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Judgment Title: DPP -v- Brendan O'Sullivan Neutral Citation: [2013] IECCA 18 Court of Criminal Appeal Record Number: 2010/280 Date of Delivery: 04/06/2013 Court: Court of Criminal Appeal Composition of Court: Fennelly J., Herbert J., Birmingham J. Judgment by: Fennelly J. Status of Judgment: Approved
Outcome: Dismiss Appeal v Conviction | ||||||||||||
THE COURT OF CRIMINAL APPEAL Record No. 2010/280 Fennelly J. Herbert J. Birmingham J.
DIRECTOR OF PUBLIC PROSECUTIONS Respondent -and- BRENDAN O’SULLIVAN Applicant Judgment of the Court of Criminal Appeal delivered the 4th day of June 2013 by Mr Justice Fennelly 1. On 8th November 2010 the applicant was convicted of murder by a jury in the Central Criminal Court after a six-day trial before McCarthy J. 2. It was not in dispute at any stage that the applicant had killed Leslie Kenny (hereinafter “the deceased”) by shooting him with four shots from a double-barrelled shotgun. The fatal shooting took place at Pound Street (also known as O’Gorman Street), Kilrush, County Clare during the morning of 29th July 2009. Both the applicant and the deceased lived there, some houses apart. The deceased was admittedly a person of bad reputation with several previous convictions. He was believed to have stolen from and to have assaulted and threatened members of the applicant’s family. He had a reputation for misuse of drugs and alcohol. On the morning of his death, he had collected his medication from the pharmacist and seemed calm. 3. The evidence at trial fell into three broad parts:
ii. Forensic evidence regarding the wounds of the deceased and the likely distance away the applicant had been when he discharged each of the four shots; iii The statements of the applicant made in a number of garda interviews. 5. The central point made on the appeal is that the learned trial judge did not properly direct the jury in his charge regarding the elements of the defence of self-defence. 6. The applicant also complains that the trial judge should have discharged the jury when they inquired about an item of evidence, described as a “target sheet,” which had been inadvertently referred to by a garda witness in the course of his evidence but not introduced into evidence. The evidence Eyewitnesses 8. The deceased was at his own house and the applicant was shouting at him from his own front garden. The deceased walked down to the applicant’s house. A number of bangs were heard, and the Gardaí were called. 9. The deceased was found dead at the inside of the front of the applicant’s garden, lying face up and against the wall. He had suffered four shotgun wounds: one to the upper right trunk; one to the right hip; one to the left knee; and one to the right knee. Forensic evidence (see paragraph 24 below) indicated that the shots had been fired from progressively decreasing distances from the deceased. 10. A double barrelled shot gun was recovered from the applicant’s house. Four discharged cartridges were found in a coal scuttle in the applicant’s sitting room. Live cartridges were found at three locations in the house. 11. Mr. Thomas Casey said that shortly after 10 am he heard two men arguing and cursing, saying ‘We’ll sort out the mess.’ He looked out his door, and saw the deceased at the door of his own house. He thought the argument had taken place in the street. He went back into his house, and then heard a loud noise. 12. Joanne Carrig, the sister of the deceased’s partner, heard an argument, went out to see if she could see anything and, when she could not, returned to her house. She heard a bang which, she thought, sounded like a shotgun. She went out again but came back in. Then she heard two more shots: “it was bang-bang.” There was a pause of about forty to forty five seconds before the second pair of shots. She rang the Gardaí. She went outside and saw the applicant pacing up and down in his garden speaking on his phone. He did not appear agitated. The applicant’s family then arrived, as did the deceased’s partner. 13. Mr. Pat Brassil was outside his house, which is across the street from that of the applicant, and was talking to his neighbour. The applicant came out of his house, stood on a garden bench near the front door and started shouting at the deceased, who was about 8 houses up the street. The applicant shouted: ‘Come down and we’ll talk about it,’ in an agitated manner. The deceased began to make his way towards the applicant’s house, and was about two doors away, when the witness went inside his own house. He heard nothing because he has a hearing problem. 14. Mr. John Gallery testified that he saw the deceased outside his own house and the applicant outside his. They were shouting at each other; the applicant told the deceased to come down and they would talk about it. He thought that there might be a fight or an argument about to develop, and he went inside. 15. Mr. Gerard Tevlin dropped his daughter off in the area about 10:20 am and saw one man shouting—he used the word “roaring”— at another man who was walking up the street. The man who was shouting, who must have been the applicant, was standing on something in his garden. He shouted: “Will you fucking come down and talk to me.” The man who was being shouted at was walking away. He says the man who was shouting was “roaring” at the other man. 16. Ms. Maureen Tevlin took in Mr. Tevlin’s daughter. She saw the applicant standing on a garden bench, shouting. She didn’t see whom he was shouting at. He was using strong language. She came inside and rang the Gardaí, because there appeared to be a dispute in the neighbourhood and “they could do something.” 17. In spite of this number of eyewitnesses, it remains the fact that nobody saw the actual shooting. 18. The applicant’s father gave evidence that his son rang him between 10:30 and 10:40 am and said: ‘I’ve killed him in the garden,’ but without saying whom he had shot. He and his wife went over to his son’s house, arriving in about 5 minutes. The applicant was sitting on a bench. He asked him whom he had shot. The applicant said: “turn around.” He saw the deceased at the front wall of the garden, dead. He testified that he asked his son why he did it, saying that he was going to spend the rest of his life in jail.” His son gave no explanation. 19. Garda Richard Bourke was the first Garda on the scene. He reported that the Applicant seemed calm. He found the deceased at the front of the garden. The Applicant told him: “He chased my children into the house” He reported how Dr. Carr came to the scene and pronounced death at 10:53 am.
Forensic evidence 21. D/Garda Louise O’Loughlan, attached to the Ballistics Section of the Technical Bureau, examined the scene of the crime and, in particular, the shotgun and cartridges. She found the deceased partially leaning against the inside wall of the garden. After the body was removed, she found three fragments of plastic wadding from discharged shotgun cartridges where the body had lain. She attended the post-mortem and saw the four wounds suffered by the deceased. A number of pellets, and further plastic wadding, were recovered from the body of the deceased. 22. At the crime scene, she found both live and discharged cartridges. Firstly, in an infant’s bedroom on the ground floor, she found a live shotgun cartridge on top of a wooden cabinet. Secondly, in a coal scuttle in the sitting room she found 4 discharged cartridges. Thirdly, in the kitchen area she found 3 more live cartridges on top of a press above the microwave. Fourthly, in a bedside locker in the main bedroom, she found an ammunition box containing seven live cartridges. Thus, there were live cartridges at three locations in the house. All were of 12 gauge suitable for use in the shotgun which she recovered at the top of the stairs. 23. The shotgun was double-barrelled, breach-loading of an under-over configuration (one barrel above the other). It had an automatically engaged safety catch; that is, when one breaks the gun to reload and closes it again, the safety catch automatically comes on and must be taken off again in order to fire. It is designed so that there cannot be an unintentional discharge. In addition, there are two triggers, one for each barrel. 24. D/Garda Louise O’Loughlan carried out a number of range-determination tests, using the shotgun and 12-gauge ammunition of the same type as was found at the house. She concluded as follows: the first wound, to the side of the deceased, was inflicted at a distance of between 16 and 24 feet between the muzzle of the gun and the body of the deceased. The second wound was from 2 to 4 feet from the deceased: this is the wound to his right side hip. Wounds 3 and 4, which were to the left and right knee respectively, resulted from shots fired from 1 to 2 feet away.
Gardaí interviews and statements 26. This was some weeks before 29th July. On that day at about 10:40 am, Mrs. McKiernan received a phone call from the applicant, who “just said Leslie had been shot.” She went to his house at once. She found him shaking. He said twice: “I thought he was going to kill them.” And: “He was going to kill them.” He did not give any account of what had happened. 27. A number of Gardaí arrived. The applicant told them that the deceased had chased his children into the house (which he later accepted to be untrue). The Applicant confirmed the location of the shotgun to the Gardaí and voluntarily accompanied Garda Corkery to Kilrush Garda Station, arriving there at about 11:28 a.m. After caution he confirmed that he had shot the deceased four times. That meant that he had fired two shots, and reloaded the shotgun before firing two more. He was arrested and detained pursuant to s. 30 of the Offences Against the State Act, 1939 at 12:44 p.m. 28. Garda Burke was the first garda on the scene around 10:35 am. He approached the applicant at a time when the body of the deceased was still lying in the garden. The applicant said: “He chased my children into the house.” He called Superintendent Michael Cummins who arrived within minutes, as did a number of other gardaí. 29. Garda Donal Corkery arrived at 11:10 am and entered the house where the applicant was in the company of his wife, Claire and others. He spoke to the applicant, who said: “I was protecting my family. He was going after Claire. I heard her shouting and I saw him.” The garda asked him: “Where was the gun?” He said: “Upstairs.” He brought the garda upstairs where he pointed to a gun which was standing with the butt on the ground. He asked the applicant if he had a phone and he replied: “no.” It later transpired that this was untrue. He had a mobile phone but threw it away. Garda Corkery invited the applicant to accompany him to the garda station voluntarily which he did. He was questioned there after being cautioned. He said that he had shot the deceased four times. He was arrested pursuant to s. 30 of the Offences Against the State Act 1939. 30. The applicant took part in five formal recorded interviews after caution in the presence of a number of members of the Garda Síochána. First garda interview “I was up in my bedroom. All of a sudden I could hear Claire screaming. I ran downstairs and Claire ran past me into the house. She was hysterical. She had Olivia in her arms and she said: ‘he's going to kill us, he's going to kill us.’ So, I saw Leslie Kenny running up the path into her house--- into our house after her. I ran back upstairs and got the gun.” 32. He said that the gun which he had got from upstairs was unloaded but that he had taken some cartridges also. He was asked how many cartridges he had taken and he said: "I just grabbed a handful of them." He said that he had "loaded the shot gun as I was running down the stairs." He said that the deceased was coming in the front, that he pulled up the gun to shoot him, that he had shot him and that he started to run. He said that he had shot him twice but that he was aiming for his legs. He had seen the deceased fall after the first two shots but he then saw him getting up. He said that he had reloaded the gun with two more cartridges and that he had shot him in the legs. He said that he had told his wife to phone for an ambulance and had left the gun upstairs on the landing. The deceased was then lying in the end of the garden at the front of the house. He said he didn't mean to kill him at all. Asked why, after he had discharged the shotgun the first time, he had reloaded it with two more cartridges and shot the deceased again, he said: "I didn't think I hit him at all the first time because he got up and was coming towards me again.” 33. Asked why all this had happened he said: “I have been getting non-stop threats off him against me and my family. He told me the other day that he was going to fire seven shots in my back window….. he also said he was going to put petrol in my letterbox.” 34. He also said: “Because he was running in after my wife and child, telling them he was going to kill them and slash them. He was only after coming back from the shop and she was only after getting out of her car as Leslie Kenny was coming down towards her. She had to run from him in fear for her life because she knew about the threats that Leslie Kenny was making to us." 35. He was asked if he had reported these threats to the gardaí but said: "no, I am not one for going to the guards.” 36. He explained that the shot gun had been left in his house for safekeeping by his cousin. She had given it to him to mind. She was splitting up with her husband, who was talking about killing himself. He had had begun for about a week. His cousin had also given him the cartridges. He did not think that he was going to do anything with the gun himself. 37. The applicant denied that he had any mobile phone, though it was pointed out that his father had told the gardaí that he had rung him from his own phone. He also denied that he had been standing on the bench in the garden. He later admitted that both these statements were untrue. Second garda interview 39. He went to the other side of the bed to get the gun; he got a handful of cartridges from the box inside the locker. He loaded the shotgun. He closed it as he ran down the stairs. He then said that he heard the deceased shouting: “I’m going to cut your throat and the child’s throat as well.” He came out the front door and put the gun out along the path with his right hand on the trigger. He fired two shots with a couple of seconds between them when he was at the door. The deceased got up and was coming at him “with the evil face.” He broke the gun open. The empty cartridges flew out of it. He put two new ones into it, closed the gun and "aimed for his legs at this time." At that stage he said that the deceased was standing but was coming at him and facing him. He fired two shots at his legs. 40. Asked whether the deceased had a weapon on him he answered: "No, I didn't see any weapon, he had his hand in his pocket." 41. He repeatedly said that he had not meant to kill the deceased. He said that he merely wanted to scare him away. He said that the first two shots were merely warning and that he did not aim. 42. He was asked about how he had obtained the shotgun and box of cartridges. He said that he had put the cartridges in a locker beside the bed. He did not know how many cartridges were in it. He had not opened it until that morning. Third garda interview 44. The applicant agreed that, when he had said in his statement of the previous day, that the deceased had followed his wife and threatened her, that had not in fact happened. He said that, as the deceased came towards his house, his wife had started screaming: “He’s going to kill us, he’s going to kill us.” He told her to get out the back door for her own safety. He then "ran upstairs to get the gun.” He had seen the deceased coming up the path and was in fear of his life. He said: "I took the gun up; all I could think of was my wife and my kids were going to be killed because of the threats that he was making to my family and my wife." He said that the deceased was halfway up the garden when he let off the first shots. He described the shooting as follows:
Fourth garda interview 47. There was a short fifth interview in which the applicant repeated that he was sorry for what he had done. He said that he had been in fear of his life and in fear for the safety of his wife and children. 48. There was a good deal of general evidence about the bad character and behaviour of the deceased. Anna Carthy, the sister of the applicant’s wife, gave evidence for the defence of an incident the day before the killing when the deceased had, uninvited, got into a car she was in and started threatening to hurt the applicant’s children. He said that he “was going to slit their throats…..to get a seven-shot repeater and blow in the back windows on top of the two girls and her [the witness’s] sister,” who was the applicant’s wife. He threatened to “get a pitcher of rum and put it through the letter box where the kids were sleeping.” The applicant was informed of these threats. Neither Ms. Carthy nor the applicant reported them to the gardaí. 49. From all these events, it is clear that the applicant did not dispute that he had shot the deceased. The defence, really the only defence proffered by the applicant for having shot the deceased, was self-defence. The defence was placed before the jury. The learned trial judge directed the jury that the burden was on the prosecution to prove beyond reasonable doubt that it was not true. The jury patently did not accept that the applicant had been acting in self-defence. However, the applicant complains that the learned trial judge failed to direct the jury adequately regarding the elements of this defence. The judge’s charge 51. A jury, confronted with a defence of self-defence has the option of bringing in one of three verdicts. 52. It is axiomatic that a defence of self-defence to a charge of murder implies that the killing has been justified. Thus, the first possibility is that the accused was, in truth, acting in self-defence, that he genuinely feared for his life and that the force used was objectively justified. In that event, the verdict will be to acquit the accused. 53. The second possibility is that the jury does not accept that the accused was acting in self-defence or, alternatively, that he was so acting and used excessive force and knew that it was excessive. In that event, the jury should convict of murder. 54. The third possibility is intermediate. It arises where the accused, though acting in self-defence, uses excessive force, but wrongly believes it to be reasonable and necessary. In this case, the jury should not convict of murder. However, the killing is still unlawful, because excessive force was used. The jury should convict of manslaughter. Walsh J. summarised the legal position as follows in his judgment in People (Attorney General) v Dwyer, already cited, at page 424:
57. Counsel for the applicant submits that, in the present case, the learned trial judge failed to direct the jury properly with regard to the partial defence of self-defence. Specifically, it is complained that he did not tell the jury that, if the accused used excessive force in his own defence but believed it to be necessary force, they should acquit of murder but convict of manslaughter. 58. Consequently, it is necessary to consider in some detail how the partial defence of self-defence was presented and especially the terms of the learned trial judge’s charge. When counsel for the defence had concluded his closing address to the jury, the learned trial judge drew his attention to the fact that he had not addressed “the alternative verdict of manslaughter on the basis that the accused, subjectively speaking, thought the force was reasonable.” 59. Thus prompted, counsel further addressed the jury as follows:
The force is proportionate if someone comes towards me threatening me with an axe, I would be entitled to – and it is my life is, I’m in jeopardy in terms of death or serious injury, of course I’m entitled to response, even with lethal force…. The entitlement to use reasonable force isn’t limited to using reasonable force in one’s own defence. Now, in relation to if, for example, a jury in considering the totality of the evidence were to consider that the force was reasonable in all of the circumstances, and someone had been killed with the intention to kill or cause serious injury, they would have the duty to acquit. Straightforward proposition. We’ve had examples; I think I’ve just given them to you, of the type of situation where legal – lethal force might be necessary or appropriate. If on the other hand, lethal force is not appropriate in the circumstances but the force is disproportionate in the circumstances, then the position would be that the actions in applying unreasonable levels of force would of course still import criminal liability.” 61. In dealing with that matter, the judge told the jury after lunch that:
65. In the view of the court, the nub of the issue is whether the learned trial judge directed the jury that, in the event that they were satisfied that the accused was acting in self-defence, but used a degree of force which was excessive in all the circumstances, the burden of proof lay on the prosecution to prove that the accused, to use the words of Walsh J. in People (Attorney General) v Dwyer, at page 424, “knew that he was using more force than was reasonably necessary.” That means that, for the crime of murder, it was necessary that the intention of the accused had been to use excessive force even though he knew that it was excessive. 66. Two things are clear about the learned judge’s charge. Firstly, he repeatedly emphasised that the burden of proof lay on the prosecution. Secondly, he emphasised the subjective or individual nature of the intention required for the crime of murder to have been committed. Specifically, he made both these points in response to the requisition of counsel. 67. The first passage in which he specifically dealt with the distinction between a verdict of murder and of manslaughter was:
69. The court believes that the matter would have been better expressed, if the judge had adhered to the statement quoted above from the headnote to People (Attorney General) v Dwyer:
71. The court would add that, even if this point were to be decided in favour of the applicant, it should affirm the conviction, because it is of the view that no miscarriage of justice occurred. The jurisdiction of this Court is determined by s. 3 of the Criminal Procedure Act 1993. Section 3(1)(a) provides that this Court, on the hearing of an appeal against conviction may “affirm the conviction (and may do so, notwithstanding that it is of opinion that a point raised in the appeal might be decided in favour of the appellant, if it considers that no miscarriage of justice has actually occurred)…” 72. The court is of the view that there was no miscarriage of justice for the following reasons. The outstanding fact is that this was a case of an unarmed man being shot four times with a shotgun. The safety feature of the shotgun required an element of deliberation before shooting. The act of reloading required additional deliberation. 73. There was nothing in the evidence of any of the eyewitnesses to suggest that the applicant was acting in his own defence on 29th July 2009. Several witnesses saw the commencement of the confrontation between the deceased and the applicant. To the extent that there was any evidence of aggression or provocation, it came from the applicant, who was standing on a bench in his own garden challenging the deceased to come to him and sort something out, rather than from the deceased. There was no evidence except in the statements of the applicant of any threats from the deceased directed on the occasion to the applicant, his wife or his children 74. The defence of self-defence depended entirely on the statements made by the applicant in his garda interviews together with evidence of the general bad behaviour of the deceased on other occasions. The most specific evidence of threats was that of Ms. Anna Carthy relating to an incident alleged to have occurred on the previous day. The applicant did not suggest to his own father either when he telephoned him or when his father arrived at the house and saw the body of the deceased that he had been acting in self-defence. 75. The first version of the defence was that the deceased had chased or followed the applicant’s wife into their house. She was carrying a child and screaming: “he’s going to kill me.” This, he later accepted, was completely untrue. Thus the entire substratum of the statements verbal and written of threats was effectively demolished. 76. The entire basis for the allegations of threats addressed by the deceased to the applicant had to be found in his own statements. Ms. Anna Carthy gave evidence of specific threats made by the deceased, on the previous day, to harm the applicant’s children. These were, she said, transmitted to the applicant. However, nobody reported the threats to the gardaí. There was no evidence that the deceased acted on any of the threats or had the means of doing so. 77. The applicant’s earlier version of running upstairs to get the shotgun was abandoned. The truth was that he had the shotgun loaded inside the house downstairs before the deceased arrived in his garden. The deceased was unarmed. The applicant never suggested that he believed he was armed At most, he mentioned seeing him having his hand in a pocket. His earlier version of having fired all the shots from the door of the house was also altered. He fired the first two shots from the door. The second pair of shots was fired from very close range. The applicant accepted that he had moved from the doorway of the house down the garden before firing the second pair of shots. Although the applicant claimed that the deceased was standing, the evidence of Dr Cassidy was that the later shots were probably fired when the deceased was already on the ground. 78. There were many other inconsistencies in the statements of the applicant. These were all matters for the jury. There was, of course, specific evidence from Ms. Carthy that the deceased had, on the day before, made threats to the children of the applicant. The jury would have been entitled to acquit the applicant entirely, if they had accepted that the deceased was genuinely threatening to carry out these threats and the applicant was acting in defence of his children, when he shot the deceased. However, it is clear that the jury did not accept the primary defence of self-defence. Counsel does not criticise the judge’s charge in that respect. Counsel for the appellant did not point to any particular basis on the evidence to suggest that, even though the applicant genuinely believed that he was acting in self-defence, he used excessive force believing it was necessary. This aspect of the defence was put at its highest by counsel in addressing the jury. This was done without pointing to any evidence that the applicant had used excessive force in self-defence while believing it was reasonable. The overwhelming likelihood is that the jury, having considered all the circumstances, simply did not accept that the applicant was acting in self-defence at all. The jury question regarding “the target.” 80. The prosecution had not intended to lead this evidence. Counsel for the prosecution simply said: “I don’t think that matters.” No actual evidence was introduced at the Trial about a “target sheet,” which was not introduced as an exhibit, in spite of having been assigned an exhibit number. That was the end of the matter at that point. 81. The jury retired at 11:10 am on 8th November 2010. At 12:43 am they returned. The foreman said: “There’s a bit of confusion about exhibit LOL2; “I believe there was some kind of a target practice or sheet of paper that was recovered.” The learned trial judge told the jury that, while there had been some brief reference to something of that type, it had not been put in evidence and was completely irrelevant to the case. He added that experienced counsel would have put it before them if it had anything to do with the case. The foreman said: “so, we ignore that?” The learned trial judge said: “You ignore that.” 82. The judge expressed the matter as follows:
bearing on the matter, or, you know, and there could be all sorts of cases which items found and so on if a thorough search is done. So, nothing of that kind is relevant; it would, I assure you, nothing is being hidden from you, it would have been put before you, as would the target item, had it been relevant to the case….” 85. The learned trial judge refused the application. He ruled that there was no danger of speculation. He was satisfied that the jury would act in accordance with their directions and with their oath. He referred in particular to Z v Director of Public Prosecutions [1994] 2 I.R. 476 as authority for the proposition that a jury should be discharged only in exceptional circumstances. 86. Counsel for the applicant repeats the arguments on this appeal. It is submitted that the learned trial judge erred in failing to ensure that the Applicant herein received a fair trial where the Jury’s deliberations were contaminated by reference to an in-admissible matter: the jury’s consideration of the case had suffered from actual contamination by the “target sheet” issue to such an extent that they had asked to see it. The link between the “target sheet” and the shotgun was inherently prejudicial. 87. Counsel for the prosecution disagrees that there was any danger to the fairness of the trial or any prejudice created by the mention of the “target sheet.” It is pointed out that it was not said whether the target sheet was used. It is also argued that the suggestion of such gross prejudice appears to fly in the face of the admission that he had the gun already loaded and placed inside the door when he was shouting at the deceased to come down to his house. 88. The Court is satisfied that the learned trial judge was correct in deciding not to discharge the jury. That is a judgment to be made in the first instance by the presiding judge. He is in the best position to judge the significance of any particular piece of evidence in the context of the trial as a whole. The discharge of a jury is an extreme step, to be taken only in exceptional circumstances, where it is shown that there is a real and serious risk of prejudice from pre-trial publicity, the inadvertent admission of inadmissible evidence or otherwise. 89. In the present case, there was at most a fleeting reference to the target sheet in the course of the evidence. Nobody, including defence counsel, though it significant at the time. It was the inquiry of the foreman of the jury that gave rise to the request for discharge. Counsel suggests that the jury must have been speculating about the significance of the target sheet. But there is no reason to suggest that. The foreman referred to confusion about an exhibit number. They had not been given the exhibit with the number in question. The inquiry was perfectly reasonable and in no way suggestive of speculation of the kind suggested. 90. Moreover, the learned trial judge gave a perfectly clear direction to the jury to ignore the target sheet because it was not in evidence and was completely irrelevant. The Court must assume that the jury will respect their oath and the direction given to them. In fact, the clear evidence is that the foreman accepted that the jury were to ignore the target sheet. 91. The Court does not accept this ground of appeal. Decision
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