Irish Court of Criminal Appeal

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URL: http://www.bailii.org/ie/cases/IECCA/2004/16.html
Cite as: [2004] IECCA 16, [2005] 1 ILRM 241

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Judgment Title: D.P.P.-v- Richard O'Carroll Neutral Citation: [2004] IECCA 16 Court of Criminal Appeal Record Number: 10/03 Date of Delivery: 06/07/2004 Court: Court of Criminal Appeal Composition of Court: Hardiman J., O'Donovan J., Gilligan J. Judgment by: Hardiman J. Status of Judgment: Approved

Judgments by	Result	Concurring	Dissenting
Hardiman J.	Quash conviction, re-trial ordered

Outcome: Quash conviction, re-trial ordered

- 28 -

Hardiman J. 10/03
O’Donovan J.
Gilligan J.



Between: Applicant Respondent






JUDGMENT of the Court delivered the 6th day of July, 2004 by Hardiman J.

This is the applicant’s application for leave to appeal against his conviction for murder. On the 12th December, 2002 he was convicted by a jury of the murder of Keith Fortune on the 2nd May, 1999. This conviction followed a trial lasting seven days.

Subsequent to the trial, the applicant discharged his solicitor and counsel. This is a significant feature in view of certain submissions made on this application, to be considered below. It is also relevant to say that the Court having read the transcript and heard the submissions on this application is quite satisfied that the applicant was properly and skilfully defended at his trial.

The applicant himself gave notice of application for leave to appeal dated the 9th July, 2003. Grounds of appeal in typescript had been submitted on the 22nd May, 2003: it is not clear whether these were submitted by the applicant himself or by a solicitor on his behalf. He subsequently retained the firm of John J. Rice and Co., Solicitors, of Belfast. This firm issued a motion on the 12th May, 2004 seeking to rely upon additional grounds of appeal. On the 11th June, 2004 a further additional ground of appeal was lodged. Further submissions were also filed.

Original grounds of appeal.
The original grounds of appeal were as follows:-
(1) The trial was rendered unsatisfactory and unfair by the Court’s holding of an inquiry in front of the jury into the non-attendance of several state witnesses.
(2) The Court erred in failing to accede to an application for a direction of no case to answer at the close of the prosecution case.
(3) The Court erred in failing to direct the jury at all on the possible verdict of manslaughter.
(4) The convictions based on such tenuous evidence is in all the circumstances unsafe.

The first additional ground of appeal of the 11th May, 2004 was that:-

“The Court erred in law by failing to leave the question of provocation before the jury”.

The second additional ground of appeal, of the 11th June, 2004 was as follows:-

“The learned trial judge erred in law in failing to direct the jury adequately on the burden and standard of proof on the prosecution in respect of negativing the issue of self defence raised by the applicant”.

On the hearing of this application the applicant was represented by Mr. Paul Ramsey Q.C. and Mr. Ronan Daly of counsel instructed by John J. Rice and Co. Here again, the applicant was properly and skilfully represented but in view of certain of the submissions made it is proper to point out that only one of these gentlemen was concerned with the case at trial.

Provocation.
On the hearing of this appeal Mr. Ramsey accepted that ground relating to provocation was not arguable having regard to the decision of this Court in DPP v. Mark Cronin (CCA. unreported, 16th May, 2003).

Indeed, this case is a striking illustration of the unreality that would attach to requiring a trial judge to charge a jury in relation to the defence of provocation when it had not been relied on. Cronin held that this should not be done, at least without request. At the trial counsel then appearing for the applicant, Mr. Ciaran O’Loughlin S.C., was extremely clear and realistic on the topic of provocation. He said at Book H at page 9:-

“Obviously the issue of provocation, there was no cogent evidence in the case to allow that to be raised and it would I think in any event have been at odds with the defence generally…”.

In the course of his application for a direction Mr. O’Loughlin referred to the case of DPP v. MacEoin [1978] I.R. 27 but for a purpose other than submitting that provocation was an issue in this trial. Indeed he said:-

“In any event it (MacEoin) ended up as a manslaughter on the basis of provocation. I say that has no relevance here”.

Notwithstanding this, the submissions filed on the part of the applicant contended that the issue of provocation should have been left to the jury. Portion of Mr. O’Loughlin’s submissions were cited in support of this proposition, but not the portions quoted above which made it perfectly clear that provocation was not relied upon. The defence actually relied on was self defence or accident: the form in which this arose will be discussed below. These were the only defences available and had been raised in the applicant’s statements to the Gardaí. Provocation was never viable in the circumstances of this case and defending counsel, in the proper exercise of his professional judgment realised this, said as much, and concentrated on the defence which was available.



Self defence.
The self defence point was only raised, for the purpose of this appeal, in the second additional ground of appeal, filed on the day of the hearing of this application. It is however a substantial point. To explain this it will be necessary to recapitulate certain of the essential facts in the case.
The deceased man sustained stab wounds which proved fatal in a scuffle which took place between him and the applicant on a landing of a public house in Bray, Co. Wicklow. It appears that the deceased had been in attendance at a post-christening party in the public house. The applicant and his girlfriend, who had been drinking elsewhere, turned up at this party to which they had been invited. The deceased allegedly made certain offensive remarks regarding a child who had recently been born to the applicant and his girlfriend but there was absolutely no suggestion, in the applicant’s statements or anywhere else, that these remarks caused to the total collapse of the applicant’s self control which would be necessary to raise a defence of provocation: see DPP v. Davis [2001] 1 I.R. 146.

The applicant did not give evidence at his trial. However, the prosecution proved as part of their case certain statements made by him to the gardaí. In one of these he said:-

“I was arguing with (the girlfriend) that night and I left the pub just ahead of her. As I was going out to the hall (the deceased) was there. (He) said something, a smart remark. I exchanged some words with him. I squared up to him. Then I saw this knife come out of his sleeve. I quickly head butted him. A scuffle followed. We wrestled around with the knife and Keith got stabbed. I took the knife from Keith Fortune and we were still struggling. I then legged up the road”.

In a further statement, the applicant said:-

“After some time I saw Keith Fortune leave the pub and I left a short while after that. When I got to the hall, Keith Fortune was there. I squared up to him and the fight started between us. We both fell on the stairs after I hit him a head butt. I then took the knife from him”.

The applicant also said:-

“I quickly head butted him. A scuffle followed. We wrestled around with the knife and Keith got stabbed. I took the knife from Keith Fortune and we were still struggling”.

There was also an interview between certain gardaí and the applicant. The latter was asked “Do you remember meeting Keith Fortune in the William Dargan pub last night?” His answer was recorded as follows by Detective Inspector O’Carroll:-

“I do. He made some smut remark to me. I was very drunk and I knew he always carried a knife. This happened in the hallway. I saw Keith Fortune slide a knife down his sleeve. It was him or me. I head butted him and took the knife from him. There was a struggle. I did not want to be the one who ended up in the morgue. It all happened in a few seconds. I was only defending myself when I stabbed him. It was him or me. I must have stabbed him in the struggle when I was taking the knife off him. I now want to say that I am very sorry to his parents and to his family. I did not set out to kill anyone. I was only defending myself. I am very sorry for the death of Keith Fortune”.

There was no other direct evidence bearing on the commencement of the fight or the course it took. There was, however, another piece of evidence consistent with portion of the account given by the applicant in his statements. It was the evidence of the eminent pathologist Dr. John Harbison who was State Pathologist at the relevant time. He described the deceased’s injuries in some detail and in particular stated that:-

“Stab wound no. 2, the most serious one, seemed to involve one track going towards the midline and very slightly upwards and another two thrusts going downwards into the liver about 20 to 30 degrees below the horizontal, that is had the deceased been standing. All through the one entrance wound. These multiple thrusts beneath one wound imply close combat rather than swinging the knife from a distance…”.

Dr. Harbison agreed that he had found “underneath that one area of entry wound three passages, so to speak, that the knife took”. In
cross-examination he agreed that all the wounds were in soft tissue and that it did not require any huge force to inflict the injures. Asked to assume that there was a close struggle involving “two heaving bodies… in close combat”, he said that “It is quite possible in those circumstances that the knife did not leave the interior of the body with a fierce movement between the two of them”.

He was then asked to consider a further injury, not absolutely fresh, on the palm of the deceased’s hand. In technical terms, it was on the hypothener eminence of the left hand, the fleshy bit on the little finger side. He described a very superficial skin incision “as if something sharp had cut very superficially into it”. He was asked by Mr. O’Loughlin whether that would be consistent with somebody carrying a knife in his sleeve and dropping it down into his hand, assuming that the knife were very sharp. He replied “”Quite possibly, yes, My Lord”.

The evidential burden.
Having regard to the evidence summarised above, it appears to us that the defence at the trial had discharged the evidential burden which lay upon them to raise self defence. This topic is discussed at some length in DPP v. Davis, cited above, and it is not necessary to repeat that discussion here. That case held that the defence of provocation had to be raised, and not merely invoked, by the provision of some evidence raising it so as to trigger the prosecution’s duty to rebut it. In Davis this Court cited with approval the following passage from McAuley and McCutcheon Criminal Liability (2000) page 851:-

“The general principles governing defences apply: a burden rests with the accused who must be able to show that provocation is a live issue, or, as Lord Devlin put it, who must produce a credible narrative of events suggesting the presence of the various elements of the defence”.

The Court continued:-

“It is clear that this may be done either by direct evidence including the accused’s own evidence, or by inference from the evidence as a whole”.

That statement of the evidential burden in relation to provocation is also apt to describe the same burden in relation to self defence.

We would also repeat, in relation to self defence, certain other remarks in the judgment of the Court in Davis which were of course addressed to the specific defence of provocation. As with provocation, the evidential burden of raising the defence of self defence is not a heavy one but it necessarily involves being able to point to evidence of some sort suggesting the presence of the elements of self defence. Like provocation, self defence is not an issue which will automatically go to the jury simply because the defence is invoked or mentioned. The burden which rests with the accused is to produce or indicate evidence suggesting the presence of the elements of the defence, whether through direct evidence or by inference from the evidence as a whole. Before leaving the issue to the jury the judge must satisfy himself that an issue of substance, as distinct from a contrived issue or a vague possibility has been raised.

The Judge’s charge.
The learned trial judge charged the jury mainly on the second last day of the hearing. He stated the onus of proof impeccably and specifically said that the Director “… must prove his case and every single limb and ingredient of it and the onus of proving or disproving anything never shifts over to the accused man… the onus of proving or disproving anything never shifts over to him and that is quite simply that”. He discussed at considerable length the provisions of s.4 of the Criminal Justice Act, 1964 s.s,(1):-

“Where a person kills another unlawfully the killing shall not be murder, unless the accused person intended to kill or cause serious injury to some person, where that the person killed or not”.

He also discussed at length the provisions of s.s. (2):-

“The accused person shall be presumed to have intended the natural and probable consequences of his conduct, but this presumption may be rebutted”.

He said that it was not up to the accused to prove that the presumption had been rebutted, but it was for the prosecution to prove that it had not been. On the specific topic of self defence he said:-

“You are allowed to defend yourself against threat of death to yourself or serious personal injury. You are allowed to defend your property. You are allowed to defend members of your family and the measures you adopt to do that may even extend to causing death yourself and when a situation of self defence arises – now Mr. Sammon (counsel for the Director) I think contends that it does not arise at all because the head butting had taken place and the knife had been disarmed, so that is a question you have consider. When it arises the test is not whether the accused used reasonable force, in all the circumstances prevailing, but whether, in his view, in his estimation, he was using such force as was necessary. It is not the force used by the reasonable man… the test is whether he considered he was using reasonable force in the circumstances and a reason for this is because, as you see from the definition, it is all about intent and a person defending himself does not have the intent to kill or cause serious injury. His primary intent, the law takes the view, is to defend himself and that is what is operating on his mind.

First of all, you have to consider whether there was a situation in which self defence arose at all. If the threat had passed, for example, there was no question of self defence arising. First of all you have to ask yourself that question and then if you do find the question of self defence does arise, you have to ask whether the force being used, by way of self defence, was what the accused considered necessary and not what the reasonable man in the pub at the time might have considered necessary. Now there you have the definition of murder members of the jury and my directions to you as to the circumstances in which self defence arises. If you do find self defence, then you would find the accused not guilty and then you have the definition of murder.”
(Emphasis added)

Requisitions.
On the following day, counsel for the Director raised certain requisitions on the charge. He emphasised the first portion of the last sentence quoted above. He drew the attention of the learned trial judge to the case of AG v. Christopher Dwyer [1972] IR 416 as follows:-

“Where the defence made to the charge of murder is self defence against a violent and villainous attack, the trial judge should inform the jury that if they come to the conclusion that the accused acting in self defence employed more force than was reasonably necessary, but no more than he honestly believed to be necessary, they should return a verdict of guilty of manslaughter”.

Counsel said that the jury should be charged along those lines. He said that this approach left open the possibility of a verdict of murder or of manslaughter, or of acquittal:-

“It may well be that the jury are of the view that the account forwarded may reasonably well be true, but it can still constitute in the circumstances a situation where even though they have a doubt as to whether the prosecution had negatived the issue of self defence, therefore that is still an issue, but they are of the view that the force used was excessive and that it was known to be excessive by the accused, under those circumstances the appropriate [verdict] is guilty of murder. If they come to the view that on that account the accused used excessive force, but in his own state of mind at the time he was using necessary force in the subjective terms, the verdict should be manslaughter. If they come to the view that in objective terms he used no more force than was necessary, then he should be acquitted”.

For the defence, Mr. O’Loughlin raised certain submissions of his own and continued:-

“On the question that Mr. Sammon has raised in relation to manslaughter, obviously the issue of provocation, there was no cogent evidence in the case to allow that to be raised and it would I think in any event have been at odds with the defence generally, but I am in your Lordship’s hands as to whether your Lordship wishes to recharge the jury on the question of manslaughter”.

Effect of the charge.
The position after the learned trial judge had charged the jury was an unusual one. Counsel for the prosecution took exception to the charge on the basis that it was wrong in law in a manner which was overly favourable to the defendant. He focussed in particular on the statement “If you find self defence, then you would find the accused not guilty…”. Counsel for the defence, though requesting a recharge on other grounds, did not comment specifically on this submission at all but simply stated that he was in the judge’s hands.



In the view of this Court, prosecuting counsel was correct in the fundamental requisition which he made. The jury should have been told to approach the case in the manner authoritatively required by the decision of this Court in Dwyer. In other words they should have been told to consider, not only whether there was evidence that a situation of self defence had arisen, but whether the defendant had or had not employed more force in self defence than was reasonably necessary, and whether he had used more force than was reasonably necessary, but no more than he honestly believed to be necessary. In the latter event, they should have been told that the appropriate verdict was manslaughter.

In fact, the possibility of finding a verdict of manslaughter on the ground of the use in self defence of more force than was reasonably necessary, but no more than the accused honestly believed to be necessary, was not placed before the jury by the learned trial judge at all.

Instead, they were left with an erroneous view of the role of self defence, but one overly favourable to the accused:-

“If you find self defence, then you would find the accused not guilty…”.

This form of charge presented difficulty for counsel on both sides. Counsel for the Director faced the prospect that the defendant might be acquitted altogether if the jury were to “find self defence” even though he might have been properly convicted of manslaughter had the judge placed that option before the jury. Counsel for the defence found himself in the position where an erroneous charge on this point had been given, but one which favoured his client and increased the likelihood of a complete acquittal.

Prosecuting counsel did everything he could to rectify the error. He identified it with precision and he directed the learned trial judge’s attention to a case of undoubted authority stating in clear terms what should have been said. If defending counsel could in any way have supported the basis on which self defence had been left to the jury he would undoubtedly have done so, but of course he could not. He did not attempt any specious argument to prevent a recharge on this matter. Having heard his opponent draw the learned trial judge’s attention to the proper approach, and to the authority for it, he simply took the position that he was in the Court’s hands.

In the event, the learned trial judge declined to recharge the jury on any of the points raised either for the prosecution or the defence.
Prosecution submissions on the above.
On the hearing of this application, the Director did not entirely concede that the charge on self defence was flawed, but canvassed the possibility that the learned trial judge had been following judgments in Dywer’s case other than that of Mr. Justice Walsh.

In our view, there is no scope for this submission. Dwyer had been convicted of murder despite a defence of self defence. This conviction was upheld on appeal. The Attorney General issued a certificate that the decision of the Court of Criminal Appeal involved a point of law of exceptional public importance. He defined this as follows:-

“Where a person, subjected to a violent and felonious attack, endeavours, by way of self defence, to prevent the consummation of that attack by force, but, in doing so, exercises more force than is necessary but no more than he honestly believes to be necessary in the circumstances, whether such person is guilty of manslaughter and not murder.”

This question was answered in the affirmative by the Supreme Court. There were two substantive judgments, that of Mr. Justice Walsh and that of Mr. Justice Butler. Ó’Dálaigh C.J. agreed with Mr. Justice Butler: Budd J. agreed with that of Mr. Justice Walsh. Fitzgerald J. said only that the question should be answered in the affirmative.

Walsh J. said:-

“In my opinion… when the evidence in a case discloses a question of self defence and where it is sought by the prosecution to show that the accused used excessive force, that is to say more than would be regarded as objectively reasonable, the prosecution must establish that the accused knew that he was using more force than was reasonably necessary… If the prosecution does not do so, it has failed to establish the necessary malice. If however at the same time it does establish that the force used was more than was reasonably necessary it has established that the killing was unlawful as been without justification and not having been caused by misadventure. In those circumstances the accused in such a case would be guilty of manslaughter”.

Butler J. said:-

“The matter is one for the consideration by the jury in each case and it is for them to find what was the intention of the accused at the time of the killing. It is not in every trial for murder in which the plea of self defence is raised that an accused person must, at worst, be convicted of manslaughter. The evidence of the words and acts of the accused and the surrounding circumstances, both before and after the killing, may satisfy the jury that the primary intention of the accused was not to defend himself. Indeed on the evidence they may so find in this case. However, where self defence is open on the evidence as an answer to a charge of murder, the jury must so satisfied before convicting of that charge, and the accused is entitled to have it left to the jury to consider whether, even if they find he used more force than was reasonably necessary to defend himself, he nonetheless used no more than he honestly believed to be necessary in the circumstances. In the latter case they should be directed to find him guilty of manslaughter, and not of murder”.

Accordingly, it seems to us that there is no scope for distinguishing between the judgments of the learned members of the Supreme Court in Dwyer’s case in any matter relevant to the present litigation.

In fact, the basis on which Dwyer’s case was left to the jury is very similar to that featured in the present case. According to Walsh J.:-

“… The learned trial judge left it to the jury to consider whether the homicide with which the appellant had been charged might be lawful on the grounds that he was acting in self defence, and the learned trial judge directed the jury on the basis I have set out above so that it was left to the jury to decide whether the appellant should be acquitted altogether or should be convicted of murder. In the event the verdict was one of murder”.

Accordingly, it seems to us that the failure to draw attention to circumstances in which a verdict of manslaughter, rather than either of murder or of acquittal, might be appropriate cannot be justified by reference to any of the decisions in Dwyer’s case.

Estoppel or preclusion?
The above findings, without more, would lead to the conclusion that the conviction should be quashed. The case is certainly not one for the application of the proviso because one could not be satisfied that a miscarriage of justice had not occurred in depriving the applicant of the possibility of a verdict of manslaughter. The Court has however been concerned by the question of whether the defendant can be said to have adopted the charge actually given by failing to make relevant requisitions on it, on the basis that it misstated the law in a manner overly favourable to him, and thereby maximised his chances of total acquittal. If he had taken that view, it might be thought invidious to permit him now to seek the benefit of the course of action he deliberately eschewed at trial. Certainly, there is ample authority in the decisions of this Court over a period of seventy-five years for the proposition that there must at least been an explanation when an applicant seeking leave to appeal wishes to raise a point that is not raised by him or on his behalf in the Court of trial. The authorities in this question are set out in DPP v. Cronin, cited above, and in DPP v. Redmond, CCA [2001] 3 I.R. 390.
Where the defendant is professionally represented, the question indicated above comes down to a consideration of the duty of defence counsel in circumstances such as these.

We have not found any authority from this jurisdiction or the neighbouring one which casts light on circumstances precisely like these. In DPP v. Noonan [1998] 2 IR 439, Geoghegan J. giving the judgment of the Court of Criminal Appeal in a case where the learned trial judge had suggested an objective, as opposed to subjective, test for provocation had this to say:-

“It would seem abundantly clear that if counsel for the defence had requisitioned the trial judge in relation to that part of the trial judge’s charge which related to the question of whether a subjective or objective test was to be applied to the defence of provocation, the learned trial judge would have been bound to recall the jury and explain the test again by reference only to MacEoin. However, the requisition made related to a different aspect of the charge and not to the questions of objective or subjective test. That being so, this Court must consider whether the application for leave to appeal should be refused. There is absolutely no doubt that this Court can refuse to entertain an objection to a judge’s charge where that objection did not form part of the subject matter of a requisition. But it does depend on the particular circumstances of the case whether this Court takes that course or not. An obvious example where it might take that course would be where it might appear to have been a deliberate omission to raise the requisition for tactical reasons in the circumstances where perhaps other parts of the charge had been highly favourable to the accused.”

The Court held that the omission had been due to simple oversight, and that there was no conceivable tactical reason for it. The conviction was quashed.

In DPP v. Dunne (CCA unreported 25th November, 2002), the judgment of the Court was again given by Geoghegan J. The case was one where the force used had admittedly been excessive and the judge had not left to the jury the question of whether the defendant might have believed that he was using only reasonable force. Geoghegan J. said:-

“There could always be a slight worry that when no requisition is made by counsel for the defence, in particular a very experienced counsel for the defence as in this case, that the decision was tactical because, sometimes it can be tactical: sometimes counsel for the defence thinks that the accused has a better chance of acquittal by the judge not explaining too carefully the defence that has been raised in the speech. One can never be certain of that but what tips the balance in favour of the applicant we feel in this case is the fact that there was no requisition from either side. Where a special discreet defence arises like self defence of provocation and the judge clearly omits making any reference to what the law relating to it is and what the jury have to address their minds to, that is a classic instance where counsel for the Director of Public Prosecutions should keep him right, and should make a requisition. That was not done, in those circumstances we give the benefit to the accused. We are satisfied there has to be new trial because of that omission.”

Apart from decided cases, the Code of Conduct of the Bar of Ireland is suggestive on this topic. At paragraph 5.3 there is a general requirement that a barrister must not knowingly deceive or mislead the Court. Paragraph 9.13 specifically provides that defence counsel is under no duty to bring previous convictions to the attention of the Court even where he knows the accused has previous convictions but the prosecution have said that he has none. Most relevantly, paragraph 9.19 provides:-

“It is a duty of prosecuting counsel to assist the Court at the conclusion of the summing in by drawing attention to any apparent error or omission of factor law which, in his opinion, ought to be corrected.” (Emphasis added).

Neither the cases nor the Code deal with the situation we have here, where the judge has misinterpreted the law in the defendant’s favour. Where, as in the provocation case cited above, the law is misinterpreted unfavourably to the defendant, one would have to suspect that tactics lay behind an omission by counsel to seek to correct it. Such a correction would improve the client’s position at trial. However, there is no authority that we can find for the proposition that defence counsel is obliged to make a requisition which would disimprove the client’s position at trial. The Code provision in relation to previous convictions suggests the contrary. Equally, the imposition in the Code of a duty on prosecuting counsel to point out any apparent error suggests, on the basis of expressio unius exclusio alterius, that there is no such duty on defence counsel.

In England, too, there is no doubt that prosecuting counsel is under a positive duty to draw the judge’s attention to any failure to give adequate and proper directions on the law and that the judge is entitled to rely on that assistance being available: see Archbold, 2004, page 466.

The position of defending counsel is at least not equally clear, and is probably quite different. In R. v. Cocks, 63 CAR (1976), both counsel were asked after a charge whether there were any matters, whether of fact or of law, which they wished to raise. Counsel for the defence did not raise the relevant error. The Court of Criminal Appeal took the view that if a trial judge wanted to ask counsel for assistance as to the facts or law, the time to do that was before he summed up to the jury and not afterwards. The Court said:-

“The practice adopted may be one which causes embarrassment since defending counsel owes a duty to his client and it is not his duty to correct the judge if he has gone wrong. On the other hand, if prosecuting counsel, listening to the summing up, appreciates that there has been some misdirection of law… then prosecuting counsel has a right, if he thinks fit, to raise the matter with the judge and so obtain any correction necessary before the jury retire”.
(Emphasis added)

In that case, the English court found a clear misdirection and quashed the conviction.

In R. v. Edwards, 77 CAR (1983) the judge in a rape trial had omitted to give the jury a direction on the standard of proof. The Court of Criminal Appeal proceeded on the basis that the dictum in Cocks, cited above, was applicable. The Court considered that the evidence against the accused had been overwhelming and that, beyond all doubt, a reasonable jury properly directed would have convicted. Accordingly, they operated the proviso. They added that they considered it to be inconceivable that counsel for the defence, acting in the best interest of his client, could have failed to draw the serious omission in the summing up to the attention of the judge, thereby depriving the client of the benefit of the jury hearing a direction on the standard of proof if he had not shared the view that the evidence was overwhelming. The Court added, cryptically, that “If in future counsel ever find themselves placed as counsel for the defence were placed at the trial of this appellant, they may find the judgment in the present case of assistance”.

The last mentioned case is different from the present one in a number of ways. Firstly, there is here a clear issue on self defence. Secondly, counsel was confronted with an omission from the charge which he could not have anticipated and which, at least on one view of the case, improved the prospect of acquittal significantly. Thirdly, defending counsel had heard the true position expounded by the prosecution, and did not challenge it. In these circumstances there is much to be said for the view expressed in Archbold at page 467:-

“Whatever the precise ambit of the duty (of counsel), it is submitted that a failure to comply with it cannot of itself justify the dismissal of an appeal if there was an error or omission such as to render the conviction unsafe, but the failure of the defence advocate to draw the attention of the judge to the error may give rise to scepticism as to whether a correct direction would have made any difference”.

In [1996] Crim. LR 831, there is a note of a case called
R. v. Curtin, decided in the Court of Appeal (Criminal Division) on the 24th May, 1996. There, the learned trial judge omitted to draw the jury’s attention to the defence indicated by the defendant in interviews with the police. The Court “adverted to the question whether or not there was a duty, where a judge did not adequately deal with the defence, on the defence counsel to draw that to his attention. It was plain from Cocks that there is no such duty. The experience of the Court was that had been so for very many years”. Commenting on this, the learned editor said:-

“It is surprising that counsel for the defence is under no obligation to draw attention to an error or omission in the summing which is disadvantageous to his client.”
(Emphasis added)

The editor does not appear, therefore, to think that there is or ought to be an obligation on defending counsel to draw attention to an error or omission advantageous to his client.

It may also be noted that Lord Justice Auld in his Review of the Criminal Courts of England and Wales report (2001) said:-

“In my view, if and to the extent that the law and professional Codes of Conduct do not require a defending as well as a prosecuting advocate to seek to correct any error of law or for that matter of material fact, of the judge of which he becomes aware, both the law and the Codes should be changed to require it. A defendant’s right to a fair trial, including the twin requirements that the prosecution must prove his guilt and that he can remain silent, do not entitle him to ignore the error hoping for a better chance of acquittal or in the hope, if there is a conviction, of getting it quashed in the Court of Appeal.”

At a minimum, this passage suggests that the law of England may indeed be accurately stated in Cocks. Secondly, it is to be noted that notwithstanding Lord Justice Auld’s criticism the position in England and Wales has not changed.

In the present case, we do not believe that the conduct of defending counsel at the trial is open to any criticism. He was confronted with a very difficult situation, and one which he could not have anticipated. The learned trial judge had received all appropriate assistance from the prosecution and was under no misapprehension. Defence counsel very properly refrained from criticising or casting doubt on what the prosecution had said. We do not consider that he was under a duty, either to the Court or to his client, to do more in the circumstances of this case. There is no authority to support the existence of such a duty. We fully accept that there may be circumstances in which the omission of defence counsel to draw attention to an error may be cogent evidence for the proposition that, in his view, the evidence against his client was overwhelming, so that the proviso might be applied. But this is not the case here, for the reasons set out above.

Conclusion.
The Court will treat the application for leave to appeal as the hearing of the appeal, allow the appeal and quash the conviction. The case is plainly one appropriate for retrial and the Court will so order.


RichardO’Carroll&DPP