Irish Court of Criminal Appeal
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Cite as: [2014] IECCA 2
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Judgment Title: Director of Public Prosecutions -v- Bourke Neutral Citation: [2014] IECCA 2 Court of Criminal Appeal Record Number: 113/09 Date of Delivery: 23/01/2014 Court: Court of Criminal Appeal Composition of Court: MacMenamin J., de Valera J., McGovern J. Judgment by: MacMenamin J. Status of Judgment: Approved
Outcome: Court declines to grant reliefs sought | ||||||||||||
THE COURT OF CRIMINAL APPEAL CCA No. 113/09 MacMenamin J.deValera J. McGovern J.
The People (at the Suit of the
Director of Public Prosecutions) Respondent And
Appellant Judgment of the Court delivered on the 23rd day of January, 2014, by MacMenamin J. 1. On the 25th January, 2013, this court upheld the appellant’s conviction for murder of his wife, Jean Gilbert. The substantive judgment was of some 35 pages, addressing issues raised on the appeal. That judgment should be read in conjunction with this judgment. The appellant, having been convicted of murder, and having unsuccessfully appealed, now seeks a number of alternative reliefs outlined in his notice of motion herein. In essence, the applicant asks first, that the court either set aside, or add an addendum, to its earlier judgment, addressing a point which, it is said, was not addressed in the judgment. Alternatively, counsel contends that a number of points of law arise which should be certified for the consideration of the Supreme Court pursuant to s. 29 of the Criminal Justice Act 1924. Setting aside or adding an addendum to its earlier judgment 3. In the charge, the trial judge did pose an alternative to the jury. He said that if the appellant had engaged in a calculated killing where he intended to cause death or serious injury, this was murder, even if he had been in a rage or lost his temper when he stabbed the deceased. As an alternative to this, the judge put a proposition to the jury which he said was one which would reduce the verdict to manslaughter. The jury could arrive at that verdict if they found that the appellant was not “the master of this own mind”, that he was so out of control that he was not acting rationally, that, in effect he could not prevent himself from stabbing his wife. 4. The question raised relates to whether, despite his intention to kill or injure, the appellant was still entitled to avail of provocation as a defence. This court in its earlier substantive judgment concluded that the question did not arise for consideration inter alia by reason of the judgment of the Supreme Court in Director of Public Prosecutions v Cronin (No.2) [2006] 4 IR 329 (“Cronin”). This court pointed out that the point, now sought to be relied on by the appellant, was not taken at the trial. The court found that the defence did not ignore the point at trial through some inadvertence, but rather made a tactical decision not to pursue the point in a requisition. For this reason, this court did not entertain the point. But this is not the only determining factor. This court also found there was no question of there having been an injustice to the accused in the judge’s charge, taken as a whole. 5. The substantive judgment, which should be read in conjunction with this judgment, contains an extensive description of the appellant’s conduct, and his state of mind, in a continuum of events over a period of 24 hours which led up to the killing of his wife. The case was made that the appellant had not formed the intention to kill his wife until he entered the living room where she was with the couple’s two children. From the court’s point of view, the narrative in the substantive judgment also demonstrated the difficulty with any “provocation” defence. There was no evidence that the victim said, or did, anything provocative at the time of the attack. But the trial judge set out every extenuating circumstance from the appellant’s point of view in detail. Despite the fact the appellant did not do anything provocative in the immediate time frame prior to the attack, the appellant contended there was something in her demeanour which caused him to “snap”. The trial judge set out the defence case that, the victim’s conduct prior to the attack had been extremely difficult, involving the conduct of an adulterous affair in a very obvious way to the appellant. She had said she was going to leave him. The trial judge described all the events in what he called the “build up” to the attack. He specifically told the jury that they must have regard to these matters in reaching their verdict between murder and manslaughter. He asked them, in effect, to bear in mind the affront to the appellant caused by the victim’s conduct, the fact that the appellant had previously found love letters between the victim and her boyfriend, and the fact that the victim had been out with her boyfriend for the entire night before the attack. In effect, he outlined a range of circumstances which might mitigate against murder and in favour of manslaughter. The trial judge could only fully and extensively engage in this exercise in the context of distinguishing between murder and manslaughter, and in the context of putting matters before the jury which might be considered by them in determining whether what had occurred was, in fact, murder. 6. There was clear evidence that the appellant had been ruminating on causing the victim serious harm for hours beforehand while he was at home in bed on the night before the attack. Prior to the attack, the appellant came downstairs and went into the kitchen. He selected a knife from a drawer in the kitchen. He concealed the knife in his waistband. He went into the living room. His two young children were there. His wife was on the telephone “smiling and looking smug” in the appellant’s view of matters. There was no exchange of words beforehand. The victim did not then engage in any conduct which would come within the realm of provocation. The appellant inflicted four stab wounds, one to the deceased’s back on the right side, and three on her left side. Three of these stab wounds penetrated the chest entering the lungs, liver, spleen, kidney and aorta. There were multiple incision wounds on both hands of the deceased which were defence injuries, i.e. injuries caused by the victim trying to defend herself from the attack. The State Pathologist testified that the appellant had selected a narrow kitchen style knife with a sharp tip, and that the two tracks resulting from one of the stabbings were consistent with the knife having been partly withdrawn, and then reinserted, causing a second wound-track in a slightly different direction. This track continued through the diaphragm and across the surface of the right lobe of the victim’s liver. The transcript made the situation very clear. The appellant admitted that he intended to cause his wife serious injury and pain. Against this, the jury was instructed to consider the victim’s prior conduct to the appellant. 7. This court observed in the substantive judgment that the judge’s charge was extremely favourable to the appellant. The court also pointed out a number of observations which the judge made, in the absence of the jury, to the effect that his strong belief was that the appellant should have been accused of manslaughter and not murder. He criticised the prosecution for this, on more than one occasion, albeit in the jury’s absence. The jury convicted the appellant of murder. 8. It is no understatement to say that the nature of the judge’s charge was such that no defence legal team would have wished to make a requisition which might have altered its effect. The jury were asked to consider whether the appellant was an actor of high renown, when he was giving evidence in his defence. They were instructed to judge the appellant, not by their standards but, by his standards, and how he reacted. They were asked to look at the build up of events leading to the appellant going to Mullingar to collect his daughter, and then coming back to find that two persons (by implication the victim and her boyfriend) had been eating in the kitchen. This was the application of a subjective test. 9. After the charge to the jury, there were requisitions. Even though the prosecution sought to requisition the judge on another aspect of the law, the defence team entirely refrained from doing so. It is very clear that the appellant’s counsel felt that the charge the judge had put to the jury did not pose any real problem for their client. Indeed, the opposite was true. Counsel for the defence observed in the requisitions that the judge had dealt with the matter “fairly”. Counsel said, “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 particular time.” The defence wished to avoid a situation where any further charging would cause the jury to become “hopelessly confused”. They specifically asked the judge not to recharge the jury on provocation. His then counsel said “the matter has been very clearly and fully aired.” This was, pre-eminently, a deliberate tactical decision. 10. In the present application the appellant faced a number of insurmountable difficulties. The first was that this court had concluded that the “provocation point”, as stated above, simply did not arise in the appeal because of the fact there was no requisition on the point now sought to be urged. To be clear, and at risk of repetition, counsel for the accused commented at the trial that the judge’s charge had dealt with that issue “fairly”. The requisitions made were by counsel for the Director. These concerned the suddenness of the loss of control and the option of two verdicts, murder and manslaughter. All this is set out in some detail in the substantive judgment. Not only is it clear that a tactical decision was made at the time, but from the defence’s point of view, this was a justifiable decision. This is precisely one of the circumstances envisaged in Cronin where this Court will not entertain a point on appeal. 11. As will be explained later, the only circumstance in which this Court might review or revisit a final judgment in general would be if there is a manifest error (under the slip rule), or if there had been a fundamental failure in fair procedure or natural justice in the appeal. There was no breach of the fair procedure rules in the appeal. 12. Counsel for the appellant in this appeal was specifically asked to deal with what is termed the “Cronin point”. He was invited to deal with it in his oral submissions. He now makes the point that the matter was not addressed by counsel for the Director in response. However, the applicability of Cronin to the appeal was very lengthily addressed in counsel for the Director’s written submissions. That submission extended to 23 A4 pages; the relevance of Cronin occupied fully 13 of those pages. It was for that reason that counsel for the appellant was asked specifically to address the point at an early point in the substantive appeal hearing. The court is unable to accept any contention that there was a want of natural justice or fair procedures in a circumstance where the appellant’s counsel was specifically asked to deal with a matter which was of primary concern to the court. The court would also note that the Cronin point was also specifically addressed (and sought to be rebutted) in the appellant’s own written submissions in the substantive appeal. There is no basis for setting aside, or writing an addendum to the earlier judgment. It is true that counsel for the defence did not refer to the Cronin point. It had been dealt with in the written submissions extensively. Oral and written submissions have the same value. We turn then to the statutory position, as interpreted by this and other courts. 13. Section 29 of the Courts of Justice Act 1924 reads:
14. The court would also reiterate observations drawn from Pringle v Ireland & Anor [1994] 1 I.L.R.M. 467 as to the finality of its judgment. In Pringle, Murphy J. considered the word “final” as it applied inter alia to the Court of Criminal Appeal. He stated that this put the decision of that court “beyond review by any other judicial body”. 15. In The People (DPP) v Cunningham [2012] 2 ILRM 406, Hardiman J. stated that:
18. It is true that, on very few occasions, this Court has, in very exceptional circumstances furnished judgments which addressed points not dealt with in its judgment (see Director of Public Prosecutions v Gormley [2010] 2 IR 409; and earlier Director of Public Prosecutions v D. O’S. [2004] IECCA 23). These cases are, however, quite distinct from the instant case where this court set out in its substantive judgment why it was unnecessary to address the point now relied on by the appellant’s new legal advisors. There is no jurisdiction to set aside or amend the court’s earlier judgment. 19. The court would add that, in writing a judgment, a court is not required to address every issue raised. The appellant had the advantage of a very fair adversarial trial. The basis for this court’s decision was entirely clear from the earlier judgment (see also Ruiz v Spain (2001) 31 E.H.R.R. 22). The court sees no basis whatsoever for setting aside, or varying its earlier judgment. The s. 29 application
2 In a murder trial in which the jury must consider the defence of provocation, does an incorrect direction by the trial judge in his charge to the jury to the effect that the defence of provocation does not apply when the accused who intended to cause serious injury or kill, amount to a fundamental defect such that the conviction should be quashed despite the fact that the jury was correctly charged as to the defence of provocation in other respects? 3 Where, in a criminal trial, counsel for the prosecution has requisitioned the trial judge in respect of a matter of importance for the benefit of the defence; and where that requisition has been rejected in explicit and final terms; and where counsel for the defence did not make the same requisition after such rejection, do the same restrictions apply as to whether complaints should be heard in the Court of Criminal Appeal on the subject matter of such requisition and as to the weight to be attached to such complaint, as apply in circumstances where no requisition or ruling has been made to or by the trial judge? 4 Are the provisions of DPP v Cronin (No. 2) which enable an appellant to argue a point not taken at trial confined to circumstances in which the explanation for not raising the point is due only to error or inadvertence.”
“The first hurdle which the applicant has to cross on this application is to establish that the decision of this court on his application for leave to appeal involves a point of law set out in the notice of motion.””
22. Also relevant is the decision of the Supreme Court in The People (Attorney General) v Dwyer [1972] I.R. 416, and the subsequent decision of this court in The Director of Public Prosecutions v Brendan O’Sullivan. Just as in this appeal, this Court expressed the view that a direction to the jury in the case before it could have been better expressed. However, the court made clear:
23. In The People (Attorney General) v McCarthy, this Court specifically stated:
25. In fact, any consideration of the first two of the points now sought to be certified also demonstrates that they derive, very specifically, from the charge to the jury or the conduct of the trial generally in this particular case. It cannot be said that these are points of more general application which are of “exceptional public importance”, or matters which it is desirable to clarify in the public interest. 26. Nor can it be said that the third and fourth point arises from some new point or aspect of the law in the judgment of this court. Rather, the situation is that this court determined that, on an application of Cronin, the appellant was not permitted to rely on the point adverted to earlier. 27. The court would additionally observe in relation to points 1 and 2 that the law of provocation generally has been considered in the following cases; People (Director of Public Prosecutions) v Davis [2001] 1 I.R. 146; People (Director of Public Prosecutions) v Noonan [1998] 2 I.R. 439; People (Director of Public Prosecutions) v Kelly [2000] 2 I.R. 1; and, within the past two years, People (Director of Public Prosecutions) v Curran [2011] IECCA 95. This Court has repeatedly emphasised that it is necessary that the matters identified transcend the specifics of the case before this Court, and that the matters in question constitute genuine points of law of exceptional public importance on which it is desirable that the views of the Supreme Court be obtained. 28. With regard to points 3 and 4, the law has been addressed by the Supreme Court in Cronin and this decision has been approved and followed by this court. What arose in the earlier judgment was an application of the principle in Cronin to the facts of the case. There is no deviation from the Cronin principles. It is difficult to avoid the conclusion that the appellant is seeking to characterise the application of a principle, now well established, in such a way as to reconstitute that principle as a point of law coming within s. 29 of the Act of 1924, as amended. The application of Cronin has also been the subject of decisions in Director of Public Prosecutions v Campbell [2005] IECCA 27, and Director of Public Prosecutions v Maloney (Unreported, Court of Criminal Appeal, 2nd March 1992). Conclusion | ||||||||||||