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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P.-v- Fergal Cagney [2004] IECCA 10 (27 May 2004)
URL: http://www.bailii.org/ie/cases/IECCA/2004/10.html
Cite as: [2004] IECCA 10
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Judgment Title: D.P.P.-v- Fergal Cagney Composition of Court: Denham J., Ó Caoimh J., Butler J. Judgment by: Denham J. Status of Judgment: Approved |
Judgments by | Result | Concurring | Dissenting | |
Denham J. | Refuse leave to appeal against conviction | |||
Outcome: Refuse leave to appeal against convicti
23
COURT OF CRIMINAL APPEAL
[C.C.A. NO. 155 of 2002]
Denham J.
Ó Caoimh J.
Butler J.
THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS
THE DIRECTOR OF PUBLIC PROSECUTIONS
AND
FERGAL CAGNEY
APPLICANT
Judgment of the Court delivered on the 27th day of May, 2004 by Denham J.
1. Fergal Cagney, the applicant, hereinafter referred to as the applicant, has sought leave to appeal against his conviction and sentence by Dublin Circuit (Criminal) Court (His Honour Judge Patrick McCartan) on 26th June, 2002. This court heard his application to appeal his conviction together with the application of Ronan McGrath.
2. The applicant was brought before a judge and jury in the Dublin Circuit (Criminal) Court on an indictment containing two charges:-
Count No. 1
Statement of Offence
Manslaughter contrary to common law.
Particulars of Offence
- Ronan McGrath and Fergal Cagney on the 30th of August, 2000 at Grove Road in the county of the city of Dublin did unlawfully kill one David Langan.
Count No. 2
Statement of Offence
Reckless endangerment contrary to section 13 of the Non-Fatal Offences Against the Person Act, 1997.
Particulars of Offence
Ronan McGrath and Fergal Cagney on or about the 25th of August, 2000 at Grove Road in the county of the city of Dublin did intentionally or recklessly engage in conduct which created a substantive risk of death or serious harm to another.
3. At the close of the prosecution case, on the sixth day of the trial, counsel for the applicant applied to the trial court for a direction to withdraw both Count No. 1 and Count No. 2 from the jury. The application was refused by the learned trial judge.
4. On 26th June, 2002, the applicant was acquitted by the jury on Count No. 1, manslaughter. He was convicted on Count No. 2 by a majority verdict and was sentenced to fifteen months imprisonment.
5. The applicant has sought leave to appeal against his conviction and sentence. He applied for and was granted bail pending the application for leave to appeal. The applicant seeks leave to appeal against conviction on the following grounds:-
- 1. That the learned trial judge erred in law in refusing, at the conclusion of the prosecution case, to withdraw from the jury Count No. 2 on the indictment, a charge of endangerment contrary to section 13 of the Non-Fatal Offences Against the Person Act, 1997.
2. That the learned trial judge erred in law in finding that there was evidence, which, if accepted by a jury, could as a matter of law lead to a conviction of the applicant of the offence of endangerment, contrary to section 13 of the Non-Fatal Offences Against the Person Act, 1997.
Hospital as a result of injuries he sustained to his head near Portobello Bridge in the early
hours of the 26th August, 2000. He was buried on 2nd September, 2000. At the time of his
internment it was believed that he sustained his injuries as a result of an accidental fall. More
information as to the circumstances of his death then emerged. By order of the Minister for
Justice, Equality and Law Reform his body was exhumed on 18th December, 2000, for further
autopsy.
7. The evidence given at the trial was that David Langan, the deceased, aged 19 years, had attended the Palace Nightclub on Camden Street in Dublin on the evening of the 24th August, 2000. At about 1 a.m. on the 25th August, 2000, the applicant and his cousin Ronan McGrath arrived. The applicant was aged 19 years of age at the date of the incidents in issue. At about 3 a.m. the Palace Nightclub was closing and a number of people congregated outside the club. It was common case that a large amount of alcohol had been consumed by all concerned. An incident arose outside the nightclub during the course of which the deceased David Langan was seen to push Ronan McGrath with some degree of force into the shutters of the nightclub. Ronan McGrath became annoyed and was heard to shout at the deceased in an aggressive manner. At this point various friends intervened to hold both parties back from each other. The deceased, David Langan, was lead away by Philip Rahill down Camden Street in the direction of Portobello Bridge. Philip Rahill was seeking to find a taxi for David Langan. Ronan McGrath went up the road after David Langan, he was accompanied by Thomas Rooney and his cousin Fergal Cagney, the applicant. Ronan McGrath was restrained by Thomas Rooney and the applicant. At the times when Ronan McGrath was nearest David Langan there was shouting between them. Ronan McGrath was heard to say words to the effect of “why did you push me into the shutters.” When David Langan reached Grove Road on the far side of Portobello Bridge he sat on a low wall by the canal while Philip Rooney tried to hail a taxi. Ronan McGrath, Thomas Rooney and the applicant reached the bridge. The argument between Ronan McGrath and the deceased continued. At some point Ronan McGrath was held back by Thomas Rooney while the applicant placed himself between Ronan McGrath and the deceased. Thomas Rooney gave evidence that Ronan McGrath was trying to get past him and was threatening the deceased. (Examples of the evidence are set out herein. They illustrate high points of the prosecution case). The transcript sets out the evidence of Thomas Rooney as follows:
- “744 Q. What happened?
- A. And then they started squaring up for each other and I thought Ronan was going to go for him.
- 745 Q. You said ‘squaring up’?
- A. Squaring up, yes, they got in each other’s face.
- A. Then I thought Ronan was going to go for him; it looked like he was. I grabbed Ronan by his jacket at the front around his neck, around that area and pushed him right back.
- A. He was trying to come forward, still trying to push past me.
- A. And then he told Fergal to hit David.
- anything or what was his reaction to your interference?
A. He wasn’t really saying anything to me, he was more trying to get by me and saying things to David.
- 750 Q. What was he saying to David?
- A. He was threatening David.
- him with?
A. Threatening to beat him up and threatening to kill him.
- A. No, it was heated.
- A. Not very, at all, no.
- A. Fergal was on my left-hand side beside the canal wall.
- A. And then when Ronan asked Fergal to hit him he went and hit
him.
- A. Ronan said ‘hit him Fergal.’
- A. Hit David.
- A. No.
- A. He shouted, he roared it.
- A. Then Fergal went and hit David once and David crouched forward and he hit him again. Then I went to…I went…turned to my left to try and get a hand to Fergal and then Ronan came forward again and started pushing me back. So I turned and started pushing him forward again. And when I turned around again David was on the road on my right.
again?
- A. Hit him again, yes.
- where did he hit him?
A. This part of his hand here. (INDICATING).
- 763 Q. You are using the heel of your right hand.
- A. The heel of my hand.
- A. My fist closed, yes.
- A. Yes.
- A. Around the ear, just above the ear.
- A. His left ear.
- A. Then David’s head was lower for this one and he hit him in the back of the head with the same part of his hands.
- head?
A. I would say around there. (INDICATING).
A. Yes.
771 Q. Now you said David was doing something at that stage,
- between the two blows?
A. He was crouched down at this stage kind of grabbing onto
Fergal’s jacket, the bottom of it.
- A. And then Ronan came forward and pushed me off balance when
I tried to grab Fergal and I turned around to push him back.
When I turned around again David was down on my right-hand
side on the road.
- could you just have look at either photograph No. 3 or any of them, No. 2 or No. 3 and see if you can help us as to where he was on the road when you saw him?
- A. He was lying on the yellow lines; his head was on the yellow lines and his feet were towards the bridge.
- on the foot path or straight or at an angle?
A. I am pretty sure it was all off the foot path.
- down or on his back?
A. When I saw him he was back down. I never saw him fall.
- A. I didn’t see him fall, no.
- A. Then, Ronan phoned an ambulance.
- A. And I think it was Philip, Ronan and Fergal were trying to
revive David by, they dipped the coat Fergal was wearing into
the canal to dampen it and were dabbing his head.
- A. They had picked him up and brought him back to the canal wall
and had him sat against it.
- A. Sat against it, yes.
- were given. You have described them being with the heel of the right hand?
- A. Yes.
- 797 Q. Can you make any comment about the strength of them?
- A. They look quite powerful punches.”
- “337 Q. Saying that you saw it at various times, you give the impression
- you watching for some time, how long would you have been watching?
- A. Maybe five, ten minutes.
- one of the young men attempting to calm down the man you described as more aggressive. Can you tell us what that was about or what you saw precisely?
- A. I don’t remember much of the content of what the guy was shouting except that it was very loud and quite aggressive. I remember at one stage getting the impression, but I can’t remember specifically what gave me the impression, that it was over an incident that had happened earlier. I don’t remember the shorter guy specifically what he was saying to the guy he was trying to calm down but I remember from the body language that he was trying to, appeared to be trying to calm him down.
- A. I remember he had stopped shouting for a while and he would start off again. I remember at one time the guy who was further away who was being shouted back seemed to be coming back towards the main group. The guy who was shouting at him started shouting more and seemed to get more angry and then I remember as he came closer to the other two, the guy who was shouting and the guy who was trying calm him down, I remember the guy who was trying to calm down the aggressive guy seemed to be holding him and the guy who was moving back seemed to try and move around the pair of them on the edge of the pavement and I remember having an impression that the aggressive guy was flailing his arms or swinging his fists around or over the guy who was trying to hold him, in the direction of the guy who is coming back and moving around them.
- A. Yes. At that stage the guy in the check shirt, who was trying to move around to two, was on the edge of the pavement and I remember him suddenly falling down and back out onto the road.
- A. Yes he fell down and it seemed like his back arched and he went back onto the road and I remember hearing his head hit the road.
- A. Yes.
346 Q. You have described seeing the man falling down and
- backwards, did he land completely in the road or did he land on the footpath or where did he land?
- A. I think he landed completely on the road because he was standing just on the very edge of the footpath just before he fell.
- A. From the impression I have is that he was very close to the guy who was shouting and swinging his arms and the guy who was holding him, the guy who was holding the guy who was shouting was between the two so they were very close together. I don’t remember where the other two were, I think in the vicinity standing back more towards – there is a low wall.
- 348 Q. When you say close the them, were they within arm’s length or
- arm’s reach of one another?
A. Yes.
- 349 Q. Did you see what had caused him to fall?
- A. It happened very quickly so I couldn’t, I remember having the impression that the guy who had been shouting was swinging his arms and fists at the time the guy fell in his direction but I couldn’t for definite say that I saw a fist or hand hit him because I was looking … the guy who fell, his back would have been to me and a little down to the right and there was a guy standing between him and the guy swinging his fists so the guy swinging his fists might have been partially obscured from my view.
- close was he to the remaining persons who were standing there?
A. When he was on the road?
- A. He would have been right beside the two, they would have been a couple of feet into the pavement, standing on the pavement a couple of feet away.
- movement along the road?
A. Not to my recollection.
- 353 Q. What happened then after he hit the ground?
- A. I remember, just before he fell, being aware of a car that seemed to be slowing down and I got the impression it was pulling in. I kind of presumed it might have been a taxi, that the guy who was trying to mediate had been hailing earlier and it was slowing down just as he fell and he fell maybe 6 or 10 ft in front of it and it stopped. I remember getting the impression somebody was going to get out of it but then it pulled off again and I remember it had to manoeuvre around his body to drive off towards Portobello Bridge.
- I am also aware that at the moment he fell that the other four guys seemed to be stunned, I got the impression they were stunned by what happened, that were frozen for a second or two. I remember the guy who was trying to calm things down ran over to the guy on the road and he seemed to be trying to lift him up and I remember him shouting to the others to give him a hand and I think two of the others came over and they lifted his body up and lifted it back onto the pavement and placed him in a sitting position on the pavement, propped up against that low wall between the pavement and the canal and I think the guy who had been trying to mediate sat down on the wall beside him and seemed to be trying to support his body.
I remember at that stage I thought maybe I should phone an ambulance but then I noticed that the guy who had been doing all the shouting had walked up a little bit towards Portobello Bridge and he seemed to be talking on a mobile phone so I presumed he was phoning an ambulance. After a few moments he stopped talking on the phone and walked back towards the main group and I remember being aware that he seemed to be very upset because I remember one of the other five seemed to hug him as if he was trying to comfort him. He possibly might have been crying but I am not sure.
- A. That is correct.”
The learned trial judge ruled, on the application for a direction, that the essential ingredients of s. 13 of the Non-Fatal Offences Against the Person Act, 1997 were present and that he would be usurping the role of the jury if he granted the direction.
The learned trial judge ruled as follows:-
- “Having considered the evidence there is no escaping the fact that the prosecution have produced evidence which establishes that a blow or blows were struck by Fergal Cagney. This was done on the instructions or at the request of Ronan McGrath while he was being restrained, which amounts to actual encouragement and participation, constituting common purpose. This action caused the fall which caused the death. There is evidence for the jury to consider that had the words ‘hit him, fucking hit him’ not been said and acted upon, the fall would not have taken place resulting in injury and death on 30 August 2000.
…
In this trial there is an explanation consistent with innocence in the statement of Fergal Cagney, but that is not the only evidence implicating the accused in the alleged crimes.
It is for the jury to decide whether the striking of the deceased in the circumstances had with it the intention being more than trivial or negligible in character. Surely it is a matter for the jury to decide whether the purpose of the assault in all the circumstances was to leave David Langan in a position where he could not fight back. It is for the jury to decide whether the explanation already referred to triggers the defence which arises by virtue of section 18, as there is evidence other than the explanation.
It appears to me there is evidence that it is open to the jury, properly directed, to record a verdict of guilty on both Counts 1 and 2, as the essential ingredients of manslaughter are there, as are the essential ingredients for the offence created by section 13 of the Non-Fatal Offences Against the Person Act, 1997, which is intentional or reckless conduct which created a risk of death or serious harm.
I take the point made by Mr. Durack for the prosecution that I would be usurping the function of the jury in granting a direction. However, in relation to Count No. 3 in the Indictment, it appears to me that the evidence is tenuous, as Thomas Rooney, as I understand his evidence, conceded that he might have been mistaken as to what was said by Ronan McGrath at the material time.
I therefore accede to the application in respect of Counts No. 3. I must refuse both applications relating to Counts No. 1 and 2 in the Indictment.”
(See Transcript F, p. 6 et seq, Monday 24th June, 2002).
9. Charge
On the offence of endangerment the learned trial judge charged the jury as follows:-
- “The second count is a count which is created by the Non-Fatal Offence Against the Person Act of 1997, and that is created by section 13 of that Act. Again the ingredients will be set out for you on the issue paper. Section 13 says:
- ‘A person shall be guilty of an offence who intentionally or recklessly engages in conduct which creates a substantial risk of death or serious harm to another.’
Serious harm is defined for us by the statute which creates the offence, and it says:
- ‘Serious harm means injury which creates a substantial risk of death, or which causes serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ.’
The offence of endangerment was established by s. 13 of the Non-Fatal Offences Against the Person Act, 1997. This act is described in the long title as an act to revise the law relating to the main non-fatal offences against the person and to provide for connected matters. Section 2 defines the offence of assault, and provides that a person found guilty under the section shall be liable to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 6 months, or both. Section 3 sets out the offence of assault causing harm, for which the penalty (on indictment) may be a fine or a term of imprisonment not exceeding 5 years, or both. Section 5 relates to threats to kill or cause serious harm. Section 6 deals with syringe attacks. Section 7 creates the offence of possession of a syringe in certain circumstances. Section 8 deals with the placing or abandoning of a syringe. Section 9 relates to coercion, Section 10 deals with harassment. Section 11 creates the offence of demand for payment of a debt where the demands are of a specified nature. Section 12 covers the offence of poisoning. It is s. 13 which is in issue in this case. It provides:
- (1) A person shall be guilty of an offence who intentionally or recklessly engages in conduct which creates a substantial risk of death or serious harm to another.
(2) A person guilty of an offence under this section shall be liable –
- (a) on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both, or
(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 7 years or to both.
- “injury which creates a substantial risk of death or which causes serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ.”
The 1997 Act further establishes under s. 14 an offence relating to endangering traffic, under s. 15 an offence of false imprisonment, under s. 16 is an offence of child abduction by parent, guardian, and under s. 17 abduction of a child by other persons. Section 18 describes justifiable use of force. The Act of 1997 also provides for other specific matters relating to offences against the person.
The term “reckless” is not defined in the Act. However, recklessness has been considered in People (DPP) v. Murray [1977] IR 360, where at p. 403 Henchy J. stated:
- “In my judgment, it is not proper to construe either s. 38 of the Offences Against the Person Act, 1861, or s. 1 of the Criminal Justice Act, 1964, in such a way as to make those sections hardly ever applicable to assaults on or murder of policemen in plain clothes. In the case of such an assault or murder, the required mens rea as to the victim’s occupation and activity is a matter of intention or, in the alternative, recklessness. Just as a person who does not intend an assault may be held guilty of an assault if he has been reckless as to whether his physical activity would have that effect (R v. Venna [1975] 3 WLR 737), so a person may be found guilty of the capital murder of a Garda if it is shown (a) that he murdered the Garda and (b) that he was reckless as to whether his victim was a Garda acting in the course of his duty.
The test of recklessness in this context is well stated in the Model Penal Code – s. 2.02(2)(c) – drawn up by the American Law Institute:-
- ‘A person acts recklessly with respect to a material element of an offence when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances know to him, its disregards involves culpability of high degree.’
- ‘A person who does not know for certain whether or not a fact exists may think that its existence is probable, or only possible; or he may have given no thought to the question of probability or possibility. The last will be particularly likely if he does not know the criminal law and so does not realise the relevance of the fact to his legal responsibility. The proposition to be maintained is that in each of these situations there is recklessness for legal purposes. Simple ignorance is not enough to displace recklessness. It is only where the actor’s mind is filled with mistaken knowledge that the act is not reckless (though it may be negligent) as to that circumstance.’”
(i) who intentionally or recklessly,
(ii) engages in conduct,
(iii) which creates a substantial risk of death or serious injury,
(iv) to another.
In Charleton, McDermott, Bolger, Criminal Law, (Dublin, 1999) at para. 9.161, it is
stated:-
- “Section 13 of the 1997 Act creates a general offence of endangerment, where the accused intentionally or recklessly engages in conduct which creates a substantial risk of death or serious harm to another.
…
If death does occur, murder or manslaughter should be charged depending on what may be proven.”
- “The section might also apply in the circumstances described by Mr. Thomas Finlay in his report on the scandal in the Blood Transfusion Service. To know that, for example, blood products are contaminated with a serious viral disease and to fail to take steps to isolate and eliminate that contaminated blood destined for transfusion, or to fail to warn colleagues in the system who might use the blood, as to the presence of that contaminant or to fail to use one’s best endeavours to honestly deal with the problem is, it is submitted, an example of recklessly engaging in conduct which creates a substantial risk of death or serious harm to the ultimate users of transfused blood.”
This offence came to the statute book subsequent to the recommendation of the Law Reform Commission: Report on Non-Fatal Offences Against the Person (LRC 45-1994), hereinafter referred to as the Law Reform Commission Report. The Act of 1997 repealed a large portion of the Offences Against the Person Act, 1861 and is a reform of the law.
In view of the fact that in issue in this case is a new general offence, and that the applicant referred the court to the Law Reform Commission Report, and consequent to which Report the legislation was enacted, the court refers to the said Report in some detail.
Of the proposal to amend the law on endangerment the Law Reform Commission reported:-
“Endangerment
9.230 The Commission recognises that the creation of a new general offence of endangerment would represent an innovation in our criminal law, as Smith has observed, not without its difficulties:
- ‘There is much to be said for a recognisably coherent set of underlying attitudes and standards relevant to the imposition of endangerment liability whatever the context. The chances of achievement of these objectives – whether relating to prosecutorial policy, the nature of substantive liability or levels of punishment – would be enhanced if the sources of liability were less fragmentary. English law offers an ad hoc and generally pragmatic approach to the question of when risk creation ought to be penalised; the particular need, unless perceived as being especially compelling, will go unrecognised by the criminal law. In itself such an attitude is far from being objectionable; however, the practical demonstration of the need for and value of a more general prohibition of unjustifiable risk taking is inherently problematic. The difficulty lies in the very limited visibility of the ‘endangerment’ involved, it being often transient and either unwitnessed or lacking residual probative evidence. It is frequently on anticipatory observation or inspection of particular intrinsically hazardous activities (such as driving or running an industrial operation) by designated bodies (such as the police and the factories inspectorate) that produces the evidence of endangerment which would otherwise probably continue until actual harm materialises.
The benefits of generalising endangerment liability are necessarily speculative. The equivocality with which generalised endangerment liability is regarded in America is well demonstrated by the extensive differences in the use and grading of offences. However, any complete examination of the law relating to offences against the person ought to include an evaluation of the proper scope and form of endangerment liability … The issue is worthy of, and requires, a full airing.’ Smith, Liability for Endangerment: English Ad Hoc Pragmatism and American Innovation (1983) Crim. L. Rev. 127 at 135.
- 9.231 The strongest objection in theory to the creation of a general offence of endangerment relates to the proper reach of the criminal law. Such liability would extend to reckless acts not resulting in harm or injury which would not even incur civil liability, and which would, as Smith points out, be inherently uncertain. These arguments may nevertheless be readily countered.
9.232 In the first place, the criminal law is not solely concerned with actual harm, and in many ways already extends to acts which endanger life or health irrespective of the occurrence of injury. For example, if A attempts, incites B or conspires with C to injure V, he commits an offence even though no injury is in fact inflicted – the mere attempt, incitement or conspiracy suffices. Moreover, it has been seen that there are numerous ‘precursor’ offences relating to the unlawful possession, manufacture or sale of firearms, offensive weapons and explosives. And those elements of the common law offence of public nuisance which are concerned with acts which interfere with comfort, enjoyment or health and acts dangerous to public safety are essentially offences of endangerment.
9.233 An offence of endangerment, recently created, is that of discharge of a firearm, being reckless as to whether any person will be injured, in s. 8 of the Firearms and Offensive Weapons Act, 1990.
9.234 It has also been seen that the Offences Against the Person Act, 1861, provides for offences of endangerment in s. 17 (impeding persons endeavouring to save themselves or another from shipwreck), s. 31 (traps) and ss. 32-34 (railways). Section 9 of the Conspiracy and Protection of Property Act, 1875, relating to the breaking of a contract of service or of hiring, is also an offence of endangerment, though based in negligence. Dangerous and careless driving are summary offences under the Road Traffic Acts. Controlled drugs tend to be dangerous.
9.235 Clearly, then, our criminal law already condemns many acts of endangerment. In this connection, the idea of providing for general liability is not new. In 1846 and 1848, the English Criminal Law Commissioners recommended the creation of two such general offences: one being an offence of maliciously putting the life of another in danger, the other that of negligently causing danger to the life of another. Second Report of the Criminal Law Commissioners (1846); Fourth Report (1848). In the event, no such offences found their way into the Criminal Law of England, though more recently an offence of damaging property ‘with intent to endanger life or with recklessness in that regard’ S. 1(2) a of the Criminal Damage Act, 1971. has been created in England, and in our Report on Malicious Damage, we recommended the enactment of a similar offence in Irish Law. LRC 26-1988, para. 40.
9.236 Whereas such an offence, in common with offences relating to traps, railways, weapons and explosives, is concerned with a special hazard involving particular risks, the offence of public nuisance may also be seen as involving a special factor justifying the intervention of the criminal law, namely its ‘public’ element. Absent such special circumstances, it may be argued that there is no need for an offence of general application.
9.237 On the other hand, and as argued by the authors of the Model Penal Code, there is no reason in principle why the criminal law should penalise only such reckless conduct as results in injury. On the contrary, principle may demand that the fortuitous consequences of a person’s conduct should be irrelevant to the issue of culpability, as under the New Zealand Crimes Bill. On this view, the occurrence of harm is a pointer but no more than a pointer to the existence of risk. The recklessness of the particular conduct will fall to be determined as in any other offence of recklessness. Supra, Chapter 5.
9.238 Moreover, the right to bodily integrity would be given more comprehensive and consistent protection by the creation of such an offence. In the first place, it would cover the gap in existing law arising from the fact that a person who recklessly creates a risk of serious injury commits no offence although he may be prosecuted for attempt where he does so intentionally, or for causing serious injury where such injury results. In certain cases, where the evidence of intent is insufficient, it may provide a valuable alternative to a charge of attempted murder or attempting to cause serious injury.
9.239 Secondly, it would provide a useful supplement to existing specific offences of endangerment. In this connection, the general offence would not be designed to replace all such offences, which in many cases would be the subject of greater penalties on account of the special hazards of the conduct sought to be prevented, but would provide instead for a residual generic offence. This would have the particular advantage of removing some anomalies which arise from the operation of existing law.
9.240 For example, if a builder causes obvious danger to the lives of others in the course of demolishing a building, he will commit a serious offence under the proposed offence of ‘malicious damage’ referred to above, but may only be guilty of a far less serious offence under the Safety, Health and Welfare at Work Act, 1989, if he creates a similar degree of danger in the course of constructing a new building.
9.241 If the defendant is responsible for the design or construction of a building or of a domestic appliance and, fully aware of the risks, constructs a building which subsequently collapses when empty or installs such an appliance without ensuring adequate ventilation for the noxious fumes produced, he or she may only be liable to a fine for infringement of building regulations. ‘Individually, these and the many other imaginable cases are hardly of overwhelming importance, but their collective significance is less easily dismissed.’ Smith, op cit. Moreover, they are not easily distinguishable from more commonly occurring and unacceptably risky, behaviour which is at present penalised, such as reckless driving, and the objectives and justifications for penalising the latter may be viewed as having similar relevance to the less frequent or less predictable cases of endangerment.
9.242 In such cases of advertent risk-taking, where the risk of serious injury or death may be said to be ‘substantial’, there is clearly a strong case for facilitating early intervention by authority to prevent the occurrence of actual harm. The creation of a general offence of endangerment would also give effect to the principle that the wanton disregard of others’ safety is in itself deserving of condemnation and sanction as a serious infringement of basic values, irrespective of the manner in which such a risk is taken.
9.243 That such an offence does not in itself unduly extend the proper scope of the criminal law is supported not only by its inclusion in most U.S. criminal codes, but also by its incorporation in the penal codes of several European countries as a useful supplement to specific endangerment provisions. See Law Reform Commission of Canada, Working Paper No. 46, Omissions, Negligence and Endangering (1985), 35. Poland, Sweden and Austria are among the countries with general endangerment provisions. The undue expansion of liability may be avoided, in the view of the Commission, by limiting the offence:
(a) to acts of advertent risk-taking, i.e. recklessness; and
- (b) to such acts as create a substantial risk of death or serious harm to another person. Recklessly placing another in danger of injury less than ‘serious harm’ should not be covered, and the circumstances must be sufficiently serious to create a ‘substantial risk’ of such harm, this being a question of fact for determination on the evidence.
The Commission would therefore recommend that the following statutory offence of endangerment be created:
- ‘A person is guilty of an offence who intentionally or recklessly engages in conduct which creates a substantial risk of death or serious harm to another person.’
Consequently, as may be seen, the legislature established this new offence of endangerment and followed the wording suggested by the Law Reform Commission.
11. Submissions
It was submitted on behalf of the applicant that the applicant had acted as peacemaker between his co-accused Ronan McGrath and the deceased David Langan. Reference was made to the evidence of Philip Rahill, Thomas Rooney and Elaina Serrie. It was submitted that Thomas Rooney, who gave evidence of the applicant striking David Langan accepted in cross-examination that at the canal the applicant was quiet, was not shouting and was not menacing anyone. Reference was made to the evidence of Peter Cannon and Mark Burke that there were guys in the middle trying to keep the peace. As to the confrontation between the applicant and David Langan, reference was made to the evidence that the applicant had interposed himself between Ronan McGrath and David Langan. He was, on his own statements, trying to restrain David Langan. In his statements the applicant said that he hit David Langan once or twice at this stage in response to David Langan coming to him with his hands up, out in front of him. Reference was made to the acceptance, in cross-examination, by Thomas Rooney that matters were very confused and that it was possible that the applicant did not hear Ronan McGrath telling him to hit David Langan.
As to the blows struck by the applicant, reference was made to the applicant’s statements to the Gardaí that he hit David Langan with the inside of his fist and that he said when he swung the second time he lost his footing. Thomas Rooney described two blows struck by the applicant to David Langan and he accepted that “they were not punches a boxer would throw.” Reference was made to Thomas Rooney’s evidence accepting that the blows struck by the applicant did not knock down David Langan.
Emphasis was placed by counsel on evidence indicating that David Langan fell some distance from the place where the altercation took place – a distance of approximately 11 metres. Reference was made also to the evidence of Colm Burgess that he thought that David Langan had stopped and fallen and the evidence of Philip Rahill that he thought David Langan had stumbled and fallen off the path.
Counsel also made submissions in relation to the medical evidence, arguing that it was significant that the medical evidence adduced by the prosecution clearly established that the only external injury sustained by David Langan was the injury to the back of his head from the fall. There was no evidence of any bruising to David Langan’s face. The treating consultant neurosurgeon in Beaumont found no evidence of facial injury on David Langan. The autopsy on 31st August, 2000 found that, apart from the fracture at the base of the skull and the internal injuries, there were no other significant abnormalities. Professor Harbison, who performed the second post-mortem examination in December, 2000, had been informed of the altercation and found no evidence of bruising or bleeding on the face. Professor Harbison’s evidence as to the blood alcohol level was that it was 192 mg per 100 ml of serum and that allowing for breakdown of alcohol by the body between the time David Langan left the nightclub (3.00 a.m.) and the time of the taking of the sample (4.35 a.m.) his blood alcohol level could have been as high as 210 mg per 100 ml.
Counsel on behalf of the applicant submitted further that the prosecution evidence was that one or two blows were struck by the applicant in circumstances of considerable noise and confusion, where he had been consistently and continuously, over a period of time, acting as a peacemaker in a dispute between others, and where one of the parties involved in the dispute, whom he had been trying to restrain, approached the applicant with his hands up. Further, that the medical evidence was to the effect that there had been no significant blow struck by the applicant. That the evidence was that the applicant had used the side of his fist, that the blow was not the sort of punch thrown by a boxer and that it had not caused David Langan to fall. That there was evidence that David Langan fell a distance of 11 metres from the confrontation. Further, that there was evidence of alcohol consumption and incoordination which would explain the fall.
In relation to the offence of endangerment itself, it was submitted that insofar as it refers to an allegation of intentional endangerment it is a crime of specific intent and that there was no evidence that the applicant acted with specific intent to create a substantial risk of death or serious harm. It was submitted that the evidence indicates that it was the intention of the applicant to keep the peace between Ronan McGrath and David Langan and, at the time of the confrontation with David Langan, to defend himself and his cousin from attack.
Submissions were made on the nature of the offence and the necessary mens rea. It was submitted that the ruling of the learned trial judge failed to consider the submissions made on behalf of the applicant, in particular in relation to the necessity for proof of the appropriate mens rea of the offence of endangerment, and that in so failing he erred in law. It was further submitted that there was in any event insufficient evidence of such mens rea to have allowed Count No. 2 to be considered by the jury and that accordingly the conviction ought to be quashed.
The submissions made on behalf of the Director of Public Prosecutions were similar to those made in relation to the co-accused Ronan McGrath. It was submitted that there was sufficient evidence from which a jury could find or infer evidence of the offence of endangerment as against the applicant. It was submitted that there was evidence that the applicant meant serious harm to David Langan, that he struck David Langan twice. That is was a mater for the jury to decide whether in all the circumstances on the facts the applicant was guilty of the offence.
12. Decision
12.1. At issue on this appeal is a legal submission as to an offence new to our law – endangerment.
12.2. In prosecuting an offence the prosecution carries an evidential burden. This was described in DPP v. Gilligan [1993] 1 I.R. 92. In that case the Court of Criminal Appeal held that the role of the trial judge at the close of the prosecution’s case at a trial was to decide whether or not a prima facie case was made out; in so doing a judge was not required to accept or reject any particular evidence, but to look at the evidence from the high point of the prosecution’s case. This is the approach adopted by the Court, thus the evidence is looked at from the high point of the prosecution’s case. Examples of this evidence have been set out previously in this judgment.
In DPP v. Gilligan reference was made to R v. Galbraith [1981] 1 W.L.R. 1039, by O’Flaherty J., thus:-
- “In giving the judgment of the Court of Appeal, criminal division, Lord Lane L.C.J. (with Pain and Stuart-Smith L.JJ.) said at p. 1062:-
- ‘Where … the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter be tried by the jury.’”
The Court applies this dictum to this case. The strength of the prosecution case depends on the view to be taken on the reliability of witnesses and other matters which come within the provenance of the jury. On a possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant was guilty and so the matter should be left to the jury.
The constituents of the offence are: (a) the mens rea of intention or recklessness, which may be inferred from the evidence; (b) conduct, actus reus, which is a matter of evidence; (c) which conduct creates a substantial risk of death or serious injury, which is a matter for determination on the evidence; and (d) to another.
(i) Ronan McGrath pursued David Langan to Portobello Bridge in an aggressive manner so as to suggest his intention was to attack David Langan. The applicant acted to try and calm the situation.
(ii) At the canal area Ronan McGrath was shouting and threatening David Langan, in a manner suggesting that he might do him serious harm.
(iii) Ronan McGrath was held back by Thomas Rooney.
(iv) Ronan McGrath roared at Fergal Cagney to hit David Langan for him.
(v) Fergal Cagney hit David Langan.
(vi) Fergal Cagney made his hand into a fist and struck David Langan twice on the head with the bony part of the heel of his hand.
(vii) The punches were quite powerful.
(viii) After the punches David Langan stumbled and hit his head off the ground.
(ix) Striking blows to the head of a person, especially if they have taken alcohol as was known to have happened in this situation, is conduct which creates a substantial risk of harm.
The facts of the case fall to be considered in light of the legal ingredients of the offence. The mens rea is one of intention or recklessness. As Henchy J. said in DPP v. Murray [1977] I.R. 360, p. 403, “a person who does not intend an assault may be held guilty of an assault if he has been reckless as to whether his physical activity will have that effect.” Similarly, in this case, even if the applicant did not intend the endangerment (and that is not an issue which was closed to the jury) he may be guilty of endangerment if he was reckless as to whether his conduct, his physical activity, would have that effect. There was evidence of physical activity in this case by the applicant, two blows which he made to the head of David Langan.
There was evidence that initially the applicant was a peacemaker, he was trying to calm down the situation and to keep Ronan McGrath and David Langan separated. There was evidence of the general circumstances in front of the Palace, then proceeding up to Portobello Bridge, and then of the 5 to 10 minutes altercation by the canal. There was also clear evidence that the applicant struck David Langan twice on the head with the heel of his hand, fist closed. There was other evidence, including as to the confusion, the place where David Langan fell and the medical evidence. As to the medical evidence it is notable that there was evidence that the applicant hit David Langan above the left ear and on the back of the head: not on his face. Quintessentially the evidence was a matter for the jury to weigh, consider credibility and reliability, and to make a determination. The court is not satisfied that from this aspect the trial judge erred in refusing at the conclusion of the prosecution case to withdraw Count No. 2, the charge of endangerment, from the jury.
In this case, taking the prosecution’s evidence at its highest, the evidence of the conduct of the applicant was that he hit David Langan twice on the head, it was open to the jury to infer the intent of the applicant for his actions, as to whether he intentionally or recklessly engaged in the conduct. On the evidence it was open to the jury to decide that the conduct created a clear risk of death or serious injury to another, in this instance David Langan.
It is pertinent also to consider the offence in issue. The Law Reform Commission envisaged that this would not be an offence to replace existing offences. Rather it would be a supplement, a residual generic offence. Of course, the court is not bound by the words of the Law Reform Commission Report.
This is a general offence of endangerment. It is not a particularized offence. As it is a general offence its applicability will not be limited to any very specific areas. The Law Reform Commission Report referred to the fact that the creation of a general offence of endangerment would also give effect to the principle that the wanton disregard of others’ safety is in itself deserving of condemnation and sanction as a serious infringement of basic values irrespective of the manner in which such a risk is taken. Counsel referred the court to the fact that the offence may cover situations such as the contamination of a building, or a water supply or blood. Reference was also made to the possibility of the offence arising on the field of sport. However, this offence is worded as a general offence, and is not limited to such examples.
The court bases its decision on the ordinary meaning of the words of section 13 of the Non-Fatal Offences Against the Person Act, 1997. Taking that well established approach to the construction of legislation the words of the section are clear and plain on which the ordinary meaning may be given. Thus the constituent parts of the offence as applicable may be construed as the applicant intentionally or recklessly, engaging in conduct, which created a substantial risk of death or serious injury to David Langan. Considering this aspect of the matter, the court is satisfied also that it was within the trial judge’s jurisdiction to leave this matter to the jury.
The main ground of the application made by the applicant was that the learned trial judge erred in law in failing to withdraw Count No. 2 from the jury on the application for a direction on that count. In light of the evidence indicating the high point of the prosecution case, the facts therein from which an intent or recklessness may be inferred in the circumstances, the facts therein indicating acts, conduct, from which it may be inferred that David Langan was endangered, this court is satisfied that the learned trial judge did not err in failing to withdraw the count from the jury.
In conclusion, treating the application for leave to appeal as the hearing of the appeal, for the reasons stated, the court is satisfied that the application should be dismissed. The court notes that the applicant also filed grounds to appeal against sentence but that these grounds have not yet been argued before the court.