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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P.-v- Stephen Delaney [2010] IECCA 123 (20 December 2010)
URL: http://www.bailii.org/ie/cases/IECCA/2010/C123.html
Cite as: [2010] IECCA 123
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Judgment Title: D.P.P.-v- Stephen Delaney Composition of Court: Fennelly J., Budd J., O'Keefe J. Judgment by: Fennelly J. Status of Judgment: Approved
Outcome: Refuse application | ||||||||||
THE COURT OF CRIMINAL APPEAL Budd J. O’Keeffe J. BETWEEN THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT AND STEPHEN DELANEY APPLICANT Judgment of the Court of Criminal Appeal delivered the 20th day of December, 2010 by Mr Justice Fennelly On 15th May 2009, the applicant was found guilty by a jury presided over by Birmingham J in the Central Criminal Court in Dublin of the murder of one Anthony Cullen at Burmah Caravan Park, Mauritiustown, Rosslare, Co Wexford on 8th April 2007. The applicant accepted throughout his trial that he had unlawfully caused the death of Anthony Cullen (hereinafter “the deceased”) by stabbing. He advanced the defence of provocation. The learned trial judge partially allowed that defence to be argued before the jury. He explained to the jury that, if they accepted that defence, the verdict would be manslaughter rather than murder. The principal complaint of the applicant on this application for leave to appeal is that the learned trial judge declined to permit the defence of provocation to be advanced on the full basis for which the defence had argued. There are two further grounds, namely that the learned trial judge declined to permit the applicant to have shown to the jury a video recording of the garda interview of one of the prosecution witnesses, one Karl Thomas, and that the learned trial judge refused to correct some of the statements made by prosecuting counsel in his closing address to the jury. The facts The deceased met his death by stabbing with a knife about 3:30 am on Easter Sunday 8th April 2007 against a sordid background of alcohol and drug-fuelled debauchery. A group of young people met in a caravan of which the applicant had the use. The deceased was somewhat older, being 37 years of age when he met his death. A number of people, who came to play various roles in the events of the night, had been drinking at a place called The Rocks near Wexford town from early afternoon on 7th April 2007 and were invited, or at least went to the caravan park, taking a 9 o’clock train, from Wexford to Rosslare. The applicant and his friend, Karl Thomas had permission to use the caravan. Kirsty O’Callaghan was the applicant’s girlfriend. Karl Thomas also had a girlfriend, Christine Emmerson. The deceased was accompanied by a friend called Aiden Duggan. The latter described the deceased as his nephew’s uncle. Also present were David Philips, whose nickname was Bidda, and a girl called Jody Black. A great deal of drink was consumed particularly by the applicant, the deceased and Aiden Duggan. Some took cannabis or ecstasy. In the course of the evening in the caravan, the behaviour of the deceased and Aiden Duggan became disorderly and unpleasant. This behaviour forms the essential subject-matter of the aspect of the defence of provocation which was disallowed by the learned trial judge. It consisted essentially of the following:
the deceased, as he became more drunk, began falling around: he fell and knocked over a table and spilled drinks; the deceased commenced making unwelcome advances to Kirsty O’Callaghan by feeling her leg: this caused Kirsty O’Callaghan to become upset; it also annoyed the applicant; at a late stage, the deceased so lost control of himself that he soiled himself.
The deceased was ultimately removed from the caravan by the applicant and/or Karl Thomas. There are various versions of this event: he fell out; he was pushed out; he was thrown out with force. At this point, the deceased was totally drunk and, according to the applicant in one of his statements, “half conscious. Mumbling.” He was bleeding from a wound on his head. It was pitch dark outside the caravan. It is important to note that it is common case that, immediately after the deceased had been ejected from the caravan by the applicant, the latter phoned an ambulance (according to Kirsty O’Callaghan she placed the call and handed him the phone) and told the ambulance service that there was a man there with an injury to his head and that he was bleeding. Aiden Duggan, after a delay of about half an hour, went out. According to one witness, he stamped on the head of the deceased and returned inside the caravan. A second time, he went out to “assist” the deceased. The applicant was in the doorway of the caravan. There then occurred the event which, subject to argument and interpretation, provided the impulse for the applicant’s criminal act. Aiden Duggan angrily told the applicant to “fuck off” or “fuck you and your caravan.” The applicant, according to his statements, did not remember this remark. It is agreed that the applicant was at this stage in a rage. Aiden Duggan said that the applicant then said words to the effect: “get the blades.” Other witnesses attributed these words to Karl Thomas. Whether the applicant said this himself or Karl Thomas said it to him, it is common case that the applicant went back inside the caravan and took a knife from the kitchen part of the caravan. Aiden Duggan said that he himself was at this point leaving the scene, with the deceased coming along behind him. It also appears that, after the deceased had been ejected, Karl Thomas had then commenced taunting him and hitting him with a sweeping brush. The account given by the applicant in his own statement was:
The deceased was then outside sitting on the ground; he was bleeding from a cut on his forehead. The applicant came out with the knife. Kirsty O’Callaghan tried to stop him, but he went ahead and did the stabbing. He then threw the knife away. Counsel for the applicant placed especial reliance on passages from the garda evidence relating to the four statements made by him to the gardaí. He treated one passage, in particular, as fundamental to the complaint that the learned trial judge erred by failing to allow the issue of provocation to be considered by the jury. In order to understand this point, it is necessary to refer both to the direct evidence and the cross-examination of the garda witness. The context is that the gardaí were, during the interviews they conducted with the applicant, pressing him for an explanation for his stabbing of the deceased. The applicant’s account of the events which occurred outside the caravan after the deceased was ejected and leading up to his stabbing of the deceased was given in answer to garda questioning. He was asked on several occasions what “triggered” the knife attack. The applicant gave an account on the following lines. Karl Thomas was hitting the deceased with a sweeping brush; he was laughing at him, hitting him on the sly; the deceased did not know who was hitting him. Kirsty O’Callaghan and Jody Black were telling Karl Thomas to stop. The applicant was drinking vodka, going in and out for glasses. Kirsty and Jody were arguing because Jody was supposed to be meeting Noel but she was with Bidda. The applicant also had an argument “over drink with Bidda.” The applicant also said that Karl was fighting with Aiden Duggan. The applicant was repeatedly pressed by the gardaí to provide an explanation for the stabbing. He was asked what he intended to do when he had the knife in his hand, he said: “I just picked it up like a pen and marched out and done that (swinging with his left arm) and just thrown it away like that and I didn't think about anything.” In response to repeated questions as to what had triggered the knife attack, he was usually unable to provide an answer. Once he answered: “I think Karl was fighting with Aiden.” He was specifically asked whether the reason was that the deceased “was groping Kirsty” and answered: “No, because that was earlier. She spoke to him and he stopped. Then he got too drunk.” At another point, when asked about Kojak “hitting on Kirsty earlier,” his response was: “That was hours before and it had only went on for a minute.” Counsel for the applicant relied with particular force, on the following passage from the transcript, described in argument as fundamental. First there is the question put to applicant by the garda followed by the answer of the applicant:
“Question: Some kind of assault or abuse or fight or? And, he answers, “Don’t know. Just with everything that was going on, you know. Arguments and fights, bleeding people falling out the bleeding—of the bleeding caravan and all. I was just stressed out. I didn’t know what was going on. I just had a moment of red. I don't know what had happened. I’m not even sure if the knife stuck in him, like. I don't know.” The applicant described his own condition as being, variously, “knackered,” “in a rage with the vodka,” that his “head was wrecked” and that he was getting “madder and madder.” He said that he “was a bit agitated because Karl was messing about with Kojak and the girls were arguing over boyfriends inside.” Ruling on provocation by trial judge At the conclusion of the evidence, counsel for the applicant applied to the trial judge to be allowed to present a defence of provocation on two distinct bases. The first, based on the earlier events inside the caravan: fighting between Aiden Duggan and the deceased, uncouth and violent behaviour, the falling about and drunkenness of the deceased and the inappropriate advances made to Kirsty. The second related to the abusive remarks of Aiden Duggan outside the caravan: telling the applicant to “fuck off.” This latter event was described as the trigger. It was submitted that, on the evidence, the applicant had intended to stab Aiden Duggan, but, as a result of mistake, he headed towards the deceased. Counsel also presented a combination of these two arguments: that the immediate response of the applicant to Aiden Duggan’s threatening language was to be seen in the context of repeated brutal and savage violence of Aiden Duggan against his friend, “Kojak.” The learned trial judge thought that it would be hard to imagine a case where serious consideration could be allowed to be given to such grounds as providing a basis for a defence of provocation where the evidence was more problematic, thinner and less cogent than this case. Concerning the events which had occurred inside the caravan, he considered that there was a complete lack of evidence of any sudden loss of self-control; the element of suddenness was absent insofar as that part of the history was concerned. There was clearly a period of cooling off, demonstrated especially by the fact that the applicant had gone to the aid of the deceased by calling for an ambulance. He said that he was quite satisfied that there was no basis for suggesting that the conduct of the deceased in the caravan could be regarded as evidence of provocation. He added that the notion of some form of group provocation, whereby a person, in the position of the deceased “being battered by another person is to be regarded as…. acting in conjunction with his batterer in providing provocation” verged on the absurd. Thus he rejected the argument for provocation on the first basis. The second basis, in summary, was the evidence regarding the remark of Aiden Duggan: “Fuck off you, this isn’t how we do things here. Fuck you and your caravan.” He recalled the evidence of the immediate reaction by the applicant and the fact that it was pitch dark outside the caravan. He accepted there was scope for mistaken identity. On that basis, provided that the jury were satisfied that the applicant had been caused to suffer a sudden and temporary loss of control, the defence of provocation was open. The jury were, accordingly, addressed by both prosecuting and defence counsel. They both dealt with the issue of provocation. The jury clearly did not accept the case made for the applicant, since they convicted of murder. More accurately, their verdict must be taken to mean that they were satisfied beyond reasonable doubt that the applicant had not been provoked by the remark made by Aiden Duggan, leading to the mistaken killing of the deceased. The appeal The principal ground of appeal is that the learned trial judge erred in refusing to allow the jury to consider the defence of provocation arising from the events that occurred inside the caravan, prior to the ejection of the deceased. It is submitted that the applicant lost control by reason of a combination of the actions and words of both the deceased and Aiden Duggan. The deceased and Aiden Duggan were jointly engaged in conduct that contributed to the provocation of the applicant over a period of hours and, although it was the words and actions of Aiden Duggan which were the trigger that immediately caused the sudden loss of control, the defence was available on the basis that the applicant intended to strike the deceased, Aiden Duggan, or either of them. Insofar as any parts of the interviews with the applicant showed that he was not upset or angry about the earlier events at the time he lost control, these amounted, at most, to inconsistencies which were a matter for the jury to resolve. The learned trial judge, by refusing to accept this proposition, had trespassed on the domain of the jury. The applicant was only required to reach a low threshold in order to have this aspect of the defence of provocation properly placed before the jury. The law The law with regard to the defence of provocation is well settled. Barrington J, delivering the judgment of this Court in People (Director of Public Prosecutions) v Kelly [2000] 2 I.R. 1, provided the following definition at page 10:
At page 11, he added:
This test had been traced back in several of the judgments to the judgment of Devlin J. (as he then was) in R. v. Duffy [1949] 3 All ER 932: "Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, 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.” In The People (Director of Public Prosecutions) v. MacEoin [1978] I.R. 27, this Court departed from that part of the dictum of Devlin J which treated the test as an objective one. The Court held that the test is a subjective one. In Kelly, the Court clarified earlier statements and ruled that the defence is not subject to any test of proportionality. The loss of control suffered by the accused person may be so total that his reaction is, indeed, disproportionate, and still come within the defence of provocation. It is clear, nonetheless, that the jury may test the credibility of the defence by asking itself whether anyone would react in such an extreme fashion to a minor event. It is necessary to and inherent in the notion of sudden and total loss of control that the reaction must follow immediately upon the postulated provocative act. Hence the qualification that there shall not have been time for passions to cool. Reference was made in the course of argument to “battered wives” cases. If a woman has been subjected to prolonged ill-treatment or abuse, she may lose control on a particular ultimate intolerable act of the tormentor and kill him. If the other necessary elements of the test are satisfied, the defence of provocation may be permitted. It does not follow, however, that an act performed otherwise than in the heat of the moment, after an interval of time, will qualify. It is, of course, also an essential feature of the defence that the provocation must come from the the deceased. Loss of control, however genuine, sudden and total, but caused by the actions of a third person does not qualify. Devlin J, in the passage quoted above, spoke of “some act, or series of acts, done by the dead man to the accused…” This does not preclude reliance in an appropriate case on the mistaken killing of a person other than the provoker. The accused may aim at his provoker and miss but kill another or may mistake the victim for the provoker. That is essentially the basis on which the learned trial judge allowed the defence to be advanced before the jury in this case. Aiden Duggan spoke the words which were (and indeed still are) treated as the trigger, but it was a pitch black night and it was possible that the applicant mistook the deceased for Aiden Duggan. It is the function of the trial judge to decide whether there is evidence on which a jury might reasonably decide that the accused was provoked. He will not allow the matter to go before the jury, unless he is satisfied that there is evidence to support it. As has been frequently said, the threshold is a low one. Hardiman J, delivering the judgment of this Court in People (Director of Public Prosecutions) v Davis [2001] 1 I.R. 146 said, at page 156, “that the burden on the applicant is not a heavy one but it necessarily involves being able to point to evidence of some sort suggesting the presence of all the elements of provocation.” He added:
Conclusion The applicant invites this Court to hold that the learned trial judge was mistaken in law in declining to permit the jury to consider that the applicant was provoked into stabbing the deceased by reason of some act of the deceased, although it is accepted that the triggering event was the speaking by Aiden Duggan of the words: “fuck off” or “fuck you and your caravan.” In considering this matter, the Court bears in mind that the learned trial judge heard the entire of the evidence directly from the witnesses given viva voce. A lot of the evidence was inconsistent and contradictory. Some witnesses, such as Karl Thomas, were obviously unreliable and even untruthful. There were inconsistencies between witnesses without their being untruthful. The applicant made four statements to the gardaí. In at least two of them, he did not give a truthful account, i.e., he did not admit that he had stabbed the deceased. The primary source of evidence that a person was provoked, given that the test is subjective, would normally be that person himself, although it is well-established that it may emerge from the evidence of others. Here, the applicant did not give evidence. His counsel relies on his own statements to the gardaí. It is not necessary in this case to consider the evidential status of exculpatory as distinct from inculpatory statements. It has been accepted that a distinction cannot realistically be made between those two aspects of a single statement. The fact that the learned trial judge had the advantage, not enjoyed by this Court, of hearing all the evidence in a six-day trial must be borne in mind when considering the challenge to his ruling on the issue of provocation. The learned trial judge was not satisfied that there was sufficient evidence to go to the jury. It is for the applicant to demonstrate to this Court that he was wrong and, consequently, to point to any particular evidence which was not considered by the learned trial judge. As to the fact of the applicant’s loss of control, there is no doubt. He reacted suddenly to the abuse hurled at him by Aiden Duggan and rushed to equip himself with a knife. He used the knife to stab the deceased, who was sitting, as he said himself, “half conscious” and “mumbling” on the ground. The applicant used many expressions to describe his state. He was “in a rage” or had a moment of madness. The killing was a sudden and irrational act. The applicant was in the grip of some passion, most likely largely due to drink, though that fact does not exclude the possibility of provocation. The problem, then, is to find the reason for this loss of control. Insofar as the effects of the statement of Aiden Duggan are concerned, the jury have considered the matter of provocation. The applicant has had the full benefit of the judge’s ruling on that point. The jury must be taken to have been satisfied beyond reasonable doubt that the applicant was not provoked by those remarks to such an extent as to kill the deceased in mistake for Aiden Duggan. The first thing that can be said with confidence is that the applicant did not, in any of his statements to the gardaí, say that he had been provoked into the act of stabbing the deceased by anything said or done by the deceased at any stage of that evening and night. Counsel for the applicant has not referred the Court to any statement made by him in any of his statements to that effect. This is the more striking in view of the fact that he was repeatedly and insistently pressed by garda questions to explain his homicidal act, i.e. to identify the “trigger” of his action. Nor is there any other evidence that he said anything on any other occasion to that effect. The first and most notable aspect of the acts which took place in the caravan was that concerning fighting between Aiden Duggan and the deceased. The overwhelming aspect of that bizarre series of events is that the deceased was the victim. To the extent that there was evidence that the deceased struck the first blow, there is no evidence that the applicant was aware of that fact. The Court cannot accept that the role played by the deceased as the victim of battering by Aiden Duggan can conceivably amount to provocation by the deceased of the applicant. The proposition, to adapt the language of the learned trial judge verges on the absurd. Insofar as the inappropriate touching by the deceased of Kirsty, the applicant’s girlfriend, is concerned, the only statements available from the applicant are to the effect that this was all spent or past. It can be accepted that such action is capable of, causing annoyance, and, indeed it probably did so, but there was no evidence—at least none has been drawn to the attention of the Court—to suggest that the applicant was under the continuing effect of such provocation at the time he stabbed the deceased. The statements made by the applicant—quoted above—are to the contrary effect. The deceased was undoubtedly a nuisance. He was totally drunk, fell around, knocked over tables and drinks and, ultimately, soiled himself to such an extent that his company was no longer welcome. However, the reaction of the applicant was to help him, lift him or push him out of the caravan. Furthermore, crucially, the agreed evidence is that the applicant called or arranged for another to call an ambulance and that he lifted the deceased into a sitting position on the ground outside the caravan. The Court has not been referred to any evidence to show that the applicant was provoked into stabbing by the earlier behaviour of the deceased. The Court simply cannot accept that a man who was sitting in a semi-conscious condition on the ground, bleeding from his head and mumbling could be considered to be provoking the applicant by reference to or on account of his earlier disorderly and unpleasant behaviour. Indeed, none of his behaviour was even alleged to be directed towards the applicant. At the hearing, counsel for the applicant submitted that the passage quoted at paragraph 17 above and described as “fundamental” to the applicant’s case shows more or less conclusively that the applicant was, in fact, provoked. The Court has considered this passage very carefully. The Court was invited to consider that the reference, in that passage—“arguments and fights, bleeding people falling out the bleeding—of the bleeding caravan and all. I was just stressed out. I don't know what was going on. I just had a moment of red.”—demonstrated beyond doubt that the applicant was saying he had been provoked into stabbing the deceased to death by the earlier behaviour of the deceased. That submission depends essentially on the use of the plural, “fights,” whereas the only fight then going on was between Karl Thomas and the deceased whom he was taunting with a sweeping brush. When one looks at the full context of the statement, there were several “fights” going on. The applicant also referred to a fight between Karl Thomas and Aiden Duggan, but there were several quarrels taking place at the same time. At any rate, the passage contains no suggestion that the applicant was then being provoked by a “fight” which had taken place earlier in the caravan and in which, in any event, the deceased was the victim. It bears repeating, moreover, that none of the actions of the deceased in the caravan were directed against the applicant. The learned trial judge was most convinced by the fact of the applicant’s call for an ambulance that any passion, assuming there to have been any in the mind of the applicant, had cooled. The Court does not accept that the learned trial judge was in error. His ruling on the evidence of provocation was within his power. In summary there was ample evidence from which the jury would have been entitled to conclude that the applicant was in the grip of an uncontrollable passion when he stabbed the deceased and equally that provocative words were spoken to him by Aiden Duggan immediately before he committed that act. What is missing is any evidence to connect the deceased either with the words spoken by Aiden Duggan or with any provocative words or acts directed towards the applicant. The Court rejects this ground of appeal. The video issue Karl Thomas was called as a witness for the prosecution. It was generally accepted that his evidence was unsatisfactory and probably not truthful. Thomas was, or had been, a friend of the applicant. Counsel was concerned at some form of taint by association so far as the applicant was concerned. He cross-examined Karl Thomas on his statement to the gardaí. The prosecution made a somewhat half-hearted attempt to have Karl Thomas treated as a hostile witness, However, the evidence of the witness concluded following cross-examination by counsel for the applicant. On the following day, counsel for the applicant applied for leave to have shown to the jury some extracts from the video recording of Karl Thomas’ garda interview. Having been prepared originally to permit this procedure, the learned trial judge effectively changed his mind. He considered that it would involve the production of hearsay evidence to the jury. The Court is satisfied that the learned trial judge was correct in his ruling. Counsel had cross-examined the witness on his written statement. It is, of course, permissible to cross-examine a witness as to statements made by him on another occasion. The production of the video would have been a quite different procedure. What the defence wanted to do was to produce before the jury and without going into evidence an independent piece of evidence as to what the witness had said on another occasion. It was, at the very least, a departure from the normal rules of evidence. It would have involved production before the jury of evidence of what the witness had said in his garda interview. The Court is satisfied that the learned trial judge’s ruling was within his jurisdiction. Prosecution speech to the jury This complaint is that counsel for the prosecution, in his closing address to the jury, misstated the law with regard to provocation. Counsel applied to the trial judge for a ruling to the jury correcting these statements. The judge declined to do so. It is accepted that the trial judge correctly directed the jury as to the legal elements of provocation. Counsel for the defence also addressed the jury. It appears that the main point of the complaint is that prosecution counsel in some manner equated the acts of an accused person under the influence of provocation with an automaton. It was not correct to use the expression “automaton.” A person killing another under what amounts in law to provocation is still acting intentionally. The position is that he has ceased to have control over his actions. Thus, the prosecution misstated the position in law. However, the learned trial judge correctly referred to the existence of intention. The trial judge is the best person to decide on the likely effect of a particular use of phrase in counsel’s speech. In the view of the Court, the learned trial judge properly exercised his discretion on this matter. | ||||||||||