Irish Court of Criminal Appeal
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Cite as: [2014] IECCA 39
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Judgment Title: Director of Public Prosecutions -v- O'Connor Neutral Citation: [2014] IECCA 39 Court of Criminal Appeal Record Number: 1/12 Date of Delivery: 24/11/2014 Court: Court of Criminal Appeal Composition of Court: O'Donnell Donal J., Herbert J., Edwards J. Judgment by: O'Donnell Donal J. Status of Judgment: Approved
Notes on Memo: Allow appeal, quash conviction and direct re-trial | ||||||||||||
THE COURT OF CRIMINAL APPEAL CCA No. 1/12 O’Donnell J. Herbert J. Edwards J.
The People at the Suit of the Director of Public Prosecutions Respondent And
Thomas O’Connor Appellant Judgment of the Court delivered on the 24th of November 2014, by O’Donnell J.
1 On the 5th of June 2010 the appellant Thomas O’Connor, a young man aged 22, killed his friend and neighbour John O’Brien, then also a young man aged 22 and about to get married. John O’Brien died as a result of a blunt force trauma to his head caused by being struck by a rock which was recovered as part of the garda investigation and found to weigh 1.6 kilograms. 2 The evidence was that during the evening of the 4th of June both the appellant and the victim had been drinking in the underground car park of Superquinn in Greystones and driving around the area with the victim’s brother Jimmy. There was evidence that in the course of the evening the victim had struck two younger men and was restrained by Thomas O’Connor. There was a dispute as to just how serious this altercation was, but it was something upon which, understandably, the defence placed some stress. 3 Finally, in the early hours of the morning having disagreed about what to do next, they separated at a roundabout on the road between Greystones and Charlesland and started in different directions. As it happened, there was a considerable amount of evidence from both passing motorists and residents who witnessed part at least of what transpired. Among those accounts was some evidence that the appellant was shouting something and cursing, and then made a u-turn and doubled back. A number of witnesses gave evidence that they saw a man wearing a grey hoodie, as the appellant was, standing over another man who was then lying on the ground, and striking him repeatedly. There was also evidence that the victim was very badly injured indeed, was bleeding profusely, and in particular, that his head was seriously deformed. Dr Curtis, the Deputy State Pathologist, gave evidence that the victim suffered a catastrophic head injury. 4 After this incident, the appellant went to the home of his former girlfriend. He told her a story which is now accepted to be completely untrue of having been assaulted by a man carrying a knife. He obtained bleach from her to wash the blood from his hands, and scrubbed his clothes to remove the blood stains. He then got two firelighters from her and left. It is clear that his former girlfriend was very agitated about the scene in her house. The appellant then went to the house where he lived with his current partner and tried to burn his clothes in a bin. He also returned to the scene of the incident, and spoke to gardaí there. He did not at that stage admit any involvement in the incident. Later on that day when confronted by members of the victim’s family he said that John O’Brien had been fine the last time he had seen him the previous night. 5 Later on the 5th of June the appellant contacted his partner, told her what he had done and then set off to see his daughter. He was however arrested by the gardaí. There were a number of interviews during which he did not require the attendance of a lawyer. The account he gave was contained in the following lengthy statement which was introduced in evidence on Day 3:
…yeah he was telling me to fuck off and get off him. When I hit him first I hit him again as he had a hold on my leg, and I hit him again and seen the blood on my hands panicked and got up.”
A. I was scared, it was my friend and me had an argument and I just went too far. Q. Did you feel you had lost control during the row? A. Yeah. Q. You knew you had done serious damage? A. I knew I had done serious damage but I didn’t think I had killed him.” 9 In the course of the trial there was reference to other details of the case, but the foregoing account is sufficient for the purposes of this appeal. 10 On day 6 of the trial counsel for the accused applied to the Court that the jury might consider the defence of provocation. The trial judge was critical, perhaps understandably, of what he considered to be the low threshold required before it could be said that a defence of provocation had been raised on the evidence sufficient to allow it to go to the jury. Nevertheless he did permit the defence of provocation to go to the jury. As the jury was about to be called back into court, counsel for the accused observed that unlike provocation he did not need the leave of the Court to argue any issue of self-defence. The trial judge then made it clear that he had considered the question of self-defence and did not consider that it arose sufficiently to go to the jury. There was then an extended argument between the parties. The trial judge said that self-defence presupposed a functioning mind and a person who makes a rational decision, presumably contrasting it with the situation where provocation arises. He then quoted a statement of the law on self-defence:
13 The law relating to self-defence can be stated quite succinctly. No person has a right to engage in a fight. But if a person is subjected to an unlawful assault, then they are entitled to defend themselves and if they use no more force than is objectively necessary to repel the assault, then they commit no offence, even if the use of force results in the death of their assailant. Furthermore, in the case of lethal force, if the accused used more force than was objectively necessary, but no more than he, in the judgment of the jury, subjectively considered necessary, then that reduces murder to manslaughter. 14 All of this must however be read through at least two prisms that involve a certain degree of mental gymnastics. Once an issue of self-defence (or any other defence) is raised and it is accepted, it is for the prosecution to negative it beyond any reasonable doubt. That may at times involve some double negatives. When someone is found not guilty after raising a defence of self-defence, it means that the jury was not satisfied beyond reasonable doubt that the person was not acting in self-defence. The second prism complicating the issue is that the law on self-defence is stated in terms of the decision for the jury. There is however a threshold question for the judge whether an issue has been raised sufficient for it to go to a jury. That is the issue which arises here. This is sometimes described as an evidential burden, but this description does not mean that the defendant has to tender any evidence. The threshold can be met from the evidence before the court even if all the evidence has been tendered by the prosecution. The only burden, if that is an appropriate word, on the accused, or his legal team, is to identify the evidence sufficient to allow the matter to go to the jury. It is also, of course, the case that at this point a court is not concerned with the credibility or cogency of the evidence. The case must be taken at its highest from the accused’s point of view but, in doing so, the court must address the evidence, and not any supposition hypothesis or speculation. Thus, where there is a conflict of evidence, the court must for the purposes of this exercise take the version most favourable to the accused. This can be a difficult task. However, this approach does not mean that a court can pick and choose between individual portions of the same evidence. In this case for example, the account given by the accused must be looked at as a whole to consider whether it is capable of raising the defence of self-defence as a complete defence or as a partial defence reducing murder to manslaughter. 15 The test to be applied has been discussed in relatively recent decisions of this court. A useful formulation is that set out in the judgment of Hardiman J. in The People (Director of Public Prosecutions) v. O’Carroll [2004] IECCA 16 (“O’Carroll”). There he said:
That statement of the evidential burden in relation to provocation is also apt to describe the same burden in relation to self defence. We would also repeat, in relation to self defence, certain other remarks in the judgment of the Court in Davis which were of course addressed to the specific defence of provocation. As with provocation, the evidential burden of raising the defence of self defence is not a heavy one but it necessarily involves being able to point to evidence of some sort suggesting the presence of the elements of self defence. Like provocation, self defence is not an issue which will automatically go to the jury simply because the defence is invoked or mentioned. The burden which rests with the accused is to produce or indicate evidence suggesting the presence of the elements of the defence, whether through direct evidence or by inference from the evidence as a whole. Before leaving the issue to the jury the judge must satisfy himself that an issue of substance, as distinct from a contrived issue or a vague possibility has been raised.” (paras. 22-24) 17 In analysing this it may be useful to separate a number of the components of self-defence. First, there must be an unlawful attack - or assault. The defence is not available to persons who simply engage in a fight. Second, the use of force must be to repel the assault and for the purposes of defence. The defence is not available to immunise someone who takes the opportunity of a minor assault to launch an attack with perhaps lethal consequences. Third, the reasonableness of the force used is relevant in two respects. A jury must consider whether it has been established that the force was objectively unreasonable and if so whether it has been established that the accused knew it to be so. 18 Here there is some evidence on the question of an assault or an attack being initiated by the victim. This is the account given by the appellant although it may be difficult to square that evidence with the evidence of onlookers that it was the accused who turned back towards the victim. However, that is classically a matter for the jury. Taking the evidence at its high point from the accused’s point of view, there is evidence that he was stuck on the head by the victim, that in the course of a scuffle the victim attempted to hit him with a rock, and that during the scuffle the victim was still attempting to get the rock. It is not the function of the Court at this point to make any assessment of the credibility of the accused’s account. Accordingly, there was evidence going to the first two elements of the defence. The third issue, the reasonableness of the force used is central to either version of the defence of self-defence. But it is classically a matter for the jury to determine. In The People (Director of Public Prosecutions) v. Nally [2007] 4 I.R.145 (“Nally”) the Court of Criminal Appeal said that “[t]he question whether the amount of force used is objectively reasonable is quintessentially a matter of fact for a jury” (para. 24). This must be even more clearly the case where the issue is the reasonableness of the force used when viewed subjectively. The statement by the accused that he was in a rage, had gone too far and had lost control, all suggest that the force used was unreasonable when viewed objectively or indeed subjectively. It was suggested however by counsel for the accused at the trial, and again on this appeal, that such a statement while damaging to any suggestion that force used viewed subjectively by the accused was no more than was necessary, was not necessarily fatal to it, since it was possible that the statement was a reflective one, i.e., a statement made in hindsight rather than expressing his thoughts (and therefore his state of mind) at the time of the incident. 19 This Court can readily appreciate the trial judge’s frustration with the flimsy nature of the evidence from which it is suggested an inference of self-defence could be drawn, particularly in the context of the rest of the evidence in this case. In Nally the Court of Criminal Appeal observed that it was permissible for a judge to sum up in the usual form and express his own view that the amount of force could not be objectively justified, while leaving the ultimate resolution of the issue to the jury. Nally was treated as a case in which the trial judge effectively directed a verdict of guilty leaving the jury to decide between murder and manslaughter. However provocation was raised there and let go to the jury. Accordingly it is difficult to distinguish this case from Nally save that here the judge did not even permit the partial defence go to the jury. There may be a tension between what was decided in Nally and the observation in O’Carroll, but it is not necessary to explore that here since the contentious question here was the reasonableness of the force used which as was stated in Nally, is quintessentially a matter for the jury. The Court in O’Carroll observed the evidential burden is not a heavy one. There was evidence in this case suggesting that the victim had been violent earlier in the evening, that he initiated the attack, that he had been the first to seek to use the rock as a weapon, and furthermore that all of this occurred in the course of a drunken tussle. This Court thus considers that there was a sufficient case to go to the jury, albeit that the judge would have been entitled to make clear to the jury how limited that evidence was and the weight of contrary evidence. 20 In the circumstances, it is not necessary to consider the further arguments raised. The appeal must be allowed, the conviction quashed, and a retrial directed.
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