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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P.-v- Ronan McGrath [2004] IECCA 11 (27 May 2004)
URL: http://www.bailii.org/ie/cases/IECCA/2004/11.html
Cite as: [2004] IECCA 11
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Judgment Title: D.P.P.-v- Ronan McGrath 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
22
COURT OF CRIMINAL APPEAL
[C.C.A. NO. 154 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
RONAN MCGRATH
APPLICANT
Judgment of the Court delivered on the 27th day of May, 2004 by Denham J.
1. Ronan McGrath, 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 in relation to the conviction together with the application of Fergal Cagney against his conviction.
2. The applicant was brought before a judge and jury in the Dublin Circuit (Criminal) Court on an indictment containing three 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.
- 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.
Count No. 3
Statement of Offence
Threats to kill or cause serious harm contrary to section 5 of the Non-Fatal Offences Against the Person Act, 1997.
Particulars of Offence
Ronan McGrath on or about the 25th of August, 2000 at Grove Road in the county of the city of Dublin did without lawful excuse make David Langan a threat which he intended he would believe would be carried out to kill or cause him serious injury.
3. At the end of the prosecution case the jury were directed to bring in a verdict of not guilty on Count No. 3. Applications for a direction made in relation to Counts No. 1 and 2 were refused by the trial judge. Counts No. 1 and 2 were left to the jury.
4. On 26th June, 2002, the jury acquitted the applicant of the offence on Count No. 1, manslaughter, but found him guilty of the offence on Count No. 2, endangerment. He was sentenced to 15 months detention by the learned trial judge.
5. The applicant has sought leave to appeal. He applied for and was granted bail pending the hearing of the appeal. The grounds of his application for leave to appeal are as follows:-
- 1. The learned trial judge erred in law in failing to withdraw Count No. 2 from the jury on the application for a direction in respect of that Count.
2. The verdict of the jury is inconsistent insofar as he was acquitted of manslaughter but found guilty of endangerment contrary to s. 13 of the Non-Fatal Offences Against the Person Act, 1997.
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 Fergal Cagney arrived. The applicant had been working in a public house earlier in the evening. The applicant was aged 17 years at the time of the incident while his cousin was aged 19 years. 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 the applicant with some degree of force into the shutters of the nightclub. The applicant 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. The applicant went up the road after David Langan. The applicant was accompanied by Thomas Rooney and his cousin Fergal Cagney. The applicant was restrained by Thomas Rooney and by Fergal Cagney. At the times when he was nearest David Langan there was shouting between them. The applicant 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. The applicant, Thomas Rooney and Fergal Cagney reached the bridge. The argument between the applicant and the deceased continued. At some point the applicant was held back by Thomas Rooney while Fergal Cagney placed himself between the applicant and the deceased. Examples of the evidence are set out herein. This illustrates the high point of the prosecution case. Thomas Rooney gave evidence that the applicant was trying to get past him and was threatening the deceased. The transcript sets out 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 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 13, 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).
In the course of his charge to the jury the learned trial judge addressed the issue of the offence of endangerment, stating:-
- “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.’
10. The Law
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 term “reckless” is not defined in the Act. However, recklessness has been considered in People (DPP) v. Murray [1977] I.R. 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 authors discuss the applicability of the offence to the field of sport. Its application is considered further in paragraph 9.163:-
- “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.’
11. Submissions
Oral and written submissions were made on behalf of the applicant and the Director of Public Prosecutions. On behalf of the applicant, in relation to Count No. 2, the issues which had been raised during the trial on the application for a direction, that the case be withdrawn from the jury, were re-argued. It was submitted that s. 13 of the Non-Fatal Offences Against the Person Act, 1997 required a particular mens rea and actus reus which had not been reached. The section, it was submitted, required an intention or recklessness to engage in conduct which created a substantial risk of serious harm or death. It was submitted that there was no evidence as to intention or recklessness. It was also submitted that the conduct was not such as would create a substantial risk of serious harm. It was submitted that there had been an expression of anger and aggression but that this was insufficient to come within the statute. It was submitted that the trial judge did not adequately direct himself as to the ingredients of the offence under s. 13.
On behalf of the Director of Public Prosecutions it was submitted that there was sufficient evidence before the court from which a jury could find or infer evidence of the ingredients 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. It was a matter for the jury to decide whether by roaring the words “hit him”, having threatened to do serious harm to David Langan, the applicant counselled or procured the blows that were struck by Fergal Cagney.
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 this 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: 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.
(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.
These facts fall to be considered in light of the legal ingredients of the offence. The evidence of Ronan McGrath pursuing, shouting at and threatening David Langan is such that an intent may be inferred from it as to whether he intentionally or recklessly engaged in conduct which creates a substantial risk of death or serious harm to David Langan. 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 would have that effect.” Similarly, in this case, even if the applicant did not intent the endangerment (and that is not an issue which was closed to the jury) he may be guilty of endangerment if he has been reckless as to whether his conduct would have that effect.
(i) In this case, on the prosecution’s evidence at its highest, the evidence as to the conduct of the applicant was that he pursued David Langan to Portobello Bridge in an aggressive manner so as to suggest his intention to attack David Langan, at the canal area. He shouted and threatened David Langan in a manner suggesting he might do him serious harm, he shouted to Fergal Cagney in an aggressive manner to hit David Langan, (ii) It was open to the jury to infer the intent of the applicant for his actions, as to whether he was intentionally or recklessly engaging in the conduct. (iii) On this evidence it was open to the jury to decide that the conduct created a substantial risk of death or serious injury to another, in this instance David Langan.
The court is satisfied that the offence of endangerment, on the clear words of the section, may exist even if no injury occurs. Further, the court does not consider that the offence is excluded when injury has occurred. The constituents of the offence as set out in the legislation have to be considered in either situation.
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. The evidence before the court included evidence of conduct from which intention or recklessness could be inferred. While it was submitted that the conduct was not such as would create a substantial risk of serious harm, the evidence included conduct of the applicant in the circumstances surrounding the death of David Langan and the learned trial judge did not err in law in letting the matter go to the jury. In light of the evidence, from the high point of the prosecution case, this court is satisfied that the learned trial judge did not err in failing to withdraw the count from the jury.
Counsel also made a submission, although it was not pursued with the same vigour, that the verdict of the jury was inconsistent insofar as he was acquitted of manslaughter but found guilty of endangerment contrary to s. 13 of the Non-Fatal Offences Against the Person Act, 1997. It was submitted that while manslaughter relates to proof of acts relating to a death s. 13 is to address the social ill of advertent risk taking. However, the court is satisfied that the elements of the offence of s. 13 are set out clearly in the statute and are specific matters which may be addressed by the jury. The fact that the jury acquitted the applicant of manslaughter was not inconsistent with them proceeding to find him guilty of endangerment.
Counsel on behalf of the Director of Public Prosecutions submitted that it was never argued in the trial court that acquittal on the charge of manslaughter should inexorably lead to an acquittal on the charge of endangerment. While that absence of argument would appear to be the case and thus this ground could not be the primary ground of appeal the court has considered the matter in the limited fashion available on this appeal and dismissed the submission.
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 appeal 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.