Judgment Title: D.P.P.-v- Keith Kirwan
Composition of Court: Kearns J., Lavan J., O'Sullivan J.
Judgment by: Kearns J.
Status of Judgment: Approved
The appellant was on the 6th December, 2004, convicted at Dublin Circuit Criminal Court of two offences of assault under the Non-Fatal Offences against The Person Act, 1997 (hereinafter referred to as “the Act”).
The first conviction was in respect of an assault causing harm, contrary to s.3 of the Act, which was perpetrated by the appellant on Derek White on the 20th July, 2002, in a nightclub attached to a public house known as “The Black Sheep” in the city of Dublin. The appellant was also convicted of the offence of assault causing serious harm to Derek White in the same incident, contrary to s.4 of the Act. Following conviction, sentences of 2 years imprisonment on each count were imposed on the 28th January, 2005, such sentences to run concurrently from the 28th January, 2005. The sum of €5,000 was also paid by way of compensation by Mr. Kirwan to Derek White and was taken into account by the trial judge when imposing sentence.
The appeal before this court is confined to two grounds, one of which has already been dealt with in ex tempore fashion by this court at the conclusion of the hearing on the 17th October, 2005. The court on that occasion rejected so much of the appellant’s appeal which claimed that evidence given by an eye-witness, Karen Byrne, was so unsatisfactory and inconsistent that the trial judge should not have permitted the offences charged under the Act to go to the jury. The court further rejected submissions that the verdict of the jury was perverse or unsafe on that particular ground.
The court however reserved its judgment on the other ground of appeal which may be characterised as a contention that the evidence offered by the prosecution did not comply with the detailed requirements for establishing that there was ‘serious harm’ as that term is defined at s.1 of the Act and that the learned trial judge did not properly or adequately direct the jury as to the meaning of “serious harm” under s.1 of the said Act.
The evidence given in the Circuit Court was that Derek White had gone with friends to the nightclub in question on the 20th July, 2002. In the course of the evening, three young men, of whom the appellant was one, came up to Derek White while he was dancing with Karen Byrne. According to the prosecution evidence, the appellant, without any prior provocation or warning, stuck a pint glass into the face of Derek White, causing lacerations to Mr. White’s left eye, his nose and lip. Mr White bled extensively and was removed from the scene by ambulance to Beaumont Hospital. He remained there for several hours before being transferred to the Mater Hospital where surgery was performed on the 20th July, 2002. Mr. White told the court that he had 24 stitches inserted in his left eye and 13 stitches around his face, nose, lip and both cheeks. His evidence as to the number of stitches required was not challenged.
Detailed evidence about the eye injury was given by Mr. Tim Fulcher, consultant ophthalmologist. He described how Derek White, who was born on the 18th January, 1982, came under his care following surgery on the 20th July, 2002. He carried out an examination of Mr. White on that day and told the court that Mr. White had sustained a slit-like injury which perforated the cornea and part of the sclera of the left eye. The wound was about 4mm in length. On examining the eyeball itself, he stated that one could see that the wound had been repaired with a number of stitches. He noted that the iris, which he described as the coloured part of the eye, had prolapsed out through the wound and had been pushed back in. He also observed a number of stitches to Mr. White’s face, and in particular to his eyelid, face and lip. At that stage the vision in Mr. White’s eye was “fairly reduced”. During his stay in hospital, Mr. Fulcher stated that Mr. White was treated with antibiotics to prevent an infection of the eye, an event which, if it had occurred, could have caused him to lose the sight completely of his eye. Having been started on intravenous antibiotics for 2 days, Mr. White was then changed over to oral antibiotics which were continued for a period of about a week after the injury. He was also given eye drops. Following his discharge he returned to the hospital for review one week later. At that stage his eye was healing up and his vision was starting to improve. Mr. Fulcher stated that his vision was down by about 50% in the left eye primarily because of the stitches in the eye. They distorted the shape of the eye and caused some stigmatism which Mr. Fulcher described as a refractive change within the eye which causes blurring of vision. As the eye heals and the stitches are removed, that blurring and stigmatism reduces. When seen again at the clinic on the 9th August, 2002 the eye had healed up and vision had improved to normal vision.
Mr. Fulcher described the eye injury as a “serious injury”. He stated in evidence that perforating injuries to an eye can result in complete loss of vision or loss of the eye. Fortunately for Mr. White his injury was “quite neat” and was repaired “quite nicely”. Mr. White had a good outcome from the operation and had not been back to the clinic since. There was a possibility however that problems might arise some years down the line.
On cross-examination by Mr O’Higgins, senior counsel for the appellant, Mr. Fulcher agreed that part of the reduction in vision in the eye was attributable to the stitching.
Mr. O’Higgins’ contended in submissions that the evidence in the case failed to satisfy any one of the three limbs of the test as to what constitutes “serious harm” in the Act. He submitted that “serious harm” under the Act means an injury which must meet one of the following requirements, being one:-
(a) which creates a substantial risk of death
Mr O’Higgins submitted that the only medical or expert evidence led by the prosecution was of a laceration to the left eye which was followed by blurred vision which lasted for a number of days. The primary cause of this blurring was not due to the injury but to the treatment (i.e. stitching) which Mr White had received. There was no evidence of serious disfigurement or substantial impairment of the mobility or the function of any particular member or organ as required by the definition of “serious harm” in s.1 of the Act. No evidence had been adduced to establish disfigurement to any degree, either in photographic form or otherwise to show how the injured party’s face presented at the time of the injury, or in its immediate or later aftermath. It was common case that there had been an excellent recovery from the eye injury, so there was no question of any lasting disfigurement or impairment of mobility of that organ.
In response, Mr. Fergal Foley B.L., submitted that there was no need for the injury to have permanent or lasting consequences. While Mr. White had made a speedy recovery and had recovered normal eyesight, that fact was entirely due to the medical treatment which he had received. Mr White had in addition been left with some permanent scarring to the face. The attack had been a particularly violent and dangerous assault, involving as it did a glass which was capable of, and indeed did, inflict a serious injury on the night in question. Mr. Foley submitted that the court should not lose sight of ordinary common sense when construing the terminology of the Act and the definition of “serious harm” set out in s.1 thereof.
Existing common law and statutory definitions of various forms of assault were replaced by those contained in the Non-Fatal Offences against The Person Act, 1997. It is therefore appropriate to set out those provisions of the Act which define ‘harm’ and which create the new statutory offences.
“Harm” under s.1 (1) of the Act:-
“means harm to body or mind and includes pain and unconsciousness”
“Serious harm” as defined by the same section:-
Section 3 describes the offence of “assault causing harm” in the following manner:-
It may be noted in this regard that the legislation as enacted in no way represented any major new departure in the understanding of what constitutes serious harm or grievous bodily harm. In The People (A.G.) v. Messitt  I.R. 406, O’Dhálaigh C.J., who delivered the judgment of the Supreme Court, had to consider whether or not an injury alleged to have been intended by a person charged under s.18 of the Offences against The Person Act, 1861, i.e. to maim, disfigure or disable or to do some other grievous bodily harm, must be of a ‘grave and permanent nature’. At p.414 he stated:-
The court has no difficulty in rejecting submissions made during the course of the appeal to the effect that the side-effects or consequences of the stitching of Mr. White’s left eye should not be seen as part of the “harm” suffered by Mr. White. The stitching was immediately and intimately associated with the original injury and necessitated by it. Mr. White only obtained the good result which eventuated because of such surgical intervention. The idea that remedial medical attention may in some way detract from the gravity of the original injury so as to automatically take it out of the category of “serious harm” is a proposition which, even to the limited extent to which it was argued during the course of the appeal, the court rejects as absurd.
That view is however subject to this qualification: where in any case of assault causing serious harm the degree of ‘disfigurement’ is the critical issue, the court will normally be dealing with a cosmetic injury. The court would be of the view that in this context the outcome of any medical treatment must be taken into account as it would be unreal to hold that someone was ‘disfigured’ if in fact and in the aftermath of medical treatment that was not the case. The word ‘disfigure’ is described in the Concise Oxford Dictionary (11th Ed) as meaning ‘to spoil the appearance of’. The word ‘disfigurement’ thus connotes an outcome rather than an immediate effect – in contradistinction to the word ‘impairment’ which clearly may encompass a consequence of short duration, particularly when the word is employed as an alternative to the word “loss” and is used in conjunction with the word “function” as it appears in s.1 of the Act.
Mr. O’Higgins has argued that none of the evidential requirements to prove ‘serious harm’ in any of the three ways set out in s.1 of the Act were fulfilled in the instant case. On the run of the evidence, this court is disposed to accept part of that submission because there was certainly no evidence that the injury inflicted by the applicant created a substantial risk of death. Nor was there any evidence that Mr. White had been left with any serious disfigurement. No evidence was given to the court or jury to indicate the extent or severity of the scarring suffered by Mr. White to his nose, lip and face. The trial judge, incorrectly in our view, declined a request that the jury be allowed to closely inspect the scarring. Be that as it may, there was in the event no evidence from a plastic surgeon, or Mr. White himself for that matter, as to whether this scarring was raised, reddened or particularly noticeable. There was further no evidence as to the dimensions of any scarring suffered by Mr White. The jury members were effectively left to do the best they could on the basis of what they could see from the jury box either when Mr. White gave his evidence or sat in the courtroom thereafter.
However, the court is in no doubt whatsoever that the evidence tendered at the trial fully met the requirements of the third limb of the test in that the medical evidence which was given clearly established a substantial, though temporary, impairment of the function of the left eye. Mr. Fulcher described it as a “serious injury” and his evidence was not controverted by any medical evidence led on behalf of Mr. Kirwan. Indeed the court notes that Mr. Fulcher’s evidence went almost completely without challenge, save in respect of the issue as to whether the stitching to the left eye was responsible for the blurred vision which was noticeable on examination a week after the attack. In the view of the court there was ample evidence from which the jury could form the view that Mr White had suffered a substantial impairment of the function of his left eye amounting to ‘serious harm’ as defined by s.1 of the Act.
The court is satisfied that the appropriate direction to give to a jury where assault causing serious harm is being considered is to tell the jury about the various alternative circumstances in which serious harm as defined in the Act may arise and to further direct the jury that the words in each of the circumstances identified in the statutory definition be given their natural and ordinary meaning. In addition it would seem appropriate in cases where ‘disfigurement’ is to be considered by a jury that the jury be told that the outcome of any medical treatment actually given or received, and not just the appearance of the injury in the immediate aftermath of the assault, must be taken into account when assessing whether or not there has been “serious disfigurement”. However, where “substantial impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ” is concerned, a jury should be told that no requirement of permanent or protracted impairment of the mobility of the body or of the function of any particular bodily member or organ is required, provided they are satisfied beyond reasonable doubt that such impairment was or is ‘substantial’.
Having read the trial judge’s charge to the jury and his subsequent further directions given following requisitions, the court is satisfied that the trial judge adequately and appropriately directed the jury in the circumstances of this case and submissions that he failed to do so are rejected.
Finally, it should be said that the court was not required on the facts of this case to consider any mens rea requirements of the offence under s.4 of the Act which might arise in other cases.