Irish Court of Criminal Appeal
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Cite as: [2014] IECCA 29
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Judgment Title: Director of Public Prosecutions -v- Dunne Neutral Citation: [2014] IECCA 29 Court of Criminal Appeal Record Number: 39/12 Date of Delivery: 31/07/2014 Court: Court of Criminal Appeal Composition of Court: O'Donnell J., Moriarty J., Herbert J. Judgment by: O'Donnell J. Status of Judgment: Approved
Notes on Memo: Dismiss appeal against conviction | ||||||||||||
COURT OF CRIMINAL APPEAL 39/12 O’Donnell J. Moriarty J. Herbert J.
The People at the Suit of the
Director of Public Prosecutions V Jonathan Dunne Appellant Judgment of the Court delivered on the 31st of July 2014 by O’Donnell J. Facts 2. After setting fire to the car, the appellant and the third man in the car at the time of the shooting began to walk but were picked up by the gardaí. Initially, the appellant claimed that a Nissan car had pulled up beside the Volkswagen Golf, that a man had jumped from this car and had shot the deceased through the open driver’s door while he, Mr Dunne, was standing beside the Volkswagen having stepped out to the boot of the car. He also claimed that he had been forced, by individuals he refused to name, to bring the deceased to this location so that this attack could be carried out. He claimed that he had been forced to do this because he owed a favour to these unnamed individuals and that his life and the lives of his family had been threatened if he failed to carry out this act. However, following several interviews with the gardaí, Mr Dunne admitted that he had carried out the shooting of Mr Kenny from the driver’s seat of the car but he maintained the claim that he had been forced to carry it out by threats from unnamed individuals to whom he owed a favour. Leaving to one side the question of the threats asserted by Mr Dunne, there is little doubt that on these facts, if Mr Kenny had died at the scene or shortly thereafter, Mr Dunne would have been guilty of murder. The central question in this case arises because the unfortunate victim of this shooting did not die at the scene or shortly thereafter, but almost two years later. 3. Following the shooting, Mr Kenny was brought to St Vincent’s Hospital and shortly thereafter, he was transferred to Beaumont Hospital. Professor Desmond Winter, Consultant General and Gastrointestinal Surgeon, who was involved in the care of Mr Kenny upon his arrival at St Vincent’s Hospital stated in evidence at trial that “We did not expect him [Mr Kenny] to survive” (day 3, p. 2). Mr Kenny was in a comatic state and he remained in a permanent vegetative state for two years during which he was transferred to St Doolagh’s nursing home in Malahide. In Airedale N.H.S. Trust v. Bland [1993] AC 789 (p. 806) Sir Thomas Bingham M.R. gave a description of “permanent vegetative state” which was later adopted by the Irish Supreme Court in In the matter of A Ward of Court (withholding medical treatment) (No.2) [1996] 2 I.R. 79 (“A Ward of Court”) (p. 85):
4. The appellant was charged soon after the incident with the attempted murder of Ian Kenny and with the unlawful possession of a firearm. He entered a plea of guilty to the charge of attempted murder and was convicted of both offences. On the 28th May 2008 the Central Criminal Court imposed a sentence of 12 years imprisonment for the attempted murder charge and a sentence of 10 years imprisonment for the charge of possession of a firearm with intent to endanger life. However, following the death of Mr Kenny on the 31st July 2009, the appellant was charged with the offence of murder. On the 19th January 2012, following his trial for murder, the appellant was convicted of the murder of Ian Kenny by unanimous jury verdict. He now appeals from that murder conviction. No issue arises in this appeal as to the status or effect of the conviction for attempted murder. 5. The appellant made a number of admissions pursuant to section 22 of the Criminal Justice Act 1984 at his trial for murder. These admissions included, inter alia, that:
2. The appellant was subsequently charged with the attempted murder of Ian Kenny and with possession of a firearm with intent to endanger life. He entered pleas of guilty on both counts before Mr Justice Carney in the Central Criminal Court on the 7th April 2008. 3. On the 28th May 2008 a sentence of 12 years imprisonment was imposed on the appellant on the attempted murder charge and a sentence of ten years imprisonment on the charge of possession of a firearm with intent to endanger life. Both sentences were backdated to the 7th July 2007. 4. The sole issue for the jury to determine was one of causation subject to one matter the court had to rule on namely, whether the defence of duress was open to the appellant in this particular case. 6. A large amount of evidence was given at trial in this case from the members of the medical profession who were involved in the care of Mr Kenny. Mr Kenny was transferred to Beaumont Hospital shortly after his arrival at St Vincent’s Hospital so that he could undergo surgery. During this period in Beaumont Hospital Mr Kenny was under the care of Dr Martin Murphy, Specialist Registrar in Neurosurgery, and Mr Pidgeon, Consultant Neurosurgeon. Dr Murphy and Mr Pidgeon carried out surgery on Mr Kenny’s head to close the wound created by the shooting. In his evidence at trial, Mr Pidgeon explained that the doctors were of the opinion that the outcome for Mr Kenny would be either death or extreme incapacity. He further explained that the reason for closing the wound was not to revive him neurologically in any dramatic sense but to avoid infection which can be caused by such an open wound and also for the sake of the family. Mr Pidgeon also told the court that when Mr Kenny arrived in Beaumont Hospital his Glasgow coma scale was between 8 and 9, level 3 representing a corpse and level 15 a normal person. He stated that level 8 represented a person needing ventilation for medical purposes. It should be noted that Mr Kenny was subsequently weaned off the ventilator and a tracheostomy was carried out through which Mr Kenny could breathe. 7. The period of time which is at the centre of the issue of causation raised in this appeal is from the 29th July 2009 to Mr Kenny’s death on the 31st July 2009. Dr John Veale, who was responsible for the care of Mr Kenny in St Doolagh’s, gave evidence at trial that on the 29th July 2009 Mr Kenny was transferred to Beaumont Hospital with suspected pneumonia. When asked about any decision as the whether or not Mr Kenny should be resuscitated Dr Veale stated that “it would be pretty standard under the circumstances that there would be an understanding that resuscitation would not take place” (day 3, p. 16). Dr Veale also however explained that any such decision would be made in conjunction with the family of the individual. 8. In Beaumont Hospital Mr Kenny primarily came under the care of Dr Deepak Gopinathan, Consultant, and Dr Stuart Lee, Registrar, and upon his arrival he was treated with antibiotics. In giving evidence at trial, Dr Gopinathan stated that at this time he noticed that on one of Mr Kenny’s pervious admissions to Beaumont Hospital a note had been made in his medical notes that in the event of respiratory or cardiac arrest, Mr Kenny should not be resuscitated. Dr Gopinathan therefore called Mr Kenny’s father to discuss Mr Kenny’s condition. A decision was then made with Mr Kenny’s father that, in light of Mr Kenny’s severe infection, if his condition worsened, he was not to be taken to the intensive care unit, that he was not to be put on ventilation and that he was not to be given inotropes, medication to maintain his blood pressure. Dr Gopinathan recounted in his evidence that Mr Kenny’s condition continued to deteriorate and that as he was not responding to the prescribed antibiotics he was switched to stronger antibiotics. Mr Kenny was pronounced dead on the 31st July 2009 by Dr Stuart Lee. 9. The Deputy State Pathologist, Dr Michael Curtis conducted a post-mortem on the deceased on the 1st August 2009 and certified the cause of death as bronchial pneumonia. Dr Curtis explained that Mr Kenny had died from bronchial pneumonia caused by being in a permanent vegetative state which was in turn caused by the brain injury suffered by gunshot wound. The gunshot wound to the deceased’s upper right arm was a contributory factor to his death. Dr Curtis gave evidence that he would have expected the deceased to die of pneumonia because individuals in a permanent vegetative state are at risk of developing infections. There was consensus amongst the medical professionals who gave evidence at the trial that infections, mostly of the kidneys and the lungs such as pneumonia, are common in individuals in a permanent vegetative state. Submissions of the Appellant 11. In relation to the question of causation, counsel for the appellant argues that although there appears to be a straight line of causation in this case from gunshot wound to vegetative state, to pneumonia, to death, this does not take into account the circumstances in which the deceased died. It is submitted that although the appellant acknowledged his guilt in respect of the attempted murder of the deceased, a decision was taken by the father of the accused and by his physicians almost two years later, and in circumstances in which he was suffering from pneumonia, to withhold medication from him which would have maintained his life. The court has been referred to the decision in A Ward of Court and in particular to the judgment of Mr Justice Lynch in the High Court. On this matter, the Court has also been referred to the decision of the Arizona Supreme Court in Rasmussen v. Fleming (1987) 154 Ariz. 207 which was quoted by Mr Justice O’Flaherty in his decision in A Ward of Court. 12. On the issue of the availability of the defence of duress the appellant submits that despite the established position, as set out in Attorney General v. Whelan [1934] IR 518, that this defence is not available in cases of murder, reliance on this defence should be permitted in such cases on the basis that there has been a move in other common law jurisdictions towards allowing the use of this defence to a murder charge. Case law from South Africa (S v. Goliath [1972] 3 S.A.) and statute law from Australia has been cited in support of this argument. In South Africa it is now permitted to put forward the defence of duress to a charge of murder as a complete defence. In the Australian Northern Territory this defence is not permitted in murder trials but this is mitigated by the possibility of submitting the partial defence of coercion. In the case of R v. Hasan [2005] UKHL 22 Lord Bingham of Cornhill recognised that despite the unavailability of this defence in cases of murder, the English Law Reform Commission had recommended amending this position to allow the use of the defence of duress in all offences, including murder and that the logic of this “was irresistible”. It was also submitted that the Irish Law Reform Commission has also expressed the opinion in its Consultation Paper on Duress and Necessity (LRC CP 39-2006, p. 78) that a limited defence of duress be permitted in murder cases. 13. Finally, the appellant also submits that the learned trial judge erred in law and in fact when, on the second day of the deliberations of the jury, he responded to a question posed by the jury by stating that the appellant killed the deceased and intended to kill him. The appellant submits that this response effectively amounted to a direction to the jury on the part of the trial judge that the appellant was guilty of murder. Submissions of the Respondent 15. The respondent submits on the matter of causation that the legal position in this jurisdiction has been clearly outlined in the decision of the Court of Criminal Appeal in The Director of Public Prosecutions v. Stephen Davis [2001] I.R. 149. This decision makes it clear that if the injuries caused by an individual contribute to the death of the victim in more than a minimal way, the causative link is established. The submission of the appellant that a substantial link must be established is incorrect. In The Director of Public Prosecutions v. Michael Murphy [2005] 4 IR 504 it was stated that causation can be inferred from the circumstances of an individual’s conduct towards a victim and the subsequent result even where the precise cause of the result cannot be shown. In these circumstances, and in reliance upon the post-mortem evidence of Dr Curtis, there can be no doubt but that in the circumstances of this case, the gunshot injury to the head of the deceased caused his death. The gunshot wound contributed to the death of the deceased in more than a minimal way. 16. The respondent submits that the appellant seems to argue that the deceased died as a result of lack of medical treatment rather than as a result of his injuries. The respondent submits that this contention is not sustainable. A decision was taken by the family of the deceased in conjunction with his doctors to refrain from certain aggressive treatments, did not amount to abnormal or negligent treatment that would break the causative link. 17. On the matter of the defence of duress, the respondent submits that this defence is not available for murder. The law on this matter in this jurisdiction has been stated in the case of Attorney General v. Whelan. 18. In relation to the appellant’s submission that the learned trial judge erred in his response to a question of the jury, the respondent argues that the comments of the judge must be understood in the context that the appellant had already admitted attempted murder. Furthermore, counsel for the appellant did not raise any other requisition in relation to this charge at the time nor was the discharge of the jury sought. Causation 20. The approach to causation which applies in this jurisdiction has most recently been set out in the judgment of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Davis [2001] 1 I.R. 146. Mr Davis had sought to argue that the death of the victim was not caused by his actions in circumstances where he had assaulted the victim. The cause of death of the victim was heart failure secondary to severe shock which was the cumulative result of her injuries. Mr Justice Hardiman giving judgment found that:
21. Both parties in the present proceedings have referred to Re A Ward of Court on the matter of causation. This case related to a ward of court who, by 1996 when this case came before the Supreme Court, had been in a state very similar to a post vegetative state for over twenty years as a result of a surgical intervention. In 1972 the ward of court had suffered several heart attacks when she was administered general anaesthetic for a minor gynaecological operation. The family of the ward of court sought to stop the artificial feeding of the ward which was keeping her alive. The High Court found in favour of the family and this decision was upheld on appeal. The most important passages in that judgment of the Supreme Court in terms of the analysis of causation are contained in the judgments of Chief Justice Hamilton and of Ms Justice Denham. Ms Justice Denham in a section entitled “Causation” stated that:
22. Counsel for the appellant in this case has argued that a decision was made by Mr Kenny’s family and his doctors not to continue treatment and that this decision constituted a break in the chain of causation. It has been argued that in order to establish causation in a murder trial it must be shown that the action(s) of the accused contributed in a substantial way to the death of the victim. It has been argued that the decision of Mr Justice Hardiman in The People (Director of Public Prosecutions) v. Davis can be distinguished from this case because that case related to a situation where appropriate medical care was not sought by the victim. 23. The test for causation in cases of murder has been clearly enunciated by Mr Justice Hardiman in The People (Director of Public Prosecutions) v. Davis and that case cannot be distinguished from the present case. There is no basis for the contention that that case should be distinguished because unlike the present case it related to a situation unlike the present case, in which medical treatment was not sought by or provided to the victim. The principle laid down in Davis applies whenever it is alleged that a victim’s injuries or death were not caused by the wrongful acts of the accused. Thus, the test for causation in this jurisdiction is whether the injuries caused by an accused related to the death in more than a minimal way. 24. It follows accordingly that there can be no doubt in this case, in circumstances where Mr Dunne had entered a guilty plea to attempted murder, that causation has been established. The decisions made in respect of the treatment of Mr Kenny, which were accepted to be lawful and proper, are not such as to completely break the connection between the appellant’s action in shooting Mr Kenny and Mr Kenny’s death. Mr Dunne clearly contributed to Mr Kenny’s death “in more than a minimal way” and accordingly this ground of appeal must be dismissed. Duress
26. Counsel for the appellant has sought to argue that this position should be revised as it has been submitted that there has been a move in other common law jurisdictions towards amending this strict position. However, in The Director of Public Prosecutions v. Patchell Hardiman J. addressed this argument and concluded that “it is plainly a matter for the legislature rather than for the Court” to change the law in this area. He continued:
28. There is a residual argument as to whether this jurisdiction should adopt the approach of the majority in Lynch or some variant thereof, and if so whether that would be achieved by judicial decision or legislative change. For present purposes however the most important consideration is that this matter has been recently revisited by this court in The Director of Public Prosecutions v. Patchell and the limited arguments and material advanced by the appellant in this case do not afford any compelling basis for considering that the court should depart from that decision. Response of the Learned Trial Judge to the Question Posed by the Jury 29. During deliberations, the jury at the trial of Mr Dunne made a request to pose a question to the learned trial judge. The jury foreman asked the judge to read out the definition of murder again and to explain causation. The learned trial judge read out the definition of murder contained in section 4 of the Criminal Justice Act 1964 and then continued:
31. Taken in isolation the portion of the transcript identified above, might be considered to have the effect claimed by the counsel for the appellant and so contains an error. The question for the jury was whether the appellant, who admittedly shot Mr Kenny, had indeed killed Mr Kenny, whereas portions of the judge’s address describe the victim as having been “killed”. But it is quite clear that this error did not in any way affect the trial or mislead the jury. It was very clear from everything said to the jury, by both parties and the judge, and from all the medical evidence adduced, that the issue being isolated to be determined by the jury was whether the admitted shooting of Mr Kenny by the appellant, with the intent to kill him, had indeed caused his death sufficient to make the appellant guilty of murder. The answer of the learned trial judge must be read not in isolation but in the context of his entire charge and the manner in which the case was presented to the jury and when so read, it is very clear that the jury was correctly directed as to the definition of murder and as to the issue of causation and how that applies in the law in this jurisdiction. As counsel for the respondent correctly pointed out, this response must also be considered in the context of the judge’s charge to the jury before they retired to deliberate during which he addressed the issue of causation at length. One contemporaneous indication that those present did not understand this passage as suggesting that the appellant was guilty, was the fact that no requisition was raised by counsel on behalf of the appellant to this misstatement by the trial judge. If counsel, on either side, professionally alert to any formulation that might be wrong in law or inaccurate in relation to the accused, do not react to the terms of the judges comments, it is difficult to argue that the jury would have been led to misunderstand the issue they had to decide. Accordingly the appeal will be dismissed.
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