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THE COURT OF APPEAL
Neutral Citation: [2025] IECA 121
Record No. 185/2023
Edwards J.
McCarthy J.
Kennedy J.
MICHAEL AHERN
Appellant
V
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
JUDGMENT of Mr. Justice Edwards delivered on the 28th of April 2025.
Introduction
1. This is an appeal brought by Mr. Michael Ahern (i.e., "the appellant") against the judgment and Order of Meenan J. in the High Court refusing the appellant leave to apply by way of judicial review for certain reliefs. The appellant had sought leave to apply for diverse reliefs by way of judicial review, arising from his prosecution for, and conviction of, assault contrary to s. 2 of the Non-Fatal Offences Against the Person Act 1997 ("the Act of 1997") before Cork City District Court, and subsequent District Court Appeal proceedings before Cork City Circuit Court, with both of which proceedings he was dissatisfied.
Background to the Matter
2. The background to this case lies in unhappy differences between two brothers, Mr. Michael Ahern and Mr. Donal Ahern who live in contiguous dwellings on a farm property near Midleton, Co. Cork. It appears that there is a single two storey farmhouse on the property, but that it was subdivided at some time in the past to create a main farmhouse in which Mr. Donal Ahern lives with his wife and children, and under the same roof a separate self-contained two storey dwelling unit, described in evidence before Cork Circuit Court as "essentially a granny flat", in which the appellant has resided since returning from America some years ago, and in which their mother also resided up until she went into a nursing home.
3. Mr. Donal Ahern is understood to hold the legal estate in the entire farm property, including both the farmhouse and the aforementioned self-contained dwelling unit, but it is subject to a right of residence reserved in favour of his mother and brother entitling them to reside in the aforementioned self-contained dwelling unit. Both the main farmhouse and the self-contained dwelling unit have separate entrances leading out to the farmyard. However, there is also an internal door connecting both on the ground floor of the building, and there was evidence before the Circuit Court that this was usually kept locked by the appellant.
4. The root cause of the unhappy differences between the brothers, and how far back those differences stretch, is not clear either from the evidence adduced before the High Court, or before Cork Circuit Court, but there seems little doubt but that they are of long standing and that they run deep. In the lead up to an incident on the 28th of November 2018, central to the present litigation, relations had deteriorated to the point where the appellant had equipped both the inside and outside of the dwelling unit in which he lived with numerous CCTV cameras as a precaution against possible intrusion by his brother and his brother's family. Moreover, when moving about the wider farm he wore body cameras attached to various parts of his body which were constantly recording.
5. It appears that one source of contention between Mr. Donal Ahern and members of his immediate family, on the one hand, and the appellant on the other hand, is that the appellant keeps quite a number of domestic pets, including at least one dog, as well as several cats and rabbits. These pets are seemingly kept indoors in the appellant's dwelling unit, and they were asserted in evidence received by Cork Circuit Court to be the source of soiling with animal excrement, and smells, to the prejudice of the amenities of Mr. Donal Ahern and his family.
6. Against this background, there was an incident on the 28th of November 2018 in the course of which Mr. Donal Ahern was alleged to have assaulted the appellant in the yard outside their respective dwellings, by spitting into the lens of one of the appellant's body cameras. After having done so, Mr. Donal Ahern proceeded to enter the appellant's dwelling and to go upstairs to a room wherein the appellant had a number of rabbits. He was seemingly pursued by the appellant, and it is uncontroversial that an altercation between the two brothers then ensued. There was a physical encounter in which Mr. Donal Ahern attempted to knee the appellant in the groin, following which, the appellant accepts, Mr. Donal Ahern began to retreat. He was pursued back down the stairs by the appellant. The precise sequence of events during this pursuit, and who did what, is disputed as between the parties. For present purposes it is sufficient to state that it is common case that at a point on the stairs where there is a small return there was some further physical engagement, as a result of which they both ended up falling the rest of the way down the stairs.
7. The appellant subsequently made a complaint to gardaí that he had been assaulted by Mr. Donal Ahern, and Mr. Donal Ahern made a cross-complaint that he had been assaulted by the appellant. The gardaí decided to issue adult cautions to both men. Mr. Donal Ahern was willing to accept the caution issued to him. However, the appellant refused to accept a caution. In consequence of that refusal, he was summoned to answer a charge before Cork District Court of assault contrary to s. 2 of the Act of 1997. He was found guilty of that charge, and he thereafter appealed, unsuccessfully, to Cork Circuit Court.
The application for leave to bring Judicial Review proceedings
8. In his ex parte application to the High Court, the appellant initially sought the following reliefs:
"i. an order of certiorari quashing the order of the Circuit Court Judge sitting at Cork City Circuit Court (Appeals) on 11 January 2023.
ii. a declaration that the manner in which the District Judge sitting at Cork City District Court conducted the District Court proceedings was such that the applicant's right to a fair trial was violated to such a degree that he was denied access a court of first instance.
iii. an extension of the application time limit in which to apply for leave to apply for judicial review".
9. The appellant's application was grounded upon an affidavit sworn by him on the 17th of April 2023, verifying the facts set out in his proposed Statement of Grounds. In paragraphs 6 to 11 inclusive of the proposed Statement of Grounds the appellant set out the grounds on which he believed that he was entitled to an extension of time within which to bring judicial review proceedings (relief iii, claimed by him); in paragraphs 12 to 15 inclusive of the proposed Statement of Grounds the appellant set out the grounds on which he contended he should be granted relief by way of judicial review in respect of so much of the proceedings as took place in the District Court (relief ii, claimed by him); and in paragraphs 16 to 66 inclusive of the same document the appellant set out the grounds on which he contended he should be granted relief by way of judicial review in respect of so much of the proceedings as took place in the Circuit Court (relief i, claimed by him). I will review, to the extent necessary, the specific grounds pleaded in more detail later in this judgment.
10. In so far as the claim for an extension of time was concerned (relief iii), the High Court judge found it unnecessary to deal with this, in circumstances where he was not satisfied that the appellant had demonstrated an arguable case for the substantive reliefs claimed by him (reliefs i and ii, respectively). I am satisfied that this approach was entirely sensible. In a similar vein I would defer consideration on this appeal of any question of possibly extending time until we have first considered whether the appellant has prima facie demonstrated an arguable case for substantive relief on any basis.
11. The appellant has accepted at the oral hearing before this Court of Appeal that in so far as he was seeking to impugn what had happened before the District Court in intended judicial review proceedings, that application was misconceived in circumstances where he had subsequently appealed his conviction by the District Court to the Circuit Court. Accordingly, in so far as the appeal relates to the High Court's refusal of relief ii, that matter is no longer being pressed.
12. In relation to relief i, the appellant is dissatisfied with how his District Court appeal was dealt with before Cork Circuit Court. In essence, he contends that in dealing with his appeal the Circuit Court judge failed to apply the law and indeed got the law wrong. He contended that she had failed to engage properly with his claim of self-defence, and in particular his claim to have been acting in defence of his property and pets; and that in that regard she failed to have proper regard to the constitutionally protected inviolability of his dwelling as guaranteed under Article 40.5 of the Constitution, and to certain provisions of the Non-Fatal Offences Against the Person Act 1997 and the Criminal Law (Defence and the Dwelling) Act 2011. Further it was contended that the Circuit Court judge had wrongfully failed to apply the correct burden and standard of proof, and indeed had wrongfully applied a reverse onus with respect to the appellant's claim that he was defending himself, his dwelling and his pets. We will come back to these complaints.
13. A number of other matters are pleaded in support of relief i, which we have been advised are no longer being pressed. These include complaints about the Garda investigation or lack thereof, and the failure of gardaí to inform him that he was under investigation before he was summonsed. As the Circuit Court judge, against whom relief i is sought, had nothing to do with any of that, the decision not to press this point was wise.
14. The appellant had also pleaded bias on the part of the Circuit Court judge in regard to how she conducted the District Court Appeal proceedings. We were informed at the oral hearing of this appeal that the bias complaint is no longer being pursued.
15. Yet another ground pleaded in support of relief i was a complaint of ineffectual representation by counsel. The gravamen of this complaint is that the appellant's counsel failed to follow the appellant's specific instructions to raise certain legal issues with the Circuit Court judge. However, it was confirmed to us at the oral hearing of this appeal that this complaint is also no longer being pursued in the context of the present proceedings. Again, as the Circuit Court judge, against whom relief i is sought, had nothing to do with how the appellant was represented, and would not have been privy to what instructions might or might not have been given by the appellant to his counsel, the decision not to press this point was wise.
The Pleading of Relevant Grounds
16. The appellant's Statement of Grounds set out five main grounds in support of the claim for relief i by way of judicial review, which are pleaded across 55 paragraphs (i.e. from paragraphs 9 to 11 inclusive, and from paragraphs 16 to 66 inclusive), and which when distilled to their essence may be summarised by quotation of the following extracts:
"Ground 1: Legal Certainty
Paragraph 22 - The legal framework that applied was the Criminal Justice (Defence and the Dwelling Act) 2011 the statutory enactment of the Constitutional right to defend one's dwelling.
Paragraph 23 - The physical location of the alleged offence (in the applicant's dwelling) and the status of the complainant (a person who had entered the dwelling) was sufficient to raise the "defence of the dwelling" defence without any further evidence being adduced.
Paragraph 24 - The applicant was not tried under the 2011 Act and no reference was made to its existence or its provisions, the proofs necessary under the act were not proved, and the Circuit Judge made no reference to them in her judgement.
Paragraph 25 - The Circuit Judge erred in law by not applying the correct legal framework, thereby breaching the principle of legal certainty as well as the applicant's rights to a trial in due course of law and the applicant's right to defend his dwelling per statute and the constitution."
"Ground 2: Reverse Onus
Paragraph 26 - The Prosecution and Circuit Judge erred in law by not applying the correct burden and standard of proof, i.e. those that apply in criminal proceedings. The applicant's right to a trial in due course of law was thus violated along with his right to the presumption of innocence.
Paragraph 27 - The Circuit Judge accepted the prosecution's proposition that once a defence is raised by a defendant, the defendant then needs to prove that defence to the standard of 'the balance of probabilities'."
"Ground 3: Errors in Interpreting and Applying the Law
Paragraph 30 - The applicant was found guilty of a breach of s.2 of the [Non Fatal Offences Against the Person Act 1997]. Notwithstanding Ground #1, (the failure to apply the 2011 Act's framework), even per the 1997 act, including s.18, the defence, prosecution, and judge(s) erred in law by failing to apprehend that, by law:
a. in determining whether the use of (reasonable) force was justified by law it was the circumstances as the applicant believed them to be that were to be assessed
b. it is immaterial whether the applicant's beliefs were justified so long as they were honestly held
c. any evidence relating to the presence or absence of reasonable grounds for the applicant's belief, was relevant evidence and should have been gathered and made available for consideration by the court
d. the possible justification for the use of force extended beyond the applicant's physical person to include his property and to prevent crime
e. it was a necessary proof of the offence to prove that the applicant acted "without lawful excuse" per the 1997 Act. (Required proofs for the 2011 Act were not even considered, per Ground #1, but are in any event, in line with those of the 1997 Act.)"
"Paragraph 34 - The trial was therefore not conducted in due course of law."
"Ground 4 : Failure to Inform Applicant of Existence of Allegation/Investigation"
[Mentioned for completeness, but as stated already not pursued on the appeal]
"Ground 5: Bias"
[Mentioned for completeness, but as stated already not pursued on the appeal]
The High Court's judgment
17. We are only concerned at this stage with so much of the High Court's judgment as relates to the remaining grounds being advanced in support of the appellant's substantive claim for leave to seek to quash by order of certiorari the decision of the Circuit Court judge dismissing his District Court Appeal. The basis on which that leave application was refused by Meenan J. is apparent from a transcript of the leave hearing with which we have been provided:
"JUDGE: What do you say went wrong in the Circuit Court?
MR AHERN: In the Circuit Court, essentially, the judge ruled that, as the threat had passed to my person, I was guilty of assault, but that there was no allowance made for my defending of property or whatever. But also, the main problem is that, because the assault had took place in my dwelling, the correct law was the defence of the - The Criminal Justice Act –
JUDGE: Yes, but that's not a -- those aren't points for judicial review.
MR AHERN: Pardon?
JUDGE: They're not points for judicial review. You may well disagree with the –
MR AHERN: Well, Judge, if I may –
JUDGE: Well, just listen to me now for a minute. You may well disagree with the decision of the Circuit Court judge as a matter of law, but that does not entitle you to seek an order to judicially review that Court.
Mr AHERN: Well, Judge, my position is that, in a situation where there's a specific law implemented for a specific set of circumstances, then it's a breach of the principle of legal certainty to use another law.
JUDGE: Well, it may be, you know - unfortunately, believe it or not, a judge has a jurisdiction to get the law wrong from time to time, you know? I'm not saying the judge in this case did, but that does not amount to judicial review. So, those aren't grounds for judicial review.
...
So, unfortunately on the basis of what you have put before me, I can't see any grounds for me to grant you leave.
MR AHERN : So, Judge, can I be clear that the principle of legal certainty and using the correct law is not a ground for ...?
JUDGE: What I'm telling you is that you have not put before me any issues concerning want of fair procedures or, for that matter, lack of jurisdiction. What you put before me is what you consider to be a mistake of law carried out by the Circuit Court judge, and that's not a basis for me to grant you leave, so I'm not granting you leave. Okay?
MR AHERN: Judge, there was another ground, no 2, regarding the reverse of onus.
JUDGE: That's the same point again. Okay? Thanks.
MR AHERN: Okay."
The Present Appeal
18. In his Notice of Appeal the appellant complains that, with respect to his pleaded main grounds of complaint, Grounds 1 and 2 were both ruled to be invalid on the basis that they were matters within the jurisdiction of the Circuit Judge and therefore unreviewable, and the hearing ended without addressing Grounds 3, 4 and 5.
19. While the appeal is no longer concerned with Grounds 4 & 5, the Notice of Appeal still complains in the context of Grounds 2 & 3 respectively about an alleged failure to apply the correct statute law, required proofs and legal tests. Further it asserts "primarily what is complained are breaches of the appellant's constitutional rights". These are later identified as rights guaranteed by articles 38.1, 40.1, 40.3.1, 40.3.2, and 40.5 of the Constitution.
20. Further, the Notice of Appeal asserts that "[e]ven if one adopts the (somewhat extreme) position that errors in law are not judicially reviewable and are instead within the jurisdiction of the lower court, no court has jurisdiction to act unlawfully or to breach a defendant's constitutional rights. Judicial Review is the correct remedy in those circumstances."
21. Following an initial listing of this appeal for hearing in Cork, it became apparent to the members of the panel assigned to hear the case that it would be impossible to properly and justly assess the merits of the appellant's appeal against the High Court's refusal to grant him leave to apply for judicial review without sight of a transcript of the proceedings before the Circuit Court judge. While the High Court judge had unquestionably been correct in asserting that errors of law made within jurisdiction are not judicially reviewable, the central point in the appellant's case arguably goes further than that in that it alleges not just an error of law made within jurisdiction, but complete disregard on the part of the Circuit Court judge of applicable law of which she had been apprised or alternatively ought to have been aware, including relevant statute law and relevant provisions of the Constitution. If that were possibly true, it might suggest, at least arguably, that the appellant did not receive a trial in due course of law as mandated by Article 38 of the Constitution, such that the appellant would have satisfied the low threshold for the granting of leave to apply for judicial review as set forth in G v. Director of Public Prosecutions [1994] 1 I.R. 374, and ought to succeed at least in his appeal against the refusal of leave.
22. In the circumstances, the Court felt it necessary to direct the preparation of a transcript of the proceedings before the Circuit Court from the Digital Audio Recording ("DAR"), and adjourned the hearing of the appeal pending the availability of that transcript. The transcript in question was subsequently received and considered by the members of the Court, following which the appeal hearing was resumed.
The Proceedings Before the Circuit Court
23. I consider it necessary and important to set forth a fair précis of the evidence adduced before the Circuit Court, of the submissions made to the Circuit Court judge, and of her ruling, for a proper appreciation of the context in which this application for leave to apply for judicial review was brought.
The Evidence
24. In the first instance the Circuit Court received evidence from Mr. Donal Ahern. He described the place where he and his family resided, and apprised the court of the right of residence enjoyed by his mother and his brother, the appellant. He further alluded to "fairly substantial difficulties" between himself and his brother.
25. He stated that on the 28th of November 2018, he and his brother had an altercation following which he went upstairs to a room in the house. His brother had followed him up to the room "with cameras". There was an altercation there. He said, "I asked my brother to stop what he was at. That the house was being destroyed. And there was an altercation took place –"
26. Mr. Donal Ahern then said, "I went to leave. He basically jumped on my back down the stairs and there was an ambulance called. I was thrown at the bottom of the stairs. That was it." Asked if he had assaulted the appellant, he added, "No, I wouldn't say I assaulted him. I went to turn to leave. I had asked him on numerous occasions to stop what he was doing but he was pointing a video into my face and smirking at me."
27. Mr. Donal Ahern acknowledged that he had accepted an adult caution from gardaí in respect of the incident, stating "Okay, so I mean, you know, I mean you have to move on with things in life."
28. Under cross-examination, he was asked as to where he was before entering the house on that occasion, and said he was in his own kitchen washing his hands and talking to his wife. He said his wife was emptying the dishwasher. As he was talking to her, he noticed "my brother video us in the windows". He said he then went to an outhouse "where my brother was videoing it", and that "I asked my brother to stop videoing us inside in our kitchen" and "I spat into the lens of the camera to stop him from videoing us."
29. He agreed that after spitting into the camera lens, he turned off the light in the outhouse, closed the door and proceeded into the part of the dwelling house where his brother, the appellant, resided. He would not accept that he was trespassing. He stated that the appellant followed him, and he agreed there was a video of what had occurred (this was later played in court). He agreed that in the aftermath of the incident he had sought an injunction against his brother, in support of which application he had sworn an affidavit in which he had stated "Unfortunately, I lost my temper. I attempted to knee him in the groin. The defendant then pushed me down the stairs."
30. It was put to him that he had attempted to assault the appellant a second time, which he denied, stating, "[b]eg your pardon, but no, sorry, I did not. I went to turn to go away and that's when my brother –".
31. The transcript further records the following exchanges:
"Q. You accept you lost your temper? You attempted to knee him and then you ran
away?
A. Yes, I went to turn away and that's by somebody who wears a camera on their belt. As I say, are looking to do setups.
Q. Would you agree with me that -- now, you said that he denied pushing you down the stairs. You said that you fell down the stairs?
A. I fell down the stairs?
Q. Mm-hmm.
A. Well, I probably did when he was on top of my back, yes.
Q. He was on top of your back?
A. Well, yes, you can see him. You have the video. I can't --
Q. We'll play the video. Because after --
A. He was coming behind me and I --
Q. Oh, well now it's different. It's different now, Mr Ahern. Is he on your back --
A. But why was he chasing me so, sir?
Q. Is he on your back or is he coming behind you?
A. So why was he chasing me?"
32. He added, "you usually follow somebody before you catch them. You don't really start off up on their back, like. You usually chase. So he chased me fast enough to catch me on the couple of steps between that and the top of the stairs."
33. It was put to him that, "on the video, I think you can clearly see that on that little return, you stop and you turn to him and he's not on your back, because he couldn't be, because we can see you in front and there's a camera pointing at you, so he couldn't have been on your back?" The witness responded, "Sir, why does somebody carry all those cameras? Only that they're trying to set up scenarios, sir."
34. The witness was pressed as follows:
"Q. My client was acting in self-defence, because --
A. He'd be in self-defence, sir, three and four and five different times a day in that case.
Q. Right.
A. Because he spends --
Q. On the 28th of November, I have to put it to you, Mr Ahern. On the 28th of November, you can clearly see it in the video when it's played, that --
A. That --
Q. -- he's not, Mr Ahern can I put the question? He's not on your back along the return. You can clearly be seen that you turned around to him, which means he couldn't have been on your back?
A. Well, he got to me before the top of the stairs, so I'm ended up at the level that you said --
Q. Well --
A. -- the eight or nine steps down --
Q. Well, your evidence today was that you fell down the stairs because he jumped on your back, but we'll clearly see that he didn't?
A. Well, sir, he ran from three or four steps around the bit of return. He was on top of my back at the top of the stairs like he was coming at me. Pushed me down the stairs and I ended up at the --
Q. But your evidence was that he jumped on your back?
A. -- I ended up, I ended up at the turn at the bottom of the stairs --
Q. Standing. And then you turned around to him and went at him again?
A. To protect myself, sir. He is chasing me, like.
Q. Okay. And you --
A. I do have to protect myself. This is my life."
35. It was put to the witness that in a statement to gardaí, he had said "'my brother pushed me down the stairs', not that he jumped on your back? That's your evidence today." Responding to this, the witness said:
"A. I was turned that way, so whether he was pushing with his hands or whether it was just that he was coming after me --
Q. But it's two very different things.
A. He was after me down the stairs, one way or the other, no matter what he was on my back, pushing me or what. He was chasing me."
36. It was then put to the witness that the appellant had given a statement to gardaí wherein he had outlined being in fear of the witness, and contending that he had acted in self defence, and that "that's why he has cameras". The witness responded:
"A. No, that's not why. He uses the cameras, sir. You do not have -- I think there's 11 cameras pointing out at the house at me. I cannot go to work. I go down to calve a cow down the lane at nighttime and he's above at the top and he's shining torches down the lane after me, like.
Q. Right.
A. This man will stand in front of a car. He would hit himself off mirrors of a car. He has threatened me that. 'I'll break a hand. It'll cost you 10 grand, to -- it'll cost you 12. Kill me', he says, 'it'll cost you 100,000.' And I will say straight up to you. I said: 'You stupid bollocks. You'll be dead. You couldn't spend it.'
Q. Right.
A. So, this man is going on with stuff for years. He has no job. I presume he's tried and if he couldn't get the money out of me, he's looking for it off my mother. He's signed statements that he's sent all the family and the siblings."
37. The video was played to the Court.
38. The witness's cross-examination concluded with the following exchanges:
"Q. Mr Ahern, I have to put it to you that he was acting in self-defence.
A. Sir, my brother has never acted in self-defence in his whole life. He antagonizes everybody.
Q. I have to put it to you --
A. Mostly me because he can get at me on the farm 24/7/365.
Q. I have to put it to you that he --
A. But I am not the only one.
Q. -- I have to put it to you, you're the one here today. I have to put it to you that your brother did not push you down the stairs?
A. Well, I don't know. Somebody who's coming fast at your back on top of the stairs and you can feel that there's hands. So, don't ask me what you want to call it. I'm the one that ended up at the bottom of the stairs. I'm not in a wheelchair or I am not in a --
Q. Thank you very much, Mr Ahern."
39. The witness was briefly re-examined, but nothing material to this appeal turns on that.
40. The only other witness called was a Garda McCabe who read into the record a preprepared and cautioned statement provided to gardaí by the appellant on the 7th of December 2018. It is appropriate to set out that statement in full:
"Date of incident, Wednesday the 28th of November 2018. Went for a walk with Sam, the dog, at 6:26, 4.26 pm. I returned from my walk at 17:30. I approached the house from the south through the house field. I opened the chained gate, entered and turned and closed the gate. As I walked on, Donal walked around the back of the house, turned a corner and stopped at the south-facing windowsill of his kitchen. As I passed him, he turned to stare at me. This is routine. I walked on to our house, unlocked the door and entered our kitchen. At 17:33, I left our kitchen to get some food from the freezer in the store house. As I passed the west-facing kitchen window, my peripheral vision picked up Donal and Margaret in their kitchen. I switched on the light as I entered the store house. I opened the freezer and began getting what I needed. Oven chips, potato croquette, onion rings and calamari.
When I was finished, I closed the freezer and saw Donal standing at his kitchen sink, waiting to stare at me as I returned to our house. This is routine. I decided to stay where I was until he moved away from the window. After a while, he got angry because I was trying to avoid his harassment. He waved frantically and wiped the inside of the window. Then he came out. I heard him before I saw him in the doorframe. He accused me of filming him and his wife in their kitchen and went on
to say that I had no business in the store house as I didn't own the freezer. I didn't speak or move. He squared up to me a few times, said he was calling the guards. I held the camera in my left hand at eye level. He spat in my face and the camera lens. He switched off the light and slammed and jammed the door shut as he left. The time was 17:38. I stayed for a moment and then left. It took me a while to get the door open. As I returned to our kitchen, I saw through the south-facing window that Sam, the dog, was inside the kitchen. Since he had been outside with me, I strongly suspected Donal had entered our house. The door was open. I now knew Donal had entered our house.
I entered the kitchen and took a few moments to appraise the situation. When I heard footsteps upstairs in my bedroom, I decided I had to go up because my two pet rabbits were in my bedroom and I feared he would kill them. This was the sole reason I went upstairs. Other than that, I would have left him at it. On my way upstairs, I noticed that the cameras that covered the north side of the house, the laneway, were strewn around the steps of the stairs. He had torn them down. I went upstairs. My bedroom door was open and Donal was in the spare room beside me. I carefully positioned myself in the doorway between Donal and the rabbits after quickly assessing that they were both still alive. He got in my face again. I did not speak. He continued to rant at me, although he was marginally calmer than he had been in the store house. He eyed the camera intently. He paced back and forth. As he approached me again, he was acting controlled. I sensed that he was going to sucker punch me. This is a pattern. He tried to knee me in the groin but I managed to draw back a little, such that I only received a glancing blow to my abdomen.
I felt him grab at my left arm but then he looked at me, still standing and he panicked and ran away down the stairs. I instinctively ran after him. At the top of the stairs, he knocked against a metal table frame and knocked a hole in the wall. At the turn in the stairs, I was hot on his heels and he turned to face me and again grabbed the camera in my left hand. We scuffled/grappled briefly and he kneed me in the hip/lower back. I think he might have done this twice in quick succession but can't be sure. It's a bit of a blur. He grabbed the hat and headlight I was wearing and ripped them from my head. We both half fell/stumbled down the last two steps to the ground level. I think I was stumbling more or less backwards. Having failed for the second time to take the camera, which was still firmly in my left hand, he slumped in the corner, feigning injury and slowly moving his hands towards his head. I heard a metallic ding from the radiator that his hand hit but I didn't hear or see his head hit the wall. His head did not hit the wall. I then spoke my first words of the encounter, saying: "Now Donie, you shouldn't come into people's house and assault them." I then called 999 and asked for an ambulance for him and for the gardaí.
From this point on, he fully committed to the role of victim. The time was 17:41. The ambulance dispatcher was asking me to do a lot of stuff and asking if anyone else was around. I decided to get his wife Margaret. I haven't spoke to her in about two and a half years, around the time she and her husband decided to coerce me into leaving my home. I opened the adjoining hallway door, which was locked and chained from our side. My niece Sarah was in the kitchen. I asked her to call her mother and ask her to come down to our side. As I walked away back down the hall, she followed me. The time was 17:45. She appeared to think my calling an ambulance was unnecessary and didn't seem overly concerned about her husband's apparent injuries. When requested, I left them alone to talk. I retreated to the far side of the kitchen and stayed on the phone with the dispatcher. After a while, Margaret coaxed Donal up, but before he rose, he asked Margaret to go upstairs to look at the mess the rabbits. She firmly replied, "No", and coaxed him to his feet. He faked a groggy stumble and pointed to the spot in the wall where he had not hit his head. He was holding my headlight as they walked out the front door together. He left the hat. The time was 17:49." Signed: "Michael Ahern, 7th of December 2018. Witness Brian McCabe, Garda 32760C."
Direction Application
41. The appellant was represented by counsel who, following the conclusion of the case for the prosecution, made a brief submission seeking a directed verdict of not guilty. He pointed to the conflicting versions in the evidence as to what had occurred. Further he submitted that, "My client has always maintained that he was in fear of a trespasser in his house and any actions that he occasioned at the end of the stairs was done in self-defence. I think it's outlined. We didn't hear but it is on the video that he said: 'Now, Donal, you shouldn't come into people's houses and assault them'. He was acting very much in self defence, Judge."
42. In reply, the State Solicitor submitted:
"Judge, obviously an application for direction at this stage has to take the State's case at its highest, which is the statement of Mr Donal Ahern and also, Judge, the statement of Michael Ahern, which has been put into evidence, in which Mr Michael Ahern says, at the top of the second page: 'I felt him grab at my left arm but then he looked at me, still standing he panicked and ran away down the stairs. I instinctively ran after him.' So, Judge, I would say to you, Judge, that at the point where Mr Donal Ahern was running down the stairs, there was the end of any issue that required self-defence on the part of Mr -- I'm getting my Aherns mixed up, Mr Michael Ahern. And when he choose, and it's his words, 'I instinctively ran after him', that's when the assault took place, Judge."
The Circuit Court Judge's Ruling on the Direction Application
43. Following these brief submissions the Circuit Court judge ruled as follows on the direction application:
"JUDGE: Very good. This is an application for a direction on the basis that the complainant here has given a number of versions of events, whether it being that his brother jumped on his back or that he pushed him on his back and on that basis, the evidence is unreliable. Sorry, it is proposed that the video shows that he turned back around on the return and turned around and that this man, Michael Ahern, was at all times in fear of a trespasser on his property and that he acted in self-defence. Mr Nyhan says that I have to take the State's case at its highest and that that is the statement of Mr Donal Ahern who says that he was jumped on; his back was jumped on and that he ended up at the bottom of the stairs. And he also says that Mr Michael Ahern's statement says that he panicked and ran away down the stairs. "I instinctively ran after him." And Mr Nyhan says that thus at that stage, any action of following him would negate the act of self-defence. I'm of the view that the prosecution case at its highest, there is a case to answer and at the moment, I accept what Mr Nyhan is saying that once somebody has turned, although there was an altercation earlier, when someone has turned and left, that there is a question mark over any self-defence defence. So I don't propose to grant a direction."
Further Submissions.
44. The application for a direction having been refused, defence counsel indicated that his client would not be going into evidence. He asked the judge to acquit his client on the basis that, "any actions that were occasioned, if there was actions, were done in self-defence."
45. The State Solicitor responded:
"If that happened, Judge, it happened as Michael Ahern was chasing Mr Donal Ahern, Judge. And in the absence of any version of the events other than that which you have heard or read, I would say the State's case is made out."
The Circuit Court Judge's Ultimate Judgment
46. Having heard these brief submissions the Circuit Court judge then comprehensively, and ostensibly accurately, reviewed the evidence that had been adduced before her, and ruled as follows:
"A direction application was made and refused and Mr Ahern did not go into evidence. He doesn't have to go into evidence. He is the accused person here. He doesn't have to say anything, but I have his statement and that sets out his version of events.
So the question here, the first question I have to decide is in relation to whether an assault occurred, which that is an unwanted touching. The allegation here is a section 2 assault, not an assault causing harm. An assault is an unwanted touching without the consent of a party and the question is did that happen? The answer is yes, it did. It's clear on the video and it's clear from both parties that an assault, I only have to deal with the alleged assault by Mr Michael Ahern on Mr Donal Ahern; Mr Donal Ahern already having accepted that he assaulted Mr Michael Ahern and accepted responsibility for that by accepting an adult caution. So, an assault did occur here, I'm satisfied, and the question is whether or not the defence which has been put up of self-defence negates that assault and in that regard, I favour the submission of the prosecution, which is that once Mr Donal Ahern had turned around and walked away, that was the end of the altercation and that any act of chasing him, either chasing him onto the landing or chasing him down the stairs, was a new act of aggression and that that then resulted in both of them ending up at the bottom of the stairs. I am satisfied that the reason this man ended up at the bottom of the stairs was because of the actions of his brother. I am satisfied that self-defence does not come into play on the basis of the reasons that I have just outlined and I'm satisfied that the case is proven against Mr Ahern and I will convict."
Submissions to the Court of Appeal
47. In written and oral submissions to the Court of Appeal the appellant contended (inter alia) as follows:
• The correct legal framework that applied to the incident for which he was prosecuted was the Criminal Law (Defence and the Dwelling) Act, 2011 ("the Act of 2011");
• This being the case, the next question is whether or not the provisions of that Act were applied in the appellant's case. The appellant submitted that they were not and that this was unlawful (over and above being a mere "error in law") and a breach of his constitutional right to defend himself, his dwelling, and the property therein.
• The appellant had a legitimate expectation that he could rely on the provisions of the Act of 2011.
• The High Court judge ruled that the failure to use the correct statute was jurisdictional and therefore non-reviewable. The appellant submits that this is an error since the Act of 2011 is the statutory codification of the constitutional right to defend one's dwelling per article 40.5 of the Constitution:
Article 40.5: "The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law",
and the failure to apply it is a direct breach of the appellant's constitutional right, thereby rising above a mere "error in law".
• The physical location of the alleged offence (in the appellant's dwelling) and the status of the complainant (a person who had entered the dwelling) was sufficient to raise the "defence of the dwelling" defence without any further evidence being adduced.
• The appellant was not tried under the Act of 2011, no reference was made to its existence or its provisions, the proofs necessary under the Act were not proved, and the Circuit Judge made no reference to them in her judgment.
• In order for the Circuit Court decision to be lawful, "in due course of law", and to vindicate the appellant's right to protect his property/dwelling, the provisions of the Act of 2011 had to be applied at least to some plausible degree in the appellant's case. This was not the case.
• The appellant submitted that the refusal of the State to acknowledge the most basic, and legally relevant, fact of the incident, its location, breaches several of the appellant's most fundamental rights, including:
o the right to defend his dwelling (per statute and article 40.5 of the Constitution)
o the right to equal treatment under the law (article 40.1 of the Constitution)
o the right to a trial in due course of law (article 38.1 of the Constitution)
• It was submitted that the Circuit Court judge had applied a correct burden and standard of proof in the appellant's case, and indeed had applied a reverse onus to the appellant's claim of self-defence. This submission was based on the fact that during legal argument in another case, involving another defendant, heard before the same Circuit Court judge on the same day, the judge had asked the State Solicitor what was the required standard of proof in respect of a defence of duress once it had been raised. The State Solicitor had replied that he assumed it was the same "as for other defences", that a defendant had to prove the defence to "the balance of probabilities" standard rather than to the "beyond reasonable doubt" standard. The appellant contends that this was not a correct statement of the position certainly in so far as self-defence is concerned, and that the correct position in law is that where self-defence is raised the defence is not required to prove anything. Rather, it is for the prosecution to prove their case against the defendant to the standard of beyond reasonable doubt, and that that involves proving that the defendant was not acting in self-defence. All a defendant claiming self-defence has to do is raise a reasonable doubt on that account to avoid conviction. The appellant argues that in the present case the prosecution, and the Circuit Court Judge (who had ostensibly accepted without demur the State Solicitor's statement as to the legal position qua the defence of duress in the earlier unrelated case) erred in law by not applying the correct burden and standard of proof in the appellant's case. The appellant's case in this regard is that the Circuit Court judge approached his case on the basis that, for him to secure an acquittal, it was necessary for him to prove on the balance of probabilities that he had acted in self-defence.
• The High Court judge again took the view that such errors in law are unreviewable. The appellant submits that this error in law resulted in the appellant's right to a trial in due course of law and his right to the presumption of innocence being violated. It was submitted that such matters are reviewable as breaches of fundamental rights, if not on the basis of being mere "errors in law".
• The appellant was found guilty of a breach of s. 2 of the Act of 1997. It was submitted that notwithstanding Ground 1, (the failure to apply the Act of 2011's framework), even per the Act of 1997, including s. 18 thereof, the prosecution, and the Circuit Court judge erred in law by failing to apprehend that, by law:
o in determining whether the use of (reasonable) force was justified by law it was the circumstances as the appellant believed them to be that were to be assessed - per the Act of 2011, section 2(1).
o it is immaterial whether the appellant's beliefs were justified so long as they were honestly held - per the Act of 2011, section 2(4).
o any evidence relating to the presence or absence of reasonable grounds for the appellant's belief, was relevant evidence and should have been gathered and made available for consideration by the court - per the Act of 2011, section 2(4).
o the possible justification for the use of force extended beyond the appellant's physical person to include his property and to prevent crime - per the Act of 2011, section 2(1) b.
o it was a necessary proof of the offence to prove that the appellant acted "without lawful excuse" per the Act of 1997. (Required proofs for the Act of 2011 were not even considered, per Ground 1, but are in any event, in line with those of the Act of 1997).
• The Circuit Judge made no reference to the necessary proofs in her judgment with all indications being that because she believed that the threat to the appellant had passed when he pursued the complainant, the appellant was guilty. No consideration (as is required by law) was given to the possibility that, when giving chase, the appellant was acting in accordance with s. 18 of the Act of 1997 act or the similar provisions in the Act of 2011.
• It was therefore submitted that in all the circumstances the appellant did not receive a trial in due course of law.
Analysis & Decision
48. I have carefully considered the arguments that have been advanced and am not persuaded that the High Court judge erred in his decision.
49. I do not believe that the evidence establishes an arguable disregard by the Circuit Court judge of either the appellant's constitutional rights or of relevant statutory provisions (being s. 18 of the Act of 1997 and s. 2 of the Act of 2011). Further, I do not believe that the evidence establishes an arguable case that the Circuit Court judge did not apply the correct burden and standard of proof in the appellant's case, much less that she applied a reverse onus of proof requiring proof by the appellant that he was acting in self-defence.
50. Rather, the evidence establishes that the Circuit Court judge clearly appreciated that the appellant was asserting that any force used by him was justified on grounds of self-defence. The judge must be presumed, in the absence of evidence to the contrary, to have known the law as to self-defence. It is not of significance that the specific applicable statutory provisions, covering both defence of one's person and of one's property (including one's dwelling), were not referenced by her in her judgment, particularly in circumstances where no specific submissions had been made to her in regard to them by either prosecution or defence. This was, after all, an appeal in a summary criminal case, very elaborate and extensive legal judgments being neither expected nor required in such matters.
51. Accordingly, it may be presumed, in the absence of evidence to the contrary, that the Circuit Court judge would have appreciated that if she was satisfied on the evidence that it was reasonably possible that the appellant had used violence on his brother Mr Donal Ahern, in circumstances where he honestly believed Mr Donal Ahern had entered his dwelling as a trespasser for the purpose of committing a criminal act, and further had honestly believed that it was necessary to use violence to protect against a threat either to himself, or to his home or to his rabbits; and was further satisfied that the force used by the appellant was only such as was reasonable in the circumstances as he believed them to be, he was entitled to be acquitted. If, however, on the run of the case the issue of possible honest but mistaken belief did not appear to be engaged, she would not have been obliged to allude to it in her ruling.
52. While no specific submission was made to the Circuit Court judge concerning either the temporal parameters of the claim of self-defence being asserted, or concerning the specific provisions of either s.18 of the Act of 1997 or s. 2 of the Act of 2011, it would have been clear from the evidence that, at least for a time, the appellant would have had some basis for believing and clearly did believe that his home, his person and his pets were under threat by his brother Mr Donal Ahern who had entered it as a trespasser and ostensibly for the purpose of committing a criminal act. In that regard, Mr Donal Ahern had admitted in evidence that he had invaded the appellant's home and had gone upstairs. He had further admitted engaging in a physical altercation with the appellant while there, in the course of which he had attempted to knee the appellant in the groin. Further, the appellant's own evidence as to the state of his belief was that he felt concern for the safety of his rabbits. In that regard he had said in his statement to gardai that:
"When I heard footsteps upstairs in my bedroom, I decided I had to go up because my two pet rabbits were in my bedroom and I feared he would kill them. This was the sole reason I went upstairs. Other than that, I would have left him at it."
53. However, the matter did not begin and end there. In order to have had a reasonable doubt, justifying an acquittal of the appellant on self-defence grounds, the Circuit Court required to be satisfied that, at the point at which the appellant is alleged to have used violence on his brother Donal, he did not have a still subsisting honest belief that either his home, his person or his pets were under continuing threat. The Circuit Court judge concluded, on the evidence before her, that as Donal was in the process of leaving the appellant's dwelling when the alleged assault was said to have been perpetrated on him by the appellant, there was in fact no continuing threat at that point. This was a finding of fact that was open to her on the evidence. However, that was not necessarily dispositive of the self-defence issue. Conceivably, even if there was not an actual continuing threat at that point, the appellant could have had an honest, but mistaken, belief that there was a still subsisting threat. In fairness to the Circuit Court judge, she had not been asked to consider the possibility of an honest but mistaken belief in a continuing threat to either the appellant's home, his person or his pets. Moreover, it is highly relevant in this regard that the appellant was not self-represented but was represented by experienced solicitor and counsel who did not see fit to raise the issue of possible honest but mistaken belief, or make any submission in regard to it. It may be inferred therefore that it was not an issue on the run of the case, and in circumstances where it had not been canvassed it was not one with which the Circuit Court judge was expressly required to deal in the course of ruling in what was, after all, a District Court appeal. Whilst her ruling is silent on the issue of belief, the Circuit Court judge was clearly satisfied that any threat posed by Mr Donal Ahern had come to an end and that there was no continuing threat from anyone's perspective.
54. However, even if such a case were made out, it would represent merely an error made within jurisdiction. Accordingly in my view the High Court judge was correct in finding that in that respect, the decision of the Circuit Court judge was not amenable to judicial review.
55. As to the reverse onus argument, and the suggestion that the Circuit Court judge did not apply the correct burden and standard of proof, the evidence is clear that the appellant was not convicted on the basis that he had failed to discharge some burden of proof in respect of self- defence. The Circuit Court judge, notwithstanding anything that might have been submitted to her by the State Solicitor as to the burden and standard of proof in another case involving a different defence, did not treat the appellant in this case as being subject to a reverse onus, and as being required to establish on the balance of probabilities that he was acting in self-defence. Rather, he was convicted because the Circuit Court judge was satisfied beyond reasonable doubt in respect of the prosecution's case in circumstances where she was satisfied that self defence did not arise because at the time at which the appellant offered violence to his brother Mr Donal Ahern he was not facing any continuing threat.
56. In that regard the Circuit Court judge stated expressly in her ruling convicting the appellant that, "I am satisfied that self-defence does not come into play", and further that, "I'm satisfied that the case is proven against Mr Ahern". It is manifest that the correct burden and standard of proof was applied in the appellant's case. In my assessment there is no reason to believe that the appellant can mount an arguable case that he was subjected to a reverse onus. There is simply no evidence of it.
Conclusion
57. I would dismiss the appeal in respect of leave to apply for relief i in the appellant's Statement of Grounds, for the reasons stated.
58. I consider it unnecessary in the circumstances to engage with the claim for relief iii, i.e., for an extension of time.
McCarthy J: I agree.
Kennedy J: I agree
Result: Appeal dismissed.