'Connor it was alleged that he made the false missing person report at Rathfarnham Garda Station on the 1st of June 2017. It was alleged against Louise O'Connor that on the 29th of May 2017 she agreed to, or acquiesced in, one Stephanie O'Connor disguising herself as the deceased in order to conceal the fact of death. In turn, it was alleged against Stephanie O'Connor that she so disguised herself on the 29th of May 2017 in order to conceal the fact the fact of Patricia O'Connor's death. In the case of Keith Johnston it was alleged that on the 9th of June 2017 he had purchased certain items for their deployment in the concealment of the remains.
10. The narrative given by the appellant in his interview whilst in prison largely conformed with the core allegations in accordance with those particulars as to the involvement of the co-accused other than Augustine O'Connor but his primary engagement was with Mr Johnston. In his December statements the appellant said that he buried the deceased's body in what might be called a temporary (shallow) grave in County Wexford, and, in the company of Mr Johnston dug up the body with the aid of the items purchased by him, was jointly responsible for its dismemberment and scattering of the portions thereof.
11. The appellant appealed against the conviction on the following grounds.
Grounds of Appeal
12. The grounds of appeal against conviction are as follows: -
i. The learned Trial Judge, or presiding judge of the Central Criminal Court, failed to grant the Appellant's application for separate trials, where the prosecution unnecessarily made the conviction of the Appellant a condition precedent for the conviction of the other accused and where the particulars of offence in the counts laid against the co-accused clearly indicated a view or conclusion by the DPP as to the Appellant's guilt of the charge preferred against him.
ii. The learned Trial Judge erred in permitting the trial to proceed in circumstances where there was excessive specificity in respect of the charges laid against the Appellant's co-accused, in that counts were laid against such co-accused alleging offences of aiding and abetting where the principal offender was unnecessarily stated to be the Appellant such as to undermine the independence and impartiality of the jury's consideration of the charge against the Appellant.
iii. The learned Trial Judge erred in refusing to allow the defence of provocation go to the jury.
iv. The learned Trial Judge erred in refusing to allow the substance of the admissions by the Appellant's co-accused, Augustine O'Connor, and certain content in his interviews by An Garda Síochána, to be led in evidence.
v. The learned Trial Judge erred in refusing to allow an alternative count under section 7(2) of the Criminal Law Act, 1997 to be considered by the jury in their deliberations.
vi. The learned Trial Judge erred in refusing to allow the Defence to lead the evidence of Mr Glanville, forensic psychologist, in respect of Mr Greene's intelligence quota.
13. We will deal with each ground accordingly.
Ground I - The learned Trial Judge, or presiding judge of the Central Criminal Court, failed to grant the Appellant's application for separate trials, where the prosecution unnecessarily made the conviction of the Appellant a condition precedent for the conviction of the other accused and where the particulars of offence in the counts laid against the co-accused clearly indicated a view or conclusion by the DPP as to the Appellant's guilt of the charge preferred against him.
Ground II - The learned Trial Judge erred in permitting the trial to proceed in circumstances where there was excessive specificity in respect of the charges laid against the Appellant's co-accused, in that counts were laid against such co-accused alleging offences of aiding and abetting where the principal offender was unnecessarily stated to be the Appellant such as to undermine the independence and impartiality of the jury's consideration of the charge against the Appellant.
14. We will deal with these grounds together as they are closely connected.
15. The appellant in his submissions referred to the provisions of section 6(3) of the Criminal Justice (Administration) Act 1924 affording a trial judge a discretion to order separate trials. For ease of reference we set out that well known provision as follows: -
"Where, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of such indictment."
16. Reference was also made in them to AG v Joyce 54 Cr App R 233 where Sullivan P said (as he then was) said (it is a long-established rule which is entirely uncontroversial): -
"Where, as in the present case, persons jointly indicted plead not guilty, the trial judge may direct that they be separately tried if, in his opinion, separate trials are desirable in the interests of justice. The trial judge has a discretion in the matter which must be exercised judicially. The exercise of such discretion may be reviewed by this court and a retrial directed, if we are satisfied that a refusal to direct separate trials has resulted in a miscarriage of justice."
17. Furthermore counsel in their written submissions referred to Ludlow v The Metropolitan Police Commissioner [1970] 54 Cr App R 233 but we need not have resort to the decisions of another jurisdiction on this issue. The appellant's core submission is as follows: -
"Some prejudice to one or other accused is inevitable in any joint trial, the critical question before an appellate court in these circumstances is whether, by reason of the joint trial and the trial judge's refusal of the application for separate trials, there has been a substantial miscarriage of justice, or to put the matter another way, whether improper prejudice has been created against an accused. It is submitted that, due to the way the counts against the appellant's co-accused were particularised, due to the way in which the counts against the appellant's accused were particularised, the partiality of the jury could not have been maintained because, irrespective of how decisive the warning given by the trial judge to the jury, the reality of the trial would be that the jury would receive an issue paper which made the guilt of the appellant a condition precedent of the co-accused's counts thereby directly or indirectly influencing the jury by:
218.1 providing the Director's assessment of the appellant and co-accused liability;
218.2 providing the Director's view that the co-accused knew or believed that the appellant was guilty;
218.3 providing the Director's view that Agustin O'Connor had not murdered the deceased thereby undermining the defence of the appellant; and
218.4 creating an inappropriate link between the appellant and co-accused cases which in practical terms meant that if the jury acquitted the appellant, then they would also have to acquit the other co-defendants in the case."
18. It is clear from the indictment that the prosecution case was that the appellant, as he acknowledged in his interviews with the Gardaí in June 2017 killed the deceased in circumstances amounting to murder and that the co-accused were accessories after the fact (to put the matter shortly). Needless to say if any one of the accused was tried (whether alone or jointly) this would have remained the case. It need hardly be said that in every case where the Director makes allegations of criminality in a trial against a party the simplistic proposition could be advanced that the Director has made an assessment that the facts are to a given effect and that a particular party (whether tried alone or jointly) is guilty of a given offence and, indeed, whether or not the co-accused are charged with the same or a similar offence. In law, of course, the Director is a minister of justice and places the evidence before the jury but with an entitlement, and indeed an obligation, to submit that the jury can and perhaps should convict the accused of the charge laid if the evidence warrants it. In no sense does the manner in which the charges were framed give rise in any trial to the implication that the Director has taken some view on the merits. A jury will decide the case on the evidence and not otherwise. There is accordingly no basis upon which the eventuality canvassed might be of any substance.
19. Insofar as it is suggested that the process of a joint trial created "an inappropriate link" between the appellant and the co-accused's cases which, in practical terms, meant that if the jury acquitted the appellant then they would also have to acquit the other defendants in the case. We do not think that this could possibly have been so; the jury was told to treat each accused separately and not to rely on the evidence against one in the case of another, in the normal way. In any event if this proposition is correct this could not have prejudiced the appellant; an advantage might or might not have been conferred on the co-accused since the prosecution nailed its colours to the mast, so to speak, of proving, insofar as each one of them was concerned, that the killer was the appellant when they need not have done so. It could not in any circumstances undermine the appellant's case if, for whatever reason, the jury acquitted one of the others. Of course, a co-accused might be acquitted if, for example, the prosecution was not in a position to prove beyond reasonable doubt against that accused, on the evidence against him or her, that co-accused knew or believed that the appellant was the killer. Anything said by the appellant was not evidence against them.
20. The prosecution in no circumstance could (or should) have presented some form of artificial or sanitised version of events to the jury and undoubtedly the prosecution against each of the co-accused was required to prove that the appellant killed the deceased. There was no reality to the prosecution alleging that someone else had done so given the circumstances.
21. As to the form of the indictment reliance is placed on R v Brindley [1971] 2 QB 300; it is said that the English Court of Appeal "confirmed that the prosecution does not have to prove that the defendant knew the identity of the person who committed the arrestable offence". That is an uncontroversial proposition. The authority has nothing to say about whether or not the prosecution must (or may not) in the particulars of the offence identify the principal offender. It does not inhibit the prosecution from identifying the principal offender. It is suggested that the consequence of giving those particulars was that a situation resulted "whereby, when the jury was considering the issue paper in relation to the charges against the appellant and his co-accused... [they were]... faced with the dilemma that, if they acquitted the appellant, they would also have to acquit the co-accused..." whereas if the wording of each count did not identify the appellant this might not be so; it is said that this "co-dependency" created a prejudice as it "contravened" the idea that these matters were separate trials conducted together, or, that when considering the co-accused's cases the identification of the appellant as the killer would give rise to an assessment by the jury of the admissions made by the appellant when deliberating. There is no "co-dependency". The appellant could not be prejudiced by virtue of the fact that the prosecution chose to refer to him in the particulars of the offences in the counts against the other accused. We might comment that in the context of these submissions there is no mention of the fact that manslaughter was left to the jury.
22. The judge was right to reject the contention that separate trials were appropriate.
23. We therefore reject these grounds of appeal.
Ground III - The learned Trial Judge erred in refusing to allow the defence of provocation go to the jury.
24. For the purpose of addressing this ground the appellant, in his written submissions, has referred to portions of his interviews with the Gardaí in what he describes as tranches (nine in number). We think it necessary to refer also to this evidence (in the form in which it is set out in those submissions) but we caution that it must be seen in context and that on any view the portions quoted are, putting the matter at its most generous, at the high water mark of any advancement of the defence of provocation. They are as follows: -
"The first tranche of evidence came from the first interview of the Appellant conducted on the 12th June 2017:
A: We were fighting over the cat, so she went back up to bed shortly later I got back from Tallaght. They went out to the Park, Louise & the Skids. When they came back to house, she came back downstairs & started another fight. Then Patricia O'Connor stormed out the door. The kids & Louise went up to because they were trying to avoid her. Gus went up as well. It was around 8.30/9pm. She came back about 12 or a little after. I was in the bathroom & the door opened. She picked up a hurl & she hit me with it & moaning at me to 'get out, get out'. She hit me on the this (sic) wrist (right) & on the side & kept saying 'get out'. I was trying to protect my face and I grabbed it & hit her and then we went into the bathroom. I really don't know what happened then, I woke up and saw blood everywhere, I panicked.
The second tranche of evidence came from the second interview of the Appellant, conducted on the 12th June 2017:
A: On the day what happened I was in my Ma's in Tallaght, with the kids for a few hours, came back to the house, Patricia was going mad that the cats got into her bedroom. My partner and my kids and the other two kids (the 5 of them) went out to the Park. They came back an hour or 2 later. Patricia was fighting again moaning again, more or less the same that nobody listens to her, the same. Louise the kids, except Leanne was in the room shouting verbals, I was there. Patricia constant she gives out to the kids, she says we're leeches, more or less what I was getting for the last 10 years. Patricia walked out left she had a case and stuff obviously different clothes and stuff.
The third tranche of evidence also came from the second interview of the Appellant, conducted on the 12th June 2017:
A: Yeah. After that shortly after they all went to bed. Louise and the kids and Gus shortly after yeah. I was in the sitting room I was sleeping there, probably nodded off, after that probably 12 o'clock or after I was in the bathroom and the door opened. It was Trish, she said get out she picked up a hurley. She hit me on the arm, this arm here, the right arm. I was trying to block and there right and side as well. She kept swinging it. I was trying to grab it and block as well. I grabbed the hurley, tried to swing it, I was doing that for a little while. I was trying to grab it and take it off her. I was just hitting her. I don't know what happened, whether I got hit again or what, I just remember me waking up and she was on the ground. I don't know if I was dreaming then, I thought I saw my dead Uncle, he was passed as well.
The fourth tranche of evidence came from the interview of the Appellant, conducted on the 13th June 2017:
Q: How come you slept downstairs that night
A: There is no room, it's mattresses on the floor. She won't let us get beds. Sometimes I sleep upstairs, Louise sleeps downstairs we switch over from time to time
(K.G. sobbing, crying)
Q: You said you couldn't let her hurt them anymore. You just wanted to protect them
A: She was verbally abusive on a constant basis, always threatening to have us killed, mostly Gus. Wanted us out and him gone. Especially after she found she has Graves disease (my partner).
The fifth tranche of evidence came from the interviews of the Appellant, conducted on the 14th June 2017:
Q: Thank you. now Kieran, tell me what you meant when you told me and Kieron about the 'long ten years' and ' 10 years of hassle'?
A: Basically it's just constant, there's not one day she doesn't give out, assault, horrific stuff, the kids hide under the table, the girls go upstairs. [go up to my ma's a Jot with them to avoid confrontation. Even at that if you do she say (sic) "Ah, are you going up to your part time Grandparents". My ma would bring them to the cinema and all but the mother in law wouldn't do anything with them. Over the years it was getting worse. One of the years one of those plastic shell shaped kids toys, we bought sand in one side, water in the other. One year she fucked a shovel at it and smashed it. She used to throw Christmas toys our half of the toys weren't cheap. Two remote control Dinosaurs, they weren't cheap €120, Christmas before last.
The sixth tranche of evidence came from the interview of the Appellant, conducted on the 14th June 2017:
Q: Has it got worse over the years Kieran?
A: Yeah another time she kicked my eldest one out. She was on the streets. Patricia kicked Stephanie out. When she found out that Stephanie had went to her Da's she said she should have been left on the streets and raped.
Q: What life did your kids have with Patricia?
A: A nightmare. Couldn't have friends in, couldn't play in, play out.
Q: Was it effecting the way they grew up, their childhood?
A: Think so. The eldest little fella likes to dress up in girl's clothes, wear wigs. She calls him a faggot. (sobbing)
The seventh tranche of evidence came from the interview of the Appellant, conducted on the 14th June 2017:
Q: As you hit Patricia give me one word of how you felt?
A: Terrible, stressed angry. I didn't purposely bang bang bang till she was dead, it wasn't like that.
Q: You knew it was going to come.
A: It wasn't planned not intentionally, I defended myself. I couldn't overpower her, it was hard. If wanted to kill her why would I wait 10 years. I've co-operated.
Q: You've said you defended yourself, you couldn't overpower her, it was hard, you've told us it went on for 15-20 minutes. Did you shout for help?
A: No. 1 was still in shock I was dazed. I'd never been in trouble. She hit me in the head, I was dazed, stumbling. Why didn't she shout as well? We were all over the shop.
Q: What was being said? Was it a noisy row?
A: Not really no, she mumbled something; she said get out then a scuffle, struggle. That was it, we fell, stumbled. I got cloncked on the head as well. I was asking her why she hit me. She was saying I want yis all dead. She was saying....
Q: Was this in the bathroom?
A: yeah, she was saying stuff.
Q: Tell us what was being said? You're decent, tell us what was being said?
A: She kept hitting me. She kept saying I want youse out I want youse dead. She was hitting me. 1 was grabbing it and hitting her back.
Q: What else did she say?
A: She wanted Gus dead, get him sorted, wanted us dead one at a time, starting with Gus she wanted everyone dead all the way down to the kids. I'm not a bad person. You ask any family member. It wasn't planned, she came and hit me. If anyone said that about your kids you'd do more or less the same. She hit me hard, winded me. Only she slipped and... and hit her head I reckon I could have been dead now. I'm not strong.
The ninth tranche of evidence came from the interview of the Appellant, conducted on the 14th June 2017:
Q: Why did you let her die?
A: I didn't, it wasn't planned. It was to keep my kids safe. A woman beat you up, no one would have believed it. 'Get away out of that'. I didn't lie because she would say I'd hit her first, I let her die because my kids would be safe."
25. Of course it is the case that the use of some magical formula alleging provocation or the loss of control is not necessary so that a party can rely upon the defence - indeed the use of such a formula may not of itself be enough to raise it. It can be seen that in the interview notes there are references to the background in the household, the supposedly aggressive and violent attack on the appellant giving rise to the offence, conflict with, and allegedly obnoxious behaviour over time by the deceased. The proposition that the appellant did not intend to kill or cause serious injury (and this is the thrust generally of what was said by the appellant) is irrelevant to this defence.
26. The definitive authority on the question of provocation is DPP v McNamara [2021] 1 IR 472 and we refer to a number of the conclusions of Charleton J, there. He said (at para 61) that: -
"For provocation, there must be a sudden, and not a considered or planned, loss of self-control. The total loss of all control to the degree that it is not merely losing your temper but, instead, is such a complete overwhelming of ordinary self-restraint, in the face of what was done or said, that the accused cannot help intending to inflict death or serious injury, and could not stop himself or herself inflicting this deadly violence."
and he went on (at para 63) to say that: -
"Loss of self-control must be in response to a genuinely serious provocation, not a mere insult, by the victim. The provocative act by action or gross insult, is required to be outside the bounds of any ordinary interaction acceptable in our society. ...The defence of provocation does not apply in situations where ordinary people, sharing, if relevant, the same fixed characteristics as the accused, as to age or sex or pregnancy or mental infirmity or ethnic origin or state of health would be able to exercise self-restraint in the same background circumstances as apply to that accused. People can be provoked, but jury should always remember that there are degrees of provocation and there are also degrees of reaction in being provoked. Where the accused did, and that accused claimed mental state, must be judged against that background. Such total loss of self-control to the degree of an intentional use of fatal violence must be genuine. Thus, jury will reject the defence if it is regarded as fabricated."
Furthermore, (at para 57) he pointed out that: -
"If the jury would be acting perversely in finding provocation, the judge cannot leave the defence for their consideration..."
27. The judge in the present case ruled on the issue of provocation in these terms: -
"There is of course material indicating the background in relation to the unhappy differences and conflict that went on in the family at 66 over a period of time, which is evidenced by Mr Richard O'Connor and others in the course of their statements made and interviews with An Garda Síochána and that material is there, but in terms of something that was said or some provocative act at the time of the killing of Mrs O'Connor that is said to be identifiable I don't find it in the materials before the Court. I have looked for it but I just simply can't see it. Most of the material to which it references is candidly acknowledged as historical and provocation in those circumstances to my mind is simply not available on the evidence, even though it's a low enough threshold to aspire to."
and: -
"I'm mindful of the authorities, that there has to be something there and it's not to my mind even that minimal threshold reached in relation to provocation."
He then concluded by stating that: -
"I have heard two further applications, essentially, renewals of applications in relation to matters upon which the Court has ruled in respect of whether the provocation arising on the evidence in the case. I am satisfied, was satisfied, remain satisfied that it does not remain in the case for the reasons already given. I am not satisfied in any sense that any the submissions made by counsel, which are, of course, submissions in relation to the jury, go any way towards the provocation defence. They're a summary in relation to the law of intent, which I do not find to be anywhere a summation in respect of an alleged or, suggested defence of provocation, which still lacks the essential elements, even though it's a low threshold, notwithstanding the second submission in relation to it, that is required for such an offence, and the ruling stands."
28. We think that the judge was right. Having regard to the authority quoted by counsel there was no basis for leaving the defence of provocation in this case to the jury on the evidence; we accept that there may be a certain flexibility in cases of domestic violence on the basis that since the personal background of each accused and the context of any offence must be taken into account - it may not be possible to treat a given event in isolation. There is nothing here which approaches such a basis.
29. We therefore reject this ground also.
Ground IV - The learned Trial Judge erred in refusing to allow the substance of the admissions by the Appellant's co-accused, Augustine O'Connor, and certain content in his interviews by An Garda Síochána, to be led in evidence.
30. This aspect of the matter is rooted in what was apparently said by Augustine O'Connor to a Garda Quinn at Rathfarnham Garda Station on the 1st of June, whereby he reported his late wife as being missing. In cross-examination by counsel for the appellant as to whether or not he had indicated "that he had no relationship with her [his deceased wife] at that time and indeed frequent arguments" Garda Quinn agreed that he had so indicated. This question was asked after the propriety of doing so was raised with the trial judge. In particular, Mr Devally indicated to the judge that he wished to ascertain whether or not the witness had been informed by Mr O'Connor that arguments with his wife "were frequent, that she was difficult to live with", and that the arguments he described as "perennial or ongoing" were believed by Garda Quinn to be arguments between Mr O'Connor and the deceased. He did not in fact go so far because his question was limited in the terms to which we have referred. He said he would not seek to assert the truth of what was said. Counsel told the judge that he was "not really trying to put in anything more than a full account of what Mr O'Connor's missing person report and the context". It was further submitted at trial that he would accept: -
"...of course, if you think that this is a means of trying to prove or establish the true relationship between the parties, and if that's my only reason for putting it forward it shouldn't go in because the prosecution can't or nobody else can gainsay its contents and it's pure hearsay if it's to establish that. I am attempting to show that Mr O'Connor went to certain lengths, not merely a mute bystander with regard to his son Richie's concerns about his mother's absence [Richard O'Connor their son attended at the Garda Station with him] but elaborate lengths as to previous disappearances and the fact that she had nothing really to come back to, no relationship with him. And that that is an indicator of the lengths to which Mr O'Connor was prepared to go..."
31. He went on to characterise what Mr O'Connor said on that day about his relationship with his wife as "his false account". It seems that he accepted then and later that such evidence if admitted could not be relied upon as proof of the nature of their relationship. The judge took the view that what was sought to be done was introduce hearsay evidence about the relationship between Mr O'Connor and the deceased. However he considered that the jury should hear the context in which the report was made to the effect that the deceased was missing - but not to prove that what was said by Mr O'Connor was factual about his attitude to her or their relationship. He considered that what was said was of relevance to show that the Gardaí were informed of the deceased's disappearance and admitted it for that reason.
32. Later, on the 6th of February 2020, counsel for the appellant sought to elicit evidence as to what had been said in interviews with Augustine O'Connor, conducted on the 2nd of September 2017, on the premise that the version of events which he gave on that occasion as to his relationship with his wife was different to that of May since it was to the effect that, to put the matter shortly, the marriage was a happy one. In his written submission to this Court it is said that the appellant: -
"...wished to elicit evidence to show that Augustine O'Connor, having been arrested in respect of an allegation of the murder of his late wife Patricia O'Connor, now made certain statements in the course of his memo of interviews on the 2nd September, 2017 indicating that he had a favourable or good relationship with the deceased Patricia O'Connor, which was in contrast with what was said by him when he made a false complaint to Garda Quinn on the 1st June, 2017 about the disappearance and whereabouts of his wife."
It appears that in the first of such interviews he referred to the fact that he had paid €80,000 for dental work for his wife ("she had a big smile", he said) and later referred to the fact that the home was a happy one and that he loved and respected his wife. In a second interview when asked about their relationship he had apparently said that "it was sound" and they "got on", referring also to the fact that he loved his wife "no matter what people think".
33. Counsel in their written submissions disavowed any intention to elicit this evidence for the purpose of proving as facts some aspect of the relationship between the two (being a similar approach to that taken earlier in the trial about what was said, apparently, by Mr O'Connor to Garda Quinn) but rather to show that Mr O'Connor gave what are characterised as: -
"...two contrasting versions of his relationship with the deceased [whether true or not], first when reporting her missing and secondly when detained and questioned by An Garda Síochána on suspicion of murder ... these tranches of evidence were necessary for the appellant successfully to put forward his defence that Augustine O'Connor warranted further investigation by An Garda Síochána and that he murdered the deceased."
34. Counsel rightly said that reported speech is not per se inadmissible but rather it is inadmissible only if it is sought to prove as a fact what was asserted in a proper understanding of the words articulated. Reference in this context was made to Leopardstown Club Limited v Templeville Developments Limited [2010] IEHC 152 where Edwards J had held that: -
"Where a document is produced by a party who proposes to rely upon the statements it contains, not as evidence of their truth by way of an exception to the hearsay rule, but to show for some legitimate purpose that the statements (whether or not they be true) were in fact made, then the document is properly characterised as non-hearsay original evidence (otherwise original evidence)."
35. It was suggested that the Gardaí, having regard to what was apparently said by Mr O'Connor to them, ought, perhaps, to have pursued further the idea that he was in fact the murderer and that it was some part of the defence that there was some act or omission on their part. This is an extraordinary proposition. It could not in law be part of a substantive defence that the Gardaí could have done more - there was no suggestion that they were acting in bad faith. The jury were called upon to decide the case on the evidence and whether or not, speculatively, the Gardaí might or might not have taken further investigative steps or might or might not thereafter have in some sense elicited or obtained further evidence did not go to whether or not the accused was guilty or not guilty (or guilty of manslaughter) on the merits. The absence of evidence in this instance at least was not of evidential value, if such a thing could ever be possible. Thus if and insofar as it may be sought to impugn the order of the judge rejecting the appellant's contention that the material ought to have been admitted for this purpose there is no basis for it - it was irrelevant and hence inadmissible. A desire to raise such an issue does not mean in law that it is permissible to do so.
36. Whilst in the present case it was sought to prove what had been said by Mr O'Connor in the course of the interviews of the 2nd of September in cross-examination of one of the Gardaí engaged, the same principle applies whether or not the statement was to be given orally in evidence or in a documentary form. The inconsistency could only be shown, of course, by virtue of the fact that the judge had allowed evidence of the conversation with the Gardaí between Garda Quinn and Mr O'Connor as to, or to the effect that, Mr O'Connor had "no relationship with her [the deceased] at that time and indeed frequent arguments". Counsel for the appellant argue in their written submissions that that the document (there appears to have been a conflation of the concepts of production of a signed memorandum of interview and oral testimony from the garda) was intended to be produced "...to show that Augustine O'Connor adapted contrasting postures depending on the circumstances (presumably going to show bad character) and to lend weight to the admissions made by the appellant insofar as the accusation of Augustin O'Connor murdering the deceased warranted further investigation by An Garda Síochána".
37. This leaves the issue of whether or not because, as a fact, there was some inconsistency between what was said on the 1st of June and in two interviews on the 2nd of September, the material ought to be admitted to show that Mr O'Connor had adopted "contrasting postures depending on the circumstances". There was, prima facie, an element of inconsistency. Whether he had adopted contrasting postures or not cannot be admissible because his stance in relation to the matter has no relevance to the appellant's case. It was sought, presumably, to rely upon the fact that he adopted contrasting positions with a view, to put the matter no further, to showing that he was a person capable of acting in bad faith or, perhaps, of telling lies. In effect, accordingly, as pointed out by prosecuting counsel in argument at the trial, this was an attack on Mr O'Connor's character - no more or no less.
38. We cannot set out here in extenso the very comprehensive ruling of the trial judge but he said at the end of his ruling that: -
"The object of this exercise is to take materials and the consequence of this exercise would be to take the material out of its context and it would distort the flow of interviews and what actually happened in relation to the investigation of Mr O'Connor's involvement in these events and what he was actually saying in relation to his relationship with his wife. I would invite the jury to infer that by reason of the lie told they should tend to believe that he was involved in the killing of his wife."
39. Needless to say, in any event, what was said could only be received in its context - presumably the entirety of the interviews and the conversation which preceded them on the 1st of June, at least. The law has long acknowledged that individuals tell lies for various reasons and the most wide-ranging enquiry would have been necessary - this was recognised by the judge. What was sought to be done cannot be sanitised by simply saying it was not for the purpose of showing lies were told. One is thrown back on any view on the proposition that it was merely an attempt to show him as being a person of bad character for the purpose of buttressing the proposition that he killed the deceased. The evidence was collateral and irrelevant; bad character, if it were so, of a party not before the court cannot be relevant whether the accused is guilty or not guilty. Hence this evidence was rightly held inadmissible.
40. We therefore reject this ground of appeal also.
Ground V - The learned Trial Judge erred in refusing to allow an alternative count under section 7(2) of the Criminal Law Act, 1997 to be considered by the jury in their deliberations.
41. Section 7(3) of that Act provides: -
"If, upon the trial on indictment of an arrestable offence, it is proved that the offence charged, or some other offence of which the accused might on that charge be found guilty, was committed but it is not proved that the accused was guilty of it, the accused may be found guilty of an offence under subsection (2) [the offence of impeding the apprehension or prosecution of the offender] of which it is proved that he or she is guilty in relation to the offence charged, or that other offence."
Section 9(2) of the same Act provides: -
"If, on an indictment for murder the evidence does not warrant a conviction for murder but warrants a conviction for any of the following offences -
(a) Manslaughter, or causing serious harm with intent to do so, or
(b) any offence of which the accused may be found guilty by virtue of an enactment specifically so providing (including section 7(3)."
42. The appellant says that in both what was said in June 2017 and December of the same year the appellant accepted that he had engaged in the disposal of the deceased's body after the homicide and whilst he had accepted that he killed the deceased in June he denied that he was guilty of the homicide when he spoke to the Gardaí in prison in December.
43. It was submitted that within the context of the appellant's case the offence of section 7(2) should have been left to the jury; it is submitted that it was appropriate on "a reasonable view of the facts" to do so; it is said, the judge fell into error and required the jury to make a choice between the charge of murder (or presumably manslaughter) and a finding of not guilty - which it is said unfairly disadvantaged the appellant. It is said that the jury might, unconsciously but wrongly, have allowed its decision to be influenced by considerations extraneous to the evidence - and, it seems, that what is meant by this is that they might have convicted of murder (or perhaps manslaughter, although the latter was not mentioned) rather than acquitted him when they ought to have done so, because they might have regarded his behaviour as criminal. In this context his conduct (even on his own case) is conceded to have been "outrageous" and "deplorable". We cannot see how the jury might have allowed such a consideration to have influenced them. They would have acted on the evidence in accordance with their oaths and there is no reason to suppose that this or any other jury would have been influenced by extraneous factors and certainly that they would not have unconsciously been unwilling to acquit him of murder when the alternative, so far as they were concerned (this is how it was put to us even though manslaughter was canvassed), was that he would be found not guilty. If jury verdicts are to be respected, such a contention must be regarded as entirely without foundation and it is the obligation of the court to respect the constitutional provision that cases of the present kind (that is to say indictable offences rather than those which might be considered to be of minor importance such as summary offences) can only be decided by our fellow citizens. This observation is also applicable to what we have said earlier about joint trials, severance, the form of the indictment, and the prosecution case.
44. We reject the proposition that there could be any question that the jury might have convicted because they were reluctant to see the defendant "get clean away with" his criminality. It may be, as said in R v Coutts [2006] UKHL 39 that it is: -
"...contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of choices offered, particularly when, as here a particular choice was not the only or inevitable choice."
45. If this is a truism or a generality of the broadest kind it does not for a moment mean that the jury would have acted otherwise than on the evidence as presented in respect of each accused who were to be dealt with separately in accordance with their oaths, and wrongfully convicted.
46. The prosecution submit that it was at all times the prosecution case that the appellant murdered the deceased and that at no stage did the respondent assert or claim that Mr O'Connor (or indeed anybody else) was guilty of the homicide. Therefore, it is submitted, it would have been inappropriate, unfair and contrary to the preponderance of the evidence to advance the proposition that the appellant was guilty of an offence under section 7(2) of impeding the apprehension or prosecution of the offender was available as an alternative verdict. Effectively it is submitted (in the prosecution's written submissions) that there was a clear choice available to the jury between a finding of guilt, of murder (again no reference to manslaughter), one of not guilty and no other verdicts; this is an oversimplification. The Director further submits that in Coutts it was held that justice was best served by leaving to the jury any obvious alternative offence where there was evidence to support it, that one was only concerned with viable (our emphasis) alternative verdicts and that no duty to raise the question of alternative verdicts would arise where to do so would not serve the interests of justice or undermine the fairness of the trial. The prosecution further relies on R v Fairbanks [1986] 1 WLR 1202 (quoted with approval in Coutts) that "the [a] judge could properly conclude that it was best not to introduce an unnecessary complication and distract the jury by forcing them to consider something which was remote from the real point of the case". We presume that the prosecutor's submission embraces the potential for a manslaughter verdict.
47. The issue of leaving the alternative charge in question to the jury was referred to by counsel on the 14th of February 2020 and the judge gave his ruling on the 17th of February. The judge dealt with the matter on that day (so far as Mr Greene was concerned) in these terms: -
"...The issue that arises in this case arises specifically in respect of section 7 in terms of alternative verdicts and I've heard submissions in relation to matters from all parties in relation to it. In terms of the first matter, which arises in this context, as to whether I should, in the circumstances, direct the jury in relation to a potential alternative verdict in respect of Mr Greene's case..."
and: -
"I think that would be a wholly unfair thing to do in the circumstances and wrong, having regard to the position of the prosecution who do not assert, claim or submit to the Court in any shape or form that Mr Augustin O'Connor was guilty of the killing of Mrs O'Connor. And it is not part of the case against his client made by the prosecution in the course of this case, in fact it would be contra the case made by the prosecution if that were to be submitted to the jury for their determination on the count which Mr Greene faces. And it seems to me that it would be inappropriate, unfair and wrong in the circumstances to put that scenario as part of a factual position, which might be adopted by them as an alternative verdict."
48. Later in the trial, on the 24th of February, a requisition was made of the judge on his charge. It was sought of the judge that he recharge the jury to allow the offence pursuant to section 7(2) to be considered. Coutts and Fairbanks were quoted in that regard. Even though the matter had already been dealt with, the judge entertained the submission and, in his ruling, set out its basis somewhat more comprehensively than he had done earlier. We cannot set out here in extenso what the judge said in that regard. We feel it will suffice if we quote the following extract: -
"With the greatest of respect to the submissions made and the judgment of the House of Lords in R v. Coutts, the principles are unexceptional as set out in R v. Coutts. I do not feel and do not consider that, having regard to the rulings made earlier in the trial, that they're inconsistent with the principles laid out in that decision or the other decision opened to the Court. It seems to me in this case the alternatives -- the fundamental propositions being put forward in this case are in relation to the death of Mrs O'Connor and Mr Greene's involvement in it. He has given two versions in relation to the matter. It is a matter for the jury to determine whether they're satisfied beyond reasonable doubt that he killed Mrs O'Connor. If they're not so satisfied he would be acquitted. If they are satisfied he did kill her, then they would go on to consider whether he had the necessary intention for murder, to kill or cause serious injury, or whether the issue of self-defence arises for him in relation to the matter. In respect of the suggestion that I should go a further step and direct them on an alternative verdict in respect of section 7(3) arising in respect of the disposal of her remains, it reaches a stage at which the focus in any particular trial as a matter of fairness has to be maintained in respect of the facts upon which -- not simply advanced by the prosecution but on the basis of which the case has been run and the issues that really arise for determination.
The real issues in the case in respect of Mr Greene arise in respect of the death of Mrs O'Connor and his alleged involvement in it. In respect of the suggestion that an alternative verdict might be open in respect of section 7(3) in respect to the disposal of her remains, if he were to be acquitted of the simpliciter and a not guilty verdict, it seems to me that the thrust of that submission is based on a proposition that the jury would be entitled to consider a verdict that he was engaged, knowing and believing that Mrs O'Connor had been murdered by Mr Gus O'Connor or in some way unlawfully killed by Mr Gus O'Connor. That is the focus of the reality of the point raised, in circumstances where if he were acquitted in respect of the matter one would have to speculate as to what basis he was acquitted. On what basis would he be acquitted in those circumstances: that there is a reasonable possibility that somebody else killed her; that there is a reasonable possibility that Mr Gus O'Connor killed her? It does not seem to me that the jury could be invited to convict him on section 7(2) basis in those circumstances and it would be wholly unfair to do so and certainly not the prosecution contention that it should be done."
49. We think that the judge was right and that there was no "viable alternative" open to the jury on the evidence other than the verdicts of guilty of murder, not guilty of murder but guilty of manslaughter, or not guilty simpliciter.
50. We therefore reject this ground also.
Ground VI - The learned Trial Judge erred in refusing to allow the Defence to lead the evidence of Mr Glanville, forensic psychologist, in respect of Mr Greene's intelligence quota.
51. It was sought on behalf of the appellant to introduce the evidence of Mr Glanville, Consulting Clinical Psychologist, primarily as to the IQ of the appellant. The prosecutor objected to the receipt of such evidence. The issue was addressed by reference to Mr Glanville's report and that is not before us. It appears from the Transcript that what was sought to be done was adduce evidence as to "...the personality assessment... together with the summary save that part of the summary that gives an opinion with regard to any account offered by Mr Greene". Counsel explicitly disclaimed an intention to adduce the evidence so as to invite a conclusion as to which of the accounts given by the appellant should be accepted, or whether or not he had the mens rea for murder. In substance he accepted that these were matters purely for the jury. Counsel said that the proposed evidence was: -
"...very narrow. It is really so that the jury can understand of (sic) Mr Greene that in giving his accounts in June 2017 and his further account in December 2017 he laboured under, and labours under, some impairment for each and that this has an effect upon or can have an affect upon the coherence that he has laid out with respect to his account in each case, not unequal in any degree and not changed by circumstances, and therefore not to be measured as preferring one to the other. I am in the position that Mr Greene has presented to Mr Glanville, if we ... as somebody who has a full scale IQ score of 72, placing him as somebody in the lo average to mild intellectual disability grouping, between 68 to 77 in IQ, and with a prospect that only three percent of the population would have his or worse impairments of that degree, and that ninety six percent ... would pace themselves in a more advantageous position in relation to their intellectual attainment. And it is purely for that purpose that I wish to bring this forward."
and later: -
"...that in the mix is Mr Greene's difficulties or impairments, and that I should be allowed express those as fully as this, and not merely by implication in other evidence [or in evidence from a person or persons who are acquainted with him] so that the jury can assess the nature of those statements as coming from him, rather than the truthfulness of those statements..."
Further, counsel said that he was contending that: -
"...the capacity revealed [by the evidence sought to be adduced] or lack of it in Mr Greene is of assistance to the jury in deciding be it in a count no. 1, notwithstanding the explanation you offer, or a count no. 2, that some of these inaccuracies may not be in fact, intend advise at all, and that is of importance in their interpretation of Mr Greene's statements."
52. Counsel for the Director fundamentally submitted that regardless of the intellectual functioning of the appellant, credibility was a matter for the jury and that they needed no assistance in relation to why people lie.
53. The judge ruled on the matter very comprehensively. He pointed out inter alia that the report contained: -
"...numerous sections which review the personal family background, the childhood history, educational history, occupational employment history, history of substance abuse, relationship history and the context of... the killing of the deceased, his mental health history, his presentation at interview with the psychologist and the psychometric assessment concerning his intellectual functioning, and a personality assessment, concluding then with a summary and opinion."
54. It seems, having regard to what the judge said in summarising the results of the psychometric assessment [which was the basis for the conclusion as his IQ], the report was to the effect that: -
"It shows his overall level of intellectual functioning in the borderline range of ability and such that he is in a third percentile of his age group, 97% of whom could be expected to score higher than he does. The results indicated that his strongest area of intellectual functioning was with verbal comprehension and his processing speed was extremely poor. Overall, these results indicated that he was likely to experience difficulty in keeping up with peers in a wide range of situations that required age appropriate thinking and reasoning abilities."
55. The judge quoted further passages from the report with special emphasis on the summary and ultimately indicated that it was sought to introduce only what was described as a limited element of it which "concerns essentially the IQ assessment and aspects of the psychometric assessment" and his understanding was, and it appears correctly so, that what he described as a very net element of the professional assessment was sought to be given, characterised by him as "...the scale assessment of his IQ as set out in the report".
56. He held that the credibility of what the appellant had said to the Gardaí fell to be assessed by the jury by reference to the contents of his admissions and, to put the matter shortly, the evidence as a whole and referred to the fact that there were limitations on the use to which professional assessments of the present kind can be put, under our law. He correctly said that there were difficulties as to the provenance of the report in the sense that it was unclear what the terms of the retainer or enquiry on factual matters and what was said by the appellant to the psychologist, all of which gave rise to concern about the assessment sought to be given and the ultimate opinion on credibility (although the latter was not sought to be put before the jury). The essence of the report was an opinion reached of which the psychometric assessment giving rise to the IQ was only one element - and what was sought to be done only that one element would be put before the jury. He asked rhetorically "what are they to make and what conclusions or inferences are they to draw from the existence of this assessment".
57. He answered that question in these terms: -
"The answer to that seems to be none, because if the conclusion that is set out in the report is to be drawn, it would be inadmissible in respect of the opinion that is set out ultimately in the report. That is the ultimate conclusion that is set out in his professional opinion by Mr Glanville. They are to speculate, in effect, as to what [the] effect of this condition or assessment should be in relation to their assessment of the witness and his credibility or otherwise and that is not permissible. They are not to be left at large with such information, more particularly when it is not relevant to what, in effect, they have to decide, which is credibility of a witness who is not said to be in any way suffering from any incapacity and, like every other human being, can make a decision - it's a moral decision - as to whether to tell lies or not tell lies."
He further stated that there was nothing in what it was proposed to be put before the jury of: -
"...a professional nature that would indicate any reason why the moral compass of an individual will be distorted by their IQ in terms of whether they tell the truth or not. Lies are unfortunately an unhappy feature of human affairs and they pollute communications between people and they are to be assessed for what they are ... It is really, in a sense, that issue [credibility] should not be the subject, in my view, of an intervention of this kind, which can have an effect which, although it is not contended for is, it seems to me unrealistic to think it wouldn't have an affect or is not calculated to have an effect on the jury in relation to how they approach that determination, which is really one for them to make."
58. This ruling was made in the light of the authorities opened to him which, of course, included The People (DPP) v Campion [2021] 2 IR 1. The issue of expert evidence and its admissibility was extensively addressed there. Since the trial judge there had not been asked to receive expert evidence as to the reliability of the witness in that case O'Malley J (with whom the other members of the court agreed) considered that "...the court should not attempt to resolve the question of the parameters of the admissibility of evidence of this nature, and that it should be left to a case where the issue truly arises" [as here]. The decision is nonetheless of considerable assistance.
59. In Campion the court was concerned with how the issue of the competence of a witness might be addressed. This involved, in the circumstances, consideration of whether or not expert testimony (and in that case the evidence of a psychiatrist) was admissible on that issue; the court also had to consider whether or not a trial judge had a power to compel an individual to undergo a medical (psychiatric) examination (it had not) whilst the question of competence of a witness was one for the judge and that of credibility or reliability of a competent witness was one for the jury. As to whether expert evidence was admissible to assist the jury in their task O'Malley J considered both overseas and Irish authorities. She said (at para 141, pp 37-38) that: -
"...The general rule is that expert evidence about the credibility of a witness would, far from being an essential proof in the case, be inadmissible. The question in this case is whether, or to what extent, the court should consider that it comes within an exception to the general principle."
60. The prosecution in Campion was wholly or mainly dependent upon the evidence of an accomplice who had a history of engagement with what we think we might shortly describe as therapeutic services in respect of mental health; the defence wished to enquire into the issue of whether or not he suffered from a mental illness and primarily based on notes pertaining to that engagement a number of psychiatrists reported on his condition. It does not appear to be in doubt, however, but that in principle expert testimony can in some limited circumstances be received on the questions of credibility or reliability and it was on that basis, correctly, that the judge in the present case engaged with the issue.
61. There are a number of authorities which are of further assistance on the point. In People (DPP) v Kehoe [1992] ILRM 481, where the defence of provocation was raised, psychiatric evidence in support of it was adduced but, as pointed out by O'Malley J, it was the subject of adverse comment by the trial judge in charging the jury. The conviction was upheld and the Court of Criminal Appeal ruled that the doctor could not give any relevant admissible evidence as to the state of mind of the accused that the accused could not give himself. In People (DPP) v Yusif Ali Abdi [2005] 1 ILRM 382 it was stated that "the court was aware that there was a body of law suggesting a broader role for psychiatric evidence than that described in R. v Turner [1975] Q.B. 834". Whilst the modern line of authority on the topic begins, as was pointed out by O'Malley J, with R v Toohey [1965] AC 595 we think that Turner is of particular assistance on the facts of the present case. The issue there was not whether or not the accused was mentally ill but whether or not his relationship with his girlfriend made him particularly vulnerable to be provoked by her behaviour [the appellant's defence to the charge of murder was one of provocation]. There, the conclusion was that it was not within the bounds of admissibility of expert opinion, the purpose of which was (in principle) to furnish the court with scientific information that was likely to be outside the experience and knowledge of a judge or jury. Jurors did not need psychiatrists to tell them how "ordinary folk who are not suffering from any mental illness" were likely to react to the stresses and strains of life. Similarly, the evidence was not admissible for the purpose of explaining the defendant's credibility - he had to be judged as someone who is not mentally disordered, and that was "what juries are empanelled to do".
62. For the reasons the judge elaborated we think that he was right in this case to refuse to receive the evidence. It went to reliability or credibility. It was simply not necessary for the jury to have such testimony when addressing the issue of reliability or credibility and hence it was not admissible on the facts. We therefore reject this ground also.
63. We accordingly dismiss this appeal.
Result: Dismiss