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Judgment Title: DPP -v- David Bourke

Neutral Citation: [2013] IECCA 2

Court of Criminal Appeal Record Number: 113/09

Date of Delivery: 25/01/2013

Court: Court of Criminal Appeal

Composition of Court: MacMenamin J., DeValera, J., McGovern J.

Judgment by: MacMenamin J.

Status of Judgment: Approved


Judgments by	Link to Judgment	Result
MacMenamin J.	Link	Appeal v Conviction refused

Outcome: Appeal v Conviction refused

THE COURT OF CRIMINAL APPEAL

Appeal No. 113/09

MacMenamin J.
de Valera J.
McGovern J.

BETWEEN:

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

RESPONDENT

AND

DAVID BOURKE

APPELLANT

JUDGMENT of the Court delivered the 25^th day of January, 2013 by MacMenamin J.

1. On the 30th March, 2009, the appellant herein was convicted of the murder of his wife, Jean Gilbert. This conviction by the Central Criminal Court (Mr. Justice Barry White) followed a five day trial. The decision of the jury was by a majority of eleven to one. The jury had previously received directions for a majority verdict having deliberated for three hours and one minute. The appellant was sentenced to life imprisonment on the same date, following the jury verdict. He now appeals against that conviction complaining that there was misdirection to the jury on the part of the trial judge in relation to the ingredients of the offence of manslaughter. This point was not raised by counsel for the appellant in requisitions before the learned trial judge following his charge to the jury which it must be said was conspicuously fair, and can in no sense be seen as having been hostile to the appellant’s case that while not guilty of the murder, he was guilty of manslaughter.

The circumstances of the case

2. The appellant, David Bourke, lived with the deceased, his wife Jean Gilbert and their three children at 28 Laverna Dale, Castleknock, Co. Dublin. On the morning of the 28th August 2007 the appellant made a 999 call from that address. What he said was clearly of great importance to the jury as they asked for the contents of the call to be read out to them after the judge’s charge. The appellant spoke to a fire-fighter stationed at Tara Street Fire Station and told him that “I’ve just killed her, I’ve just tried to kill her, stabbed her several times”. As a result, the emergency services were despatched and arrived at the family home finding the late Mrs. Gilbert unconscious on the living room floor. The Gardai arrived at the scene and the accused pointed out a black handled knife to the Gardai and informed them that he had stabbed her with that knife. The deceased was taken to hospital and later that day was pronounced dead. The cause of death was identified as the stab wounds to the deceased. There is no doubt that the appellant stabbed his wife. This issue was not contested and, therefore, the only question in the case was whether the appellant should be convicted of murder or manslaughter. The evidence showed that the deceased had re-formed a relationship with an old acquaintance, Mr. Campion, who she had met through a joint interest in Buddhism. The appellant had found intimate correspondence between his wife and Mr. Campion some months earlier and was depressed, angry and very hurt by the discovery. The deceased had told the appellant that the marriage was at an end and that she intended to leave him to live with Mr. Campion.

3. At the outset, it is necessary to identify one of the fundamental legal questions facing the jury. It was as to the issue of the appellant’s state of mind or intention when he engaged in the attack on his wife. Section 4 of the Criminal Justice Act 1964 provides:

“(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.”

From this issue of intention, further questions flow. First, was the appellant provoked? Second, was there evidence of premeditation which would negate the partial defence of provocation? It is necessary now to revisit parts of the evidence which were most material to the issues in the appeal.

4. The appellant and his wife had three children aged 10 years, 7 years and 4 years. At the time of the incident, the eldest two, Emily Bourke and Alex Bourke, and their younger brother, Harvey, were sitting in the sitting room with their mother. Both Emily Bourke and her brother, Alex, made statements admitted in evidence that their father came into the living room and was speaking aggressively to their mother; that he stepped forward to her with the knife in his hand at a time she was sitting down, and that he pushed her on a chair. The deceased tried to grab the appellant’s hand to stop him and he said “let go, let go”. Emily Bourke testified that she saw the knife go into her mother’s body.

5. In her statement, Emily Bourke stated that it was about 10 o’clock in the morning. She was in her pyjamas. The children’s channels were on the television. The appellant came in and spoke to the deceased. He was talking aggressively, “like you do when you get cross with somebody”. Emily is recorded as saying that her father asked her mother whether she had taken their son Alex’s phone. The full significance of this question is explained later. In brief, the appellant believed that the deceased had taken Alex’s phone to give to her boyfriend, Robert Campion, an Englishman who had arrived in Ireland by arrangement with the deceased and was staying in a hotel. The appellant correctly believed that the deceased had been with Mr. Campion the previous evening and from early that morning when she had left the family home at 5.30 a.m. to meet him. The appellant accepted he was deeply angry and hurt by the deceased’s behaviour. His wife had returned home by 10 a.m. By this time, Emily was beside her father, who was standing; both Alex and Harvey were watching TV; and the deceased was sitting down. Emily Bourke gave a detailed description of the room in the statement. She described there being a form of Buddhist altar or shrine in the sitting room as her mother was a member of the Buddhist community. She said that her father started to step forward to her mother and he had a knife. This was a kitchen knife which was black at the bottom and silver at the top. She described it as being “a knife that you cut things like food with”. She saw the knife itself. She said that when her father pushed her mother over on her back on the chair she was sitting in, the knife was in his hand. Her legs were on the chair’s arms and she was trying to grab the appellant’s hand to stop him. The appellant was trying to stab her. The knife was in his hand, and he was saying to the deceased “let go, let go”. Emily described the knife going into her mother’s stomach. At this point, she stated that the appellant started to get some tissues. Her mother was saying “Ahh” and started to go pale. Her father got tissues from the kitchen. Emily did not know where the knife was at this point. The appellant put tissues on the deceased’s stomach and put a cushion under her head. He did not say anything. He called the Gardai who arrived; as did the ambulance.

6. Emily said that her mother and father were fighting because her mother wanted a divorce, that she had a boyfriend, Rob, and that the previous night she had gone off and her father thought she had gone to be with her boyfriend although she believed otherwise. In Emily’s view, her mother had gone to see her grandmother who had just had an eye operation.

7. Emily Burke’s statement also outlined what happened in the home in the hours preceding the attack. She described her father being on the landing in the family home with her the previous night when other evidence showed that he had asked his wife to be home by 9 p.m. He said to Emily then, “I bet she is gone to see her boyfriend”. She described him then as being angry and having an “angry face” on. Her mother came back at 11 o’clock that night. On the previous day, her mother had told her father that she wanted a divorce. She said that her mother had first told her father she wanted a divorce about three months previously. Her father told her that when he heard this for the first time he had wanted to jump off a cliff. Even before that the couple had been fighting over little things.

8. A statement from Alex Bourke was read into the record. He confirmed that he too had been in the sitting room eating his breakfast with his younger brother Harvey who was near him watching TV. He said he had gone to get dressed and his mother and father came down. They were fighting over his phone. He stated “My Dad tried to kill her”. He added “Mum was in the sitting room, just chanting”. This is in reference to his mother engaging in a religious chant. He said that his mother and father started a fight over his phone but that his father had just lost it. He explained that they were in fact fighting over his mother’s boyfriend and that his father thought (wrongly) that his mother had given his phone to her boyfriend. He then stated:-

“Emily was near me and Harvey and then she went to the kitchen to look for my phone. My Dad had the knife. He was trying to kill Mum. The knife was black sharp and clean. You cut pizza and carrots with it. Dad had the knife here (pointing to his hand) the knife was in Dad’s hand. Dad tried to put it into Mummy’s tummy or head or something. I watched but I don’t know what happened to Mummy. I said “Don’t kill my mother”, and to my Dad I said “Stop it”. I can’t remember where the knife went. I didn’t go near my Mum but Harvey and Emily did. The cops came because my Dad called them. My Dad said “I tried to kill my wife but I think she is alive”. She rolled over on the ground and Dad tried to kill her. She said “I didn’t do it. I didn’t give the phone to her boyfriend (sic)”. Mum didn’t delete the phone numbers on my phone but Dad thought she did”.

Alex added that his mother and father had fought about ten times before and had serious arguments. He said:-

“And then the knife thing happened. It never happened before. Dad didn’t like Mum having a boyfriend because Dad had to move to a different house and me, Emily and Harvey were going to live with Dad”.

9. After the judge’s charge, the jury also asked for each of the children’s statements to be read over to them as well as the contents of the 999 call. One immediately striking feature about both these eye witness statements is the absence of any direct evidence of a provocative act on the part of the deceased towards the appellant at the moment, or immediately before, he stabbed her with the knife, whatever about in the lead-up time. This is a particularly critical feature of this appeal in the light of the contention, now made on behalf of the appellant, that the judge’s charge failed properly to explain the law in relation to provocation to the jury as a result of which it is now contended the conviction was unsafe. The judgement will consider this issue in greater detail later.

The deceased’s injuries

10. The evidence tendered at the trial by Professor Marie Cassidy, the State Pathologist, indicated that the deceased’s death was due to a number of knife injuries. The appellant inflicted four stab wounds, one to the deceased’s back on the right side and three to the left. Three of these stab wounds penetrated the chest and abdominal cavities, entering the lungs, liver, spleen, kidney, and the aorta. There were multiple incised wounds on both hands of the deceased, which were defence injuries caused by the deceased grasping the blade, confirming that she had struggled with the attacker. These defence injuries consisted of multiple cuts across the deceased’s fingers and on the hand consistent with the knife having cut across her hand. Dr. Cassidy testified that the wounds had penetrated deeply, one up to 14.2 cm, and had been caused by fairly narrow kitchen style knife. She also found bruising on the deceased’s arms, hands and lower legs.

11. A further relevant feature was the configuration of the weapon. Dr. Cassidy testified that the narrower a knife is at the tip and the sharper the tip, the more ease with which it will penetrate human tissue, and thereby requiring less force. This was a narrow kitchen style knife with a sharp tip. She was of the opinion that the injuries were consistent with mild to moderate pressure. This is of some relevance in the light of Dr. Cassidy’s evidence that it would only be necessary to exercise that degree of pressure were one to use a knife which had an extremely sharp tip.

12. Dr. Cassidy pointed out one notable feature of a wound to the deceased’s right side. This wound was some 32cm below the shoulder, 7cm above the lower end of the rib cage. It was described as being a split like transverse stab wound 1.3 cm wide. The track of this wound continued upwards and forwards from the deceased’s right to left. It proceeded through the intercostal muscle, between the right tenth and eleventh ribs in the posterior axillary line, to puncture the base of the lower lobe of the right lung. From there, there were two separate tracks. The first track continued across the chest cavity to the spine ending in the soft tissue injuries to the right side of the spine. The other track continued downwards through the diaphragm, that is the sheath of the muscle separating the chest and abdominal cavities, and across the upper surface of the right lobe of the liver where there was a 3cm long shallow incised wound or cut. It was this wound, which was 14.5cm going from the skin surface to the spine. The noteworthy feature of this, the deepest, stab wound to the right lower back was that it had two tracks. The knife had first penetrated through the rib cage, between the ribs and had gone into the right lung, and then had been partly withdrawn and then re-inserted. Thus, there were two tracks related to the one knife injury, consistent with the knife having been partly withdrawn, and then reinserted, causing the second track in a slightly different direction. On the second occasion, it continued through the diaphragm and across the surface of the right lobe of the liver.

The accused’s interviews with An Garda Síochána

13. The appellant was arrested and brought to the local garda station. In the course of interviews, he made a number of admissions as to the background and as to events which occurred on the morning in question. These were admitted in evidence. These are relevant to the issue of intention at the time the attack on his late wife occurred.

14. In the first statement, the appellant described events in the hours leading up to the attack:-

“I got a text from my wife this morning to say she would be home at 10 o’clock this morning. I knew she had been over to see her boyfriend but she told me she had gone to get a message. I had seen her leave the house at 5.20 this morning. She had taken the car. The children were with me. When she arrived back I was still in bed with the kids. I got up and had a shower and got dressed and went downstairs. I was very angry. I had some water. I was in the kitchen. She was in the sitting room. I was feeling very angry. I took a long steak knife and put it in the back of my shirt. I gave my daughter some toast and she sat back down to have that. Then I went into the sitting room where my wife Jean and two sons were watching television. I don’t remember everything I said to my wife but I wish I do. I remember calling her a tramp. I asked her about a mobile phone my son was missing and where it was and had she taken it to give to her boyfriend who had just come from England …”

15. He was then asked what had happened next. He stated:-

“I remember moving towards her talking to her and telling her I was going out, but in an angry voice. Then all I remember is taking the knife out from behind my back and stabbing her in the stomach region.”

16. In response to a question as to how many times he had stabbed her, he stated:-

“Two, maybe three times. I remember stabbing her in the side once. Then my daughter came in screaming ‘Daddy don’t do it. Why do you have to kill her, what is going to happen to us?’ I was still struggling with my wife at this time and I put the knife up on the top of the fireplace.”

The pathologist’s evidence in fact showed four wounds.

17. The appellant described dialling 999 and that during this time his daughter was giving her mother mouth to mouth resuscitation. After a time, he asked his daughter to take over the phone call. He placed a cushion under her head to support her and looked at the wound not knowing whether there were two or three of them. He went to the kitchen, got tissue, and brought them to his wife to stop any bleeding. He gave mouth to mouth resuscitation four or five times. He stated that he felt remorseful for what he had done. He described the attack weapon as being a single large steak knife approximately 6 inches in length.

18. When asked what was his intention when he stabbed his wife he answered, “To cause her pain. It wasn’t to kill her”. This response may be seen by way of contrast to what he said at the beginning of the 999 call to the firefighter at Tara Street Fire Station and set out earlier in this judgment.

19. He said he did not know for how long he had the steak knife in his possession before he injured his wife, but that when he put the knife in his trousers and went out to his wife he was conscious it was there, but that he did not know if he would be able to use it.

20. He was questioned as follows:-

“Q. When you left the kitchen with the knife, it was your intention to hurt your wife?

A. Yeah it was an option, yeah that would be correct.”

21. The appellant described his wife as having been perched on the arm of the sofa chair in the sitting room when he approached her. That chair was at the back of the room facing the Buddhist altar.

22. In one interview, he outlined that his relationship with his wife had been troubled for two months since the middle of June of 2007. She had told him then that she wanted a separation, and she did not love him anymore. He described his wife as having left the house at 5.20 a.m. on the morning of her death in the car and his having concluded that she was going to meet her boyfriend, Robert Campion, who had recently come over from England.

23. The appellant told the Gardai that he himself had wanted to go out the evening before the attack but that his wife’s mother was ill in the Eye and Ear Hospital, and she wished to pay her a visit. He had told her not “to hijack the whole evening, to come back directly from the hospital”. He had suspected she might go to see her boyfriend. He asked her to be back by 9 o’clock but she did not come back until 11 o’clock. He sent her a text message which he described as “not a very nice one”.

24. At interview, he was asked whether it had been his intention to stab his wife that morning before going into the sitting room. He answered:-

“It had crossed my mind. Its only when I got into the sitting room I decided to stab her after I talked to her”.

25. He described that some weeks earlier he had downloaded a number of romantic email communications between the deceased and her boyfriend. There was a PC in the home. He stated that he felt sad, hurt and betrayed when he read those letters. When asked whether he hated his wife towards the end, he stated:-

“I was starting to hate her. I think I hated her, but hate is a funny thing because I still really loved her. I told her I wanted to grow old with her and didn’t want to be with anything other woman but her. She was the love of my life”.

26. He admitted that he had felt passionate about a person at work, who he had gone out for dinner with, although this was purely a close friendship. In the course of this interview, the following question was put to him:-

“Q. David, I put it to you that you intended to fatally stab your wife Jean Gilbert at 28A Laverna Dale today, the 28th August 2007.

A. I hadn’t made up my mind until late that I was going to do that.

Q. So it was your intention at the time of stabbing your wife to kill her?

A. It was not my intention to kill her, just to cause her pain and suffering like she had caused me to suffer.

Q. David, the knife is approximately 6 inches long. Is that right?

A. That’s correct.

Q You stabbed her a number of times; do you think at the time you might have wanted her dead?

A. No. I wanted to hurt her, yes, not to kill her.

Q. The first time you attempted to stab Jean she was on the chair; is that correct?

A. She was on it or close to it.

Q. A struggle then ensued, which resulted in both of you on the ground with you on top of her.

A. Yes.

Q. At this point you again stabbed her.

A. Yes, when she was on the ground.

Q. You stabbed her once, if not twice while on the ground; is that fair to say?

A. Yes.

Q. Would you not think that this showed serious intent after stabbing her once and when you both fell on the ground you stabbed her again and again?

A. No, to injure her, not to kill her.

Q. If you wanted to injure her and cause her pain then how come you didn’t assault her or punch her?

A. I wanted her to feel serious physical pain, I didn’t want to kill her or I didn’t intend to kill her.”

27. At interview, the appellant described having become aware that his wife had gone to see her boyfriend after she had come back from England on the Sunday prior to her death. He and the children had come back from Mullingar where they collected his daughter, Emily, who had stayed with his parents for a few days. The appellant stated that when they came back to the family home that Sunday, they noticed a funny smell in the house of tobacco and bad body odour, and that there were two dinner plates, two sets of knives and forks, with scraps of food on each, in the kitchen. This made him suspicious. Prior to collecting Emily on that Sunday, the appellant stated that he got a phone call from the deceased, telling him that she was back in Ireland having been away for ten days with her boyfriend and asking what his plans were for the afternoon. The appellant stated that he was going to Mullingar to collect Emily. Later on that Sunday evening, when he was in Mullingar he stated he got a text from the deceased saying that there was no need to rush back, that she was staying overnight and that she would see him on Monday morning. He texted her that he had a counselling session on the Monday at 11 a.m. He said when he got back from that session, he had a row with his wife which consisted of name calling and a “slagging match”. Referring to the deceased’s boyfriend he is recorded as stating, “I told her that if she brought that scumbag into the house while I was there, there would be serious trouble”.

28. The appellant was again questioned about the day of the attack:-

“Q. You’re sitting in your house at 5.30 a.m. you know your wife is gone to see her boyfriend;, how did it make you feel?

A. Angry, hurt. I hated what she was doing. She had ruined my life, marriage and family. But the funny thing is, I still loved her. Jealousy was also there, very strong …”

He again affirmed that he wanted to harm her, not to kill her, and that he had wanted to make her suffer like she had made him suffer. In response to one question as to whether he would have been happy to let her leave and spend her life with another man he responded, “Not happy. I did love her. She hurt me deeply.”

29. When questioned after the post mortem on the deceased, an inconsistency in the appellant’s previous statements was pointed out to the appellant.

“Q. David, the post mortem shows that your wife was stabbed four times in the back with a large knife. Do you understand that?

A. I understand what you are saying, yes.

Q. From this evidence, it would appear you stabbed your wife from behind. Have you anything to say to that?

A. Its not my recollection. I lost my head, I never meant to kill her.

Q. David, the post mortem also shows your wife had a number of lacerations on her hands. Was that from trying to stop you?

A. That would be true.

Q. Did she try to take the knife from you?

A. She did, yes. It was a struggle.

Q. The bite mark on your upper left arm was that from your wife or daughter?

A. My wife, I remember her doing it.

Q. Was she on the floor?

A. Yes, that is correct. She was lying facing towards me. I think we were struggling with the knife at the time.

Q. Did she beg you to stop?

A. Yes she did. “Please don’t do it”, several times.”

When he was asked later in the same interview whether he had stabbed his wife in the back while struggling with her he answered:-

“It’s possible. I lost my head. I was stabbing her with the knife. It’s my recollection, I am not trying to lie. That’s what I remember.”

30. He stated later in this last interview:-

“A. I would just like to say, if this is going to be used in court, how deeply remorseful I am for what I have done.

Q. Is that right.

A. Yes, that’s correct. I never meant to kill my wife. I am deeply sorry for my hurt or pain I have caused her family and friends or suffering. I wish I hadn’t done what I did and had kept a cool head. It will be hard for her family to believe I loved her and hated what she doing, but that is the case. I won’t blame them if they can’t forgive me for taking away their beautiful daughter. I am sorry for the pain and suffering to my own children. I have ruined their lives and I love them very dearly.”

31. Describing the scene prior to the attack, the appellant confirmed that on the morning of the killing he and his son, Harvey, were in bed when they were joined by Emily, and that he and the children had been telling one another how much they loved each other. He stated he had a very good relationship with the children, and that his wife and kids had been the centre of his universe. His view was that his wife believed that if a job offer came and she moved, that he would look after the children and have full custody of them in the house a result of which he felt “angry, deeply angry”.

32. The appellant was questioned about how he had selected the knife. He stated that he had got it from the kitchen. He was then asked

“Q. Was it the biggest knife in the kitchen?

A. No there were bigger knives, I didn’t pick the biggest.”

He was asked later:-

“Q. When did you decide to get a knife?

A. I thought about it in the shower. I thought about it at 5 in the morning trying to figure out what I was going to do with this situation.

Q. When did you make the decision?

A. I had my jacket on and intended to briefly talk to my wife and I was never sure I was going to use the knife.”

For clarity, it should be said that the appellant had his shower considerably later than 5 o’clock on the morning in question. He was, therefore, describing a time span of some hours. He was then questioned:

“Q. I think you decided that your wife was not going to leave you and your kids and go to another man. What do you say to that?

A. I am saying no. I had not made that decision. I certainly intended to harm her with the knife.

Q. David you were going to stop your wife from leaving you; isn’t that correct?

A. That is not correct. I aimed to cause her pain and hurt her like she caused me.

Q. Tell me: how many times did you stab your wife?

A. It was quite a horrible attack, two to three times. When I was stabbing my wife, I wasn’t in my right mind. I thought I stabbed her once in the side and twice at the front.

Q. What kind of force did you use?

A. Sufficient force to penetrate her body but I didn’t know how far I penetrated her when I stabbed her.

Q. If you just wanted to cause harm why would you use sufficient force to penetrate body and not just slash her?

A. I wanted to cause her serious harm but not enough to kill her.

Q. In your mind, when you were stabbing her, what was the difference between harm, serious harm and killing her?

A. I don’t think I worked out the difference in advance but I did not intend to kill my wife.

Q. You have told us when you have picked up the knife but exactly when did you decide to use the knife?

A. The final decision was when I was in the sitting room with Jean.

Q. Was that not a decision to act that you made in the sitting room? When did you make the decision to do that act?

A. When I was standing in the sitting room, I made that final decision.

Q. When did you make the initial decision? You describe what happened in the sitting room as a final decision.

A. It was an initial option. I thought about in the morning when I was watching television and I thought about it in the shower but I still hadn’t made up my mind what was I was going to do.

Q. What, if anything did she do in the sitting room that made you progress to what you describe as a final decision?

A. I think the fact she looked so smug, self satisfied and content and that was a contributing factor but not the full reason.

Q. You had to have made the decision in the kitchen when you picked up the knife?

A. No I didn’t.

Q. David, if I was stabbed four times, what do you think would happen to me?

A. Depending on where you were stabbed, you could be seriously injured or possibly dead.

Q. Okay. You stabbed your wife three times in the back where her vital organs are, and one in the side, what do you think her chances of survival were?

A. Based on that information, I would think they are slim to none.

Q. So you are agreeing that you could reasonably expect somebody to die as a result of such an attack?

A. Yes, based on the question.

Q. So did you expect your wife to die?

A. I didn’t.

Q. Not even immediately after you stopped stabbing her.

A. No I was trying to give her the kiss of life a number of times…”

33. The appellant referred to a text message that he had sent to his wife relating to the pressures on him at work and arising from the marital situation. He quoted his wife as stating that this was “character building” for him.

34. A relevant feature in the case is that it was contended that the appellant had been provoked by emails and correspondence, but that this material had not been put to him in the course of the interviews, However, there is no doubt that the jury were made aware of the existence of letters and emails written between the deceased and her boyfriend and the fact that the appellant became aware of these letters and emails, copied them and had put them in a safe place some weeks prior to the event.

35. A further element of the prosecution case was a text message sent by the appellant on the 27th August, 2007, at 5.22 p.m. This text message, sent to the woman with whom the appellant had had a close relationship was as follows:

“Hi Ger, she arrived back just as I was leaving to collect Emily from Mullingar yesterday. It seemed like he came back with her. Emily and I noticed a bad smell of tobacco smoke and BO in house and two dirty dinner plates. Things worsened and had massive row with her. Told her there would be fisticuffs if he shows up in house when I am there. Just hate her. She didn’t come back till 11 this morning. I am just on DART coming back from trip to Howth. Had to get out of the house or I would have killed her, I was that angry. Take care.

36. Counsel for the Director in this appeal described the evidence against the accused as “overwhelming”. While not accepting that characterisation, it is sufficient to say that there was substantial evidence against the accused from which the jury might convict of murder; that he had been angry with his wife the day before; he said in a text he could kill her; that he had been contemplating getting the knife at 5 a.m. in the shower on the morning of the attack; that he had taken the knife from the kitchen drawer and concealed it; that he had stabbed his wife four times, withdrawn the knife and then re-inserted it at a different angle. All of this is to be seen in the context of the appellant’s description of his mood as angry and jealous, both on the day, during the attack and for a number of weeks prior to the attack.

The appellant’s evidence

37. In the course of his testimony, the appellant stated that in or about the middle of June 2007, his wife informed him that she was in love with another man and wanted to be with him. The appellant hoped that she would change her mind. He was extremely depressed as a result of that and would lie in his bedroom crying. At one point, he stated his wife had said that she wanted him to be out of the house in one month, that she did not love him anymore, and wanted him out of her life. He stated that he had not done anything wrong. He testified that he had found some letters that she had received from her English boyfriend which were of an intimate and romantic nature and, which conveyed there had been intimacy between them.

38. These emails were read out to the jury in the course of the appellant’s testimony. The appellant described as having been depressed as a result of the situation and that he received counselling. He testified that his wife had cancelled a family holiday which they had intended to have together in the month of August. He said that having been in Mullingar to collect Emily, he came back into the house and described the nature of the discovery of the plates and smell in the kitchen. He stated that he felt very threatened by the situation and that he just felt like a “cuckold”. After a confrontation with his wife, he went out to Howth to get some fresh air as he just couldn’t believe what had happened, and specifically her bringing Robert Campion into the house. He reiterated his disbelief that this wife had gone to see her mother in the Eye and Ear Hospital.

39. He and his wife had been sleeping separately for some time prior to that. He described his wife leaving the home at 5.30 in the morning to see Robert Campion. He said that he was devastated, jealous and angry as a result of this and that he just couldn’t believe it was happening, that his wife had brought her boyfriend over to Ireland and installed him somewhere on his doorstep. The letters indicated that the late Jean Gilbert had a relationship with Mr. Campion, prior to the marriage. Some months before, in June 2007, they had re-established contact. They met on several occasions and an intimate relationship recommenced.

40. The appellant testified that after his wife left, at 5.30 in the morning he went downstairs put on the television and got some breakfast and then went back up to bed. He stated that his son Harvey was in with him, Emily was in her own room and she came into his, and that Alex was in his own bed asleep. He said “And I just thought, this can’t go on like this anymore, I just -- I can’t take anymore of this.”

41. The appellant described the deceased coming back to the house at approximately 10 o’clock in the morning. He got up had his shower and went downstairs put on some toast for his daughter and then got a hold of a knife went to his wife confronted her and attacked her with the knife and stabbed her. He testified:-

“I was just out of -- I loved her so much. Really, it’s so terrible. I never in my life thought I would be -- I loved her so much. I just couldn’t take this. I felt -- I felt I was - - It was too much. Oh, God. God forgive me.”

It will be recollected that in answer during an interview, the appellant had said that he thought about getting the knife at 5.30 a.m. and he also said “and in the shower”. The only reasonable inference is that he thought about it at 5.30 a.m. and then in the shower which he had after his wife returned at 10 a.m. It is quite clear from the transcript that the appellant expressed profound remorse after what had happened.

42. In cross-examination, the appellant accepted that his wife had been agreeable to mediation for some sort of settlement. He accepted too that on the 19th June, 2007, or thereabouts, he had read the letters which his wife had received from Robert Campion, had photocopied them, and kept them in his bedroom. He accepted that he downloaded the exchange of emails between his wife and Robert Campion on the 5th July, 2007, but had not confronted her with them. He accepted that the letters made him “very angry”, “very jealous” and “sent him into a fury”, and that there were rows in the house. He accepted that he placed the copies of the letters and emails in a safe in his wife’s sister’s shop and that he had been incorrect to state that he had kept them in the family home all the time so as to read them again. He accepted that the letters made him jealous at the time he read them and thinking back about them. He contended that while, at the beginning, his wife had wanted him out of the house in one month, she had subsequently changed her mind about this, and come to the conclusion that she would move out of the house and he would remain there. He stated that he had received an auctioneers valuation on the house on the 23rd August, 2007, five days before his wife’s death, but that he was devastated that he and his wife were going to separate. He said that his wife had attended a Buddhist conference in July 2007 and was due to return on the 12th of July but did not actually return until the 15th July, having travelled to see her boyfriend in England. He admitted that, by July 2007, he was a jealous man but that by the 13th August, 2007, his condition had improved although he was still not himself. His wife went to see Mr. Campion again in August and then they returned to Dublin together. A massive row had taken place between them as confirmed by the text message and he stated that he had just hated her. He accepted that on that evening (the 27th August) he was an angry and threatened man and felt like a “cuckold”.

43. Counsel for the prosecution reminded him of the statement which he made to An Garda Síochána that he “wanted to cause her serious harm but not enough to kill her” and he did not think he had worked out the difference in advance between “harm, serious harm and killing her” and the number of times he had stabbed her. He denied how many times he had done this. Counsel also reminded him of the nature of the tracking of one of these four stab wounds involving part withdrawal and reinsertion. It was put to him that when his wife left to see Mr. Campion at 5.20 in the morning that he was infuriated to which he responded that he “was just fed up. I just couldn’t take it anymore. I really had had enough”. Counsel asked:-

“Q. Yes. Well, so what was your solution in having had enough of it?

A. I didn’t have a solution.

Q. But, you see, I am suggesting to you that you did because you took a number of, what I am suggesting to you, of clear headed decisions. Didn’t you think about this in getting the knife whilst you were in bed at 5.30 in the morning?

A. I was just so upset and angry -- I didn’t know half of what was going on and that is being honest.

Q. See, I am suggesting to you, you didn’t want your wife to leave and instead of just allowing to leave that you killed her?

A. No. No, I never intended to kill my wife.

Q. And you killed her because I am suggesting to you, you were a very angry man?

A. I never intended to kill my wife.”

44. The appellant was cross-examined about having identified the knife, having selected it, concealed it about his person having previously lain in bed angry with his wife for having gone off with Mr. Campion. It was put to him that he had a shower, prepared breakfast and that at no time, had he, as he contended “lost his head”. He denied in his statement the fact that he hadn’t picked the “biggest” knife meant that he had actually picked one.

45. The defence case also involved evidence from a counsellor to the effect that he had been depressed, anxious and worried about the children. Similar evidence was given by work colleagues to the effect that, since June 2007, the appellant had not been himself. There was evidence, however, from one witness, a cousin of the appellant, to the effect that in the month of August 2007 that there had been what was termed a “break through”, in that Jean Gilbert had accepted that she would leave the house with her boyfriend, and that there would either be shared custody or that the appellant would have day to day care of the children.

The issues on this appeal

46. Two closely connected questions now arise following on from this summary of the evidence. The first is whether the jury were misdirected on the question of provocation? The second is as to whether, if there was any misdirection, it rendered the conviction of the appellant for murder unsafe? Prior to this, it is necessary briefly to consider an outline of the law relating to manslaughter and, in particular, what is termed the “partial defence” to murder of provocation. All this must also be considered, however, in the light of the fact that there was no requisition to the jury by counsel then acting for the accused in relation to the judge’s charge on the provocation issue, although counsel for the Director did make such a requisition at some length. Before coming to the relevant passage, it is necessary to set out the sequence of events prior to consideration of the alleged misdirection.

47. For the purposes of this appeal, the appellant was represented by Mr. Michael O’Higgins S.C. who fully set out his client’s case. However, different legal representatives appeared for the appellant at the trial. At the trial the accused was represented by highly competent and experienced counsel. This fact is not insignificant in that it can be assumed that any tactical decisions taken by the trial legal team were in the best interests of their client. Between the trial and the appeal, the original legal team withdrew. For the purposes of this appeal, both the appellant’s original leading counsel and junior counsel swore affidavits in the context of the decision of this Court in Director of Public Prosecutions v Cronin [2006] (No.2) [2006] 4 IR 329. This decision addresses the circumstances in which this Court on appeal will entertain a point not advanced at the trial.

48. The counsel for the trial accept that at the end of the judge’s charge, the question of provocation was, actually, the subject matter of a requisition, but by counsel for the prosecution, not by counsel for the defence. They depose that the judge expressed clear and trenchant views in relation to the state of the law in relation to provocation. For the purposes of this appeal, the appellant’s counsel say that the matter was ruled upon on foot of the prosecution’s requisition and, therefore, Cronin has no application. The then leading counsel for the accused deposes:-

(i) that at the conclusion of the judge’s charge the defence was of the view that the judge had materially misdirected the jury;

(ii) that it was the intention of the defence to make an application to the trial judge in this regard;

(iii) that the requirement to make such an application was negated by the fact that counsel for the prosecution had brought the error in question to the trial judge’s attention. The learned judge had peremptorily dismissed the submission made by the prosecution; and

(iv) that in view of that fact, there was little or no point in making an application. The judge had heard a submission, he had ruled upon it. There was no possibility he was going to revisit that ruling.

49. Counsel goes on to depose that while the transcript is an accurate record of what is said, it does not always convey the manner as to how things were said. Counsel deposes that in this case that the transcript does not adequately convey or communicate the very firm and fixed view adopted by the judge, which was said to be expressed by him in “very strident terms”. He deposed that the judge went as far to indicate (at the requisition application), that his views on provocation having been firmly held by him down through the years as a practising barrister, and that it was clear that those views had only become reinforced since he had become a High Court judge. It should be said in fairness that this characterisation of the exchanges was entirely rejected by counsel for the Director who described the exchanges as quite normal.

50. The affidavits outline the reasons why no requisition was made by the defence on the question of provocation. But what is more relevant is that the transcript indicates the view which counsel for the accused took of the charge at the trial. It cannot be said that the question of a misdirection was not raised by counsel for the accused as a consequence of some inadvertence. In fact, both counsel deposed that the defence had adverted to an alleged misdirection, but nonetheless decided not to take any steps because of the judge’s firm view. In those circumstances, this was a situation where the Court can reasonably infer that counsel was exercising a professional judgment not to pursue the issue further, having regard to the charge as seen as a whole. Counsel now acting for the appellant in this appeal submitted that it was a charge which “went down the middle”, that is to say at least that it was in no sense hostile to the accused.

51. But can it be said that the charge, when seen as a whole, created any injustice for the accused? A perusal of the entire transcript, which also records submissions made in the absence of the jury, would indicate that the learned trial judge was very firmly of the view that the appellant should have been charged with manslaughter rather than murder and made this view very clearly known. But the trial judge is highly experienced in statements made in the presence of, or those made in the absence of, the jury. The question is whether there was a material and fundamental misdirection or whether, rather, the charge taken as a whole fairly presented the evidence and the law?

52. For reasons which will appear in greater detail later in this judgment, the Court is of the view that this is a case where the observation of Kearns J. in Cronin (No.2) [2006] 4 IR 329 are particularly relevant. The essential point now relied on by the appellant was not taken at the trial. It was not ignored through some inadvertence, but rather was the subject of a tactical decision made by counsel at the trial. On these grounds alone, this Court is entitled to refuse to now entertain the point. As will be seen, however, in the opinion of the Court there is no question of there having been an injustice to the accused in the judge’s charge, taken as a whole.

53. The central argument advanced is that the learned trial judge misdirected the jury in relation to the question of provocation in the context of manslaughter. Here, it is important to emphasise that what is relevant is what the judge actually said to the jury in his charge. Any observations which he might have made in relation to the state of the law on manslaughter and provocation in particular are one thing, but whether those views, be they correct or not, made their way into any trial-ruling, his charge, or any other statement of law made by him to the jury is quite another matter.

The law

54. As pointed out earlier, section 4 of the Criminal Justice Act 1964 must be the starting point for consideration of the evidence, the applicable law and any alleged flaw in the charge. The issue for the jury was whether the appellant intended to kill or cause serious injury to his wife and whether this could be presumed as the natural and probable consequence of his conduct. It was for the prosecution to prove each element of the case beyond a reasonable doubt. The case was that this was obviously his intention to be judged from all his prior conduct and premeditation, whatever his subsequent expressions of remorse in statements to An Garda Síochána.

55. The defence of provocation may be relied upon where the accused suffers a sudden and temporary loss of self control in response to the conduct of the victim such that he is unable to prevent himself from committing a homicide. Whether the defence is made out relies on a subjective test (The People (DPP) v Kelly [2000] 2 I.R. 1). However, evidence of premeditation of murder may negative the defence of provocation. The question for the jury to decide is whether there was such evidence. But, critically, the words he used were consistent with murder, not manslaughter. It is important to emphasise that provocation is only a partial defence to the charge of murder, not a complete defence. A finding that there had been provocation is sufficient only to reduce murder to manslaughter.

56. The issue of provocation has been extensively, and recently considered by this Court in two judgments DPP v Curran [2011] IECCA 95 and DPP v Davis [2001] 1 I.R. 146. In Curran, O’Donnell J., on behalf of this Court, helpfully summarised the position, beginning at para. 21:-

“The decision of this court in People (DPP) v Davis [2001] 1 I.R. 146… 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, … 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 [loss] of self control which alone can palliate a fatal assault”).” (emphasis added)

These terms of “vexation”, “temper” and “rage” very clearly convey what the appellant himself, said as to his state of mind. He admitted to anger and jealousy, which had endured for many weeks. He accepted he had been contemplating what to do for a period of five hours, from 5 o’clock in the morning up to the time he attacked her. While he denied an intention to actually kill her, the question for determination by the jury was whether that denial was true.

57. As Hardiman J. pointed out at p. 158 of Davis:

“The defence of provocation does not operate in such a way as to allow any person who kills another in a fit of temper to establish that much and no more, and then defy the prosecution to exclude the reasonable possibility of provocation. He must show some, even weak or limited, evidence of all the elements of provocation as that phrase is understood in law, and usually this will involve focusing, inter alia, on the distinction between vexation, temper, rage or cognate emotions and provocation in its technical sense”.

58. In DPP v Kelly [2000] 2 I.R. 1, this Court pointed out:

“A successful defence of provocation … presupposes at the critical time the existence, not of a calculating mind, but of a mind subject to a “sudden and temporary loss of self control rendering the accused so subject to passion as to make him or her for the moment not master of his mind”.

59. The issue was whether there was any evidence of a sudden and temporary loss of control or whether the appellant acted with premeditation. It must be said that the trial judge in the charge laid very considerable emphasis on the conduct of the deceased in the months, day and hours before the event. He asked the jury to consider whether these could be seen as provocation, as he was perfectly entitled, indeed obliged, to do. And, as will be seen, the manner in which he put the test, in the context of the facts he cited, was entirely appropriate.

The requisitions made by counsel for the prosecution

60. At the conclusion of the evidence in the trial, an application was made on behalf of the accused to allow provocation to go to the jury. This was successful. In submissions prior to the charge itself, counsel for the Director had argued that provocation was not present due to the existence of a cooling off period and the omission or absence of any evidence relating to a “sudden and temporary loss of control”. She submitted that all the evidence pointed towards a man who was in a position to take careful decisions on the morning of the death, and that the accused made a number of careful decisions and instanced these. Counsel submitted that in the instant case a much longer timeframe was involved than in other reported decisions of this Court (see DPP v Kelly (Court of Criminal Appeal, Unreported, 6th February 2004) where the attack on the deceased was made within hours of the entire words and conduct said there to constitute provocation). However, the trial judge held that the threshold for permitting the defence of provocation to go to a jury is a low one, and that if there had been a cooling off period then that was a matter for the jury to consider in deciding whether or not the defence of provocation was appropriate in this case. In so ruling, the trial judge was quite correct.

The appellant’s case on this appeal

61. In order to place in context what follows, it is necessary to summarise in very simple terms the case now put forward by the appellant. His counsel now submits that the learned trial judge put the case to the jury on the basis that there were two mutually exclusive possibilities. The first possibility was that this was a calculated killing in which the accused intended to cause death or serious injury. It is said that this would be so, even if the appellant had been in a rage, or lost his temper when he stabbed the deceased. If so, this was murder. The second alternative, which it is said the judge put to the jury, was one which would reduce the verdict to manslaughter. This would be because the jury found that the appellant was not “the master of his own mind”, that he was so out of control that he was not acting rationally; that in effect that he could not prevent himself from stabbing her.

62. It is quite true that at one point in a lengthy and detailed charge, the judge said the following:

“[Provocation] is not just simply somebody acting in temper, or in a fit of rage. A person can act in a fit of rage, ladies and gentlemen, and still at the same time know exactly what he or she is doing. It is the question of him being so affected as to totally lose his self control and not be able to rationalise what he is doing. It is not a short tempered reaction, ladies and gentlemen, it is not an angry reaction, but it is a total and complete loss of self control. It is ungovernable passion or rage that we are talking about and the State have to satisfy you beyond reasonable doubt that the accused man was not in that state.”

It is submitted that the judge erred in holding that if an accused was not master of his own mind that he could not form intent. Counsel contends that the judge erred in that he equated the partial defence to murder of provocation with the defences of irresistible impulse or classic insanity, in the sense of an accused not having an appreciation or nature of the quality of one’s own act. In essence, therefore, the appellant’s case is that the judge put to the jury a stark and incorrect choice between an intent to cause serious injury or death on the one hand, and on the other, an accused being so out of control that he could not make a rational decision. Counsel argues this statement had particular significance here because the accused readily admitted on a number of occasions that he had intended to cause serious injury to the deceased but not to kill her. It is necessary to see what was said in the charge in its full context, both as to the direction as to the law and as to how the law applied to the facts.

The judge’s charge on provocation

63. In the first instance, the argument loses its traction because of the terms of s. 4 of the 1964 Act. Section 4(1) provides the killing shall not be murder unless the accused person intended to kill “or cause serious injury to some person…”. The accused admitted in a number of interviews that injuring the deceased was precisely his intention. This is to be seen in the context of what he said in the 999 call, that he tried to kill his wife. The theoretical dichotomy relied on the appeal must be seen in the context of the law, and the facts of the case.

64. Second, the judge’s charge addressed the issue of provocation by first pointing out that he had made a decision to permit the jury to consider the defence. He then proceeded to explain:

“In law, ladies and gentlemen, provocation consists of words or actions, or a combination of words and actions, that so affect the accused man that they cause him a sudden and temporary loss of self control, rendering him so subject to passion as to make him for the moment not master of his own mind. And what you have to do is you have to look to the temperament, character, personality of the individual, and you have to the circumstances that pertain, and you have to ask yourself was the man so subject to a sudden and temporary loss of self control that he was not able to rationalise as regards what he was doing. Now … [counsel for the DPP] have to satisfy you beyond reasonable doubt that the accused man was not so subject to a sudden and temporary loss of self control that rendered him, at the time he killed his wife not master of his own mind”.

He continued:-

“… the question that you have to decide … is whether the particular accused man in this case, with his peculiar history and personality, was so provoked”.

These statements are a proper summary of the law on provocation.

65. The judge then turned to the evidence in the case. Counsel for the Director submits to this Court that, if anything, the judge’s charge to the jury was favourable to the appellant. She referred to a number of passages in support of this proposition as to how he applied the subjective test of provocation:

“That is a matter for you, ladies and gentlemen, as to how you view the family kitchen and how you view what [counsel for the accused] has described as an act of defiance and the most provocative act of leaving dirty dinner plates on the kitchen table, making it quite clear that there had been two people for dinner.”

And further:

“And it is the question for you, ladies and gentlemen, an unlawful killing is manslaughter. You have the State taking it from the level and grade of manslaughter to the level of murder. Have they established that he intended to kill or cause serious injury? Have they negatived the issue of provocation.”

66. Counsel for the Director’s requisitions in respect of provocation were effectively two-fold. First, she suggested that the learned trial judge should recharge the jury in relation to the question of the suddenness of loss of control which must be total and the necessity to apply that principle to the particular facts of the case; second, that the jury should be recharged on the option of two verdicts existing where provocation is raised in a trial, namely guilty of murder or guilty of manslaughter. The latter point was in fact explained clearly to the jury in the course of the charge. A discussion took place on the precise framing of the test as outlined in the legal authorities. The only real issue therefore which arose was related to the former question that is to say the suddenness of the alleged loss of control.

67. Counsel for the accused made no requisition on this issue but the case is now made that the judge’s view on the law had been so trenchantly expressed that it would not have been necessary to do so.

68. A consideration of the transcript shows that at the requisition stage, counsel on both sides referred to a range of the case law on the partial defence of provocation. Other matters were considered and counsel for both the accused and the respondent again adverted to the available alternative verdicts of murder and manslaughter. In the course of submissions reference was made to the correspondence from Mr. Campion. Counsel for the accused said:-

“Your Lordship, I think has dealt with the matter fairly, you have mentioned -- this is an accused man, if we’re talking about provocation, as we are, the state of mind of this man is of course, as you have told the jury, the state of mind at the crucial time”.

There is no indication here that counsel apprehended that the charge taken as a whole had been unfair or that it was unsafe. In fact, as will be seen later, the contrary was the case.

69. Elsewhere in the charge, the trial judge had directed the jury fully in terms of the guidance set down by Barrington J., speaking on behalf of this Court, in DPP v Keith Kelly [2000] 2 I.R. 1.

“The question to decide is not whether a normal or reasonable man would have been so provoked by the matters complained of as totally to lose his self control but whether this particular accused, with his peculiar history and personality was so provoked.”

Precisely those terms were used by the learned trial judge at the trial.

70. In DPP v MacEoin [1978] I.R. 27 at p. 34, this Court stated that the trial judge should examine whether there is any evidence of provocation

“which having regard to the accused’s temperament, character and circumstances might have caused him to lose control of himself at the time of the wrongful act and whether the provocation bears a reasonable relation to the amount of force used by the accused”.

In the charge, the trial judge said to the jury:-

“the question that you have to decide is not whether a normal person or reasonable person would have been provoked by the matters complained of so as to totally lose his self-control, but whether the particular accused man in this case, with his peculiar history and personality, was so provoked”.

This statement was precisely in accordance with the legal authority just referred to.

71. The learned trial judge addressed how these principles should be applied to the testimony of the accused. He stated it was a question for the jury to asses the man who gave evidence before them. It was for them to assess whether the accused was putting on an act of remorse or regret or not. And then the judge said:-

“And you are here, ladies and gentlemen, to look, as you say, to the evidence and look to the accumulation of events and circumstances that occurred in the life of Mr. Bourke that occurred from the time that his wife advised him that she was leaving him … you’re not judging him by your own standards, you are judging him by his standards and how he reacted, and what you know of the man, … And watch the build up, ladies and gentlemen, if there is a build up, if you see a build up, culminating the events that occurred with Mr. Bourke coming down to collect the daughter Emily in Mullingar and coming back. You have heard what has been said by [counsel for the accused] as regards the kitchen, and the kitchen being heart of the home …”

It might be said that the way things were put were very much to the accused’s advantage. In fact, premeditation and subsequent remorse are not mutually exclusive; but the question for the jury was whether there had been premeditation. The test is as to the accused’s state of mind at the time of the offence, not afterwards, although this may have a bearing on the issue of intent.

72. Throughout, he laid emphasis on the duty of the prosecution to negative the issue of provocation and the obligation to satisfy the jury beyond reasonable doubt that the presumption of having intended the natural and probable causes of his actions had been rebutted.

73. The judge pointed out the subjective dimension of the defence and the position in which the accused found himself. He identified in detail each strand in the fabric of the defence as put forward by counsel for the accused and stated that it was a matter for the prosecution to negative that defence to the requisite standard of proof. Any objective assessment of the charge would demonstrate that the charge itself was in no sense unfavourable to the accused. It is not the function of this Court to select passages from a judge’s charge that may be infelicitous, but rather whether taken as a whole the charge misdirected the jury on the law.

Defence counsel’s submission that the jury not be recalled on the issue of provocation

74. But, in fact, the transcript actually shows counsel for the accused specifically submitted that the jury should not be recalled to be recharged on the issue of provocation. Despite the submissions by Counsel for the Director, counsel for the accused submitted to the judge that the jury would become “utterly confused” if they were recalled and recharged on the issue.

75. There can be no suggestion, therefore, of some “error or oversight” on the part of the legal advisors retained for the trial. Quite clearly they found themselves in a situation where the charge, in general, was not at all inimical to their client. They are not, in any sense to be criticised for making a tactical decision in relation to the short passage quoted earlier. However, equally, that tactical decision not to requisition cannot be the basis for now entertaining that same point in this appeal, as indicative of a misdirection or a concern as to the safety of the conviction. In Cronin, Kearns J. at p. 346 outlining the criteria for admitting appeal points not raised at the trial stated:-

“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 a trial to be argued on appeal. There must be in addition 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 the review of the trial and the rulings made therein. (emphasis added)

There is no evidence at all here of any error or oversight but rather a clear tactical decision, where the only reasonable inference is that there was no fundamental unfairness.

76. The position which arose at the trial was precisely one of those envisaged in DPP v Noonan [1998] 2 I.R. 439, where speaking on behalf of this court Geoghegan J. stated that it can refuse to entertain an objection to a judge’s charge where the objection did not form the subject matter of a requisition. Having observed that this would necessarily involve an examination of the circumstances in each case he went on to observe:-

“An obvious example, where it might take that course would be where there might appear to have been a deliberate omission to raise a requisition for tactical reasons in the circumstances where perhaps other parts of the charge had been highly favourable to the accused.”

Clearly, this was precisely the position here.

77. The Court is of course aware of its overriding duty to ensure that justice is done. Counsel for the accused, in the interests of his client, took a tactical decision not to pursue matters. It would surely be incongruous now to criticise as unfair a charge which was accepted as having been fair to the accused. To allow such a reliance would itself be to permit of an injustice.

78. It is not the task of this court to seek to trawl through or isolate one passage from a charge to the jury so as to distort its total impact but rather to assess the overall issue as to whether the jury were properly charged. An examination of the charge as a whole clearly indicates that not only was the jury properly and fully charged as to the law regarding manslaughter; it also must be said that counsel for the accused thought so too. This was not even a situation where counsel for the accused at the trial said he was “in the court’s hands”, but rather one where counsel for the accused agreed with the trial judge in not re-charging the jury on the defence on the basis that to do so would be to “confuse the jury” (see by way of distinction DPP v O’Carroll [2004] 3 I.R. 521). In the view of this Court, it is simply not open to the appellant now to rely on an infelicity in the course of a lengthy and detailed charge which otherwise very fully explained how the jury should address the question of provocation in the context of the facts. In The People (DPP) v. Boyce [2005] IECCA 143, Murray C.J. pointed out:

“When considering a trial judge’s charge to the jury at a distance and out of context of the trial itself it may be too easy or simply facile to suggest that some matters should have been dealt with more fully or with greater emphasis or less so. A trial judge has a delicate balance to strike in giving a summary of the evidence and directing the jury on the law in the context and immediacy of the trial having regard to the evidence, the course of the trial, the issues which were of primary controversy, the speeches of counsel and the context of the case as a whole. Counsel for both sides, and in particular the defence, in that immediacy of the context of the trial, are in a special position, at the conclusion of the charge, to identify any matter stated by the judge which could have a material effect on the fairness or balance of the charge and which might require the jury to be redirected. It is in that context that the points of real importance fundamental to the fairness of the trial can be best identified. The Court leans against points of issue with the charge being identified very much later, out of the context of the trial, sometimes by persons who had no connection with the trial, but only after a “trawl” through the transcript unless of course the points identified are substantial and of fundamental importance to the fairness of the trial.”

79. The jury broke their deliberations for the weekend. At the resumption of the trial on the Monday, the judge again very carefully and fully reviewed the law for them in what he termed “bullet points”. His summary of the defence of provocation was again absolutely in accordance with the authorities, and was applied to a succinct, but entirely fair, summation of the main points of the prosecution and defence cases. This would have been fresh in the mind of the jurors when they again retired to deliberate.

80. In the view of this Court, the accused’s conviction of murder was safe and should not be interfered with. In the circumstances therefore the court will dismiss the appeal.

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