Irish Court of Criminal Appeal
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Cite as: [2014] IECCA 42
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Judgment Title: Director of Public Prosecutions -v- Farrell Neutral Citation: [2014] IECCA 42 Court of Criminal Appeal Record Number: 271/11 Date of Delivery: 24/11/2014 Court: Court of Criminal Appeal Composition of Court: O'Donnell Donal J., Moriarty J., Herbert J. Judgment by: O'Donnell Donal J. Status of Judgment: Approved
Notes on Memo: Dismiss appeal against conviction | ||||||||||||
THE COURT OF CRIMINAL APPEAL CCA No. 271/11 O’Donnell J. Moriarty J. Herbert J.
The People at the Suit of the Director of Public Prosecutions Respondent And
Anthony Farrell Appellant Judgment of the Court delivered on the 24th of November 2014, by O’Donnell J.
1 On the 25th of November 2009, at about 8pm in the evening, a young man, Anthony Farrell, the appellant in this case, and a person who had no previous history of criminal behaviour, put on a balaclava, took a knife and went out to rob a small shop in Arklow, County Wicklow. He entered the shop, put the knife to the throat of the lady serving in the shop and demanded that she open the till. The owner Mr John Deasy, who lived above the shop, was alerted by shouting from the shop: he, came down, went out into the street and entered the shop through the front door. He is reported to have said “this is the second fucking time, but I have a knife this time”. There was a scuffle, and Mr Deasy was stabbed in the chest with some force by Anthony Farrell and died from his wounds. 2 Anthony Farrell did not give evidence at the trial. He was arrested two days after the incident and made a number of statements to the gardaí. Initially he denied involvement, but ultimately he admitted his involvement and the account he gave was the following:
A. He was in his way. Q. He was in his way? A. Blocking the door. Q. Blocking the door did he say which door? A. There’s only one. Q. I see. A. -shop door. Q. I see. Did he say anything about what John Deasy did himself? A. He was kicking back at him kicking him back in through the door. Q. And when you say he was kicking at him - A. John Deasy was kicking back at him to kick him back in the door. Q. I see. Did he say anything else about John Deasy’s actions or appearance? A. Yes I think he thought he had a knife in his hand. Q. Ok did he say anything about anything he had himself? A. No just a knife. Q. Right. And did he say anything about where he put that afterwards or where it went? A. In his shed under the pool table or something… Q. Right and what was his appearance or his demeanour when he was saying that? A. Normal. Q. Did he say anything about the amount of cash that he got? A. I think he got €80 or something and he dropped 30 or something. Q. Eighty and he may have dropped 30? A. He dropped €30 or something. Q. Okay. And did he elaborate in anyway about what his state of mind was at the time he stabbed? A. No. Q. When he was describing himself as being in the shop and John Deasy blocking in the door did he make reference to any other persons apart from John Deasy? A. No he just said that the girl was screaming and that’s why John Deasy came down. Q. Did he explain why he wanted to get out of the shop? A. Before the cops came.”
7 No issue arose here as to the standard of proof or to the burden of proof. Thus when the judge spoke to the jury of finding that Anthony Farrell stabbed Mr Deasy in order to escape, it is in the context of the jury having been instructed that it must be satisfied of each matter beyond any reasonable doubt. 8 In this appeal there was much argument on how precisely to characterise the position of an accused caught while carrying out a burglary or robbery, and who kills the occupier of the premises, and seeks to plead self-defence. In particular, reference was made to the decision of this court in The People (Director of Public Prosecutions) v. Anthony Barnes [2007] 3 IR 130. That case had been referred to the trial judge who did not give any direction to the jury in relation to it. Accordingly it is not necessary to consider it here. 9 Counsel for the appellant accepted that the defence of the accused was a thin one since, notably, the accused had never stated at any stage that he considered his life or person to be in danger. Indeed, the defence of this difficult case was advanced with considerable skill and seemed to involve arguments which sought to emphasise the youth of the accused, his previous blameless record, the fact that the incident occurred in a very short timescale, and in circumstances of great commotion, chaos and adrenalin. These were all matters put to the jury. However as already outlined the accused was convicted of murder. The legal argument advanced on this appeal was that the effect of the trial judge’s recharge of the jury was to remove a defence of self-defence which had previously been left to the jury. 10 This Court cannot agree that the statement of the trial judge had the effect of removing the defence of self-defence from the jury. The trial judge did not direct any verdict or seek to influence the jury’s conclusion on a matter of fact within the jury’s province. What the trial judge did do was state, as a matter of law or perhaps logic, , that if the jury’s conclusion of fact was that the stabbing occurred to effect escape then self-defence could not arise. 11 This statement was in the context of the case, perfectly correct. It is very difficult to see how self-defence, either as a complete defence or, as it was more realistically advanced, in the sense of reducing murder to manslaughter, truly arose on the facts of this case. Much of the difficulty for all the parties, was addressing the jury on the basis on which self-defence could properly arise. It is perhaps conceptually possible for a burglar or robber to wish to escape and also and at the same time apprehend the risk of serious injury or death. It is not necessary here to try to hypothesise the circumstances in which such circumstances would arise. On the facts of this case there was absolutely no evidence that Mr Deasy sought to injure Mr Farrell with the knife or did anything to make Mr Farrell apprehend that he was about to be injured so as to give rise to the possibility of self-defence. The concept advanced by the appellant of “being forced to escape” does not appear to have any basis in law, and similarly the idea that “ the act of fleeing the scene could be caught up in the act of defending himself” seems to blur the distinction between two very different things in law and in fact . The Court does not seek to lay down any hard and fast rule, or make any general statements in absolute terms. While it may be possible to conceive of circumstances giving rise to a defence of self-defence in the course of escape, on the facts of this case we consider that if the jury did conclude beyond a reasonable doubt that the stabbing of the deceased was for the purpose of effecting escape, then that, again on the facts of the case, ruled out the possibility of such stabbing being for the purpose of self-defence. In truth, much of the difficulty in this case was created by the necessarily flimsy nature of the defence of self-defence in the case rather than the manner in which it was addressed by the trial judge. 12 The second ground of appeal was that the jury were not sufficiently charged in relation to the subjective element of the defence of self-defence. In this regard the trial judge had said “it was explained to you very well if I may say so by [counsel for the accused] in closing … in this jurisdiction the test is always a subjective one, not an objective one. In other words what was the accused thinking at the particular time, and in other words, it might be unreasonable, so it might, but the test is what he was thinking at the time ”. It is true that this statement could have been expanded upon, and would be inadequate if it stood alone but it must also be remembered that the judge’s charge occurred in the context of the case, and the submissions made by the respective parties to which the judge expressly referred. This Court is satisfied that the jury was sufficiently aware of the subjective nature of the defence, and accordingly, the court will dismiss the appeal.
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