Irish Court of Criminal Appeal

D.P.P. (People) v. Doran [1987] IECCA 2 (7 December 1987)\

McCarthy J

Barron J

Egan J. 105/86

COURT OF CRIMINAL APPEAL

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

V.

EDWARD DORAN

Judgment of the Court delivered 7th day of December 1987

by McCarthy J.

Early in the morning of the 22nd May, 1986 the accused broke into a house, 66 Dollymount Park, Dublin where there lived James & Pauline Wall with their three young daughters. The intruder was disturbed and ran out the back door of the house after some scuffle with Mr. Wall who had obtained a golf club from under a bed. The only eye witness account of what happened afterwards came from the accused who made two written statements both admitted at the trial, and from his sworn testimony upon trial for the murder of Mr. Wall.

That trial took place before O'Hanlon J and a Jury at the Central Criminal Court; the trial judge stated that:

"essentially, your task is to determine whether a defence arises on the basis of self-defence and the prosecution have to satisfy you that the defence does not exist in this case and that the accused should not be given the benefit of that defence. The onus is never on the accused to prove that he committed the killing in lawful self defence. The onus remains at all times on the prosecution to satisfy the Jury, to convince them, that no defence arises on the basis of self defence.”

The prosecution put in evidence a series of exhibited statements. In each statement the accused described running from the house and then:

(exhibit 36) "I fell on the roadway. When I fell on the roadway the man struck me behind with the golf stick on the back. I jumped up and he kept swinging the golf stick at me. I then ran back towards the church to try and get away from the man but he struck me again with the golf stick in the lower part of my back. I then pulled out my knife which I had on my belt. There was a loop on this knife to carry on a belt. I hit him with the knife on on the belly first but he kept coming at me and I stuck the knife then in his chest. I think I got him a few times in the chest with the knife and he fell to the roadway near the church railings. It happened so quick I don't know how many times I stabbed him with the knife. At the time I thought it was him or me the way he was coming at me with the golf club".

(Exhibit 40) "I was trying to get into another room from the kitchen when a man appeared from another door with a golf club. I ran from the kitchen and out the back. I jumped over the gardens on my left and then over a back wall onto a laneway at the rear. I then ran into the church yard. I looked behind and he was still after me. I got a belt of the golf club over the back. It was starting to get bright. I ran out the roadway at the side of St. Gabriel's Church and while I was looking behind I fell on the roadway. He came up behind me and broke the golf stick on my back. I lost my temper and stabbed him with a knife I had in my belt. He fell to the ground.... I then went down to the slipway near the car park opposite the yacht club and buried the knife which I used to stab the man in the sand under the slipway with the pair of gloves I wore on the night. I'm sorry I killed him but it was either him or me."

Both of these written and signed statements were made on the 22nd May. The admissibility of these statements were not contested at the trial but it was alleged that in significant details they were untrue.

The accused gave evidence and testified that he was running away, that he had thrown a chisel at the pursuing Mr. Wall and that when he reached the barbed wire at the gap beside the road he was hit with the golf stick in the back, that he was grabbed with the golf stick first up around the shoulder and then around the throat.

"I just automatically went for the knife then; was striking blows at the deceased's hands and body, when he released his grip on me I turned around and struck out at him with the knife - in the upper part of the body; he grabbed the blade of the knife".

In cross-examination much of the questioning was directed as to where the alleged struggle took place (Book E at p.37)and the conduct alleged of Mr.Wall that he tried to choke the accused with the golf club. Further questioning was related to the number of knife wounds sustained by Mr. Wall (nine in all) as described by the pathologist, including one which the accused regarded as the fatal blow, that in which Mr. Wall grasped the knife.

Whilst the learned trial judge made a number of references in the course of his charge to the written statements, essentially he posed the real issue to the jury, with a very ^ stringent direction on the onus of proof, as to whether or not, despite the account given by the accused in the witness box, the jury were satisfied that murder had been committed, that there was no valid answer in self defence. It is quite apparent from the requisitions made to the trial judge at the end of his charge that no other case was made to the jury in the closing address of Counsel for defence and the only reference to any possible other case is contained in the following abstract from Mr. Sorahan's concluding submission (Book H.p.30)...

"even if the jury were not (satisfied) or had doubts about the verdict of the story about the struggle at the barbed wire that on the statements such as they were given to the police undoubtedly by my client that discloses prima-facie and goes a long way towards establishing a basis or bases for the defence of self defence.”

No such point is taken in the grounds of appeal served in advance of this hearing nor was it advanced by leading Counsel for the accused. Mr. Marrinan, however, Junior Counsel who had suggested the requisition at the trial, sought to enlarge upon it before this court, while acknowledging that no such case had been made during the trial itself, to wit, that even if the jury rejected the accused's account of what took place immediately before the fatal blow, the jury might return to the account given in the written statements which I have sought to cite in short form in this judgment. He submitted, in effect, that there was an intermediate story contained in the statements made to the Gardai, in particular exhibit 36, and that the trial judge never put those statements to the jury as constituting an answer in self defence. Counsel cited, in support of this proposition the case of Porritt an alibi case.(45 C.A.R. 348) where Ashworth J at p.356, quoted the judgment in Bollard(42 C.A.R) at p.5:

"it has long been settled law that if on the evidence, whether of the prosecution or of the defence, there is any evidence of provocation fit to be left to a jury, and whether or not this issue is specifically I raised at the trial by Counsel for the defence and whether or not the accused has said in terms that he was provoked, it is the duty of the judge, after a proper direction, to leave it open to the jury to return a verdict of manslaughter if they are not satisfied beyond reasonable doubt that the killing was unprovoked'.

There is no necessary inconsistency in a defence primarily based on self defence but with a fall back on manslaughter; no such defence was, however, advanced in the instant case at the trial or on the appeal.

The complaint is that the learned trial judge did not advance an alternative factual base for self defence, not a defence of provocation. Having examined in detail the several written statements and compared them with the sworn testimony of the accused and the description of the wounds, the Court is satisfied that it would have been to no purpose to ask the jury to consider the detail set out in the written statements as was suggested in the argument in this appeal, which the court permitted despite the fact that none such had been advanced in the Court below. This is not to say that it is open to an accused to make a case in which he denies on oath the facts set out is a written statement and asks the jury, if they reject his sworn testimony, to uphold his defence based on such a written statement.

As to the other ground of appeal, that the charge of the learned trial judge was unduly favourable to the prosecution, it is not suggested that the trial judge may not properly comment on such matters of fact which appear to him to be worthy of comment whilst taking care to caution they jury to disregard such comments if they do not appeal to them.. In any transcript of the charge by a trial judge it is possible to seek out and find some isolated matter of complaint; such is the case here but that is not the correct way of looking at a charge; rather this Court, as the jury did, must look upon it as a whole. In the view of the court, the learned trial judge whilst expressing clear views of his own, gave a most painstaking and accurate charge to the jury, leaving pen it, in the clearest terms, to the jury to come to the conclusion of fact on the critical issue.

The application for leave to appeal is dismissed.