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Cite as: [2014] IECCA 22

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Judgment Title: Director of Public Prosecutions -v- Dumbrell & anor

Neutral Citation: [2014] IECCA 22

Court of Criminal Appeal Record Number: 58/11 & 57/11

Date of Delivery: 04/07/2014

Court: Court of Criminal Appeal

Composition of Court: Denham C.J., Edwards J., O'Malley J.

Judgment by: Denham C.J.

Status of Judgment: Approved

THE COURT OF CRIMINAL APPEAL

Appeal No. 57/2011 and

Appeal No. 58/2011

Denham C.J.
Edwards J.
O’Malley J.

Between/

The People at the suit of the Director of Public Prosecutions

Respondent

and

Warren Dumbrell

and

Jeffrey Dumbrell

Applicants/Appellants

Judgment of the Court delivered on the 4th day of July, 2014, by Denham C.J.

1. Before the Court are appeals by Warren Dumbrell, referred to as “the first named appellant”, and Jeffrey Dumbrell, referred to as “the second named appellant”, both together are referred to as “the appellants”, from the convictions and sentences imposed on the 22nd February, 2011, by the Central Criminal Court (Butler J.), for the offence of murder, for which they were sentenced to life imprisonment, to run from the 1st November, 2006.

2. This is an appeal against the convictions imposed following a retrial, the original convictions having being quashed by this Court on the 5th July, 2010, Murray C.J. presiding, with reasons stated on the 28th July, 2010.

3. This Court has received individual submissions filed by each of the appellants and in reply a joint submission filed by the Director of Public Prosecutions, referred to as “the DPP”.

4. The first named appellant was charged with murder contrary to common law as provided for by s. 4 of the Criminal Justice Act, 1964. The particulars of offence stated that the first named appellant on the 29th October, 2006, at Tyrone Place, Inchicore, Dublin 8, did murder Christopher Cawley. The second named appellant was charged in identical terms.

5. The appellants appeared before the Central Criminal Court (Butler J.) on the 7th February, 2011, for trial. The trial lasted for twelve days, and concluded on the 22nd February, 2011, on which date the appellants were convicted by a jury of the murder of Christopher Cawley by a majority verdict of 10 - 2.

6. During the course of the trial, it was established that there was an unpleasant history between the deceased Christopher Cawley and Tommy Dumbrell, brother of the appellants. Prior to the death of Christopher Cawley there were a number of incidents involving Tommy Dumbrell and the deceased.

7. On the 29th October, 2006, Christopher Cawley was going home on the bus with his son, and also on the bus was Tommy Dumbrell. Words were exchanged, and it was arranged that they would meet that evening at 8 p.m. at the square or green, opposite the flats, at Tyrone Place, in order to have a fair fight between the two. There was some discussion that Christopher Cawley could bring whoever he wanted and that Tommy Dumbrell likewise could bring whoever he wanted.

8. At 8 p.m. on the 29th October, 2006, Christopher Cawley was present at the rocks on the green area in the company of young children when Warren Dumbrell and Jeffrey Dumbrell approached the rocks by cutting across the field. Warren Dumbrell had a broken hurley in his hand as he approached Christopher Cawley. Warren Dumbrell and Jeffrey Dumbrell went to the arranged meeting between Christopher Cawley and their brother, Tommy Dumbrell, to support their brother. They arrived before their brother.

9. There is conflicting evidence as to what followed. On the one hand, Jeffrey Dumbrell gave evidence that as they approached the rocks where the fight was to take place Christopher Cawley saw them, and when he saw who they were, he pulled out a knife. He waved the knife at them and then he ran into the flats complex at Tyrone Place where he lived. He was pursued by Warren Dumbrell who had a broken hurley, followed by Jeffrey Dumbrell. Christopher Cawley turned to face them at the stairwell with the knife in his hand. There was an altercation with Warren Dumbrell, who knocked the knife out of Christopher Cawley’s hand with the hurley. The knife fell to the ground. Christopher Cawley and Jeffrey Dumbrell tried to get the knife. There was a struggle for the knife between Jeffrey Dumbrell and Christopher Cawley. Jeffrey Dumbrell said he got the knife from Christopher Cawley, and then he stabbed him, in the leg a few times, that he did so to get the deceased off him. He admitted this was the cause of death. In fact Christopher Cawley received six stab wounds, three in the back, and subsequently died from the wounds. Under cross-examination Jeffrey Dumbrell said that if people said his brother produced a knife they would be mistaken. He said that “when he [Christopher Cawley] seen that Warren took out a hurl and went for him, he turned around and ran”. He said that “if Warren hadn’t taken the hurley out, he’d have probably stabbed one of us”. He said he ran after the deceased because he wanted to “go in and threaten him”. He said he wanted to tell him to keep away from his brother Tommy. He said that regardless of the fact that the deceased had produced a knife, they were going to pursue and catch him, and they were going to smack the knife out of his hand with a hurley. He said he threw the knife away after he left the flat complex. He said that the hurley got thrown away as well. He said that they burnt their clothes that night in a field because they thought there would be evidence on the clothes.

10. On the other hand, there was different evidence from witnesses. Lauren Molloy stated that as the appellants pursued Christopher Cawley they were taking stuff out of their jacket, one of them at least. She denied that she saw Christopher Cawley with anything in his hand. She did not see the deceased with a knife or waving his hands.

11. Janette Cawley McKenna gave evidence, including that she heard screaming and went to the balcony of her flat. She saw her husband, Christopher Cawley, running towards the entrance gates of Tyrone Place and the appellants running after him. She said that Warren Dumbrell was wearing a dark green jacket and he had a knife in his hands. Jeffrey Dumbrell was wearing a red jacket and had an object in each hand. She saw her husband fall at the stairwell. He tried to get up, and “the two of them were on him”. She did not see the deceased carrying anything. The appellants were on top of the deceased and hitting him all over. She denied that the deceased took a knife to the waste ground. She was cross-examined on the basis that she gave different versions of events at the earlier trial, when asked did Warren Dumbrell have a knife when he came into the flat complex. She agreed that one thing she was sure about was that Jeffrey Dumbrell had the hurl and Warren Dumbrell had the knife.

12. There was evidence from Mairead Cawley, daughter of the deceased, that she got chips and cigarettes for her father and came back to the waste ground where her father was. She saw the appellants come across the field. Jeffrey Dumbrell had a red jacket and Warren Dumbrell had a green jacket. She saw her father running and the appellants ran after him. She ran after them into the flats complex. She saw the appellants on top of her father, hitting him, and then they left. She said she saw the second appellant put a knife into his jacket just before they left. She said the first named appellant had a stick like a hurley.

13. Linda Ward gave evidence that she saw the appellants at the stairwell “jamming down on” the deceased. She said Warren Dumbrell had a sword. She said the appellants kept swapping, saying that first of all Warren would “go down like that” and he would stand on him and then Jeffrey would “go down like that”. She said both appellants had something in their hands. Under cross-examination she maintained that she saw Warren Dumbrell with a “sharp thing”. However, it was put to her that at a previous trial she had said that Jeffrey Dumbrell had a knife and that Warren had a stick and that her testimony at this trial must be incorrect, and she agreed with that proposition.

Notice of application for leave to appeal
14. The notice of application for leave to appeal filed by the first named appellant set out the following grounds:

(i) That the learned trial judge erred in law or in a mixed question of law and fact in permitting the previous convictions of the [first named appellant’s] co-accused to be allowed into evidence without allowing the [first named appellant] the opportunity to adduce evidence of the deceased's previous convictions.

(ii) That the learned trial judge erred in law or in a mixed question of law and fact in failing to recharge the jury adequately on the issue of joint enterprise having being requisitioned on the issue on behalf of the [first named appellant].

(iii) That the learned trial judge erred in law or in a mixed question, of law and fact in failing to recharge the jury adequately on the issue of joint enterprise having been asked by the jury to explain the principle of joint enterprise/common design.

(iv) That the learned trial judge erred in law or in a mixed question of law and fact in failing to recharge the jury on the general creditworthiness of certain prosecution witnesses in light of previous inconsistent statements made by such.

(v) That the learned trial judge erred in law or in a mixed question of law and fact in failing to properly direct the jury not to conduct their own enquiries in relation to the internet or other media sources.

(vi) That the learned trial judge erred in law or in a mixed question of law and fact in rendering the trial unsatisfactory by virtue of the fact that he failed to accede to the requisitions raised on behalf of the [first named appellant].

Additional Grounds of Appeal
15. At the hearing of the appeal, counsel for the first named appellant brought two motions before the Court, both of which were granted.

16. The Court granted permission to insert two additional grounds of appeal on behalf of the first named appellant.

17. Liberty was given to insert the following:-

“ a. That the failure of the Court to stay the proceedings against the [first named appellant] pending the introduction into law of adequate protection in respect of the widespread availability of prejudicial material on the internet referable to the accused rendered his trial unfair.”

18. Also, on the application of counsel for the first named appellant, leave was given to amend ground 1 of his grounds of appeal by inserting an additional ground of appeal as ground 1A, being:-

“That the learned trial judge erred in law or in a mixed question of law and fact in failing to afford the [first named appellant] the opportunity to adduce the previous convictions of the deceased to show that he had a proclivity for violence and for carrying knives and thereby deprived the [first named appellant] the opportunity to put the previous convictions of the deceased to prosecution witnesses.”

19. The second named appellant’s grounds for leave to appeal were:-

(ii) The learned trial judge erred in law in directing that the previous convictions of the deceased man should not be mentioned or opened to the jury, pursuant to the Criminal Justice (Evidence) Act, 1924, as amended by s. 33 of the Criminal Procedure Act, 2010.

(iii) The learned trial judge erred in law and in fact in directing the jury in relation to the legal concept of common design and joint enterprise.

(iv) The learned trial judge erred in law and in fact in failing to provide any direction to the jury in relation to the offering into evidence of the second named [appellant’s] previous conviction.

The Hearing
20. Counsel indicated that he would address in oral submissions the internet issue and the proclivity for violence issue and would adopt the written submissions in relation to the other issues.

Internet Issue
21. The issue was described as:-

“That the failure of the Courts to stay the proceedings against the [first named appellant] pending the introduction into law of adequate protection in respect of the widespread availability of prejudicial material on the internet referable to the accused rendered his trial unfair”.

Thus, following the order of counsel’s submissions, the first issue to be considered is what was referred to as ‘the internet’ point. Counsel submitted that there was an avalanche of prejudicial material about the first named appellant, particularly on the internet. Counsel referred to the balance to be struck between the right to disseminate information and the right to a fair trial. Counsel stated that the issue was whether the learned trial judge could adequately compensate the situation by a warning, or was something else required, such as making it an offence for a juror to obtain information independently via modern technology or otherwise, during the course of a trial.

22. Counsel brought the Court to the decision of the Central Criminal Court (McCarthy J.) delivered on the 11th January, 2011, which related to an application on behalf of the appellants to stay their trial. The extent to which publicity might be relevant to the issue of whether or not a fair trial can take place at a given time, and the internet and the capacity for search thereof, were raised.

23. Counsel for the first named appellant submitted that the proper course was for the Oireachtas to enact legislation. Counsel accepted that a trial court could not compel the Oireachtas to act, but submitted that if the court found an unfairness, then pending legislation, a trial such as this, where there is prejudicial matter in the media, should not proceed.

24. Counsel on behalf of the DPP pointed out that the decision of McCarthy J. was a pre-trial application to stop the trial on the basis that the appellants could not get a fair trial. Counsel submitted that the Court can now look and see that they did, in fact, get a fair trial, and that there is no suggestion that the jury looked at anything untoward.

25. The jury in this case was given specific directions. On Day 1 the learned trial judge stated:-

“Good afternoon, ladies and gentlemen, you are about to be addressed by the prosecution in this case and there is just one matter I would like to deal with before we commence at all. It’s vitally important, and I’ll be telling you throughout the case when you are going out, that you never discuss this case, or allow anyone to discuss it with you during the trial, or any of the evidence, that is, in this case. You will be deciding the case purely on the basis of the evidence that is given in this court. You mustn’t allow yourself to be influenced by what may be said in the media and you mustn’t make any independent enquiries of your own in any form of media, ladies and gentlemen. You’ll hear it all here and one just general piece of advice, when you go out for lunch, and that, you will be instructed not to discuss the case. I suggest you don’t discuss it amongst yourselves other than when you are in the jury room and all discussing it as a unit together because that’s how you are deciding the case.”

(Transcript, 7th February 2011, Day 1, p. 4, line 31 to p. 5, line 8)

26. Counsel for the DPP submitted that the above was a clear direction and that no point had been taken on it. Counsel submitted further that there was no suggestion that the jury acted contrary to the direction, and that there was no reason to believe that the jury could not be trusted to have proper regard for the judicial direction.

27. Counsel for the appellants submitted that what occurred in the jury room was unknown. Counsel submitted that a tiny percent of jurors might disregard a judicial direction, and any legislation would be directed to that tiny percent of jurors.

28. The Central Criminal Court (McCarthy J.) reviewed the case law on the matter of publicity and the right to a fair trial.

29. Reference was made also by McCarthy J. to the establishing of an offence by the Oireachtas. The Law Reform Commission in its Consultation Paper on Jury Service suggested the establishment of an offence, and at para. 8.66 stated:-

“This offence would act as a deterrent to jurors and further remind them that they must not conduct their own experiments or investigations or consult other material, including internet sources. The Commission would recommend that the prohibition should last until after the jury has given its verdict or if the trial judge has discharged the jury.”

30. Of this Consultation Paper of the Law Reform Commission, the learned trial judge stated:-

“I accept that the fact that the Law Reform Commission has expressed a view however deserves to be considered with respect, but no more. I think the Law Reform Commission is wrong, as it appears, in this particular case. Such an offence might be regarded as something in the nature, to use a colloquialism, as icing on the cake, or perhaps a counsel of perfection or, the effectual embodiment in statutory law of the crime of what we will call jury misconduct being additional to criminal contempt of court, presumably with penalties which are not as severe as such contempt.”

31. The learned trial judge concluded:-

“33. I am of the view, accordingly, that notwithstanding the special difficulties of the internet which have been suggested, they, firstly are adequately dealt with or can adequately be dealt with in the present state of the law without any risk of an unfair trial and a fair trial does not necessitate the creation of a new offence such as of the kind contemplated, secondly the fact of a recommendation by the Law Reform Commission, per se, does not give rise to a different conclusion and thirdly, that I consider it as evidence as to what might be the appropriate or necessary course if further steps are required to protect the integrity of the trial from the new phenomenon. I trust I have dealt with everything. If you just bear with me for one moment.

34. For the sake of completeness I should add that Mr O'Higgins made the point that the Law Reform Commission, in his submission:

‘Correctly identified that the balance at the moment is out of kilter and the way to go about restoring the balance would be to put into law these new offences.’

I believe I have addressed adequately the approach of the Law Reform Commission. For the avoidance of doubt, I believe I am entitled to take my own view in that regard and it is a view I do not agree (and, in fact, it is necessary for me to take my own view). Mr O'Higgins referred to

Carmody v. Minister for Justice

[2010] 1 ILRM 157 pertaining to the non-availability of legal aid in some cases in the District Court. Primarily, pursued on the basis of want of equality of arms and, of course, I accept that the Court has the jurisdiction to stay, pending further provision to render a fair trial.

35. The Director of Public Prosecutions, as we know, has no role in the matter and, in general, I think a trial can proceed even if the material remains on the internet, notwithstanding the general propositions in relation to steps taken on occasion to inhibit publicity during the course of criminal proceedings to a greater or lesser extent. Mr O'Higgins has also made the point that jurors might discuss the fact that they had received warnings or different warnings, and that one jury might not have received the relevant warning, whereas others might and this would, give rise to some form of suspicion in jurors' minds. If we assume they are going to act in accordance with their oaths that simply is not a problem. Mr O'Higgins has made a distinction between juries generally and also as to what one might term specific juries. Effectively he said that one cannot presume every jury will do its duty. I think that every jury sworn will, do its duty. I think the law has to proceed on that basis, save in wholly exceptional circumstances, of which this is not one. I refuse the application.”

Decision on Internet Issue
32. The Court would affirm the decision of McCarthy J. and the underlying rationale.

33. No specific words are required to inform the members of the jury of their duty. The directions which a trial judge may give to a jury in a trial are quintessentially a judicial matter given in, and relating to, the circumstances of the case.

34. Such directions are repeated during a trial. Indeed, as set out above in the direction of the trial court, Butler J. stated that he would be telling them, members of the jury, throughout the case. He stressed that they must decide the case purely on the evidence given in court. Further, he directed them not to make any independent enquiries of their own in any form of media. This was a clear direction in plain and unambiguous language.

35. While it is entirely a matter for the Oireachtas whether they decide to legislate, and it is entirely a matter for the Law Reform Commission to consult on issues relevant to the courts, the area of directions to the jury to ensure a fair trial is not dependent on either.

36. The Court adopts the judgment of Charleton J. in Byrne v. DPP [2010] IEHC 382, where he stated:-

“Fundamentally, however, there is no reason to believe that juries cannot be trusted if appropriate directions are given to them, perhaps coupled with an explanation as to why this is necessary. There is every indication that they take their task seriously and see it, correctly, as an important and elevated public function.

On the subject of a warning to a jury in the context of the commencement of their involvement in the trial process, it has often been the case that the judge warns jurors, either on being sworn in or on the first break, that they must not discuss the case with anyone, that they are not entitled to make their own inquires in relation to the case and that they should judge the case solely on the basis of the evidence that they hear and see in the courtroom. Recently, many judges have also added a warning that they should not surf the internet in relation to any participant in the case, be they a witness, the judge, counsel or an accused. It could be added that to do so is a contempt of court allowing the imposition of an appropriate, but potentially unlimited, fine or period of imprisonment. Some of the studies cited during the hearing of this case indicate that juries will be more inclined to heed such a direction if they are told of the reason behind it. That makes sense. Beyond recording this observation, I do not feel it is my place to give any advice to trial judges. They can be trusted to exercise the control of trials properly. Juries are to be trusted to act judicially.”

37. The trial judge in this case gave the members of the jury instructions to decide the case solely on the evidence put to them in the trial court. The jury was directed not to make its own independent enquiries in relation to the appellants. There is nothing to suggest that the jury did not adhere to this judicial direction. Therefore, for the reasons given, the Court would dismiss this ground of appeal.

Proclivity of Violence Issue
38. The first ground of appeal of the first named appellant and the additional ground 1A raise the proclivity of violence issue, and are as follows:-

“That the learned trial judge erred in law or in a mixed question of law and fact in permitting the previous convictions of the [first named appellant’s] co-accused to be allowed into evidence without allowing the [first named appellant] the opportunity to adduce evidence of the deceased's previous convictions.”

and:-

39. Counsel submitted that this issue arose on Day 2 of the trial, when it was indicated to defence counsel by prosecution counsel that if the defence were to rely on certain lines of cross-examination which involved imputations on the character of the deceased, then the prosecution intended to rely on s. 33 of the Criminal Procedure Act, 2010. Pursuant to this provision, it is provided that where imputations are cast against a prosecution witness or a deceased person, the prosecution can introduce evidence of the previous convictions of an accused person.

40. The first named appellant served a notice on the prosecution pursuant to s. 33(b) of the Criminal Procedure Act, 2010, indicating that it was proposed to impute the character of the deceased, Christopher Cawley.

41. The notice stated:-

“Take Notice that pursuant to section 1A of the Criminal Justice (Evidence) Act, 1924, as inserted by Section 33(b) of the Criminal Procedure Act, 2010 that Mr. Warren Dumbrell, the first named accused, intends to adduce evidence at his forthcoming trial that would involve imputations on the character of Mr. Christopher Cawley, deceased, and further reserves the right not to adduce such evidence”. (Transcript, Day 2, p. 4)

42. There was legal argument at the trial when counsel for the first named appellant indicated that it was proposed to bring evidence on an aspect of the character of Christopher Cawley, which was germane to the case, namely that he had two convictions for carrying knives.

Ruling
43. On Day 2 the learned trial judge made a ruling on the issue of adducing previous convictions. He ruled:-

“Well, on the previous convictions I do take - I do take what Mr. O' Higgins says on board, but you have 104 previous convictions, the vast majority of them, or the majority of them are road traffic and so on, two involved knives and sharp articles for which he received respective sentences of six months and two years, but in the case -16 months and two years, but in the case of the latter, we don't know whether or not other matters were involved. He was also convicted in respect of robbery and assault. I do believe that it's stepping over the line to bring in the previous convictions. It doesn't make it more likely that he was carrying a knife on that occasion, and you have already got that allegation in the sense in cross-examination in relation to the incident, or in relation to the alleged incident the week before, so, as far as I can make a ruling, that-insofar as I can make a ruling, that's the ruling, but of course it doesn't give people free reign if they accidentally or on purpose ask questions that are patently gratuitous, that is - in other words, they are just to blacken somebody, that is another matter.”

(Transcript, Day 2, p. 60, line 2 line 5)

Cross-examination
44. In cross-examination, in reply to questions to the second named appellant by Mr. Burns, counsel for the DPP, as to where the second named appellant thought he was going at the relevant time, the following was stated:-

“Q. MR BURNS: Did you think, you didn't think you were going to Tyrone Place when you first went up there, did you?

A. No.

Q. You thought you were going to a field?

A. To a field, next to a travelling camp.

Q. A dark field, yes, a dark field?

A. Yes.

Q. That's where you thought you were going?

A. It's dark in the field but at the right at the very edge of the field it's all lighted up, right next to the travelling camp where all the travellers live, and all his family and all his relations live.

Q. You see I have to put it --?

JUDGE: Sorry, just a moment, would you close that door. I'm just trying to stop a noise from outside. Sorry go on.

A. And another thing.

Mr. Burns: Yes?

A. Mr. Cawley has 106 previous convictions for carrying knives and for firearms offences.

Mr. Burns: Judge, I wonder if I could have a few moments.

Judge: I know what you are going to say. Do you really want a few moments.

Mr. Burns: Yes, Judge I need to get some material.”

(Transcript, Day 2, p. 62, line 28)

45. After a short adjournment, counsel for the DPP introduced into evidence the previous convictions of the second named appellant, Jeffrey Dumbrell. The second named appellant did not accept one of the convictions that was put to him. The trial adjourned.

46. On the next day, Day 9, 17th February, 2011, Mr. Burns, counsel for the DPP, referred to the evidence of the previous day of the second named appellant, saying that in the course of evidence he alleged that Christopher Cawley had, he thought, 104 or 106 convictions for knife offences.

47. Counsel for the DPP referred to the fact that the second named appellant had not accepted one of his convictions referred to and said he wanted to prove that conviction:-

“Mr. Burns: He didn’t accept and I want to prove that conviction, if it’s not accepted. And I also want to prove Christy Cawley’s convictions in respect of knife crimes Christy Cawley did have, and it’s not 104 or 106 convictions for knife crimes and stuff.

Judge: Yes, better leave it - it’s a matter for you, but are you not better leaving that?

Mr. Burns: Well, it’s hanging there: I wonder could I have a few minutes judge.”

(Transcript, Day 9, p. 1, line 29)

48. The trial was adjourned for a short period and when it resumed counsel for the DPP indicted that Jeffrey Dumbrell now accepted that he had the previous conviction referred to. Counsel for the DPP did not then introduce or prove the previous convictions of the deceased. The prosecution did not call any more evidence.

49. Mr. O’Higgins S.C., for the first named appellant, stated:-

“We are, Judge, but there's just - Mr. Burns very kindly informed me in advance what his intended course of action was, and I have to say I do have some concerns about it. First of all, I readily concede that the prosecution has a huge discretion as to what evidence it elects to call and not call subject of course to calling the - what evidence is on the book of evidence, but that this evidence does not fall into that category, it never was on the book. So the prosecutor does have a wide discretion. But the state of the evidence at the moment is that Mr. Jeffrey Dumbrell asserted in evidence that Mr. Cawley had 106 previous convictions: now I don't have a verbatim note or anything like it of his evidence, but my - ”

50. There was some further discussion and Mr. O’Higgins continued:-

“But I will certainly readily concede that the jury was left with the impression that the witness's testimony was 106 convictions and included in it are convictions for knives and robberies and other offences. Now, in my respectful submission, that is a little bit unsatisfactory because they only have Mr. Dumbrell 's word for that and I don't know how credible they're likely to assess him as a witness and in the premises it's unsatisfactory and ought to be cleared up. The other concern, Judge, I have is this, and I suppose I better just highlight where I'm coming from on it. As you know during the prosecution case, your lordship gave a ruling which excluded the possibility of adducing the convictions unless one was prepared to drop ones shield to achieve that result. Now, in the event that there's a conviction and that's argued on appeal, I apprehend that an appeal court might say, well, you know your, complaint such as it was cured by virtue of the fact via another route, the jury did get to hear of the 106 previous convictions, so even if you had a complaint, the complaint was addressed substantially. Now, in my respectful submission, that isn't so, because in fact it wasn't just simply the fact of the convictions.

Judge: Yes, but I have made a ruling which may be wrong, but it's right at the moment.

Mr. O' Higgins: It is and I want to emphasise I'm not even implicitly suggesting anything to the contrary: I'm working purely on the basis of the ruling was right, but I want to head off any suggestion further because, my lord, you know the way it works in the Court of Criminal Appeal now, if counsel don't say something during the trial there's a very heavy inference you didn't say it because it wasn't important and now you're here trying to make it more important than it was.

Judge: Indeed.

Mr. O' Higgins: So I suppose to some extent I'm placing it on the record now, that it doesn't meet my requirements because for instance when Janette Cawley was cross examined and said it was extremely - that she thought it was ridiculous the notion Christy Cawley or whatever would ever have a knife, we couldn't put the previous convictions and it didn't address the problem, but maybe I'm, in emphasising that now, I’m thinking of somewhere else rather than what’s before us at the moment, but I just simply to record on the record that if Mr. Burns is exercising his discretion not to call this evidence, that I do have concerns and it doesn’t address, I submit, the essence of the complaint we made earlier in the case

Judge: I fully understand what you are saying.

Mr. O’Higgins: Thank you, judge.

Mr. Burns: I have nothing to say, judge. Those are arguments perhaps for another place.”

(Transcript, Day 9, pp. 3 - 4)

Charge
51. In his charge to the jury the learned trial judge stated:-

(Transcript, Day 10, p. 50, line 33)

No Request for Requisition
52. Following the learned trial judge's charge, and as a prelude to a possible requisition, counsel for the first named appellant sought, in the course of a lengthy and somewhat robust exchange with the Court, to query the accuracy of the learned trial judge's summary of the evidence given by the second named appellant concerning the deceased's character. Having had portions of the transcript of the evidence read out to him by the learned trial judge, counsel ultimately decided not press the matter. The exchange concluded as follows:

“JUDGE: Sorry, am I asked ...Is there --?

MR O'HIGGINS: No, I'm not making any requisition.”

In fact, it bears recording that no requisitions were raised by counsel for either appellant as to any aspect of the judge's charge with respect to character evidence, neither that in respect of the evidence given by the second named appellant concerning the deceased's character, nor that in respect of the evidence concerning the second named appellant’s own character.

Decision on Proclivity of Violence Issue
53. The fact that the second named appellant was going to give evidence as to his view of the convictions of the deceased was clearly not known in advance by either counsel. It is the type of unplanned event which can occur once a trial has commenced.

54. As counsel for the first named appellant pointed out, initially the jury may have been left with the impression that the second named appellant’s testimony was that the deceased had 106 convictions which included convictions for possession of knives, robberies and other offences. Counsel queried whether the jury would find the second named appellant credible, and submitted that the situation was unsatisfactory.

55. Counsel referred to the ruling of the trial court excluding evidence of convictions of the deceased unless the appellant was prepared to drop his shield. While not arguing that the trial court’s ruling was wrong, counsel for the first named appellant stated that it was not just simply the fact of the convictions, but that the situation did not meet his requirements as he had not been able to put to prosecution witnesses, in cross-examination, the deceased’s previous convictions.

56. The situation was thus left with the evidence of the second named appellant as to the deceased’s convictions, the convictions of the second named appellant, the charge to the jury, and no request for a requisition.

57. The first named appellant had the benefit of the evidence, such as it was, as to the previous convictions of the deceased, while not dropping his shield. Although the fact that evidence was given of the second named appellant’s previous convictions, his co-accused, is a factor in the trial.

58. In this case the evidence of the convictions of the deceased was given late in the trial, in what appeared to be as a result of a decision alone of the second named appellant. In all the circumstances it was within the discretion of the trial judge to permit evidence of the previous convictions of the second named appellant at that time.

59. While this meant that the first named appellant’s counsel did not have the opportunity to put the previous convictions of the deceased to the prosecution witnesses, he did have the benefit of the evidence of the previous convictions of the deceased.

60. While the evidence given by the second named appellant suggested a wider range of relevant offences, and the trial judge charged as he did on the matter as set out above, the situation did not give rise to an unfair trial for the first named appellant.

61. There had been no prohibition by the learned trial judge on the appellants’ calling evidence of the previous convictions of the deceased. It was pointed out to them that if they did so there would be consequences i.e. adducing evidence of their convictions.

62. Consequently, it is clear that it was a tactical decision on the part of the first named appellant as to his approach to this issue.

63. Section 33 of the Criminal Procedure Act, 2010, has to be applied fairly by the trial court. However, it does permit the previous convictions and character of an accused person to be put in issue when he/she attacks the character of a victim, such as the deceased person in this case. Section 33 is a section relating to a situation where there is an attack by the defence on the character of a victim. It is to correct a potential imbalance in the trial process where an accused may attack the credibility of a victim through information on previous convictions.

64. The first named appellant’s previous convictions were not put before the jury. It may be considered that the first named appellant got the best of the situation as there was disclosure of the previous convictions of the deceased, with no consequential information provided of the first named appellant’s convictions.

65. While there was a query as to the credibility of the second named appellant’s evidence on the convictions of the deceased, he was not cross-examined on the issue.

66. In all the circumstances, on this aspect of the appeal, while the situation may have been unfair to the deceased, it did not create an unfair trial for either of the appellants. The situation arose from an initial tactical decision of the defence. The absence of the learned trial judge addressing the matter further, such as clarifying that the relevance of the previous convictions of the second named appellant was as to his credibility, did not create an unfair trial in all the circumstances.

67. The assertion that the deceased had 106 previous convictions for carrying knives and firearms was not a factor per se to the detriment of the first named appellant. Indeed, there was a possible benefit to the first named appellant as he did not have to drop his shield for this information to go before the court.

68. The prejudice alleged is that counsel did not have the facility to cross-examine prosecution witnesses on such information. However, this must be considered in light also of the tactical decisions made on behalf of the first named appellant not to drop his shield so as to put the evidence relating to the deceased before the jury, and the decision taken not to seek a requisition on the charge given in relation to the evidence given of the deceased’s convictions. The evidence was, as the learned trial judge stated, that it was a bare faced lie by the second named appellant, as the deceased had had two convictions for knife offences.

69. The first named appellant did not have the opportunity to cross-examine on the deceased’s previous convictions as a consequence primarily of a decision that he made that he did not wish to drop his own shield. It is a factor for consideration as to whether it would be unfair to allow a situation whereby an accused, who has elected not to adduce evidence as to a deceased’s victim’s previous convictions by reason of an unwillingness to have his own previous convictions put in evidence, could subsequently benefit from a co-accused dropping his shield, and then proceed to cross-examine witnesses in relation to a deceased’s previous convictions to demonstrate a proclivity for violence. However, in the circumstances of this case, that did not arise and is therefore not a matter for decision. On the facts as they developed at the trial, there was no unfair trial of the first named appellant in relation to this issue. Consequently, the Court would dismiss this ground of appeal.

70. There is a related matter, as to the issue of the credibility of the second named appellant, which is addressed further on in this judgment.

Second and third ground of appeal of first named appellant: joint enterprise
71. The second and third ground of appeal of the first named appellant were as follows:-

“That the learned trial judge erred in law or in a mixed question of law and fact in failing to recharge the jury adequately on the issue of joint enterprise having been requisitioned on the issue on behalf of the applicant.”

“That the learned trial judge erred in law or in a mixed question of law and fact in failing to recharge the jury adequately on the issue of joint enterprise having been asked by the jury to explain the principle of joint enterprise/common design.”

Second ground of appeal of the second named appellant: joint enterprise
72. The above grounds are similar to the second ground of appeal of the second named appellant, who submitted that the learned trial judge erred in law and in fact in directing the jury in relation to the legal concept of common design and joint enterprise.

73. The Court was referred to several sections of the transcript of the trial.

Charge
74. In his charge to the jury the learned trial judge stated:-

“You are asked about common design. For there to be a common design you must be satisfied beyond a reasonable doubt that there was a common design for them and that it was carried out for them to go in and kill or cause serious injury to Mr Cawley. If that was a common -- if -- it is a matter of fact as to whether you consider beyond a reasonable doubt that that is what happened want. Sorry, I beg your pardon, the other way around. If you have any doubt about it, the benefit of that doubt must of course be given to the accused and there wasn't a common design. Mr O'Higgins argued against the common design on the basis that it was a whole change of situation that Mr Cawley had the knife and that there was no intention - - there was no common intention in the beginning, and that is a matter for you, as I said, ladies and gentlemen, on the basis of the guidelines I have given you.

Turning separately to Mr Jeffrey Dumbrell, and just to give some guidance in law as to what you can find, I have told you what murder is, and I'll come back to it very briefly. If he is attacking him with the intention of killing him or seriously injuring him, it is murder, if you are satisfied beyond doubt that he intended -- that he intended that. His story, and you may indeed accept or it or may have doubt, you may have doubt about Mr Jeffrey Dumbrell's account, but if you have a doubt about his account, a reasonable doubt, you must give him the benefit of that doubt. So taking it at his case, the deceased produces a knife but then runs away, and they run after him, and then the deceased goes at him with the knife, I'm just --,I'm paraphrasing everything -- goes at him with the knife, he is disarmed by being hit on the hand, the knife going a number of feet away, then he, Jeffrey Dumbrell, is in possession of the knife, and if you accept all of that, and if you accept his description of the deceased holding the blade of the knife and struggle with the blade of the knife, to take it off him, he then says that he was just trying to get the deceased off him. It's a matter for you. The evidence is that he was stabbed no less than six times and not all in the leg either, three times in the back.

` I have to say, and again facts are for you, on the evidence, whilst it may or may not be evidence in relation to a knife and Warren Dumbrell, there is no evidence that Warren Dumbrell was wielding a knife at the time of the attack. There is no basis for finding that on the evidence. That doesn't mean of course, if you go with the common design, he is responsible in common, but there is no evidence that he was wielding a knife at that time.”

(Transcript, 18th February 2011, Day 10, pp. 51 - 52).

Requisition
75. After the jury retired there was a request for a requisition in relation to the issue of joint enterprise. Counsel for the DPP sought the requisition in relation to joint enterprise. Mr. Burns for the DPP recited:-

“MR BURNS: ‘Where two persons embark on a joint enterprise each is liable criminally for acts opportunity in pursuit of the joint enterprise, including usual consequences arising from the execution of the joint enterprise. If one of them goes beyond what has been tacitly agreed as part of the joint enterprise, the other is not liable for the consequences of the unauthorised act.’ Now, I think it is also important to emphasise to the jury that that there doesn't have to be an express agreement.

JUDGE: Yes.

MR BURNS: The agreement, and that's down at 705 there, Judge: ‘The agreement forming the basis of the joint enterprise may be expressed or tacit and its existence may be inferred from the evidence.’ So, you can infer from the evidence - -

JUDGE: Yes.

MR BURNS: -- the necessary common intent, so to speak, or necessary tacit agreement. I think the mere presence of a person at the scene doesn't mean that he is agreeing in itself, I think. Yes, and I'm just going through, going through that, Judge. Judge, I think that's the definition of it and I'm sure my friends might have some other views on that. They may have something to add to it.”

(Transcript, 18 February, 2011, Day 10, p. 55).

76. In discussing the proposed requisition Mr. O’Higgins S.C., counsel for the first named appellant, stated:-

“Next then, on the basis of common design, as I say, I've no objection to the passage highlighted by Mr Burns, but, in my respectful submission, the jury should be told that the prosecution case is that the two men came up to Tommy to meet Christopher Cawley and were armed with whatever the knife and the hurley and that they intended to use that knife and hurley, working as a unit to kill or cause serious injury to Mr Cawley.

JUDGE: Yes, but there doesn't have to be a knife and hurley - -

MR O'HIGGINS: Well, that's the case that it was.

JUDGE: Well, if it's just a hurley it can be a common design.

MR O'HIGGINS: Well, if he had died -

JUDGE: They might as well have a doubt about the knife.

MR O'HIGGINS: Well, there can be no doubt, in my respectful submission, that he was stabbed six times and there can be no doubt that the prosecution case is that the only person who was - -

JUDGE: The two went in to give him a hiding with a hurley at least.

MR O'HIGGINS: And he died.

JUDGE: He died as a result of the hiding.

MR O'HIGGINS: Yes.

JUDGE: Yes. Is that not common design?

MR O'HIGGINS: That?

JUDGE: Is that not common design?

MR O'HIGGINS: That's not what happened though. And in fact, Professor Cassidy was at pains to stress that the hurley injuries were totally non fatal, and in fact they wouldn't -- they would have -- they would have only got and wouldn't of comfortably even got assault occasioning actual bodily harm, so there's a divergence; the prosecution say the men came with the knife and a hurley and they chased him down and killed him and they say that's the common design.

JUDGE: Yes.

MR O'HIGGINS: The defence case is that Christopher Cawley produced a knife at the waste ground, they chased around, the knife was produced, it was knocked out of his hand, Jeffrey Dumbrell got the knife and that there was a struggle and in the course of that struggle he was stabbed six times or he was stabbed and died. Now, if the jury think that that account is a reasonably possible and the jury -- and the prosecution evidence doesn't exclude it as a possibility beyond a reasonable doubt, in that scenario, in my respectful submission, you would have to direct the jury that whatever was agreed in Emmett Road before they came up is put to one side, because something new and spontaneous has occurred and you have to decide that both men were acting in concert, as opposed to just dealing with a sudden situation which was unforeseen.

JUDGE: Yes, so it boils down to if they've a doubt in your favour, I mean, if they have any doubts as to whether or not Mr Cawley had a knife at the beginning, you get benefit of that doubt and common design's out the door, yes, I'll hear you, yes?

(Transcript, 18 February, 2011, Day 10, pp. 66 - 68).

Further Charge
77. After the discussions on the request for requisitions, the learned trial judge charged the jury as follows:-

“Now, as I indicated on Friday, counsel on all sides as it transpired raised various matters and there's a couple of things I have to mention, I feel I've to mention as a result of that. It won't take long; but if you don't mind I'll go through them. You've heard all about joint enterprise during the trial and what it is but you didn't get a legal definition from me, from me, it was pointed out. And that is as follows, ladies and gentlemen, it makes common sense in my view. Where two persons embark on a joint enterprise, each is liable criminally for acts done in pursuit of the joint enterprise, including unusual consequences arising from the execution of the joint exercise, but if one of them goes beyond what has been tacitly agreed as part of that enterprise, the other is not liable for the consequences of the unauthorised act. I hope that makes sense. It seems clear enough, ladies and gentlemen, and just to make it clear, the agreement forming the basis of a joint enterprise may be expressed or tacit and its existence may be inferred from the evidence. No degree of formality is necessary in establishing the agreement and you may, as I say, infer it from the evidence.

The case for a joint enterprise was opened by the prosecution on the basis that one that the two accused arrived at the scene, one armed with a hurley stick and the other armed with a knife, and on meeting the deceased, they chased him into the flat complex with the intention of inflicting serious injury on him. That is broadly speaking how it was opened. If you're satisfied beyond reasonable doubt that that is what happened, then you are entitled to infer that there was a tacit agreement between the accused and that there was a joint enterprise. This is entirely, ladies and gentlemen, a matter for you. On the other hand, if you've a doubt by reason, for example, and I'm only giving a example, there may be lots of other reasons that you can think of, but if you have a doubt by reason, for example, that you're not satisfied with the reliability of witnesses or have a doubt as to their [re]liability, then the facts are established -- as established would be that the two accused ran into the flat complex chasing the victim, one with a hurling stick. Those facts would not be sufficient to establish a joint enterprise to cause serious injury to the deceased. Later conduct in the course of the very short and violent encounter could not have amounted to a tacit agreement for a joint enterprise to do serious harm to the deceased.

(Transcript, 21 February, 2011, Day 11, pp. 3 - 4).

Question of Foreman
78. The foreman asked a question later, to which the learned trial judge replied as follows:-

“FOREMAN: Sorry, just a quick question, just a few members of the jury were asking me could you maybe explain the definition of joint enterprise and common design?

JUDGE: Yes.

FOREMAN: Please.

JUDGE: Does anyone want to address me in the absence of the jury first?

MR O'HIGGINS: I'm in the Court's hands, I think your lordship, the last thing you did almost was give the jury the definition -

JUDGE: Yes.

MR O'HIGGINS: -- of it and I think you gave it some application to the facts then.

JUDGE: Yes, okay if you'll just bear with me for a moment I'll do it to save you going in and out, I have a note that I made for you the other day. And I'm reading a legal definition, but this is joint enterprise, which is the same as common design. "Where two persons embark on a joint enterprise, each is liable criminally for acts done in pursuance of the joint enterprise, including unusual consequences arising from the execution of the joint enterprise. But if one of them goes beyond what has been tacitly agreed as part of the joint enterprise, the other is not liable for the consequences of the unauthorised act." And I added that the agreement forming the basis of the joint enterprise may be express or may be tacit, and its existence may be inferred from the evidence. I said that no degree of formality is necessary in establishing the agreement; you may infer it from the evidence. And then I connected it to this case, in the sense that I said that the case for a joint enterprise as opened by the prosecution was one of the two -- was one of the two accused arriving -- sorry, was a case of the two accused arriving on the scene, one armed with a hurly or a stick, the other armed with a knife, and on meeting the victim, they chased after him into the flat complex with the intention of inflicting serious injury on him. If you're satisfied beyond reasonable doubt that that is what happened, then you're entitled, but it's a matter for you. You're entitled to infer that there was a tacit agreement between the accused and that there was a joint enterprise. On the other hand, if you have a doubt by reason for example, and I'm only giving an example and trespassing into -- you're the judges of fact, but if you've a doubt by reason, for example, that you're not satisfied with the reliability of witnesses, or have a doubt as to their reliability, then the facts as established would be that the two accused ran into the flat complex, chasing the victim, one of them with a hurly stick. Those facts - and I've expressed this view to you, ladies and gentlemen - those facts would not be sufficient to establish a joint enterprise to cause serious injury to the deceased. Later conduct in the course of the very short and violent encounter that took place could not have amounted to a tacit agreement for a joint enterprise to do serious harm to the deceased. I think the more you explain a lot of things, the more complicated they get, but I hope that that does explain it, but do, don't hesitate to come back with any riders.

FOREMAN: Thank you very much.”

Law on Joint enterprise
79. The classic definition of the doctrine of joint enterprise was provided in R. v. Anderson and Morris [1966] 2 Q.B. 110, in which case the English Court of Appeal at p.118 explained joint enterprise as follows:-

“…where two persons embark on a joint enterprise each is liable for the acts done in pursuance of that joint enterprise and that includes liability for unusual consequences if they arise from the execution of the joint enterprise but (and this is the crux of the matter) that, if one of the adventurers goes beyond what has been tacitly agreed as part of the common enterprise his co-adventurer is not liable for the consequences of that unauthorised act.”

80. This principle was endorsed in this jurisdiction by the Court of Criminal Appeal in The People (D.P.P.) v. Cumberton (Unreported, 5th December, 1994, Blayney J.). The Court of Criminal Appeal held that “[t]he test is what was tacitly agreed between the parties and whether what happened was within the common design.” The Court considered whether the application of the joint enterprise principle required that a direction be given to the jury. It held that the determination of whether or not the use of a firearm was within the contemplation of the common design was a question of fact for the jury, and equally it was for the jury to decide in the light of the evidence before them, what was the common design.

81. This was followed by the Court of Criminal Appeal in the subsequent decision of The People (D.P.P.) v. Doohan [2002] 4 I.R. 463. In this case, it was submitted by the applicant that there was insufficient evidence to convict him for murder on the grounds that there was a lack of evidence that the applicant contemplated the use of a gun by his co-accused to accomplish the agreed objective of causing serious injury to the deceased. The Special Criminal Court in Doohan drew a “fundamental distinction” between it and cases such as Cumberton where:-

“the agreement was simply to assault the injured party and cases such as the present one where there was an intention and agreement to inflict the appalling injuries which the [applicant] has described. In [Cumberton], all that was contemplated was that the injuries which the party would suffer would be no doubt disabling but transient injuries. In the present case, the court is satisfied that it was always in the contemplation of the parties to this assault that the injured party would suffer horrific bodily injuries of a serious nature….In the present case, the court is satisfied beyond all reasonable doubt that the nature of the injuries contemplated remained constant irrespective of whether they were inflicted by a sledge hammer, a crow bar, a pick axe, or a gun…The court is satisfied that the [applicant] fully intended and indeed and contemplated, that serious injuries would be caused to [the deceased] and he is accordingly guilty of murder.”

82. This decision was upheld on appeal to the Court of Criminal Appeal, where it was held at p. 478 of the Report that:-

“It was for the trial court in this instance (there being no jury) to determine what was the common design and then decide whether what the co-accused did fell within in. There was ample evidence that the common design was to cause serious injury to [the deceased]. The method of causing serious injury was left to the discretion of the co-accused. The court is satisfied that there was ample evidence upon which to determine that the participants in the common design intended to cause serious injury to [the deceased] and this is sufficient

mens rea

for murder.”

The Court was satisfied that there was sufficient evidence upon which the trial court could find that the applicant requested and intended serious injury be done to the deceased by his co-accused. It was held:-

“It is clear that there was an agreed objective- serious injury to [the deceased].In all the circumstances, while on the evidence the discharge of the gun was not expressly agreed it was open to a jury properly directed to find that its use was not beyond what had been tacitly agreed. Consequently the actions of the co-accused were not as such as to go beyond what had been agreed and so the applicant is liable for the consequences.”

Further, the Court held that in a crime which involves a joint enterprise it is sufficient mens rea of murder if the participants intend to cause serious injury.

83. The Court followed the earlier decision of The People (D.P.P.) v. Murray [1977] I.R. 360 in which case Henchy J. stated at p. 179:-

“… It accords with the

mens rea

or malice required for the act of non-capital murder, i.e., an

intention

to cause death or serious injury. If the less serious intention of causing serious injury is proved, it is no defence to a charge of murder for the accused to say that he had no

knowledge

that death would occur.” (emphasis in original)

84. In Doohan, the Court of Criminal Appeal was satisfied that there was evidence upon which a trial court could determine that the applicant intended to cause serious injury to the deceased and was in a joint enterprise to cause such serious injury. Consequently, the Court found there to be the necessary intent for murder.

85. In Criminal Liability A Grammar by Finbarr McAuley and Paul McCutcheon (Roundhall Sweet & Maxwell, 2000) joint enterprise is defined at p. 481 as:-

“The doctrine of common design or joint enterprise, the expressions being used interchangeably, applies to cases where two or more act together in furtherance of a common criminal purpose.”

86. Thus, it is important for a trial judge to explain the concept of joint enterprise to the jury. Further, it is helpful to a jury if a trial judge gives an example.

87. The matter of explaining the concept of joint enterprise was set out very helpfully in The Judge’s Charge in Criminal Trials by Genevieve Coonan and Brian Foley, (Roundhall, 2008) at para 7.15 where it was stated:-

“The trial judge may find it helpful to explain the concept of agreement

by reference to an example that the jury will easily understand. For example, in People (DPP) v Roche, the Court of Criminal Appeal noted that in explaining the application of the doctrine of joint enterprise to the offence of murder, the trial judge gave the ‘vivid example of a ‘wheelsman’ waiting outside a bank and knowing that arms were being used in a robbery ...’. In rejecting the appellant's argument that the trial judge failed ‘to ensure that his explanation of the issue of common design or joint enterprise was not merely stereotyped’, the court said that this example ‘brought the idea to the attention of the jury in a concrete way’. Similarly, in people (DPP) v Hourigan and O’Donovan the trial judge explained joint enterprise to the jury using the following examples:

‘[I]f a number of people set out to rob a bank then every member of the gang is responsible for everything that happens in the course of the robbery if it is within the scope of the enterprise. So you might have a member of the gang who is miles away listening in to police calls on a scanner. You might have somebody outside the bank keeping nix. Now they are equally responsible for everything that goes on inside as the men robbing the bank, but for responsibility to attach, what is done must be within the scope of the common design, the enterprise or the plan. Now if a number of people enter a house for the purpose of committing burglary and one of the gang opens the door in the house and he finds a defenceless woman in there, and he decides he will have a spot of opportunistic rape, well then he has gone beyond the scope of the enterprise of the plan and he alone will be guilty of the crime of rape. But the entire gang will be responsible for everything that happens so far as the burglary is concerned.’”

88. The concept of joint enterprise was also set out helpfully by White J. in the Circuit Criminal Court in The People (D.P.P.) v. Frame & Ors, as follows:-

“11 .COMMON DESIGN/JOINT ENTERPRISE

The first legal principle, which is essential for you to understand, is the law on Common Design or Joint Enterprise.

Where two or more persons embark on a joint enterprise, each is liable criminally for acts done in pursuant of the joint enterprise, including unusual consequences arising from the execution of the joint enterprise, but if one of them goes beyond what is being tacitly agreed as part of the joint enterprise, the other is not liable for the consequences of the unauthorised act.

It is for you members of the jury, to decide in the light of the evidence, if there was a common design, and if so what was the common design, and then to decide whether the three accused charged with manslaughter fell within it. When persons are jointly charged, and when common design is alleged, the duty falls on the jury, to consider the evidence against each individual, and not against the group, and having considered that evidence, decide beyond a reasonable doubt, whether that individual, was part of a common design. In respect of persons jointly charged, it is entirely open to you, to find that any of the accused acted individually, and were not part of a common design, and if you so decide, you assess the evidence against that particular person individually, without reference to the activities alleged against the group. It is therefore open to a jury, where common design is alleged,

(a) to decide that all the individuals accused were part of a

common design and are equally guilty.

(b) That not all of the accused were part of a common design,

but that one or two of them were part of that common

design, either with the other accused, or with other

persons not before the Court.

individuals accused, or any one of them was acting

independently, and not part of a common design and in

those circumstances the evidence against that Person must only go as far, as specific allegations in the evidence, which are found by the jury beyond a reasonable doubt, to have been his responsibility.

(d) It is also open to you members of the jury to decide that an individual, is not responsible for the acts of others as part of a common design, because those acts have gone beyond what has been tacitly agreed as part of the joint enterprise.

It is important that I try to illustrate this principle -with reference to a fictitious example separate from this trial, to ensure that the principle is understood by you.

For example if in any area of the City of Dublin, there were two groups of young men, who had a history of personal animosity to each other, and if on some evening, three of that group saw one of the other group, in the vicinity of the local shopping centre. The group decide to follow that youth for some 100 meters, and then surround him, and confront him verbally, about some alleged act of aggression by him, against their group on a previous occasion. If the surrounding group, move closely around him, preventing his escape, and then one of their number, assaults the person surrounded, then it is open to a jury to convict all three, even though the other two, did not inflict actual violence on the person surrounded. If one of the group, without the knowledge of the other two, had a sharp knife in his possession, and suddenly withdrew the knife, and stabbed the surrounded person, in any subsequent charge probably of murder, the other two accused, would be able to argue that the person who used the knife, went beyond the tacit agreement of the group, and went outside the common design.”

Decision on the joint enterprise issue
89. When an issue of joint enterprise arises in a case as a counsel of perfection a trial judge should:-

(i) explain the concept of joint enterprise;

(ii) give some examples such as those set out above; and

(iii) apply the concept to the facts of the case.

90. In this case the law was explained in its essentials in the charge and recharge. It was not a complex case. Indeed, the charge might not have benefited from further elaboration. If there were to be any criticism that the academic principles were not explained by the giving of any examples, that has no implication for the fairness of this trial, or the safety of the convictions. In all the circumstances of the case, the Court would dismiss this aspect of the appeal of the appellants.

Third ground of appeal of the second named appellant
91. The third ground of appeal of the second named appellant was as follows:-

“The learned trial judge erred in law and in fact in failing to provide any directions to the jury in relation to the offering of evidence of the (second named) appellant’s previous convictions.”

92. The prior convictions of the second named appellant were introduced into the case by counsel for the DPP. (See Transcript, 16th February 2011, Day 8, pp. 64 - 66). As already explained, this happened because the second named appellant dropped his shield by referring to the criminal convictions of the deceased. In the circumstances counsel for the second named appellant could not, and did not, object to the admission of this evidence.

93. Counsel did not request the learned trial judge to give any particular direction to the jury in respect of this evidence.

94. In his charge to the jury the learned trial judge stated:-

“At that stage Mr. Dumbrell referred to an allegation that the deceased man had a large number of previous convictions. There is no evidence of that, but he said he had previous convictions, and you can take it or leave it, ladies and gentlemen. He also - it didn’t amount to much. He also said very unkind thinks about the deceased brother. Whether they were true or false, I believe, is of no significance. Following that evidence, his own convictions were put to him.”

(Transcript, Day 10, p. 50, line 33)

95. There was no requisition on this point. However, the submission now made is that the learned trial judge erred in not explaining to the jury the purpose for which the evidence of previous convictions was admitted, and, in particular, in not explaining that it should not be relied upon as evidence of the propensity of the accused to commit crimes of this nature.

96. The criteria to admit a point not taken at the trial was described by Kearns J. in The People (D.P.P.) v. Cronin (No. 2) [2006] 4 IR 329, at p. 346, where he 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 at trial to be argued on appeal. There must in addition be some sort of explanation tendered to explain why the particular point was not taken.”

As already noted, counsel for the first named appellant debated with the trial judge at some length concerning the judge's charge on an aspect of the character evidence adduced in the case, i.e., the accuracy of his summary of the evidence given by the second named appellant concerning the deceased's character. (See paragraph 52 above). That such a debate occurred is indicative of an appreciation in counsel's mind that the jury could regard character evidence as being important in their deliberations. Despite this, the Court has been given no cogent explanation explaining why the point now raised under the present ground of appeal was not taken, and why no requisition was raised by either appellant in relation to the trial judge's charge concerning the evidence adduced in respect of the second named appellant’s character.

97. An aspect of this ground of appeal overlaps grounds raised earlier as to the proclivity of violence issue.

98. When the second named appellant gave evidence of the convictions of the deceased, he dropped his shield. Evidence was then given of his, (the second named appellant’s), previous convictions. The learned trial judge did not give an explanation as to why the evidence of the convictions of the second named appellant was permitted, or in relation to the purpose for which it was admitted.

99. Where counsel gives an explanation to the Court as to why something has been omitted at first instance, the Court will be more likely to permit the argument to be made. But where no cogent explanation is given, and it is not clear that what happened was an error or an oversight, as opposed to a decision by the appellants’ counsel, the Court is less ready to decide that an error or an oversight has occurred. In all the circumstances of the case, the Court is not inclined to determine that there was an error or an oversight, in the circumstances where there has been no cogent explanation as to why the point was not taken. Thus, there is no basis to allow the point to be taken on appeal.

100. In this case, it seems entirely possible that counsel might responsibly decide that the learned trial judge had laid no emphasis one way or the other on the second named appellant’s convictions and, in effect, that the less said about the matter, the better.

The Court’s View
101. The Court does consider that in principle juries should be given an explanation as to why such evidence is given to them, and the use to which it may be put. However, it is not appropriate to lay down authoritative guidelines in a case of this sort where the issue was not, possibly for good reason, addressed at first instance.

102. The Court is not inclined to determine that there was an error or an oversight, in the circumstances where there has been no cogent explanation as to why the point was not taken. Thus, there is no basis to allow the point to be taken on appeal.

Fourth ground of appeal of the first named appellant’s appeal
103. The fourth ground of appeal of the first named appellant was as follows:-

“The learned trial judge erred in law or in a mixed question of law and fact in failing to recharge the jury on the general creditworthiness of certain prosecution witnesses in light of previous inconsistent statements made by such.”

104. In this case the learned trial judge charged the jury and summarised the evidence of the key witnesses. He highlighted the core of their evidence, including that under cross-examination.

105. He was requisitioned and he recharged the jury.

106. The learned trial judge has a broad discretion as to how he sums up a case to the jury.

107. It appears that the first named appellant was specifically referring to inconsistencies in the evidence of Janette Cawley McKenna and Mairead Cawley in raising this ground.

108. However, the Court is satisfied that the learned trial judge gave a fair summary of the evidence of both witnesses. Further, on being requisitioned, he re-addressed his summary of their evidence in a fair manner.

109. It is important that in such situations a judge does not stray into the areas to be determined by the jury, the finding of fact, which the learned trial judge did not do in this trial.

110. In all the circumstances, the Court would dismiss this ground of appeal also.

Conclusion
111. The Court has considered carefully all the issues raised by counsel for the appellants both in oral submissions and in written submissions. For the reasons given, the Court would dismiss the appeals of both the first and second named appellant.

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