Irish Court of Criminal Appeal

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Cite as: [2010] IECCA 79

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Judgment Title: D.P.P.-v- John McGovern

Neutral Citation: [2010] IECCA 79

Court of Criminal Appeal Record Number: 95/09

Date of Delivery: 21/07/2010

Court: Court of Criminal Appeal

Composition of Court: Finnegan J., Budd J., Dunne J.

Judgment by: Finnegan J.

Status of Judgment: Approved


Judgments by	Result
Finnegan J.	Quash conv on count 2 - refuse app on ct 1

Outcome: Quash conv on count 2 - refuse on ct 1

COURT OF CRIMINAL APPEAL

CCA95/09

Finnegan J.
Budd J.
Dunne J.

BETWEEN:

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

PROSECUTOR/RESPONDENT

and

JOHN McGOVERN

ACCUSED/APPLICANT

Judgment of the Court delivered on the 21^st day of July 2010 by Finnegan J.

The applicant was tried before the Central Criminal Court on two offences as follows:-

Count No. 1. Murder contrary to common law as provided for by section 4 of the Criminal Justice Act 1964 the particulars being that he on the 23

^rd

June 2007 at O’Connell Street, Ennis, Co. Clare, murdered Michael Doherty.

Count No. 2. Producing a weapon contrary to section 11 of the Firearms and Offensive Weapons Act 1990 the particulars relating to his producing a knife in the course of a dispute or fight at O’Connell Street, Ennis, Co. Clare, on the same occasion.

As the issues arising on this application are legal issues arising out of the learned trial judge’s charge a brief summary of the circumstances leading to the applicant being charged is sufficient. The applicant, at that time a seventeen and one half year old youth, became involved in a fight with Michael Doherty outside Supermac’s Takeaway Restaurant in Ennis, Co. Clare on the 23^rd June 2007. He was with a number of friends and they met with four youths one of whom was Michael Doherty. An altercation occurred which developed into a physical fight between the applicant and Michael Doherty. Michael Doherty, an amateur boxer, struck the applicant several times to the face knocking him to the ground. When the applicant recovered his feet there were some attempts to restrain both him and Michael Doherty from resuming the fight. Principally Derek Matha stood between the applicant and Michael Doherty attempting to hold them apart. The applicant by this time had removed a Swiss Army pen knife from his pocket and opened the blade and he swung his arm around Mr Matha and stabbed Michael Doherty once.

Statutory Provisions
The Criminal Justice Act 1964 section 4 provides as follows:-

“4(1) Where a person kills another unlawfully the killing shall not be murder unless the accused person intended to kill or cause serious injury to some person, whether the person actually killed or not.

2) the accused person shall be presumed to have intended the natural and probable consequences of his conduct; but this presumption may be rebutted.”

The Firearms and Offensive Weapons Act 1990 section 11 provides as follows:-

“11. Where a person, while committing or appearing to be about to commit an offence, or in the course of a dispute or fight, produces in a manner likely unlawfully to intimidate another person any article capable of inflicting serious injury, he shall be guilty of an offence and shall be liable –

on summary conviction, to a fine not exceeding €1,000 or to imprisonment for a term not exceeding twelve months, or to both, or

on conviction on indictment to a fine or to imprisonment for a term not exceeding five years or to both.”

Of particular relevance to this application is the requirement as an essential ingredient of the offence in each section that the conduct of an accused should be unlawful to constitute the offence.

Proceedings at the Trial
At the conclusion of the learned trial judge’s charge to the jury counsel for the applicant requisitioned the learned trial judge to recharge the jury on six matters. The learned trial judge readily agreed to recharge the jury on five of these matters but refused to do so on the sixth. The learned trial judge having recharged the jury the following exchange took place in the presence of the jury:-
Judge: Now gentlemen, are you happy?
Mr O’Kelly: Yes, My Lord.

Mr Gageby: Only that I had indicated, My Lord, that obviously the issue of Mr McGovern being held is a factor in the defence that you have mentioned.

Judge: Yes. Well, take that into account.

Grounds of Application
The grounds of application may be summarised as follows. On each of the matters upon which the learned trial judge recharged the jury it is submitted that he did so inadequately. On the matter on which the learned trial judge refused to recharge the jury it is submitted that the charge was inadequate and deficient and that the learned trial judge was wrong in law in failing to accede to the requisition in relation to the same.

General submission by the respondent
In relation to the five requisitions in respect of which the learned trial judge acceded to the requisitions the recharge was precisely in the terms requested by counsel for the applicant. For the Director it is submitted that this being the case the Court should not entertain an appeal in relation to the same. In Director of Public Prosecutions v Cronin (No. 2) 4 I.R. 329 the jury was recharged in precisely the terms requested by defence counsel. In the course of his judgment at page 338 Geoghegan J. said:-

“I am satisfied that the applicant cannot now be heard to complain in the light of the requisition which was made and the compliance with the requisition…”

In his judgment Kearns J. also considered the situation where a point is not taken at trial but is sought to be argued for the first time on appeal. He cited with approval a passage from Director of Public Prosecutions v Moloney unreported, Court of Criminal Appeal 2^nd March 1992:-

“We would wish to reiterate the jurisprudence of the court which has been in place for many years that there is an obligation on both sides, the prosecution and the defence, to bring to the attention of the trial judge any inadequacies they perceive in his directions to the jury. If an appeal is brought before this court on a point that has not been canvassed at the trial this court will regard any person making such a new point as having an obligation to explain why it is sought to be made on appeal when not made at the trial. That is not to say that if the essential justice of the case calls for intervention we have an obligation so to intervene.”

In the present case, it is submitted that no basis has been made out upon which the objection to the judge’s charge should be entertained by this court.
The court is satisfied that the statement from the judgment of Geoghegan J. cited above is correct. This court should not entertain an application in respect of grounds which relate to the five requisitions which were acceded to and where the recharge was in the terms requested by the defence unless circumstances exist in which the court should entertain such grounds: the application may be entertained if there is an explanation for the failure to requisition the trial judge and the essential justice of the case so requires.
In this case the applicant was represented by experienced and able senior counsel who, with the exception of making a request in the presence of the jury that a reference be made to the applicant being held which was acceded to, raised no objection to the re-charge upon being asked if he was happy in relation to the same. Different counsel was retained for the purposes of this application. While the trial took place in February 2009 the grounds of appeal were not filed until February 2010. There is no suggestion of any oversight or error on the part of counsel who acted for the applicant at trial.
In Director of Public Prosecutions v. Cronin at p.346 Kearns J. said:-

“It seems to me that some error or oversight of substance, sufficient to ground an apprehension that a real injustice has occurred, must be demonstrated before the court should allow a point not taken at trial to be argued on appeal. There must in addition be some sort of explanation tendered to explain why the particular point was not taken. Furthermore, as noted above, the Court of Criminal Appeal is concerned only with a review of the trial and the rulings made therein, and not with other suggested errors or oversights which may be pre-date the trial or have been amenable to remedy in some other manner.

Without some such limitations, cases will continue to occur where a trawl of a judge’s charge years after the event will be made to see if a point can be found which might have been argued or been the subject matter of a requisition at the end of the judge’s charge at the original trial, even though competent lawyers at the trial itself did not see fit to do so. It is an entirely artificial approach to a review of a trial and one totally disconnected from the reality of the trial itself. For these reasons and for the reasons offered by Hardiman J. when this case was in the Court of Criminal Appeal, this court should abhor the practice and strongly discourage it.”

The court is likely to refuse leave to argue a point where it appears that a requisition has not been raised for tactical reasons: Director of Public Prosecutions .v Noonan [1998] 2 I.R. 439.
In this case there has been no explanation proffered to this court as to why the points now sought to be raised were not raised at the trial. Notwithstanding this the court proposes to consider, briefly, whether justice requires that the applicant should nonetheless be permitted to argue the same. It is proposed to look at each of the five requisitions in turn, the manner in which the learned trial judge recharged the jury and the point now sought to be argued.

Requisition 1
The requisition was as follows:-

“May it please the court, on the issues of fact with – could I ask you just to recharge the jury on the cross-examination of Noeleen Clarke and Aidan Prendergast, My Lord?”

In summarising the evidence the learned trial judge did not at all refer to the cross-examination of Noeleen Clarke and in relation to Aidan Prendergast, which in any event was brief, cited only one sentence. In response to the requisition the learned trial judge read the entire of each cross-examination to the jury.
Counsel for the applicant relied upon an Australian case R v Zorad [1990] 19 N.S.W.L.R. 91 where the court held at p.105:-

“A summing up should in every case, not only include directions as to the ingredients of the offence which the Crown has to establish and an explanation of how the relevant law may be applied to the facts of the particular case, but it should also include a collected résumé of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to that evidence…This is a rule which appears increasingly to be ignored by trial judges. It is not a compliance with that rule simply to read the relevant part of the section to the jury and then to read out the evidence which has been given chronologically, starting with the first witness and going through the evidence in chief, the cross-examination and then the re-examination of each witness before turning to the next witness and so on. The idea of a summing up is to present to the jury the issues of fact which they have to determine.”

The requirements of a charge will vary with the nature of the offence and on the nature of the evidence given in any particular case. In the present case there was a significant number of witnesses to part or all of the events. Their accounts were frequently confused. It is the function of the jury to consider that evidence and arrive at a determination in relation to the events described. In the present case it was unnecessary that a charge should be constructed as suggested in R v Zorad. The learned trial judge’s charge was clear, concise and fair and the jury were clearly directed as to their function. Nothing more was required in relation to the evidence of the two witnesses whose evidence was the subject matter of the requisition. The court is satisfied that insofar as R v Zorad requires in every case that a charge should comply with the requirements set out in the passage cited above it does not represent the law in Ireland. The requirements of the charge may vary from case to case. The requirement is that the charge should be clear and fair. It is neither necessary nor desirable that it should be prolix.
Requisition 2

“Yesterday Your Lordship did tell the jury that perhaps I had mistakenly stated the law to the jury, that there was no appeal from their verdict, that in my respectful submission the jurisprudence is there is no appeal from their verdict if they have been correctly charged, therefore the issue is that I did correctly state the law, that the Court of Appeal will not examine the verdict of a jury as it were on the merits.”

In addressing the jury counsel for the applicant said:-

“This all comes back to the fact that there is no appeal. I can’t think later on, think I should have said this or should have said that, although I know you have heard all the evidence and you must have been impressed by some of the evidence, perhaps unimpressed by others.”

The learned trial judge in the course of his charge said:-

“Now it doesn’t stop there because the Court of Criminal Appeal, which Mr Gageby has suggested doesn’t exist – that’s a joke – said it is of course true…”

In recharging the jury the learned trial judge went on to correctly state the law as to appeals to the Court of Criminal Appeal and as to the jurisdiction of that court in response to the requisition. This court notes that defence counsel’s reference to an appeal was inaccurate in that it was incomplete. The learned trial judge was entitled to correct the misstatement of the law, that being his province, and no objection was taken at the trial to the manner in which he did so. No question of injustice arises in this regard.

Requisition 3
The requisition was as follows:

“My next submission will, My Lord, is that Your Lordship ought to consider charging the jury that the good character of the accused is a relevant matter, both as to disposition and as to credit.”

In his recharge the learned trial judge said:-

“Now, you have had evidence in the case that the accused has no previous convictions. That means he is a person of good character, and you are entitled to take that into account in assessing him and assessing his evidence. You are entitled to take into account that he has been of good character in his life so far and to the present point of time, and take that into account in deciding what reliance to place on his evidence. He is of good character; that has been established in evidence.”

Defence counsel was content. The passage quoted deals appropriately with the accused’s character. No circumstance exists whereby any further elaboration could be required in the interests of justice.

Requisitions 4 and 5
Counsel for the applicant requested the court to deal with the requirement in relation to both counts on the indictment that the conduct constituting the offence be unlawful. The learned trial judge, both in his charge and in the re-charge, dealt appropriately and comprehensively with that requirement in relation to the count of murder and in relation to that count the court is satisfied that no issue arises that the requirement that the conduct be unlawful was anything other than adequately and appropriately dealt with. An issue remains however in relation to the manner in which the learned trial judge dealt with the requirement in relation to the second count on the indictment. That will be dealt with hereafter. The learned trial judge refused to recharge in relation to the second count. In relation to the first count, that of murder, no question of any injustice arises.

Requisition 6
The requisition was as follows:-
The jury was not charged in relation to the defence which

“is that the accused waved the knife or swung the knife in self-defence and without meaning it to connect with the accused, and in circumstances where he was subject to aggressive behaviour and his movements were limited by being held.”

The learned trial judge re-charged the jury as requested. Counsel for the applicant raised no further requisition other than to ask the learned trial judge, in the presence of the jury, that he refer to the applicant being held: the learned trial judge indicated to the jury that this was indeed so.
The court is satisfied in respect of requisitions 1, 2, 3, 4 (which related to the requirement that conduct be unlawful in relation to the charge of murder) 6 and 7. There is no merit in the points sought to be raised on this appeal. No question of injustice being worked arises in any of them. The court should not admit these grounds to be argued. In relation to each of the five requisitions which were acceded to and dealt with by the learned trial judge the court is satisfied that this application is without merit. A submission made to this court on behalf of the applicant was that the learned trial judge in dealing with each of these requisitions in his re-charge was too brief and that a more lengthy exposition was required. In no case however was counsel for the applicant able to point to an error. Further when asked to suggest the form which, in each case, the charge should have taken counsel suggested a somewhat longer form which was much less likely, to be helpful, and would if anything be more confusing, to the jury. The court is satisfied that the learned trial judge dealt with each of the requisitions to which he acceded correctly and clearly and in a manner designed to be most helpful to the jury.

Requisition No. 5
Counsel on behalf of the applicant requisitioned the learned trial judge to recharge the jury in relation to Count No. 2 making it clear that the conduct concerned must be unlawful. If the jury found in favour of the applicant that his conduct was justified on the basis of self-defence this would entitle him to be discharged.
The context of Requisition 4 was that of murder and it was in that context that the learned trial judge dealt comprehensively with the requirement on the prosecution to prove that the conduct in question must be unlawful and with the defence of self defence. There cannot be a complaint about the manner in which the learned trial judge dealt with the requirement that the conduct must be unlawful in the context of murder. The complaint relates to the manner in which the requirement of conduct being unlawful was dealt with in terms of self-defence in the context of the second count.
In relation to the second count the terms of the Firearms and Offensive Weapons Act 1990 section 11 were opened to the jury by the learned trial judge as follows:-

“Count No. 2 alleges that John McGovern on the 23

^rd

June 2007 at O’Connell Street, Ennis, Co.Clare, produced an article capable of inflicting serious injury, being a knife, in the course of a dispute or fight, in such a manner as to be likely to unlawfully intimidate another person. Well I think, members of the jury, all the words in that are self-explanatory, you will have this document with the allegation with you in the jury room. I don’t think anything in that calls for particular comment.”

Counsel for the applicant requested the learned trial judge to revisit his charge in this regard making it clear that if a person produced a weapon for the purposes of scaring off a person and dissuading him from continuing an assault this would not be unlawful. The learned trial judge did not accede to that requisition.
This court is satisfied in looking at the charge as a whole that it was not made clear or at least sufficiently clear to the jury that self-defence would also represent a defence to Count No. 2. For this reason the court will grant leave to appeal on this ground and treat the application for leave as the hearing of the appeal. For the reason stated the court will allow the appeal and set aside the conviction of the applicant on Count No. 2.
A further submission was made on behalf of the applicant to the effect that the error identified in the charge in relation to Count No. 2 somehow also infected the charge on count No. 1 and that the conviction on Count No. 1 was therefore unsafe. The court is satisfied that this is not the case. The charge insofar as it related to Count No. 1 and the requirement that the conduct giving rise to the same must be unlawful was clear and explicit. There could be no confusion in the mind of the jury on that issue and the court refuses the applicant leave to appeal on that ground.

Disposition
In relation to the conviction on Count No. 2 the court will grant leave to appeal and will treat the application as the hearing of the appeal and set aside the conviction. On the appeal against for conviction for manslaughter the court refuses the applicant leave to appeal.