Irish Court of Criminal Appeal
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Cite as: [2014] IECCA 44
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Judgment Title: Director of Public Prosecutions -v- Dunne Neutral Citation: [2014] IECCA 44 Court of Criminal Appeal Record Number: 39/12 Date of Delivery: 27/11/2014 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: Section 29 application allowed | ||||||||||||
THE COURT OF CRIMINAL APPEAL 39/12 O’Donnell J. Moriarty J. Herbert J.
The People at the Suit of the Director of Public Prosecutions Respondent And Jonathan Dunne Applicant
Ruling of the Court delivered on the 27th of November 2014, on the Applicant’s Application pursuant to s.29 of the Courts of Justice Act 1924 as amended by s.22 of the Criminal Justice Act 2006, by O’Donnell J.
1 On the 19th of January 2012 the applicant, Jonathan Dunne, was convicted of the murder of Ian Kenny. On the 31st of July 2014 his appeal against his conviction was dismissed by this Court. He now invites this Court to certify pursuant to s.29 of the Courts of Justice Act 1924 as amended by s.22 of the Criminal Justice Act 2006 (“s. 29”) that the decision in this case involves points of law of exceptional public importance and it is desirable in the public interest that an appeal should be taken to the Supreme Court. 2 The relevant facts are set out in the judgment of this Court delivered on the 31st of July 2014. The circumstances giving rise to this application can be stated quite shortly. On the 4th of July 2007 Jonathan Dunne shot his friend Ian Kenny, with a sawn off shotgun at close range, while Ian Kenny was sitting in the passenger seat of a stationary car in which Mr Dunne was sitting in the driver’s seat, and a third unidentified man was in the back seat. Jonathan Dunne maintains he was forced to carry out the shooting by threats from unnamed individuals, that his life, and the lives of his family would be threatened if he failed to carry out the shootings. 3 Ian Kenny sustained gun shot wounds to his right shoulder and the right hand side of his head. He was immediately brought to hospital where it was not expected he would survive. He was in a comatic state, and remained in a permanent vegetative state until he died on the 31st of July 2009. During the intervening time Jonathan Dunne pleaded guilty to attempted murder and unlawful possession of a firearm and had been sentenced to a total of 12 years imprisonment on the 28th of May 2008. The immediate circumstances of Ian Kenny’s death on the 31st of July 2009, was that he had been transferred from St Doolagh’s nursing home to Beaumont Hospital with suspected pneumonia. The medical staff at Beaumont agreed with his family that if his condition worsened he was not to be taken to intensive care or administered medication to maintain his blood pressure. He was however treated with antibiotics. On the 31st of July 2009 he died. The cause of death as certified was bronchial pneumonia. Dr Michael Curtis as the Deputy State Pathologist carried out a post mortem and explained at the trial, 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 as a result of gun shot wounds. 4 The trial judge refused a defence of duress to be considered by the jury in accordance with dicta in the decision in Attorney General v Whelan [1934] IR 518, and a recent unreported decision of the Court of Criminal Appeal, DPP v Patchell IECCA 10, 10th June 2013, (Hardiman J). The sole question before the jury accordingly was one of causation, and the trial judge directed the jury on that issue in accordance with the decision in People (DPP) v Davis [2001] 1 IR 146 that it was sufficient if the injuries caused by the accused were related to the death in a more than minimal way. The jury returned a verdict of guilty. 5 Jonathan Dunne appealed against the said conviction to this Court and raised three grounds. First, he questioned the correctness of the trial judge’s charge on causation. Second he also questioned the correctness of the trial judge’s refusal to permit the defence of duress to be considered by the jury. Finally, he raised issues in relation to the response made by the trial judge to questions posed by the jury. 6 This Court dismissed Jonathan Dunne’s appeal on the basis that the issues of causation and duress had been addressed by recent authority of this Court, and that the response of the trial judge while somewhat inaccurate, could not be said to have misled the jury, when viewed in the context of the case as a whole and the manner in which the issues had been comprehensively addressed before the jury. Jonathan Dunne now invites this Court to certify that pursuant to s.29 that the questions in relation to causation and duress which arose in his trial and appeal, involve matters of exceptional public importance, which it is in the public interest should be the subject of an appeal to the Supreme Court. 7 It is first necessary perhaps to identify one issue which does not arise for consideration in this application. As already set out the applicant here Jonathan Dunne pleaded guilty to the attempted murder of Ian Kenny, was convicted and sentenced in relation to that offence. However no issue was raised in relation to this conviction, either at the trial or on appeal. It is apparently accepted that if Jonathan Dunne’s appeal against the murder conviction is unsuccessful, then his appeal against the attempted murder conviction will be allowed by consent, and that conviction quashed. This Court makes no observation upon the propriety or the correctness in law of this approach since, as the circumstances outlined above demonstrate, no question in relation thereto was raised either at the trial, the appeal, or this application. Accordingly, this application and the case, must be treated on the same basis as if there had been no attempted murder charge, and the prosecution had waited until Mr Kenny died some two years after the attack, and had then preferred a murder charge. 8 The Criminal Justice Act 1999 abolished the common law one year and one day rule familiar to generations of law students, and which can be said to have offered a typically pragmatic response to some of the problems caused when victims die at some considerable time after an incident for which it is alleged the accused is responsible. Now however , courts are required to grapple with issues of causation which can raise notoriously difficult problems in other fields of law, all the more so when advances in medicine have made it possible to sustain life much longer than would have been possible even a generation ago , and in circumstances which could hardly have been imagined then. This can give rise to difficult questions of ethics and, on occasions, law. Counsel for the Applicant points to the somewhat anomalous form of the indictment here which charged the accused with having murdered Mr Kenny at Lakelands park, Stillorgan County Dublin (where the attack occurred on the 4th of July 2007) but on the 31st of July 2009 when the death occurred (in Beaumont Hospital) more than two years later. Put perhaps at its height, the applicant contends that where a person dies from pneumonia, and after a decision made by doctors and family to refrain from providing certain medical treatment, he cannot properly or lawfully be said to have been murdered by the applicant in an attack some two years earlier. This Court considers then that the issue is one which should be considered by the final court of appeal in the judicial system, and accordingly will certify that its decision in this case involves a question of law of exceptional public importance and it is desirable in the public interest that an appeal be brought to the Supreme Court. Duress Questions
(ii) May duress be raised as a defence (whether full or partial) to a charge of murder? | ||||||||||||