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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> DPP -v- David Curran [2011] IECCA 95 (14 December 2011)
URL: http://www.bailii.org/ie/cases/IECCA/2011/C95.html
Cite as: [2011] IECCA 95, [2011] 3 IR 785
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Judgment Title: DPP -v- David Curran Composition of Court: O'Donnell J., Moriarty J., Hanna J. Judgment by: O'Donnell J. Status of Judgment: Approved |
THE COURT OF CRIMINAL APPEAL [CCA no.: 132/10] O’Donnell J. Moriarty J. Hanna J. Between: Director of Public Prosecutions PROSECUTOR/RESPONDENT V David Curran ACCUSED/APPLICANT Judgment of the Court delivered on the 14th day of December by O’Donnell, J. The Facts 1 On the evening of 23rd February, 2008, David Curran (hereafter “the Applicant”) stabbed and killed two Polish men, Pawel Kalite and Marius Szwajkos, with a screwdriver, outside their home at 48 Benbulbin Road, Dublin 12. 2 In relation to the earlier part of the day there appears to be little controversy. The Applicant and four friends, Sean Keogh, Katy Doherty, Catherine Dempsey, and Stephen McGuirk, spent the late morning and early afternoon hours at a nearby canal smoking cannabis and consuming alcohol and benzodiazepines. When the group dispersed later that afternoon the Applicant along with his cousins Stephen McGuirk and Sean Keogh, proceeded to steal a moped and set it on fire in the nearby park. The Applicant had taken a screwdriver from the stolen vehicle and had left with the intention of breaking into and robbing nearby factories. By this time, the Applicant who had a history of drug abuse, had consumed a considerable amount of alcohol and taken roughly 15-20 benzodiazepines. 3 Meanwhile at the Drimnagh Takeaway, located on Benbulbin Road, a scuffle had broken out between Stephen McGuirk and Pawel Kalite. It appeared that Mr McGuirk had brushed against Mr Kalite outside the takeaway. Mr Kalite had taken offence, and a scuffle ensued. Katy Doherty and Catherine Dempsey joined in the altercation. Mr Kalite had fallen to the ground, and all three young individuals began to kick him while on the ground. The fight broke up when the Applicant’s father arrived at the scene and escorted his nephew, Stephen McGuirk away from the Takeaway. At that time, Mr Kalite got up and walked back up to his house at 48 Benbulbin Road. 4 Moments later, the Applicant was seen running to the Takeaway with the screwdriver in his hand. In his interview at the garda station a few days after the incident, the Applicant admitted that he had received a call from Katy Doherty telling him that his cousin had been in a fight with a Polish man outside the Drimnagh Takeaway. Ms Doherty confirmed this account in her evidence at the trial. However, when the Applicant came to give evidence at the trial he claimed that he had no recollection of any phone call from Ms Doherty. Instead he said that he had received a phone call from Stephen McGuirk, telling him that his father had been stabbed. The Applicant contends that it was this call and this news that brought him to the scene of the Takeaway. The phone records from that evening obtained from Ms Doherty’s phone indicated there were four phone calls placed from that phone to the Applicant’s phone immediately prior to the Applicant’s arrival at the Takeaway. The suggestion at the trial was that Mr McGuirk might have used Ms Doherty’s phone but there was no positive evidence to that effect. Stephen McGuirk did not give evidence at the trial. 5 Although there are conflicting accounts as to the source of the phone call and the information given, the information received was enough to bring the Applicant to the scene of the Takeaway. When he arrived at the Takeaway there is uncontradicted evidence that he was enraged and acting in an extremely aggressive manner. He began to attack an occupied car by kicking the vehicle and attempted to damage it with the screwdriver. Independent witnesses described the Applicant as being “out of control” and “hopping mad”. One of the occupants of the vehicle recalls the Applicant shouting “was it youse?” to which another individual responded “it’s not them”. Catherine Dempsey, one of the accused’s companions, gave evidence that when the Applicant arrived at the Takeaway he had been shouting “he stabbed me da”. No other witness could confirm that the Applicant had said anything in relation to his father being stabbed and it does not appear, even on his own account, that the Applicant took any steps to ascertain his father’s condition. 6 Once the Applicant had been informed that the individuals in the car were not involved he took the screwdriver and proceeded to run up Benbulbin Road to number 48. Stephen McGuirk, Sean Keogh, Katy Doherty and Catherine Dempsey followed the Applicant up the road to the house. By the time the Applicant had reached number 48 three Polish individuals had emerged from the house. The Polish man who had been in the scuffle at the Takeaway, Pawel Kalite, was at the front gate with a female occupant of the house Kamila Szeremeta, while a second man Marius Szwajkos was further back. The Applicant gave evidence that the two men were shouting in their own language and “moving towards” him. It was these actions by the two Polish men that the Applicant contends compelled him to advance towards the Polish people. The Applicant swiped at Kamila Szeremeta and then plunged the screwdriver into the head of the first victim, Pawel Kalite, who had been standing behind her. Seconds later the Applicant struck the second man Marius Szwajkos in the head with the screwdriver after Mr Szwajkos had jumped the garden fence to come to the aid of the first victim. The two men died as a result of the head wounds inflicted by the Applicant. After the two men were struck, the Applicant and his friends fled the scene. 7 This sequence of events, starting from the moment the Applicant arrived at Drimnagh Takeaway to the final blow to the second victim, took place over a course of a 20 minute period starting just past 6.30 pm. There are varying accounts of the interactions between the victims and the Applicant at the scene of 48 Benbulbin Road. Neighbours who had witnessed the stabbing from their homes recalled that there had been shouting and confirms the words or movements made by the victims towards the Applicant. Ms Szeremeta gave evidence that there was “loud conversation”; however she could not confirm that the first victim was moving towards the Applicant. On the other hand, Ms Szeremeta’s brother Raddek Szeremeta testified that when Mr Kalite emerged from the house, he did not shout or say anything to the teenagers who were coming up the street. There was evidence that Pawel Kalite changed his shoes to heavier boots before going out of the house to confront the accused and his companions. That there was a confrontation there is no doubt. During his evidence, the Applicant recounted that the Polish individuals had been screaming at him in their own language and that he believed that the two men were moving towards him. When asked what had been going through his mind immediately before he stabbed the first victim, the Applicant responded by saying “they were coming for me now and that made me go mad”. In answer to the question “when you stabbed him were you in control of yourself or not?” the Applicant responded “no”. After objection, the Applicant was asked what he meant when he said he went mad and replied that he had “lost control”. The Applicant was tried along with Sean Keogh for the murder of Mr Kalite and Mr Szwajkos. He pleaded not guilty. After a 15 day trial in the Central Criminal Court he was convicted of murder. He now appeals his conviction. Provocation 8 The main, if not the sole, issue in this trial was whether the accused was entitled to the defence of provocation. It appears that prior to the landmark decision in People (DPP) v MacEoin 1 IR 27, provocation had not been the subject of any reported case in this jurisdiction. Since that date however, the issue has given rise to a significant number of decisions of this Court. See, for example, DPP v Kehoe [1992] ILRM 481, DPP v Mullane (Unreported, Court of Criminal Appeal, 11th March, 1997), DPP v Noonan [1998] ILRM 154, DPP v Bambrick [1999] 2 ILRM 71, DPP v Kelly [2000] 2 IR 1, DPP v McDonagh [2001] 3 IR 201, DPP v Davis [2001] 1 IR 146, DPP v Doyle (Unreported, Court of Criminal Appeal, 22nd March, 2002), and DPP v Byrne IECCA 47/00 (Unreported, Ex tempore, Court of Criminal Appeal, 24th February, 2003). The issue has also been discussed in text books including Charleton, Offences Against the Person (Dublin: Round Hall, 1992), Charleton, Bolger and McDermott Criminal Law (Dublin: Butterworths, 1999), and McAuley and McCutcheon’s Criminal Liability (Dublin: Round Hall, 2000). In addition, the defence has been the subject of detailed consideration by the Law Reform Commission in its recent Report on Defences in Criminal Law (LRC 95-2009) following the Consultation paper on Homicide: The Plea of Provocation published in 2003 (LRC CP27-2003). As was observed by Keane, CJ in DPP v Byrne IECCA 47/00 (Unreported, Ex tempore, Court of Criminal Appeal, 24th February, 2003), “the law (on provocation) has got into a state of affairs which, one can only say, is not that easy for a lay person to follow: some lawyers have difficulty in following it too”. 9 It is worth considering some of the sources of the current confusion. Until DPP v MacEoin, it was accepted, that the Irish law on provocation was essentially that summarised in the classic direction given by Devlin, J in R v Duffy [1949] 1All ER 932 namely:
Thus in R v Mawgridge (1707) Keil 119, Holt CJ set out four categories of provocation which operated to reduce murder to manslaughter including a grossly insulting assault, seeing a friend attacked, seeing an Englishman unlawfully deprived of liberty, and catching another man in the act of adultery with one’s wife. The continued, if controversial, existence of a defence rooted in such concepts, is, itself perhaps, an indicator of continuing belief that the existence of the mandatory sentence of murder, and the significance of the public labelling of a crime as murder, has continued to create a demand for a defence which distinguishes between culpable homicides. Even in the examples given by Holt CJ the modern eye can detect some of the essential elements of the defence; an action on the part of the victim, often wrongful, which triggers an immediate reaction in the accused causing that person to immediately lose complete control and during which brief period and before they can regain control of themselves they kill the victim. While not fully excusable the offence is partially understandable, and the victim’s actions are normally not beyond reproach. In such circumstances, the killer will escape the mandatory death sentence (or now a mandatory life sentence), but since the wrongdoing involves the intentional taking of the life of another, that will be marked and punished by a conviction for manslaughter. 12 As time went on the defence appeared increasingly anomalous. There is logical difficulty in contemplating, under the pre MacEoin test, a reasonable man who nevertheless could kill another person in a fit of passion. While a defence of provocation seemed to show some sympathy with what was almost a caricature of the hot-blooded gentleman quick to take offence, and equally quick to act decisively and lethally, modern society finds it hard to sympathise with or understand the concept of defending one’s honour, or that of another, by the intentional killing of another person. In the words of modern commentators, Neal and Bagaric, in the article, “Provocation: The Ongoing Subservience of Principle to Tradition” (2003) 67 Journal of Criminal Law 237 at p. 247: -
13 At the same time however the wholly objective test, was itself under challenged. In MacEoin, the Court of Criminal Appeal referred to the fact that the purely objective test had been subject to severe criticism in the dissenting judgment of Murphy, J. in the Australian case of Moffa v The Queen (1977) 13 ALR 225, and in the then leading text books, such as Smith and Hogan Criminal Law (2nd edition, pp. 213-215) and Russell on Crime (London: Stevens & Sons, 12th edition, 1964, Ch. 29), and in an influential article in the 1954 Criminal Law Review authored by Prof. Glanville Williams: “Provocation and the Reasonable Man”. The Court drew an analogy with the recent changes in the law of self-defence, established in People (Attorney General) v Dwyer [1972] IR 416, and concluded that the test for provocation ought to be wholly subjective. The test therefore was whether the accused had in fact been provoked to such an extent that he or she was no longer the master of his or her own mind, and responded by killing the victim. Whether a reasonable person would have been provoked, and/or considered that a violent response was necessary, was relevant if at all to the question of whether the accused’s account was to be believed. It is important to remember however that in a criminal trial the prosecution must negative any defence beyond reasonable doubt, and thus the test which would apply in a trial is whether the prosecution had proved beyond reasonable doubt that the accused had not suffered a sudden and temporary loss of self control rendering him or her no longer the master of his or her mind. This involves the prosecution not only in proving the subjective state of the mind of the accused, but doing so negatively i.e. to exclude any reasonable possibility that the accused was, subjectively provoked. 14 This apparently enlightened approach, apparently in tune with the views of influential commentators, gave rise to a renewed consideration of some of the traditional limitations on the availability of the defence, such as the requirement of immediacy, and the fact that intoxication had hitherto been considered irrelevant to provocation. Some of the language in MacEoin however suggested that if the violence used in response to the subjectively perceived provocation was “disproportionate” then the defence would not apply. This too came under scrutiny. It was criticised as illogical by Charleton in Offences Against the Person, (Dublin: Round Hall, 1992). The point was ultimately clarified by the decision in DPP v Kelly [2000] 2 IR 1 where the Court rejected the proportionality qualification. The intersection (or more correctly the lack of it) between the question of intent to kill, and the defence of provocation was also clarified in DPP v. Bambrick [1999] 2 ILRM 71 which made it clear that these were two separate concepts. A person who successfully raised the defence of provocation, had ex hypothesi, the requisite intent to commit murder. Where provocation applied, the killing was deemed partially excusable and therefore was reduced to manslaughter. All of these subsequent developments led to a broadening of the defence as established in MacEoin. 15 However, the approach in MacEoin never found favour in other common law countries although all struggled with the defence of provocation, and adjusted the law to some extent. The development of the law in MacEoin was subjected to a thoughtful and compelling criticism by McAuley and McCutcheon in Criminal Liability (Dublin: Round Hall, 2000). The authors argued that MacEoin was flawed, and was based on an incorrect analogy with the law of self-defence. In People (Attorney General) v Dwyer [1972] IR 416 it had been held that even a mistaken belief in the appropriateness of the violence used, could give rise to a partial defence of self-defence reducing murder to manslaughter, because it was said , it negatived the intent necessary for murder. But in provocation there was no question of a lack of necessary intent. It was therefore doubtful if the same reasoning could apply. The authors also pointed out that the adoption of a wholly subjective test for provocation was problematic since it seemed to indulge qualities, which the law ought to deprecate: lack of self-control; unusual pugnacity and hot headedness; and the holding of morally repugnant beliefs. Provocation essentially represents a judgement by society that a person, who has otherwise intended to kill his or her victim, should in certain circumstances, neither be treated nor labelled as a murderer, but rather should be guilty of manslaughter only. That was a societal judgement as to what was or was not even partially excusable. It was difficult to see why society should include in these circumstances the consequences of characteristics which a civilised society should more naturally condemn. As the subsequent judgment of this Court in DPP v Davis [2001] 1 IR 146 acknowledged, these academic criticisms of MacEoin had considerable force, although it might also be pointed out that if MacEoin had been correct in rejecting the wholly objective test, but too swift in adopting a wholly subjective approach it was following an approach advocated with considerable enthusiasm in what were then the standard academic works. 16 The argument in McAuley and McCutcheon’s Criminal Liability text draws heavily on the development of the law in England and Wales. A decision of the House of Lords in that jurisdiction, delivered shortly after the decision in MacEoin had reviewed the law of provocation in that jurisdiction. In DPP v Camplin [1978] AC 705, the House of Lords had addressed the criticism of the wholly objective approach exemplified in Bedder v DPP [1954] 1 WLR 1119 and had held that the UK Homicide Act of 1957 had modified the approach by requiring that the characteristics of the accused should be taken into account by the jury in considering the gravity of the provocation but that the Court should still judge the accused’s conduct by the standard of self-control to be expected of an ordinary person of the sex and age of the accused. This qualification of the objective test carries its own difficulties. It was criticised in R v Smith (Morgan) [2000] 4 All ER 289, which sought to adopt the same standard in relation to both the gravity of provocation and the self-control exercised, but this view in turn was rejected soon after by a majority of the Privy Council (over the powerful dissents of Lord Bingham and Lord Hoffman and Lord Carswell) in Attorney General for Jersey v Holley [2005] 2 AC 580. In the latter case, the observation of Lord Nicholls of Birkenhead at para. 27, that “(t)he widely held view is that the law relating to provocation is flawed to an extent beyond reform by the courts” and his plea for urgent comprehensive reform, could be applied with even greater force to the law in this jurisdiction, where the law of provocation has until now escaped any statutory reform. 17 Some modern criticism of the law of provocation has suggested that it is an anachronism which cannot be justified in logic. This type of reasoning has led to the abolition of the defence in the State of Victoria in Australia. There, any question of provocation only arises in relation to sentence. However, on the other hand, the continued existence of a defence which could reduce murder to manslaughter still has attractions in some jurisdictions and is arguably necessary where there is a single mandatory life sentence for murder. Increasingly, it was asserted that the defence could be available in circumstances where it was alleged, for example, that a battered spouse had killed an abusive husband. In one sense, this was a recognition of the continuing vitality of the underlying theme in the defence of provocation: the concept that in certain circumstances a conviction and penalty for murder was inappropriate. As it was put in the dissent in AG for Jersey v Holley 2 AC 580, at para. 44 by Lord Bingham of Cornhill and Lord Hoffmann: -
18 In legal terms, and in the absence of legislative attention, this resulted in pressure to relax the requirement of immediacy, since in many cases the accused could not point to a single immediate act causing her to lose control. Accordingly, by the late 20th century the defence of provocation occupied an uneasy intermediate world tied to sometimes anachronistic historical concepts, and yet seeking to accommodate the demands of a modern society. 19 In that context, the move to a wholly subjective approach, as set out in the judgment in MacEoin, was initially seen as an enlightened development in accordance with the best academic analyses. However, it has become increasingly clear that the formulation of the defence in wholly subjective terms is, unless carefully defined and applied, particularly capable of creating a dangerously loose formulation liable to extend the law’s indulgence to conduct that should deserve censure rather than excuse. The application of a wholly subjective approach creates more difficulty in this area than the application of the familiar subjective test in the ascertainment of mens rea. The jury’s inquiry takes place against the structure created by s.2 of the Criminal Justice Act 1964, that a person is presumed to intend the natural probable consequences of his action. This creates a starting point, and indeed a tool for analysis that allows the jury to address the assertions of the subjective belief of the defence, against the objective evidence of their conduct, albeit by the standard of beyond reasonable doubt. However, since intent is not an issue in provocation, there is no similar presumption, or analytical structure. A jury is left with the asserted evidence on behalf of the accused, and an instruction that a prosecution must negative the existence of such alleged provocation, beyond any reasonable doubt. When it is recognised, that in many cases (and in this respect the present case is somewhat unusual) there will be only two participants in the incident, one of whom is by definition by the time of the trial dead, the difficulties posed for a jury are real and obvious. The increased incidence of a provocation defence being raised in murder trials, is suggestive more of an expansion of the scope of the defence, rather than a surprising resurgence of the values and behaviour of “Restoration gallantry”. There is a clear and pressing need for a comprehensive review of this area, and its interaction with other areas of the law of homicide, and at a minimum, a statutory regulation of the scope of the defence of provocation. 20 In the meantime, the existing law must be applied. It is apparent from a consideration of the development of the defence that what at first sight might appear to be antiquated phraseology and fine linguistic distinctions, are of the essence of the correct approach to the defence, if it is to be maintained within proper bounds. As Lord Nicholls of Birkenhead observed in the UK Privy Council case of Attorney General for Jersey v Holley at para. 22, it is important that the question for the jury is whether the provocative acts or words alleged and the defendant’s response, met the standard prescribed in that jurisdiction by statute, and “… not the altogether looser question of whether, having regard to all the circumstances, the jury consider the loss of self control was sufficiently excusable”. That warning might apply with even greater force in the Irish context. Since the test in this jurisdiction is wholly subjective, the jury is not entitled to consider whether the loss of self-control was sufficiently excusable (loose though that test may be). In such circumstances, the jury would be driven to speculate upon, and perhaps partially excuse, murderous rages by violent individuals. This would be entirely regrettable. It is the stock-in-trade of every bully from the school yard to the street corner, to demonstrate a finely tuned sensitivity to imagined slights, and to respond with gross and excessive violence. A principle of law which instructed a jury to give credence to such a person’s behaviour, and acquit of murder if reasonably possible that such an account was true, would risk fundamentally divorcing the law from the jury’s, and the public’s, innate sense of justice. There is force in Lord Hoffman’s observation in R v Smith (Morgan) [2000] 4 All ER 289, that:
21 The decision of this Court in People (DPP) v Davis [2001] 1 IR 146 is very important therefore in providing guidance to courts in ensuring that the structure for the defence is maintained. It emphasises that it is only those cases where provocation as properly defined as genuinely being raised that should be permitted to go to the jury. The Court also laid emphasis on ensuring that all the elements of the defence, and in particular those features which distinguish true provocation from mere uncontrolled rage, are maintained. As the judgment pointed out, at p. 158, provocation will involve focusing “inter alia on the distinction between vexation, temper, rage or cognate emotions and provocation in its technical sense”. A condition of being “vexed” or even “in a rage” does not remotely approach evidence suggesting the “total of self-control which alone can palliate a fatal assault.” On the contrary, it was necessary that there should be some evidence whose credibility will fall to be assessed by the jury, that, as stated on p. 158, “the particular accused was in fact provoked to the extent of total loss of self-control, that he killed the deceased while in this state, in response to the provocation, and without there having been time for his passion to cool”. This should also be understood in the context, that there is a “minimal degree of self-control which each member of society is entitled to expect from his or her fellow members: without such a threshold, social life would be impossible” (p. 160 of judgment). This is important and valuable guidance. In the words of Hardiman J. at p. 158:
22 In DPP v Kelly [2000] 2 IR 1 the Court also drew a useful distinction between self-defence and provocation at p. 10: -
23 These distinctions, like those in Davis, are useful in seeking to identify the true nature and proper limits of the defence of provocation. The present case illustrates however, that the modern emphasis on subjectivity can, without careful control, lead to the defence being raised in almost any circumstances. The Applicant here, on all the evidence, was already engaged on a trail of destructive activity long before he received any phone call. He had stolen a moped, set it on fire and appropriated the screw driver with a view to further criminality. In his interview he admitted that he had received a phone call from Katy Doherty telling him that his cousin (and she) had been involved in a scuffle with a Polish man outside the chipper (an account which if given to the accused was true). Katy Doherty for her part gave evidence in Court that she had made such a call. If all of this was true, then it was indicative of aggression and revenge rather than provocation. However, when he came to give evidence the accused claimed to have no memory of receiving any such call from Katy Doherty. Instead he said he had received a call from Stephen McGuirk telling him something which was untrue: that his father had been stabbed. Whatever information the Applicant received, what he did was to go to the takeaway, which was the scene of the scuffle, of which on her evidence Katy Doherty had informed the Applicant. There is uncontradicted evidence, that when he arrived there, he was acting in a manner which was extremely aggressive and violent. He attacked an occupied car by kicking it and attempting to damage it with the screw driver. He was in the words of one independent witness – words relied on by the defence – “out of control”, a description which seems amply justified. He then proceeded to number 48, plainly intent on further violence. At this stage it should be noted that nothing which could remotely constitute provocation emanating from the victims, had occurred. When three Polish people emerged from the house (two men and a woman) David Curran made a swipe at the woman with a screwdriver, and then plunged it into the head of the first defendant, Pawel Kalite and seconds later, drove the screwdriver into the head of Marius Szwajkos. 24 So far, everything pointed to the accused being in a savage and violent rage, fuelled by drugs and alcohol. Nothing suggested that the accused’s mood or mental state was brought on by anything done or said by the victims of the attack. Given the fact that the case law shows that the distinction between rage and anger on the one hand, and the total loss of self-control involved in provocation on the other, is a crucial question, it is more than regrettable that the critical evidence of the accused in this regard, was introduced in response to a plainly inappropriate and leading question. When asked what was going through his head Mr Curran had said “that they were coming for me now and that made me go mad”. He was then asked “now when you stabbed them, were you in control of yourself or not?” Over the entirely proper objection of counsel for the prosecution, the accused answered “No”. The objection was quite properly sustained by the trial judge. The accused was then asked what he meant when he said he went mad, and he answered simply “lost control”. 25 This very limited passage of evidence was the entirety of the evidence on the question of loss of control, which nevertheless led the Court, to conclude, correctly, that there was now evidence in the words of Mr Justice Hardiman, however weak or limited, which required the jury to consider the defence of provocation. The case advanced on Mr Curran’s behalf however, also had to identify acts of provocation on the part of the unfortunate victims. This provocation was said to amount to both words and actions. In this case the words amounted to the evidence that the victims were shouting, in Polish, it should be noted. There is no evidence that Mr Curran, or anyone else other than the victims understood Polish. The alleged provocative actions of the two men were described in this Court as a “moving towards” Mr Curran. Much effort was then expended on the question again described as “crucial” which was whether the second victim, Marius Szwajkos, was himself “moving towards” Mr Curran before the first blow was struck. The combination of the Polish words, and the alleged movement of both accused, was, it was said, what amounted to provocation, and caused Mr Curran to lose control (something which necessarily implied that he was in control up to that point) and make an attempt to kill or injure Kimila Szeremeta, and then to kill Pawel Kalite and Marius Szwajkos. Even viewed through the necessarily imperfect lens of a transcript, such an account is deeply implausible. It is perhaps a perverse tribute to the energy and skill of the defence in this case as well as to the frailties of the current law of provocation that the issue occupied a trial (admittedly involving more than one accused) over a period of seventeen days, and a further three days in this Court. This is, however, the essential background of fact and law, against which the Applicant’s contentions must be considered. 26 The Judge’s Direction on the Defence On behalf of the accused it was sensibly and realistically accepted that a large part of the judge’s charge was impeccable. This was inevitable since the judge had emphasised on multiple occasions that the test for the jury was whether the prosecution had proved beyond reasonable doubt that David Curran had not been provoked by the words and movement of the victims. However, the Applicant now contends that the judge’s charge was inaccurate and misleading in an important respect which it is said was then reflected in a single question posed by the jury, and that far from clarifying the matter, the judge’s answer to the question on day 15 was itself defective. 27 The first part of the direction which is criticised occurred on day 14 where the judge said (p. 50 of the transcript): “The only issue therefore with regard to Mr Curran is whether or not he is guilty of murder. In his case there are two ways in which murder may be reduced to manslaughter. One is if the DPP fails to prove the intent that I have mentioned, the intent to murder or cause serious injury, and secondly, if the defence of provocation is acceptable to you. In a murder trial the defence can rely on provocation to reduce the crime of murder to manslaughter. To do so there must be evidence of words spoken or acts done or a combination of both by the deceased which causes in the accused person a sudden and temporary loss of self control rendering him so subject to passion as to make him for that moment not master of his own mind”. (Emphasis added). 28 The judge continued (day 14 of the trial, p. 51 of the transcript):
29 Counsel for the Applicant suggests that the reference to “acceptable” is misleading since it may be thought to imply a choice on the part of the jury. Similarly, to use the word “must”, might suggest that there was an obligation on the part of the accused to adduce this evidence. These submissions were elaborated on in respect of other aspects in the charge (day 14 of the trial, p. 51 of the transcript): -
So what type of effect must those words or acts have before the defence is availed of? The effect must have been more than simply instilling anger or even great anger in the person in question and must be more than simply causing rage or even great rage in the accused person. The words or actions must cause or must provoke a sudden unforeseen unset of passion which, from that moment on, totally deprives the accused person of his self-control. Partial deprivation of self-control is not enough. There must, as I have said, be a sudden, unforeseen onset of passion which from that moment on, totally deprives the accused person of his self-control … If that occurs and if that’s caused by the acts or words of the deceased person, then, in circumstances where the accused would otherwise be guilty of murder, he is not. The defence of provocation holds good and he would be guilty of manslaughter in those circumstances. So, the law allows a person even to kill without being guilty of murder … – when in a condition, when he is in a condition caused by the words or by the actions resulting in total deprivation of self-control, a total loss of self-control, that he can do nothing with it. If the evidence falls short of that, and I’ll come in a moment as to how you will address it by way of question, then provocation is not available. In this case the only acts or words relied on which possibly could constitute provocation are the words i.e. the shouting, which it is alleged took place outside no. 48, immediately prior to the killing of these two people, and the movement of the two deceased immediately prior to killing. That’s the evidence relied upon as constituting provocation.” 30 Counsel for the Applicant fairly acknowledges that after the passage complained of the trial judge did correctly state the onus of proof in relation to the ultimate issue of provocation as follows (day 14 of the trial, p. 52 of the transcript): -
31 The recognition of provocation as a partial defence to the most serious crime tolerates unchecked displays of anger. 32 It is contended on this appeal, that this charge incorrectly blurred the distinction between the judge’s task in determining whether there was evidence of provocation to go to a jury, and the jury’s task in deciding whether such evidence was credible. This Court however, cannot accept that the charge taken as it must be, in its full context, was defective. It must be remembered that the charge was delivered orally to the jury and heard by them over an extended period of two days. The question in any case is how the jury may have understood the judge’s instructions on the law. It is important therefore to view the charge as a whole, and seek to assess the impact it, and any passage contained in it, may have had on twelve individuals who are hearing it for the first time, albeit assumed to be listening attentively. It is not desirable to select individual words or phrases and subject them to a detailed almost semiotic analysis, if a jury would not have done so in the moments in which they heard the charge. In this case there was a repeated instruction to the jury that the onus was at all times upon the prosecution to prove every element of the offence, and in particular to disprove provocation, beyond any reasonable doubt. The jury were instructed as to the meaning of that concept. The test was also inverted, so that it was put to the jury, that if there was a reasonable possibility that David Curran’s account was correct, then he was entitled to the benefit of the doubt and should be acquitted of murder. It is only human experience, that in an oral presentation, that a repeated and consistent message is much more likely to have an impact than inferences and nuances which might subsequently be sought to be drawn from a written text. There is no doubt that giving a clear instruction to a jury on the tangled law of provocation is not an easy task since it involves instructing a jury on unfamiliar concepts, and on the task of considering whether a prosecution had proved a negative beyond a reasonable doubt. In the passage complained of, the court is satisfied that the judge was doing no more than outlining the elements necessary to establish a defence of provocation, and that he then went on to point out, that in respect of any such element, the prosecution had to disprove that element or at least one of them, beyond any reasonable doubt, and if not the accused was entitled be acquitted of murder and convicted only of manslaughter. The court correctly identified the elements which must exist for the defence of manslaughter, and then correctly instruct the jury as to the approach to be taken to the evidential standard in respect of such elements. The Jury’s Question 33 The second and related complaint made by the Applicant related to the question raised by a jury on day 15 (p. 29 of the transcript). That was in the following terms:
34 The Applicant points to the use of the phrases “to be acceptable” and “there must be evidence” as evidence that the jury picked up on the language of which the Applicant had already criticised. That is speculation, but if so, it only demonstrates that the jury were paying close attention to the judge’s instructions. Counsel goes further and suggests that the second sentence of the question should be understood as addressing the specific question as to the onus of proof of the truth of the existence of the words or acts contended for. He argued, that the jury ought to have been told that if there was a reasonable possibility that the words or acts emanated from the victim the jury must “act on that” unless disproved by the prosecution. Counsel was however reluctant to explain exactly what was meant by the phrase “act on that” but it appears that he was contending for an approach which atomised the incident and sought to convert any aspect of it, which the jury could consider had not been proved beyond a reasonable doubt into positive proof of the contrary. The Court does not accept that this approach was correct, or indeed that the question by the jury invited this level of analysis. Rather, the Court considers it was at a general level and was answered correctly by the judge. He told the jury, that it was not for the defence to prove anything. Furthermore, he told them that if there was any evidence from any source, then the jury must consider whether the defence of provocation had been negatived by the prosecution beyond any reasonable doubt. This was entirely correct. Counsel’s Comment on a Failure to call a Witness 35 The next point raised by the Applicant was that the trial judge erred in failing to direct the jury to disregard a suggestion by prosecuting counsel commenting on the failure of the defence to call Stephen McGuirk to give evidence of making any phone call. The relevant portion of the prosecution’s closing is as follows (Day 13 of the trial, p. 37 of the transcript):
36 In his closing speech, counsel on behalf of the Applicant referred to this comment and said that it was entirely inappropriate to suggest (Day 14 of the trial, p. 2 of the transcript):-
37 The trial judge gave a general direction as follows (Day 14 of the trial, pp. 46-47 of the transcript):
39 Counsel has referred us to a number of UK authorities on the circumstances in which a judge may comment on the failure of the defence to call a witness. See for example R v Wright [2000] Crim L R 510, and Archbold Criminal Pleading, Evidence and Practice 2011 (Sweet & Maxwell, 2011), para 4-400/1, and R v Kahn (Shakeel) [2001] Crim L Rev 673. There, the Court observed that having regard to the dangers involved in such comments “much will depend on the judge’s sense of fairness, but the dangers of adverse comments, and of failing to warn the jury not to speculate will usually be the paramount consideration”. No Irish authority was cited. The UK and Canadian authorities which were cited to this Court all concern comments made by the judge on the failure to call a particular witness, and an explicit invitation to the jury to draw adverse inference from the absence of such a witness. The present case is much different. In the first case, it can hardly have escaped the jury’s attention that there was a conflict of evidence about the phone calls made to the Applicant alerting him to the events at the Takeaway, and that Mr McGuirk, the Applicant’s cousin, and a key player on the Applicant’s account, had not given evidence. Second, the comment here was made by counsel in the course of a closing speech. It was not dwelt upon, and the jury were not asked explicitly to draw an adverse inference, in the manner in which that is formally done when the trial judge in the UK cases, is asked to address the matter. In the circumstances the Court does not consider that the comment made by counsel brought the jury’s deliberations much further than they would have been in the absence of such a comment. The comment was countered, by counsel for the Applicant, and while the trial judge made no specific reference to counsel’s remark, his general and repeated instruction to the jury was that the accused was under no obligation to call any witness, and he specifically mentioned Stephen McGuirk. There is no doubt that inviting the jury to draw an inference from the absence of a witness is something which must be approached with considerable caution. Concentration on that issue runs the risk of inviting the jury to speculate on evidence which was not given, rather than to determine the case on the evidence which was. If there was more elaborate discussion of the absence of Mr McGuirk, and in particular if that had been dwelt upon by the trial judge, then the matter might have to be scrutinised more carefully. In the circumstances of this case however, the Court is satisfied that the comment made by counsel for the prosecution could not be said to have rendered the trial unfair or the jury’s verdict unsafe. The Lucas Warning 40 The Applicant contends on this appeal, that the trial judge erred in failing to direct the jury as to the manner in which the memos of interviews of the Applicant should be considered and in particular by failing to direct the jury as to the implications of the finding that particular assertions by the Applicant in those interviews could not reasonably be true or were lies. It was submitted that the trial judge should have given a direction to the jury in the nature of the “Lucas” warning. In this regard, the Applicant relied on People (DPP) v Brady (Unreported, Court of Criminal Appeal, 5th May, 2005) and People (DPP) v Cleary IECCA 25 (Unreported, Court of Criminal Appeal, 3rd March, 2006) and People (DPP) v Tuohy & Wallace IECCA 153 (Unreported, Court of Criminal Appeal, 5th December, 2006). In particular, the Applicant pointed to the need for such a warning in a provocation case. See R v Ritchins (1994) 98 Cr App R 43, and R v Taylor [1998] Crim L R 822 and R v Miah [2003] EWCA Crim 3713. 41 It has not been definitively determined in this jurisdiction, as to when precisely a Lucas warning or, a modified Lucas warning, should be given to a jury. There is however no doubt, that there are cases in which it is appropriate to do so. Those are cases in which, in particular, the Applicant admits or concedes at or before the trial, that an earlier account given, and normally to the gardaí shortly after the event, is false and untruthful. 42 The admission, or proof, that an accused person has been telling lies can have a very potent impact upon a criminal trial. There is a natural tendency to assume that if it has been established that the accused was lying on a previous occasion, then there is no reason to believe that he or she is telling the truth when in Court. In such circumstances it is necessary to remind the jury that they should not necessarily make the leap from an acknowledgement of lying to a determination of guilt. Human experience, and indeed the experience of courts, can show that while it may not be very creditable, persons who have been involved in incidents, and particularly those in which another person has lost their life, may not always be forthcoming about their role in the events, and in particular may seek to exculpate themselves by denying involvement or possibly asserting some other exculpation such as self-defence. Here the prosecution understandably dwelt on the fact that the assertion of provocation had come late in the day, and that the accused had initially denied any involvement in the crime. It is unnecessary however to consider whether a Lucas warning was necessary in this case, and if so in what terms. That is because the trial judge was not invited to give any such warning, and no requisition was raised on this issue. It is the settled jurisprudence of this Court, that it does not normally permit a party to raise an issue which was not argued at the trial. If this Court considered that there was a serious risk that an injustice had been done on this issue, then notwithstanding the failure of counsel to raise the matter at trial, it might have to consider whether the absence of a Lucas warning was critical. However, the Court is not so satisfied in this case and accordingly this ground must be dismissed. Other Issues on the Judge’s Charge 43 The Applicant also raises a number of very specific issues in relation to the judge’s charge. Counsel fairly and frankly concedes that the individual aspect of the judge’s charge may itself not be clearly wrong, but he contends that cumulatively they should lead to a conclusion that the overall charge was inadequate, and that the application should be allowed. First, the Applicant contends that the trial judge misdirected the jury by failing to direct it that having regard to the fact that the test of provocation was to be applied by reference to the circumstances that the Applicant believed them to be, the jury should consider the matter on the basis of any mistaken belief as to the facts which as a reasonable possibility applied to the Applicant. This he contended, should include the fact that he believed that his father had been stabbed by one of the victims and/or that both victims were moving towards him and/or shouting. It is also suggested that the learned trial judge erred in failing to direct the jury that a series of acts and events over a period of time could be taken into account in assessing whether the defence of provocation applied. Third, it is alleged that the trial judge should have directed the jury that if there was a reasonable possibility that the Applicant had lost control as a result of the combination of effects arising from the perceived conduct of the two victims or either of them acting together, then the defence of provocation applied. Finally, it is said that the trial judge ought to have charged the jury that while it was the duty of the members of the jury to act as a collective unit, nevertheless the individual members of the jury were bound by their oath not to come to a verdict with which they did not truly agree in the exercise of their independent judgment. It is fair to point out that each of these points were raised in requisitions on behalf of the Applicant. 44 The Court considers that these points can be taken together. While it is perhaps possible that if a charge in these terms had been given to the jury, it would have been deemed beyond objection or at least beyond these specific objections, that is very far from saying that the absence of such specific directions renders inadequate the charge that was actually delivered. Here the Applicant seeks to present a wish list of propositions which the Applicant desire to see in the charge to the jury, and the absence of which it is now contended renders the trial unsafe. There is, with respect, a fallacy in the Applicant’s reasoning in this regard. The process of argument seems to follow a number of stages. The first, a statement of law is identified, itself unobjectionable. The judge is then requisitioned upon it. If the judge does not then adopt the specific language suggested by counsel it is said that the charge is inadequate. But the trial judge’s charge is not designed to be a receptacle for propositions desired by either party. The function of the charge is to put the jury in a position to address the issues of fact arising in the particular case, in the correct legal framework, and thus to be able to deliver their verdict. This Court is satisfied that the charge in this case was more than adequate to perform this task, and conspicuously fair to the accused. Moral Certainty 45 Finally, in relation to reasonable doubt, the trial judge said (day 14 of the trial, pp. 48-49 of the transcript):
47 Counsel referred us to the decision of the United States Supreme Court in Victor v Nebraska 511 US 1 (1994) where the jury had been directed that they were required to be “morally certain”. O’Connor J., speaking for the majority of the Supreme Court, held that the reference to moral certainty was at least undesirable:
48 However, a consideration of the reasoning of the US Supreme Court might lead to the opposite conclusion than that for which the Applicant contends. It is surely a fallacy to start from the proposition that the phrase “moral certainty” has a fixed meaning irrespective of the period in time, country, location or indeed specific linguistic context in which it was used. Words must be interpreted in their context, both national, and specific. It might be possible for example that modern day US courts could be concerned that a reference to “moral certainty” might suggest to a jury a form of reasoning other than the logical sifting of the evidence in a case. Even in this jurisdiction, if the phrase was deliberately contrasted with a concept of scientific or mathematical certainty, then it might indeed suggest some standard lower than or at least different to the beyond a reasonable doubt standard. But here, in the specific content in which it was being used, it appears to the Courts that it was being used as meaning something essentially similar to mathematical certainty. The alliterative phrase “mathematically or morally” sought to identify for the jury the truth that the beyond a reasonable doubt standard, while exacting, is not a synonym for certainty. While this Court does not consider that in this passage the jury were being invited to identify and consider some separate concept of moral certainty, if it was, then that can only have been the meaning attributed to in the Oxford English Dictionary (2nd edn., 1989) at p. 1070, in the extract from the judgment of O’Connor J in Victor v Nebraska just cited – namely, “a degree of probability so great as to admit of no reasonable doubt”. In the context in which it was used this Court has no doubt that it illustrated for the jury the standard of proof required and could not be said to have misled them in any way. 49 In the circumstances this ground must be rejected. Accordingly, the application for leave to appeal will be dismissed. |