Irish Court of Criminal Appeal

Judgment Title: D.P.P.-v- Mantas Pauliukonis

Neutral Citation: [2009] IECCA 130


Court of Criminal Appeal Record Number: 282/08

Date of Delivery: 02 December 2009

Court: Court of Criminal Appeal

BETWEEN:

Judgment of the court delivered on the 2nd day of December 2009 by Macken, J.

The applicant was convicted of the murder of a man, Alexandra Filusins, outside a nightclub in Swords in County Dublin, arising out of events which occurred on the 2nd and 3rd June, 2007. His trial took place over a week, commencing on the 7th October, 2008 at the Central Criminal Court in Dublin, and he was found guilty on Count No. 1 of murder. On conviction, he was given the mandatory life sentence.

He appeals from the conviction on several grounds, which the court will deal with in due course.

Background Facts

The deceased had also attended the nightclub as well. At sometime before 3a.m. on the morning of the 3rd June, 2007 there was an altercation outside the nightclub. This did not initially involve the deceased, but a different man who, on the evidence, had got into the applicant’s car to get a lift home, when a row developed. He got out, or was put out, of the car and was beaten by some or other of its occupants. The deceased intervened to the extent that he was alleged to have struck one of the other men involved, the uncle of the applicant. The deceased was dressed distinctively, as he was wearing a denim jacket and a red baseball cap at the time.

A little later a further event occurred in the rear garden of a house, at Oaklands Avenue in Swords, referred to above. The owner saw three men leaving by a gap in the hedge at the end of the garden, and asked his girlfriend to call the Gardai. He then went downstairs and discovered the deceased lying outside the back door of his house. Upon the arrival of an ambulance he was found to be unconscious and covered in blood, with a wound to his leg. The deceased was brought to Beaumont Hospital, where stab wounds were diagnosed and he was then transferred to the Mater Hospital. He was pronounced dead at 9.48 p.m. on the 3rd June, 2007. The cause of death upon post mortem examination was given as multiple stab wounds, including a severed artery in the thigh.

The applicant was arrested two days later, on the 5th June, 2007 and was charged with murder. In the course of interview, he denied he had been at the nightclub on the date in question or that he had even been in Swords. However, during the trial, in the course of the evidence of a particular witness, a formal admission was made on behalf of the accused that he was in fact present in the nightclub in Swords on the night in question.

The Trial

Q. “Did you look at the injury to the older guy?

A. I did, yes.

Q. What did you notice?

A. Two teeth were missing, the lip was burst open, it was bleeding. Basically, that is it.

Q. Now, did you ask these three men anything, and if so, tell us what you asked them please.

A. I asked them what happened, you know, like, in the meantime, and the defendant himself, he was basically upset about the car being stopped and them having to walk at that time already and, I don’t know, as a comforting kind of thing to himself, he told me that “Well, at least we caught him”, so I asked him, “Who did you catch?”. And he goes, “The guy that did it.” He answered that –

Judge: Just wait for one moment. Is there any difficulty here?

Mr. Sweetman: Well two things seem to have run together. I will let it go for the moment.

Mr. Clarke: When he said they caught the guy that did it, what did you understand it to mean? Did what?

A. I asked him what happened and in Lithuanian slang language, they said that they stabbed him up.

Q. What did you understand – who did you understand them to mean that they stabbed up?

A. The deceased. The guy that wore denim and a red baseball hat.”

After a few other questions, not relevant to this issue, the examination in chief continued:

Q. “When the accused said what you have said about stabbing up the man in the red hat, how was he? How did he seem to you? Did you form any impression of him?

A. He was just cool with it.”

Q. “Now, you see you have said these men said in Lithuanian slang that they stabbed him up. Now, I am only concerned with Mr. Pauliukonis, and I have to suggest to you that what he said was that he had seen him being stabbed?

A. No.

Q. You don’t agree with that?

A. No.”

The prosecution resisted the application, on the basis, inter alia, of the extent of the wounds to the deceased, Counsel said the evidence was that even apart from the stab wound to the artery, the combination of bleeding from the other 8 or 9 wounds alone could result in the blood loss, and came within the definition of serious injury. Further, there was a presumption that an accused intended the natural and probable consequences of his acts, which in this case was the serious injury of the victim. Counsel for the prosecution also said that while it was the prosecution case that the applicant had killed the deceased, it was clear there was a common design in that three or four of the men set off in pursuit of the victim, and he referred also to other evidence in support of this, including what was said to Mr. Kuliavas. It was argued that a question put to the latter witness in cross examination on behalf of the defence suggested that while the applicant might have been at the scene, what he had said to this witness, Mr. Kuliavas, was “I saw him being stabbed”.

The learned trial judge rejected the application for a direction. He drew attention to the fact that the real question at issue was whether a jury properly directed could, but not necessarily would, return a safe conviction on the evidence. He considered that the prosecution was not precluded from advancing arguments that arise from the facts that have been established or that he contends have been established and considered that the evidence adduced to date was sufficient for the case to go to the jury.

The closing speeches were thereafter made in the usual way, and the judge charged the jury, who returned the guilty verdict mentioned above.

Grounds for leave to Appeal

(1) The learned trial judge failed to withdraw the case from the jury at the close of the prosecution case. In particular, he wrongly found that the jury would be entitled to find that a conversation between the applicant and the head of security constituted an admission by the accused of his involvement as a participant in the stabbing;

(2) The learned trial judged erred in law in holding that the prosecution was entitled to rely on joint enterprise or common design, even though the accused was the only person on trial and the case for the prosecution had been opened to the jury on the basis that the applicant was the person solely responsible for the death of the deceased;

(3) The learned trial judge erred in instructing the jury as to the consequences of a finding by the jury that the prosecution had proved the case beyond reasonable doubt, the jury was obliged to convict the applicant, which the applicants claims deprived the jury of the power to return a verdict of “not guilty”;

(4) The learned trial judge’s charge was deficient in that it did not give an adequate direction on the law concerning the concept of joint enterprise/common design;

(5) The learned trial judge erred in his charge in referring to “three together” deciding to attack the deceased, such reference being based on a presumption/finding of fact that three persons had participated in the attack on the deceased, and thereby discounting the possibility of a finding by the jury that a greater or lesser number of persons had been involved;

(6) The trial was, in the circumstances, it is alleged, unsatisfactory and the verdict unsafe.


Grounds One and Two

“I asked him what happened and, in Lithuanian slang language, they said that they stabbed him up.”

As to the second basis for the application on these grounds, it is argued by counsel that a trial based on common design is something which the prosecution should have relied upon in their opening, but had not done so. The decision had been made to proceed against the applicant solely and no one else was charged with the so called common design murder. The prosecution should not be permitted to rely on this at a later stage in the proceedings since this was not the basis on which the trial commenced and the accused was entitled to know the case being asserted, the prosecution not being permitted, in effect, to change tack during the trial. It was a question of a fair trial, and the Director was obliged, according to the case law, to ensure this.

Counsel for the Director argues that there was ample evidence upon which the learned trial judge could permit the matter to proceed, and there was no error in law in doing so on either ground.

Conclusion

The learned trial judge also found correctly in the view of this court, that as to common design, the prosecution should not be precluded in advancing arguments that arise from facts as established. The issue of common design was not the prosecution’s approach to the case. The prosecution was asserting that it was the applicant, and he alone, who committed the murder although he with two others, at least, went searching for the deceased. In the course of the trial, and more importantly in the course of cross examination, however, the defence put forward the case that the applicant had only said he had “seen” the stabbing, raising the possibility that it was one of the others who stabbed the deceased. The court can find no basis in law why, in such circumstances, the prosecution would not be entitled to argue the same for the purposes of defeating the applicant’s submission that the case be withdrawn from the jury. It might even be said that, once this issue was raised by the defence, the prosecution was obliged to retain it in the picture, so to speak, for the benefit of the defence. The applicant has, not surprisingly, been unable to cite any authority to support the contention that the prosecution may not invoke in its favour the issue of common design arising, as it did in this case, in the evidence as tendered.

The learned trial judge found, putting the matter in its correct context that the direction sought should not be acceded to. The court finds there was ample evidence upon which the trial judge could, acting properly and judicially, reject the application, and allow the matter to proceed, on either of the first two grounds of appeal. These grounds are rejected.

Ground 3: The allegation that the learned trial judge charged the jury that it was obliged to convict the applicant if satisfied that the prosecution had proved its case beyond reasonable doubt:

This ground arises out of part of the learned trial judge’s charge. It is important in the context of this ground to set out what he said:

“… unless you reach a degree of confidence that you don’t feel that somebody is going to disconcert you by presenting to you an argument that you haven’t taken fully into account, then you can’t be satisfied beyond reasonable doubt. I suppose in practical terms what that means is this, that obviously if you think that the accused is innocent then quite obviously you acquit him. Almost as obvious as if you are not sure one way or the other and you don’t know whether he is guilty or not guilty then you acquit him. If you think he is probably guilty but you are not sure, you are not sure beyond reasonable doubt, then your solemn obligation as jurors is to acquit him. It is only if the prosecution has gone that extra mile and only if the prosecution has satisfied you beyond reasonable doubt that you would convict and of course if they have gone that extra mile and if you are, in fact, satisfied beyond a reasonable doubt that the accused is guilty of one or both of the offences with which he is charged then in that situation and only that situation would be your obligation to convict”.

There was, not surprisingly, no requisition raised in relation to this aspect of the charge, or indeed on anything in relation to the charge. The rules deriving from, inter alia, DPP v Cronin apply here. But even if they did not so apply, as Mr. Sweetman suggests they should not, the court is nevertheless satisfied that the ground is, for the reasons set out below, not a sustainable one.

In the case of DPP v O’Shea, supra., this concerned an entirely different matter, and was dealt with on the basis of a preliminary issue. The accused had been found not guilty by direction of the learned trial judge in the High Court, and the respondent had appealed directly to the Supreme Court on that issue. That court decided that an important preliminary issue, that is to say, whether or not the State could mount an appeal against an acquittal, was to be determined. The majority of the court determined that there was a right of appeal from the decision in question. It was in the context of his dissent from that majority decision that Henchy, J. obiter, dealt, inter alia, with the position under the Constitution, with foreign jurisdictional law, and in the latter context, he posited the basis for the distinction between an appeal against conviction and that against acquittal, in which he made the statement adopted by Kearns, J. in the case of DPP v Nally, supra.

It seems to this court that the O’Shea case did not decide anything in relation to the charge of a judge to a jury, or what its content might be. As to the case of DPP v Nally, supra., that was a case in which the learned trial judge had, in the only part of his charge dealing with the question of the choices available to the jury, limited and circumscribed the ambit of the possible verdicts which the jury could consider to murder or manslaughter . It was clear that the learned trial judge had not been given any guidance by counsel as to how he might approach the matter, where the defence of self defence was an issue for the jury. In the extract applied by Kearns, J. in that case, in which the learned trial judge had withdrawn altogether the possibility of a verdict of not guilty, Kearns J. stated:

“On the hearing of the appeal, counsel for the applicant argued that once the issue of self defence has been raised, either by way of evidence directly provided by the defence or based on evidence adduced as part of the prosecution case, it then became an issue solely and exclusively for determination by the jury and that the trial judge was not entitled to truncate the defence in the manner which he did. Counsel argued that while the judge was entitled to express a view in relation to the facts, he was precluded from directing that the evidence adduced was sufficient to require a particular verdict one way or the other. That being so, the trial judge in this case was not entitled to deprive the jury of the option of considering whether the force used by the applicant was objectively reasonable, nor was he entitled, where no unlawful killing had been admitted, to direct the jury that they must find the applicant guilty of either murder or manslaughter, or indeed of any offence.

… .

Having cited the above passage from the judgment of Butler J. in The People (A.G.) v Christopher Dwyer, the learned trial judge continued:-

“So that is your battle ground in respect of the question of self-defence. I have ruled that the amount of force here cannot objectively be justified, but if you find that the accused man in a situation was using no more force than he considered reasonably necessary in the circumstances prevailing, murder would not be made out and the unlawful killing would be manslaughter.”

It will be apparent that two questions arise as a result of the ruling and direction given by the learned trial judge in this case. They are:-


(a) May the trial judge allow a limited form of self-defence only to be considered by the jury, notwithstanding that the defence wish that the entire issue of self-defence be considered by the jury?

(b) Is the trial judge entitled, on facts such as those established in the present case, to direct the jury effectively to bring in a verdict of guilty of either murder or manslaughter, shorn of any possibility of a verdict of not guilty?” (emphasis added)

The position is not altered either by the decision of Finlay, C.J., in DPP v Mark Davis [1993] 2 I.R. 1, where he adopted the comment of Henchy, J. mentioned earlier. He correctly stated at p.13:

“It is the actual direction to the jury, leaving to them no discretion or function in the matter to enter a verdict of guilty which I am satisfied is clearly unconstitutional. It is open to a judge in an appropriate case to express an opinion that a particular verdict of guilty is the only one which would be reasonable or proper on the evidence, but that must of necessity fall short of the right to direct a verdict of guilty.”

“In his charge to the jury, the trial judge directed them that the prosecution had established beyond a reasonable doubt that alcohol had not prevented the accused from forming the intention to cause serious injury, and that they must therefore return a verdict of murder. The trial judge concluded his charge by asking the foreman to sign the order paper there and then, but following intervention from counsel, the jury were permitted to retire.

The jury returned to ask if the verdict had to be unanimous, and the trial judge told them that they must all agree to follow his direction to find the accused guilty of murder. The jury then returned that verdict.”

Here the position is quite different, as is clear from the above extract from the charge of the learned trial judge. A full reading of the charge, in this regard, shows that the learned trial judge carefully set about ensuring that the jury would understand full well the importance of not convicting unless they were satisfied beyond reasonable doubt of the guilt of the applicant. Having directed the jury extensively as to the various stages they might reach in their decisional process, it was only when they were satisfied that the prosecution had established guilt beyond reasonable doubt, could they then convict him. The learned trial judge carefully and clearly put before the jury the several possibilities open to them, emphasising that they must acquit in certain circumstances, or that where they have a genuine, actual doubt still, then they were obliged to acquit, and that it was only after they had disposed of all possible grounds upon which they could acquit, “and only then” should they turn to conviction. The law is well established that the charge must be read as a whole, is not required to be formulaic in terms, and must be tailored to the evidence in the case. It was so in the present case. The court is fully satisfied that this was an acceptable charge to the jury, and did not wrongly circumscribe its role in any way. That it was so is supported by the fact that neither the precise tenor of the charge nor its wording was such as to suggest to experienced counsel that it was in the least deficient.

Ground 4

The remaining grounds were not canvassed in the written submissions. The application for leave to appeal, in light of the foregoing, is rejected.