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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P. -v- Ismet Ceka [2004] IECCA 25 (28 July 2004)
URL: http://www.bailii.org/ie/cases/IECCA/2004/25.html
Cite as: [2004] IECCA 25
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Judgment Title: D.P.P. -v- Ismet Ceka Composition of Court: Fennelly J., Peart J., Ryan J. Judgment by: Fennelly J. Status of Judgment: Approved |
Judgments by | Result | Concurring | Dissenting | |
Fennelly J. | Refuse leave to appeal | |||
Outcome: Refuse leave to appeal
19
COURT OF CRIMINAL APPEAL
Fennelly J.
Peart J.
Ryan J.
45/03
THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS
-v-
ISMET CEKA (aka ISUF KRYXI)
ApplicantTHE DIRECTOR OF PUBLIC PROSECUTIONS
-v-
ISMET CEKA (aka ISUF KRYXI)
JUDGMENT delivered on the 28th day of July, 2004 by FENNELLY J.
This is an application for leave to appeal against a conviction for murder. On 12th March 2003, the Applicant was convicted in the Central Criminal Court, after a trial of seven days, by a majority jury verdict of 10:2 of the murder on 13th August 2001 of Thomas McAuley.
The killing took place in the open street at Manor Street, Waterford, shortly before 8 o’clock on a summer evening before a large number of witnesses. The Applicant is of Albanian nationality. He had been living in a hostel at Manor Street in Waterford since May 2000. He spoke English with difficulty and gave his evidence with the assistance of an interpreter. It was not in issue that the Applicant killed the deceased with a knife, which he had purchased several hours before the killing. The defence turned exclusively on issues of self-defence and provocation.
On this application, the Applicant advances the following:
· That the learned trial judge, having regard to the state of the evidence and in particular the aggressive and threatening behaviour of the deceased towards the Applicant both immediately before and in the period leading up to the killing, should have withdrawn the issue of murder from the jury at the end of the prosecution case, leaving them only to consider whether the Applicant was guilty of manslaughter;
It is necessary to recount some of the background history leading up to the tragic events of 13th August 2001. Prior to the events leading up to his death, the deceased had had a long-term relationship with Ms Samantha O’Brien, who had borne him a child, a girl called Dineke. The Applicant commenced a relationship with Ms O’Brien shortly after the beginning of 2001. The deceased strongly resented this relationship, even though it appears that he himself had commenced a relationship, about the same time, with another woman. The Applicant alleged in evidence that the deceased used to threaten him, when he went to stay with Ms O’Brien. He claimed that the deceased threatened to kill him, even claiming that he was in the IRA. He said he saw newspaper reports stating that the deceased had been in prison for bombing for a long period of time. Ms O’Brien largely confirmed, in evidence, that her relationship with the deceased was a violent one. She had got a barring order. He had started a relationship with another woman.
Ms O’Brien gave evidence that, on the day of the killing, the deceased had come to her house, though he should not have done so in view of the barring order. He was shouting at Dineke. He was accusing the Applicant of hitting Dineke. Ms O’Brien said she knew this was untrue. There followed an extraordinary series of mobile-phone text messages from Ms O’Brien to the Applicant, in which she dealt with the deceased’s allegations that the Applicant had hit Dineke, and explained that the deceased had threatened Dineke into saying this. Most materially, Ms O’Brien conveyed to the Applicant, in a number of these messages, that the deceased was after him, was going to a park to “sort him out” and that he wanted to fight the Applicant. She explained that the deceased had been screaming to her on the phone: “where is he?”
The scene then moves to Manor Street at a time fixed by the evidence as being shortly before 7:50 pm. It will suffice to summarise the gist of the evidence given or largely confirmed by at least twelve eyewitnesses. It is appropriate to recall that the first ground of appeal is that the issue of murder should have been withdrawn from the jury. The issue is whether there was evidence to go to the jury. Accordingly, it is legitimate to refer in particular to those parts of the evidence which tend to support the case made by the prosecution, namely that, though the deceased physically attacked the Applicant, a stage was reached when the Applicant had repelled and overcome the physical threat from the deceased and that it was after that point that he killed the deceased.
The following is a summary of the principal features of this evidence. Mr James Geary was walking with his daughter along Manor Street. They both saw a man, now known to be the deceased, a few doors away walking towards them and shouting very aggressively. He picked up speed and commenced to run as he passed them. He ran towards another man, now known to be the Applicant, and jumped at him. Miss Geary had seen this man come from the hostel, already mentioned, on the other side of the road. The two men had a tussle or fighting match. This part of the event, as confirmed by other witnesses, appears to have taken place on the footpath. Mr Geary described it as follows:
“Dragging out of one another, tussling with one another. Dragging one another’s clothes, trying to push one another away…..”
Mr Shane Crowley was employed in a pub beside the scene of the incident. In response to a suggestion of something happening outside, he went out and saw “two men in a scuffle…” The scuffle went out onto the roadway. One man, whom he was able to identify as the Applicant, since he knew him, “got the better.” The other man with his back on the ground asked him to stop and was trying to push him away. But “it didn’t matter.” The Applicant then made three lunges to the side of the body, having taking out something white and shiny, which he thought looked like a piece of Perspex. Ms Sara Mee saw matters from the time the deceased was on the ground. The man on the ground was trying to defend himself. She noticed a knife in the hand of the man standing over the deceased. He was swinging his hand at the latter. She saw three or four swings.
Several key features of this evidence, as confirmed by other witnesses, should be noted. The deceased was the initial aggressor. There were two stages to the struggle. A hand-to hand struggle took place on the footpath. It then moved onto the road. The Applicant got the upper hand. The deceased either fell or was pushed to the ground. He commenced to plead with the Applicant to stop. The Applicant produced a knife and stabbed the deceased at least three times while he was on the ground. Nobody saw a knife before this point. There was consistent evidence that the deceased was on the ground, trying to defend himself by putting up his arms and that he pleaded with the Applicant to stop. It was at that time that the Applicant produced the knife. Although the eyewitnesses described three or four blows, the deceased sustained six stab wounds.
At this point, it is important to recall the evidence that the Applicant had purchased the knife, in a shop in Waterford, on the afternoon of these events. It was described by the shopkeeper as a knife specially for diving. The blade was jagged on one side and smooth on the other. He ran his hand along the edge of the knife to se if it was sharp enough. While still in the shop, he strapped it to his leg under his jeans. The evidence of the pathologist was to the effect that there were six separate wounds, consistent with the use of a knife, on the body of the deceased. The fatal one was to his chest.
Withdrawal of murder from the jury: issue of self-defence
At the close of the prosecution case, counsel for the Applicant applied unsuccessfully to the learned trial judge to withdraw the charge of murder from the jury. He submitted that the behaviour of the deceased had been shown, by the evidence particularly of Mr. Geary, to be frightening and alarming. The evidence, he said, pointed clearly to self-defence. The real issue was whether the acts of self-defence were excessive. Therefore, the question was not one of choice between murder and manslaughter, but whether it was manslaughter or no crime. The prosecution replied that the evidence showed that, following a tussle, in which the deceased was admittedly the aggressor, the latter lost the battle. He was on the ground and the accused was on top. The deceased was pleading with him to stop. Reliance was placed on the facts mentioned already, namely that the knife appears then to have been produced and used by the Applicant. On the basis of the latter arguments, the learned trial judge allowed the matter to go to the jury.
These arguments have been effectively replicated in this court. Counsel says that it is artificial to distinguish the two stages of the fight. It was all too short. It was over in a minute.
In the view of the court, this ground of appeal is without merit. It was for the jury to decide whether the actions of the Applicant were capable of being committed in pursuance of self-defence. It is not suggested that the learned trial judge misdirected the jury on the applicable law. It was open to the jury, on the evidence, to conclude that the Applicant had clearly overcome the threat posed to him by the deceased and that the latter met his death after he had pleaded with the Applicant to stop, but that the Applicant continued quite unnecessarily to stab him repeatedly with a knife bought for the very purpose of use in a fight with the deceased. The court agrees with the submission made on behalf of the Director that there was evidence upon which a jury, properly directed could reasonably find the Applicant guilty of murder and not to be acting in reasonable self-defence.
Although it is not relevant to the issue of whether the charge of murder should have been withdrawn form the jury, it is noteworthy—and will be relevant to the issue of provocation—that, when the Applicant came to give evidence, he substantially confirmed the evidence of the eyewitnesses. He described the deceased coming towards him, jumping on him. He said he was trying to protect himself. There was a struggle in which the deceased grabbed his jacket and that it was all over very quickly. In cross-examination, he said: “I was commanding what was happening.” He agreed that the deceased used only his hands and fists but that “this ended up very soon….. when [he] got the better of the fight…” This, he agreed, resulted in the deceased man being put on the ground.
The learned trial judge, in directing the jury on the burden of proof cited from the judgment of Walsh J in The People (Attorney General) v Dwyer [1972] I.R. 416:
- “Our statutory provision makes it clear that the intention is personal and that it is not to be measured solely by objective standards. In my opinion, therefore, 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. Therefore, it follows that if the accused honestly believed that the force he did use was necessary, then he is not guilty of murder. The onus, of course, is upon the prosecution to prove beyond reasonable doubt that he knew that the force was excessive or that he did not believe that it was 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 being without justification and not having been by misadventure. In those circumstances the accused in such a case would be guilty of manslaughter.”
The court is satisfied that there was ample evidence to justify the conclusion which the jury clearly reached, namely that the Applicant fatally stabbed the deceased at a time when he was no longer defending himself, but had overcome the deceased, who was on the ground and at his mercy.
The Defence of Provocation
It is next necessary to consider the point made on the issue of provocation. At the end of the evidence counsel for the Applicant applied to the learned trial judge to be allowed to argue the defence of provocation. Counsel for the accused introduced his application at the end of the evidence, as he was required to do, for leave to argue provocation by saying that it arose specifically out of the evidence of the accused and that he said “that during the fight he lost it.” He said that the provocation relied on was:
· The attack by the deceased upon the Applicant leading directly to the fight;
· The circumstances of the day, during which the deceased had made it clear that he was looking for the Applicant to give him a beating.
Counsel for the prosecution replied that he did not see what evidence there was of provocation, pointing out that, when the deceased had apparently lost the fight and was at the mercy of the accused and received the stab wounds, he would query what evidence there was to show that provocation was the cause of that or the reason for that particular part of the attack.
Therefore, the evidence advanced and the arguments to ground the defence of self-defence were practically identical with those used in respect of the defence of provocation. In his closing address to the jury, counsel for the defence emphasised self-defence, almost to the exclusion of provocation, to which he made only one passing reference. He said it was a case of self-defence from beginning to end. Of course, success in establishing that would have led to an acquittal, whereas a successful plea of provocation would merely have reduced the offence from murder to manslaughter.
It is not surprising that counsel relied so heavily on self-defence. That approach was in conformity with the evidence of the accused man. At every point in his evidence, he laid emphasis on the element of fear to explain his behaviour. It was why he bought the knife. He was scared when approached by the deceased. He took out the knife because he was in fear. Only two answers were advanced in support of the defence of provocation is Q115: “At that stage how were you feeling? A: I think I lost control, I couldn’t remember anything.” At Q142, he said, in cross-examination: “I was very scared, and I think I lost control when I started fighting with him...”
The learned trial judge, as already stated, allowed the defence to be advanced. It is notable that, though this was in the absence of the jury, the learned trial judge stated that: “We have to prove it on the civil standard of proof. [The prosecution] to the criminal standard of proof has to negative self-defence.”
The learned trial judge restated this view in his charge to the jury.
“Now, that is what the Supreme Court has said in relation to self-defence, and it is up to the prosecution to negative it. Provocation is another matter and in respect of provocation the onus shifts to the accused person to establish that. If you find provocation is words or conduct which causes a person to temporarily lose his self-control, words or conduct on the part of the deceased which causes the accused person to temporarily lose his self-control. If you find that the accused was provoked so as to lose his self-control and the killing is manslaughter rather than murder, but it never drops below manslaughter so far as provocation is concerned. The onus is on the accused person to establish that but on the lower civil standard of proof which I identified to you already. The prosecution always has the higher standard, it has to prove everything, it is required to prove to the higher criminal standard of beyond a reasonable doubt. Where the onus of shifting the onus of proving something shifts to the accused the obligation is only to prove it to the lower civil standard of proof.”
It is rightly accepted on behalf of the Director that, taken on its own, the second sentence in that passage is a misstatement of the law. However, it is argued that, when read in context it should properly be understood as being intended as a reference to the necessity to be able to identify a credible body of evidence justifying reliance on the defence of provocation, before it can be raised and not as a misstatement of the burden of proof.
The learned trial judge went on, however, to quote at length from the judgment of this court delivered by Barrington J in The People (DPP) v Kelly [2000] 2 I.R. 1, a passage which undoubtedly puts the matter differently. It, is therefore, appropriate to recall the basic principles governing this matter as laid down in the cases. The court has not been invited in the present case to reconsider any of these principles. They have been subjected to a good deal of criticism. None of that needs to be considered. The authorities are mentioned in order to deal with the single issue which arises in the present case, namely the correctness of the direction of the learned trial judge.
The point of departure is the case of The People (DPP) v MacEoin [1978] I.R. 27. In that case, this court, in the judgment delivered by Kenny J, ruled that the objective test in cases of provocation “should be declared to be no longer part of our law.” The “inquiry to be made by the judge first and then the jury must centre not on the reasonable man but on the accused and his reaction to the conduct or words which are said to be provocative.” That judgment represented a departure from the previous understanding of the law regarding provocation in murder cases. It went on to delineate the applicable procedure and burden of proof in the following terms:
“When the defence of provocation is raised, we think that the trial judge at the close of the evidence should rule on whether there is any evidence of provocation which, having regard to the accused's temperament, character and circumstances, might have caused him to lose control of himself at the time of the wrongful act and whether the provocation bears a reasonable relation to the amount of force used by the accused.
If there is evidence on which the jury could reach a decision favourable to the accused on this issue, the trial judge should allow the defence to be considered by the jury and should tell them that, before they find the accused guilty of murder, the prosecution must establish beyond reasonable doubt that the accused was not provoked to such an extent that, having regard to his temperament, character and circumstances, he lost control of himself at the time of the wrongful act. Then the jury should be told that they must consider whether the acts or words, or both, of provocation found by them to have occurred, when related to the accused, bear a reasonable relation to the amount of force he used. If the prosecution prove beyond reasonable doubt that the force used was unreasonable and excessive having regard to the provocation, the defence of provocation fails. Provocation can never reduce a wrongful killing to anything except manslaughter; it can never justify an acquittal”.
“In the course of his charge to the jury the trial judge will have told the jury that, in a criminal case, the burden of proof rests on the prosecution to prove its case beyond reasonable doubt. This burden always remains on the prosecution and never shifts.
If the accused has been permitted to raise a plea that he was so provoked by something done or said by the deceased victim, or by a combination of things done and said, as totally to lose his self-control, the trial judge will invite the jury to examine the evidence on which the plea of provocation is based. He will point out to them that they are not obliged to accept this piece of evidence anymore than they are obliged to accept any other evidence in the case. They are obliged however carefully to consider it and to decide whether it is or may be credible. The question they have to decide is not whether a normal or reasonable man would have been so provoked by the matters complained of as totally to lose his self-control but whether this particular accused with his peculiar history and personality was so provoked. At the same time they are entitled to rely upon their common sense and experience of life in deciding this as in deciding all other matters. If the reaction of the accused in totally losing his self-control in response to the provocation appears to them to have been strange, odd, or disproportionate that is a matter which they are entitled to take into consideration in deciding whether the evidence on which the plea of provocation rests is credible”.
There is clearly a conflict between the statement, in this judgment, that the burden of proof always rests on the prosecution and the passage from the charge of the learned trial judge in the present case, which, at that point, places the burden of proof - on the balance of probabilities - on the defence. Barrington J did, nonetheless, refer to a “certain threshold of credibility.” The jury should not, even when applying the subjective test, give credence to far-fetched or implausible suggestions of provocation. That, however, is far removed from the express reversal of the burden of proof, which appears to have occurred in the present case.
This court restated the position regarding the burden of proof in Davis’ case. Hardiman J, speaking for the court, summarised the matter as follows at page 155 of the judgment:
“If the defence of provocation properly arises in a case, an onus devolves on the prosecution to prove beyond reasonable doubt that the defendant was not acting under provocation, as that term is understood in law. But the topic does not arise automatically: as Messrs McAuley and McCutcheon put in their book Criminal Liability (Dublin), 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.’
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.
This preliminary issue, which decides whether the question of provocation will be left to the jury, is to be determined by the trial judge by an assessment of the evidence to determine if there is an issue fit to be left to the jury. A useful approach might well be for the judge to consider whether or not a jury would be perverse in finding that there had been provocation, on the evidence available.
In making this determination the trial judge must bear in mind that issues of credibility of evidence, as opposed to its existence, are for the jury and not for him. He must also bear in mind that before provocation becomes an issue in the case, fit to be left to the jury's determination, there must be evidence (direct or inferential) suggesting the presence of all elements required for the defence”.
The result is that the jury was misdirected on the issue of provocation. This does not conclude the issue. It is necessary to examine whether, nonetheless, the conviction for murder should be allowed to stand. In this connection, the court may have regard to the “proviso” contained in the Criminal Procedure Act, 1993. Section 3(1) of that Act provides as follows:
“On the hearing of an appeal against conviction of an offence the Court may—
- (a) affirm the conviction (and may do so, notwithstanding that it is of opinion that a point raised in the appeal might be decided in favour of the appellant, if it considers that no miscarriage of justice has actually occurred),
In order to assist it in considering the applicability of this proviso, in the present case, the court relisted the application for further argument. Counsel for the Applicant submitted that the misdirection by the learned trial judge may have been fatal. He argued that, the trial judge having left the issue of provocation to the jury, the prosecution is not entitled, in effect, to appeal that ruling by submitting that he should not have done so. Counsel for the prosecution referred to the submission made at the trial and submitted that there was insufficient evidence to warrant leaving the issue to the jury and that, although the prosecution are not, as the law stands, entitled the appeal a ruling by the trial judge, nonetheless, once the issue has been raised in the application for leave to appeal, the prosecution is entitled to make a submission that the issue should not have been left. The evidence, he says, does not suggest any link between the alleged loss of self-control of the accused and any external influence. It is not permissible to rely on self-provocation. Furthermore, the evidence does not suggest the sort of sudden, unexpected and temporary loss of self-control as is required. On the contrary, the entire picture is of a more long-term sort of build up, supported especially by the evidence of the careful and planned purchase of the knife.
It is apposite to recall that, in MacEoin’s, case, the court said that the question was not only whether there is any evidence of provocation, which, using a subjective test, might have caused the actual accused to lose control of himself, but also “whether the provocation bears a reasonable relation to the amount of force used by the accused.” The judgment in Kelly’s case expresses doubts about the correctness of this formulation. The court, in the latter case, said (page 10 of the judgment):
“Comparisons can be made between the defences of self-defence and provocation. But there is one vital distinction. Self-defence presupposes the existence in the accused of a calculating mind even if it is a mind operating under stress. If under these circumstances the accused has used more force than was reasonably necessary to defend himself but no more force than he, in the stress of the moment, thought to be necessary he can invoke the defence of self-defence to reduce the case from one of murder to one of manslaughter. In this context the concept of "excessive force" will be central to the jury's deliberations. If they consider that the force used was more than a reasonable man would consider necessary but no more excessive than the accused, in the agony of the moment, considered necessary, then the jury will bring in a verdict of manslaughter.
In effect, the court considered that the court, in MacEoin, had confused the subjective test by introducing the objective test of reasonable force. In the passage from Kelly’s case, quoted above, Barrington J, speaking for the court defined it as “a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.”
The jury had been clearly directed, in respect of the defence of self-defence, that, if there was to be a conviction for murder, the prosecution had to prove beyond reasonable doubt that the accused knew that the amount of force he was using was unreasonable. If it did not, the offence would be manslaughter. It has to be inferred, therefore, that the jury were satisfied beyond reasonable doubt that Applicant knew that he was using an unreasonable amount of force. This finding is in conformity with the overwhelming weight of the evidence of the eyewitnesses as well as that of the accused himself, whose answers have been summarised in connection with the self-defence issue. This finding of fact is, in the view of the court, relevant to a consideration of the defence of provocation. The question remains whether this knowledge of the use of excessive force was excused—to the extent of reducing the offence from one of murder to manslaughter—by facts showing that he was provoked.
The only evidence of provocation is the single statement of the accused: “I was very scared, and I think I lost control when I started fighting with him ...” This statement must be considered in the light of the fact that, as the jury found, he knew that he was using unreasonable force.
The only evidence of loss of control given in the present case is in the context of the applicant being “scared” and, therefore, losing control. As counsel for the prosecution had pointed out in addressing the learned trial judge on the question of allowing the issue of provocation, there was no evidence that the loss of control was caused by provocation. The real defence in this case was that of self defence. As already pointed out, the closing defence address to the jury concentrated on this almost to the exclusion of provocation. In the view of the court there was no sufficient case of provocation to justify a finding of manslaughter in the face of a finding of the jury by necessary implication that the accused knew he was using excessive force. Furthermore, the court does not think there was any evidence of the sort of “sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.” On the contrary, the jury implicitly found that the Applicant knowingly used excessive force, a matter about which the careful and planned purchase of the knife and its concealment by strapping it to his leg speaks eloquently. It is important to note, in this respect, that the learned judge was not requisitioned on the correctness of his charge, a matter which it is always material to consider.
For these reasons, the court does not think there has been any miscarriage of justice as a result of the trial judge’s erroneous charge to the jury and would reject this ground of appeal.
Unfair Conduct of the Trial
The applicant complains of a number of other matters of detail, the principal of which are as follows:
· Counsel for the defence was prevented or discouraged from pursuing in detail the background and behaviour of the deceased, including the fact and detail of the barring order. The court is satisfied that sufficient evidence about the character and behaviour of the deceased both vis á vis the applicant and Ms O’Brien to show his unpleasant and violent disposition. Insofar as there is a complaint of the introduction of evidence that the deceased complained that the applicant had struck Dineke, it is clear from the context in which it was introduced, this tended to discredit of the deceased rather than the applicant: Ms O’Brien said she knew it was untrue;
· The trial, judge interrupted once during the cross-examination of the accused to say that he had directly refused to answer a question. Complaint is made that, in this and otherwise, the judge failed to give sufficient weight to the fact that the accused was a foreign national with poor knowledge of English. The court is satisfied that it was obvious to the jury that the accused was not able to speak English. He gave evidence through an interpreter. It is clear that counsel for the prosecution made every allowance for the difficulties created by the need for interpretation and referred to it several times.
· Complaint is made that the judge emphasised, in his charge, the importance of the two witnesses from the shop where the applicant bought the knife. This was undoubtedly highly material evidence. The judge did not attach any undue weight to this evidence or make any improper comment upon it. He did not make any comment that he was not entitled to make.
The court does not consider that, either in these or other respects, the trial was unfair. The court refuses the application for leave to appeal.