COURT OF CRIMINAL APPEAL
The People at the Suit of the
Director of Public Prosecutions
Judgment of the Court delivered on the 29th of July 2015, by O’Donnell J.
2. On the 12th of July 2005, Kieran Lynch and Catherine McEnery had been in Galway. Considerable quantities of alcohol and tranquillisers were consumed. Kieran Lynch fell into the Corrib River and nearly drowned. When he was rescued, he was admitted to hospital where it was established that he had a history of abuse of alcohol and tranquilisers. On admission he was found to have benzodiazepines in his system, and to have an alcohol level of 274mg% which is a very high level, considered to be consistent in many people with a stuporous state. He was unconscious, and scored 3/15 on the Glasgow Coma Scale, which is a scale which assesses basic functions such as a patient’s ability to open eyes, speak and move, and obey commands. Three on a scale of fifteen was described as a “very low coma scale … suggestive of essentially marked depression in neurological function”. His temperature was low, and he was suffering from mild hypothermia.
3. From the point of admission to hospital and recovery of consciousness he was aggressive and difficult. He was transferred from the high dependency unit to the general medical ward with accompanying security. Staff in the medical ward were concerned for their own safety and that of other patients. He was recorded as being “aggressive ++”. He was given two 200mg doses of chlorodiazepoxide, one on the evening of the 14th and again on the morning of the 15th. These were very large doses. Chlorodiazepoxide was an early benzodiazepine and is used, as in this case, in dealing with persons dependent upon other benzodiazepines, in this case, diazepam.
4. On the morning of the 15th of July 2005, Kieran Lynch discharged himself from hospital against medical advice. Hospital records noted he was “not of sound mind to discharge and would be at risk of further injury”. On his return to Craughwell he did some chores and he and Catherine McEnery began drinking vodka, cider and cheap larger, and also took diazepam. They also each visited the village to obtain more alcohol. A neighbour, Fern Farraige, gave evidence that on the 15th of July she overheard the applicant on a mobile phone saying “I’ve put up with this for 10 years. I’ve had enough of her. I’m going to sort this out”. She considered that this was said in relation to Catherine McEnery. She was not cross-examined however and little emphasis appears to have been placed on this evidence at the trial.
5. Saturday the 16th of July was spent in similar fashion. On the morning of Sunday the 17th of July gardaí received an emergency phone call from Kieran Lynch. As a result gardaí went to the cottage and found Catherine McEnery dead in her bed. There was a large quantity of blood on her clothing, on the bed, and throughout the house. Initially Kieran Lynch told them that she had been drinking for the past five weeks, had a tendency to go into Galway and drink with the street drinkers and generally fall in with a bad crowd. On this occasion she had been dropped back at the house and was bruised and bleeding. He had put her to bed and checked whether she wanted an ambulance. She refused and when he woke in the morning she was dead. He said that if they found the person who had beaten her he would kill him himself. He maintained this story initially, and made a formal statement to this effect, but later that day made further statements. In these he admitted that he had beaten Catherine McEnery and caused her death. He maintained that she had been very drunk and had become aggressive and abusive around midnight on the 16th of July. He continued:
Q: At what stage did you stop hitting Catherine?
When she fell on the ground.” (transcript of the trial; day 4; p. 14)
8. The evidence of the Chief State Pathologist, Dr Michael Curtis, was particularly graphic. The deceased woman had a blood alcohol level of 226mg % and therapeutic levels of benzodiazepine in her blood. She had been beaten with a blunt object on the head, body and legs. She had a fracture at the base of the skull and fractures of the cheekbone and jawbone on the left side. She had multiple fractures to the ribs resulting in two puncture wounds to the left lung. She had been struck a multiplicity of blows over a large area of her body including the head, face, trunk, upper limbs and lower limbs. She had sustained multiple bruises, abrasions and lacerations. She also had fractures to the fingers of her hands which were regarded as defensive type injuries.
9. At the outset of the case it was indicated that it was proposed to advance the defence of diminished responsibility which had recently been introduced into law by the Criminal Law (Insanity) Act 2006. It was thought that this would be the first case in which the defence had been advanced and some discussion took place on the first day of the trial as to the appropriate procedure. The defence evidence supporting the proposed defence followed from a suggestion contained in the medical notes obtained in respect of Mr Kieran Lynch’s admission to hospital which suggested that in his fall into the river he suffered, or might have suffered, a cerebral oedema. However, during the trial shortly before the conclusion of the prosecution case the defence was informed that the reference to cerebral oedema could not be sustained, and in those circumstances, the professional witnesses retained by them would not be in a position to give evidence supportive of a defence of diminished responsibility. Accordingly, and very properly, counsel on behalf of the accused informed the judge on day 6 of this matter:
10. Evidence was called by the defence as to the condition of Kieran Lynch when admitted to hospital on the 12th of July, and thereafter. Kieran Lynch did not give evidence. Closing speeches commenced. On behalf of the accused, Kieran Lynch’s medical history was emphasised. It was made clear that this was a circumstance of which the jury should take account in considering the background from which he was coming in leading up to the commission of the crime. It was said:
12. The trial judge commended counsel on the brevity of their speeches. He dealt with a number of standard issues arising in any criminal trial and in particular a murder trial. He made clear that the issue for the jury was between a verdict of murder and manslaughter and that the defence was not contending that Kieran Lynch was entitled to be acquitted of all culpability. He correctly instructed the jury that manslaughter would be the appropriate verdict, either if they were not satisfied beyond reasonable doubt that Kieran Lynch had the requisite statutory intent for murder, or that provocation had not been disproved. In relation to provocation the judge took the course of reading a lengthy extract from the judgment of Barrington J. in The People (Director of Public Prosecutions) v. Kelly  2 I.R. 1 (“Kelly”), which states that that “[a] successful defence of provocation … presupposes, at the critical time, the existence, not of a calculating mind, but of a mind subject to ‘a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind’.” (p. 10) The passage quoted also emphasises that the test is subjective and therefore the jury did not have to decide whether a normal or reasonable person would have been so provoked by the matters complained of so as to totally lose control, but whether this particular accused, with his particular history and personality, was so provoked. The loss of self-control also has to be total and the reaction must come suddenly and before there has been time for passions to cool. The trial judge emphasised the importance of the last two paragraphs of the extract from Barrington J.’s judgment and read them again:
If, on the other hand, at the end of the case they still entertain a reasonable doubt that the accused may have been sufficiently provoked by the matters alleged as totally to lose his self-control then their duty is to bring in a verdict of manslaughter rather than murder.” (p. 12)
Now provocation is first of all it is measured not from the standpoint of how you would behave in a particular situation. You, no doubt, think you are all reasonable people. It is not measured from the point of view of how reasonable people would behave, people like yourselves. It’s measured from the standpoint of how this particular individual with all his baggage and frailty would behave in a given situation.
Provocation is where there is words or conduct on behalf of the deceased person which, for the moment, causes the accused man to lose control of himself, to lose control of his actions, and that leads to the killing” (transcript; day 9; pp. 3-4)
14. The judge responded immediately:
It’s a matter for you. As I said in relation to intent. You can’t slice open a man’s brain and have a look at what’s inside. So the law deals with it this way; by saying that you are presumed to intend the natural and probable consequence of your actions.
It says this presumption may be rebutted. And if it’s to be rebutted, it’s not for the Defence to prove that it’s been rebutted, it’s for the Prosecution to prove that it has not been rebutted.
Now I tried to take an example away from this case so that I won’t wander in to the facts which are your area. The example I gave you is that if you shoot somebody at point blank range, the natural and probable consequence of that is that you are going to cause that person at least serious injury, if not kill that person.
Now the law provides that that presumption may be rebutted. It is pretty hard to see in what circumstances it might be rebutted. But the law has to provide for everything. While there may be circumstances in which it could be rebutted. For the life of me, I can’t think of any. But the law has to make provision for every eventuality.”
15. There then followed this further exchange:
Judge: You can, yes.
Foreman: I can?
Judge: You can, yes. Very good.”
16. In the immediate aftermath of this exchange, counsel for the prosecution commendably intervened. It was clear that she was concerned about this exchange and sought, in advance of any intervention by the defence, to have the judge recharge the jury. It is apparent that there was some confusion and perhaps misunderstanding as to what the question comprehended. Counsel made the point that provocation may reduce murder to manslaughter notwithstanding that there was an intention to kill on the part of the accused or to cause serious injury. Provocation is a distinct question to that of intention and does not involve the rebutting of intention. The judge responded: “I think they seem to be away from provocation, as I interpret them ... they seem to be against holding provocation.”
17. Counsel for the prosecution suggested that the jury had asked could they bring in a verdict where there is proof of intent without disproof of provocation. The judge replied, “That’s not my reading of what he was saying”. Here it must be observed that at least so far as the transcript goes, that appears to be exactly what the jury had indeed asked. Implicit in this exchange between counsel and the judge is that the “verdict” being considered was one of murder or more precisely a verdict of guilty on the murder charge, which was of course the only count on the indictment. The judge continued that his interpretation of the question was “without finding provocation can we bring in a verdict on - in relation to intent”. Counsel for the prosecution then said that the jury seemed to be satisfied with the response in any event. The judge then turned to junior counsel for the accused who said:
18. In the event, the judge then charged the jury in terms that are standard:
Judge: No. One or the other.
Foreman: One or the other?
Judge: Yes. Do you want to retire again?
Foreman: Please. For a short while.
Judge: One or the other. Or you could have both.
Foreman: One or the other. Or both.
Judge: Or both.”
There were no further interventions of note, and after a further period of almost two hours of deliberations, the jury returned a verdict of guilty on the count of murder by a majority of 11 to 1.
20. In reality an application to adduce fresh evidence in the context of an appeal in a criminal trial amounts in effect to an application to set aside the verdict and direct a further trial in which the new or fresh evidence can be adduced. It is perhaps conceivable that the application to admit evidence might relate to events at the trial and which if admitted on appeal would result in a setting aside of the verdict, but in such a case the application would be more properly understood as one to admit evidence in relation to the appeal, rather than fresh or new evidence in relation to the event giving rise to the trial. In the latter case, courts are understandably slow to permit a party to rely on evidence which either was available at the time of the trial or could have been made available if reasonable diligence had been used. There are few if any trials, criminal or civil, where it is not possible to conceive of different evidence that could have been adduced or different arguments made. Much of this thinking is based on the fallacy that it is possible to treat a trial as a form of scientific experiment where it is possible to change one variable, maintain all other elements in the same state, and produce a different result. This is not how real life works. A new trial will be different in some way not least because all the participants cannot escape the fact that they have given (and perhaps heard) evidence on an earlier occasion. In addition strong considerations of public policy that require that a party should bring all elements of their case forward at the outset. The sometimes considerable time afforded to parties in advance of a trial, and the extensive materials provided by disclosure and other procedures in advance of the trial, and the requirements of elaborate fair procedures, are required at least in part to ensure that the trial can be a definitive opportunity for the trial of the factual and legal issues. The test for admission of fresh evidence is therefore a demanding one. It is not enough that the evidence might have been thought useful if considered in advance of a trial. That in turn may lead applicants and their advisors to be particularly careful in the preparation of applications to adduce fresh evidence. It is not clear if this consideration played any part here: certainly the process of producing the new evidence was frustratingly slow.
21. In this case the broad thrust of the type of evidence sought to be adduced was clear from the outset. Once this case was viewed as one where the only possible defence was provocation, and when the possibility of the novelty of diminished responsibility had been disposed of, it was certainly possible to say that that defence could have been enhanced by expert evidence addressing the very unusual and particular immediate background to the death of Catherine McEnery. The law requires a jury to consider the subjective state of mind of the accused with, in the judge’s words “all his baggage”. In this case, that was considerable and extremely unusual. In particular, quite apart from his apparent dependence on alcohol and prescription drugs, there was the fact that Kieran Lynch had been admitted to hospital only days before the fatal incident, and moreover had been noted to be extremely aggressive there, had discharged himself against medical advice, and had received very high doses of tranquilisers before he was released from hospital. Accordingly, Kieran Lynch’s new solicitor began investigating the possibility that Kieran Lynch was suffering withdrawal symptoms from the dosage at the time of the fatality and that that condition may have contributed to making him more likely to lose control, when on his account, Catherine McEnery began to abuse him and hit him with the stick.
22. The process of seeking this evidence was tortuous and extremely laboured. Indeed, the appeal was ultimately withdrawn from the list with leave to re-enter it when the application was ready. Even then, the course of preparing the application was anything but smooth. In the first case, the solicitors for the applicant were unable to secure the services of a consultant psychiatrist. Ultimately the solicitors succeeded in retaining Professor David Cotter, consultant neuropsychiatrist in the Department of Psychology, Royal College of Surgeons Education and Research Centre at Beaumont Hospital in Dublin. In response to a series of questions posed to him he expressed the opinion that:
As with other benzodiazepines abnormal psychological reactions to chlorodiazepoxide have been reported. These rare behavioural effects can include paradoxical aggressive outbursts, excitement, confusion and the uncovering of depression suicidal tendencies.”
25. Professor Lader provided a very comprehensive report. He noted that Professor Cotter was a well qualified psychiatrist with particular expertise in general psychiatry and neuropsychiatry but presumed he had no particular expertise in psychopharmacology or the management of alcohol withdrawal. In a very lengthy opinion which he nevertheless considered should be regarded as preliminary, Professor Lader expressed his view that while Kieran Lynch may have been suffering from alcohol withdrawal his position in relation to benzodiazepines was quite different. Both diazepam (Valium) and chlorodiazepoxide (Librium) were long acting medications with a half life exceeding 100 hours. Thus he expressed the view that:
However, Professor Lader went on immediately to express the view “he was far more likely to be still under the sedative and disinhibitory effects of benzodiazepines at the time of the index event”. (original emphases) He further observed:
“The effects of benzodiazepines tranquilisers are well documented and include sedation, confusion and paradoxical increases in aggression.”
He later expressed the opinion:
27. The next step was for Dr Harrowing to apparently change his position and adopt the views of Professor Lader. He swore an affidavit on the 16th of May 2011 in which concluded:
29. The process by which this evidence was adduced was lengthy and unsatisfactory. Delays are not desirable at any point in the criminal process, but since one outcome of an appeal may be a retrial, the parties cannot be afforded the luxury of endless time to prepare their cases, and to seek helpful pieces of evidence, when at the same time the capacity to rerun a trial may be undermined by passage of time and loss or degrading of other evidence. There is much to be said for the proposition that an appeal should be a review of the fairness and legality of the trial, and that the matters relevant to that should be capable of being identified in fairly short course. The sort of point which will undermine a trial and conviction should be clear, even in outline, in the aftermath of the trial. Similarly where it is sought to advance fresh evidence which is more than simply an improvement on the type of evidence which was available at the trial, and which amounts to the sort of fundamental alteration of the evidential basis which would justify an appeal court in admitting it and directing a retrial, then that evidence should be capable of identification, again in outline, reasonably promptly. The process here also illustrates some of the limits of expert evidence, and in particular its frustrations, when used in the context of a criminal trial where it may be sufficient merely to argue that the information is sufficiently cogent to prevent a fact finder from being satisfied beyond a reasonable doubt, or provides enough material to require a retrial, without in fact establishing anything about the condition of the individual even as a matter of probability. In this case, the rather unusual point had been reached where the defence placed most reliance on the evidence of the expert retained on behalf of the prosecution and whose evidence in turn was relayed to the Court through the medium of a defence expert who had previously expressed a different opinion. Nevertheless if a broad view is taken of this appeal, it is only fair to approach the legal issues arising on the basis that, whatever its flaws, this was certainly evidence which would have been perceived as helpful to the defence, and if available at the time of the trial would probably, if not undoubtedly, have been called on behalf of the accused. The question here is whether it goes further and reaches the level of being evidence which should be admitted so as to require a retrial.
Decision on Grounds of Appeal : I . The Jury’s Question
31. It may not be sufficiently appreciated just how significant these difficulties are. Because of the single sanction on conviction for murder, historically the death penalty, now a life sentence, accused persons had little incentive to plead guilty and raise matters in mitigation since it could result in no reduction of sentence. The single sanction also gave rise to defences peculiar to the law relating to murder which had the effect of reducing murder to manslaughter, such as excessive force, self-defence, and provocation, and which appear in one way designed to address, at an earlier point in the process, an instinctive desire to distinguish between different types of homicide.
32. Once it is appreciated that a defence of provocation can be raised with little more than a statement as to loss of control (or indeed evidence suggesting it) and that then the prosecution must prove beyond a reasonable doubt, that the accused was not acting under provocation, and furthermore that this is a subjective test, then the point is reached where the defence of provocation becomes potentially available in almost any hot-blooded killing. But at its heart, provocation is, as the Law Reform Commission has observed, a defence of only partial excuse. It expresses a societal view that some conduct, if not fully excusable, is in some sense at least partially understandable so as to reduce, but not wholly remove, the culpability of the accused. That judgment was, as a matter of history, necessarily related to the conduct of the victim. But if provocation as a defence to murder is taken to its logical extreme, then it may however be employed in respect of conduct which society might find deeply offensive, and indeed truly inexcusable. It also adds insult to injury for a family of a victim if a successful raising of provocation suggests that somehow he or she is to blame for their own death, when in truth the verdict may only mean that a jury was not satisfied beyond reasonable doubt that the accused had not responded completely inappropriately but genuinely to something, perhaps anything, emanating from the accused.
33. If it is society’s judgment that murder should be reserved for only those killings which can be described as deliberate, cold and calculating, and that manslaughter or some similar crime is an appropriate label for all other killings even if carried out intentionally, then that should be made clear by appropriate legislative decision and without the fiction that the victim’s conduct was somehow relevant, responsible or indeed culpable. On the other hand, if as most countries have judged, the intentional killing of another person, even if the intention is formed almost instantaneously, is a matter which is properly defined as murder then the breadth of the defence of provocation should be addressed, analysed and defined in such a way as to capture those cases where it is considered a lesser verdict is or may be appropriate. These are matters for broader debate, and if thought appropriate, reform. For the moment however, this Court must deal with the law as its stands. The complexity of the Irish law on provocation is however an important background against which the matters in this appeal must be addressed.
34. In the first place, there is in the Court’s view, little doubt that the judge’s response to the questions raised by the jury, while entirely well meant, was misconceived and confusing. It appears that the confusion can be traced, as was suggested in argument on this appeal, to the fact that the jury did not identify what verdict they had in mind when asking whether it was necessary to find intention and disprove provocation to reach a verdict. The apparent confusion can be understood if, as was suggested at the hearing of this appeal, the exchange is approached on the basis that the judge considered that the question asked related to the verdict of manslaughter. If so it would be quite correct to say that such a verdict could be entered if the jury was either not satisfied that the accused had the requisite intention or, that it had not been disproved that he was acting in response to provocation, or, indeed, both.
35. However, it is surely beyond argument that another interpretation was possible, that is that the question was about the requirements of which a jury must be satisfied before returning a verdict of murder. Indeed, in the view of the Court that is, if anything, the more plausible interpretation of the exchange. First, that is what the question suggests: once it is accepted that provocation was properly raised as a defence, as was the case here, disproof of provocation is a necessary step before a jury could return a verdict of guilty on the murder charge. Second, the structure of the trial was whether or not a verdict of murder was appropriate: manslaughter was the default position. Third, it would have been somewhat illogical to approach the question of provocation first, and indeed, whatever the merits of either argument, it would have been somewhat surprising if a jury had rejected provocation but still struggled with the question of intent. Fourth, this is clearly how counsel for the prosecution that was present at the time understood the question, and she made admirable and commendable efforts within the limited confines of the trial process to ensure that the jury was correctly instructed and any confusion resolved. Finally, it should be said that this is how this Court interpreted the jury’s question when it was first encountered.
36. It is possible, that even if the judge and jury were at cross purposes, a standard and neutral explanation of the law might have given the jury enough information to address the issue in their own minds. The instruction the Court gave immediately in response to the jury’s question was itself accurate. But it was followed by a further question and answer in which the foreman of the jury asked if they could return a “verdict” on the proof of intent alone. Again, it seems at a minimum likely, that this referred to a verdict on the murder charge. If so, then the answer of the judge “you can yes” was unintentionally misleading. It should perhaps be noted that it is difficult to read this exchange in terms of a verdict of manslaughter.
37. This exchange prompted counsel for the prosecution to intervene and suggest, a charge in accordance with the decision in Bambrick, that provocation may reduce murder to manslaughter notwithstanding that there was an intention to kill on the part of the accused or to cause serious injury, and that provocation was a distinct question to intention. The judge reiterated his view that the jury had moved away from provocation and that he so interpreted the jury’s question. Counsel did not press the point at that stage observing that the jury seemed satisfied with the response. Junior counsel for the defence acknowledged it was difficult to understand the question but that the jury seemed satisfied. At this point the matter might have gone no further, but again, counsel for the prosecution commendably returned to the topic and said explicitly that she considered that she thought “the jury were confused and they needed to be given a clear direction on the interrelationship between intent and provocation”. The judge was quite prepared to accede to this application and gave further instructions to the jury which were in themselves unobjectionable “You can have an intention to kill or cause serious injury but still rely on the defence of provocation. It is on the prosecution to negative provocation and not on the defence to establish it. Because they don’t have to prove or disprove anything at any stage”. However, that concluded with a question “now is that clear to you?”. The foreman then asked “so we need both to get - to bring in a verdict?”. Assuming this related to a verdict of guilty on the murder charge, then the answer to this was clearly “yes” but the judge’s response was “no, one or the other”. Finally, he said, “One or the other. Or you could have both”.
38. Even taking this at its lowest point, there is an inescapable possibility that the jury were asking about whether they needed both (proof beyond reasonable doubt of intention to kill or cause serious injury, and disproof of provocation) before returning a verdict of guilty on the murder charge. If this was on their minds, then the response made by the judge was unintentionally but clearly incorrect. There is therefore, at a minimum, an inescapable possibility that the jury were and remained confused as to a central feature of this case.
39. While in this appeal the prosecution sought to maintain the interpretation that both the judge and the jury understood each other and were discussing the requirements of a verdict of guilt of manslaughter, we think, with respect, that it is more likely that the judge and jury were at cross purposes. Again, and at a minimum, the possibility cannot be excluded. The principal basis upon which the prosecution now sought to defend the verdict therefore was that the defence had raised no objection at any point in this exchange, and that the Court will not readily permit a point to be argued on appeal, particularly in relation to the judge’s charge, when that point was not taken at trial relying in this regard on the decision of the Supreme Court in The People (Director of Public Prosecutions) v. Cronin (No.2)  4 IR 329 (“Cronin”).
40. In Cronin, the applicant had been convicted of murder following a shooting incident. At his trial the applicant’s defence was that he did not have a gun and did not shoot the victim. He was convicted and applied for leave to appeal. Subsequently, he changed his legal team, and sometime later, an application was made to add an additional ground that the trial judge had failed to instruct the jury as to the possibility of an alternative defence, namely, accidental or mistaken discharge of the gun. This point was rejected by the Court of Criminal Appeal which nevertheless certified a point of exceptional public importance permitting an appeal to the Supreme Court pursuant to s.29 of the Criminal Justice 1924. The Supreme Court made certain observations and strongly deprecated the practice of a trawl through a judge’s charge years after the event to see if a ground of appeal could be discovered, particularly when it was at least plausible, as it was in that case, that the alternative defence had not been advanced by the accused for good tactical reasons, in that case that it would have detracted from the principal ground of defence. The underlying principle which the Court has reiterated on a number of occasions, see The People (Director of Public Prosecutions) v. Moloney (ex tempore judgment; Court of Criminal Appeal; 2/3/1992; O’Flaherty J.) (“Moloney”), was that identified by Hardiman J. in the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Cronin  3 IR 377:
42. It is acknowledged in Cronin, and stated in earlier cases such as The People (Director of Public Prosecutions) v. Noonan  2 I.R. 439, Moloney, and The People (Director of Public Prosecutions) v. Sweetman (ex tempore judgment; Court of Criminal Appeal; 23/10/2000; Keane C.J.), that the principle is not absolute, but that in any event, the Court is entitled to have an explanation as to why the point was not raised. In this case, no real explanation was proffered other than that which emerged from the facts of the exchange from which it seems clear that there was a considerable degree of confusion in the Court, and the matter was dealt with quite speedily. Nevertheless, where as here it appears that an objection should have been taken on behalf of the accused, and was not through a mixture of confusion, inadvertence and error, that should be plainly stated. Where as here, there has been a change of the legal teams, it is particularly important that it should be said explicitly, in advance, and notified to the original legal team lest they have any comment upon the manner in which the defence is characterised. This of course should be done plainly, simply, professionally and with courtesy, but it should not be avoided. The end point of an appeal may well be less satisfactory, and certainly more costly and stressful for participants who are forced to revisit, sometime after the events, the trauma of the events, and the trial. When a Court is urged to take this step because of an issue not raised by the defence at the trial the obligation to give a clear unequivocal and credible explanation should not be avoided from a misplaced sense of professional delicacy.
43. This case is however unusual, and far removed from the situation in Cronin. The point was raised at the trial and agitated there, albeit not by the defence. It is also a fundamental point since if the Court is left with a serious doubt that the jury correctly understood the manner in which they were to approach the defences raised in this case, it follows that the Court cannot be confident as to the fairness of the trial, and the safety of the conviction. To reject this point on the grounds that the very proper application and interjections of counsel for the prosecution were not endorsed by counsel on behalf of the accused, would be to reduce the principle articulated in Cronin from one designed to impose reality on the conduct of an appeal to one merely technical and at best designed to permit efficient, though not necessarily fair, conduct of appeals. The underlying rationale of Cronin, is not simply procedural. It is that if a point in relation to the judge’s charge is raised at the trial it is possible that the error or confusion can be addressed and remedied. No one should be allowed withhold a point for a possible appeal and pore through the transcript later for appeal points. But here the point was raised at the trial and for these purposes it is irrelevant that it was raised by counsel on behalf of the prosecution. In this case, the Court is satisfied that it must address this point. The Court concludes that, and at a minimum, it cannot be satisfied that the jury was clear as to the manner in which it should address the defence of provocation before returning a verdict of guilt. Indeed, it is at least possible that from the final exchange between the judge and jury, that the jury considered it did not need to address that defence. Accordingly, the Court must quash the conviction on that ground and allow the appeal and direct a retrial.
Decision on Grounds of Appeal : II. Instruction on Provocation .
45. The judge and jury in a court of trial, and the judge in the appellate system all have different functions in the administration of justice, but they have in common the fact that in our system they are ordinary citizens chosen to perform a task in the interest of justice, whether in an individual case or over the course of a judicial career. In the present context it should be said that the object of instructions to a jury is to assist them in addressing the complex and onerous task the law requires of them. The repetition of words used in earlier judgments in appellate courts can be helpful, but it is also useful to seek to address the concepts by reference to the facts of the case to allow the jury to understand the issue they have to decide and, perhaps the reasoning process involved. Judges are rightly cautious about anything more than a recitation of the evidence. That is undeniably neutral. But it is possible to engage with the facts in a way that isolates the issues the jury has to decide without becoming an advocate for a particular verdict. Provocation in Irish law has been a very difficult concept, as the litany of cases since The People (Director of Public Prosecutions) v. MacEoin  I.R. 27 (“MacEoin”) illustrates. In this case the jury were plainly and perhaps understandably, struggling with the concepts, and may well have been confused, as indeed counsel for the prosecution suggested. However, no objection whatsoever was made at the trial to the detail of the judge’s instruction to the jury, and in the view of the Court, the decision of the Supreme Court in Cronin is a fatal objection to this ground of appeal. Furthermore, the words used in the judge’s charge were not deficient or erroneous in themselves, and certainly not by reason only of the fact relied on by the applicant, that the instructions did not advert to the accused’s background in more detail. The trial here was conducted in an efficient and speedy way, without lengthy legal argument, elaboration or histrionics, and is not to be criticised for that. Indeed it must be judged against that background. The judge here told the jury repeatedly that the test was subjective, and the colourful evidence of the accused’s behaviour before and after his admission to hospital was given, and could hardly have been ignored. The jury were made clearly aware that they had to address the issue of provocation through the experience and condition of Kieran Lynch as of the time of the offence.
46. Nevertheless the instruction of the jury as to the law and the relevant facts, is a difficult task. It is possible that a historical perception is that when judges review facts they do so in a way which tends to favour one side, normally the prosecution and that this, has led to a practice of abstaining from anything other than a studied mutual quotation of extracts from judgments, and an equally neutral recitation of a synopsis of the evidence given by witnesses without making any comment on such evidence, or any distinction between witnesses, and the contents of their evidence, in terms of its importance. This is certainly preferable to a one sided and partial account. But it should be possible to offer some assistance to the jury in identifying and framing the issue for determination by them.
47. In this case, by way of example only, in addition to the standard and important information as to a presumption of innocence and burden of proof, it would have been helpful to address provocation by reference to the specific facts of the case. It might have been useful to explain the concept of provocation perhaps by reference to the classic examples. Given the difficulty of the concept and in particular the difficulty of distinguishing it from mere lack of control, rage and anger, it would have been useful to contrast it with what did not in law amount to provocation. Thus, the passages in both Kelly and Davis, are particularly helpful. Given the difficulty of definition it is important to emphasise that whatever is asserted to be provocation must emanate from the victim, and the killing must be in response to it. Indeed, the nature of the asserted provocation, and its relationship to the identified response, may be relevant in assessing the credibility of the accused’s assertion at trial, that he or she was provoked. The loss of control must be total and reaction must come suddenly and before time for emotions to cool. There must be a sudden and temporary loss of self-control rendering the accused so subject to passion as to make him or her for the moment not the master of his (or her) mind. Extreme anger and murderous rage are not themselves enough. Indeed they are different things, even if it is hard to keep a clear distinction between them.
48. Here the jury could have been invited to consider the evidence relied on as suggestive of provocation. Essentially the only such evidence was contained in passages from the statements made by Kieran Lynch to the gardaí. In this regard, the fact that the statements were themselves inconsistent either fundamentally, in initially asserting that someone else had been responsible for Catherine McEnery’s death, or in important details, such as whether she walked or was carried into the bedroom and whether she was bleeding or not. It follows, and indeed the defence accepted, that in some respects the statements must be untrue. The jury were correctly instructed that the mere fact that a person had lied or told untruths, was not itself necessarily evidence of guilt because people can lie for reasons which are consistent with innocence, and it is only if satisfied beyond reasonable doubt, that any such lie was not consistent with innocence, that it should be considered evidence of guilt. Nevertheless, the identification of the inconsistency, irrespective of the conclusions drawn, was important. This was so particularly because those inconsistencies, are contained in the same statements from which those portions of evidence central to the defence of the provocation are drawn. Furthermore, it is important to identify the different accounts given by the accused and to assess same by reference to the forensic evidence given in this case which was unchallenged. That evidence did not tally with any of the accounts given by Kieran Lynch, particularly in relation to the number of blows struck, Catherine McEnery’s condition when some of the blows may have been struck, and in particular whether she was bleeding, the places on her body that she was struck, and the locations within the house in which assaults took place. The jury could have been invited to consider if they were satisfied beyond reasonable doubt as to what had occurred, at least physically, to Ms McEnery. If they considered it was reasonably possible that Kieran Lynch had only struck three to four blows to her head while in the living room, then they should proceed on that basis. If however they considered that the forensic evidence was only consistent with Kieran Lynch having beaten Catherine McEnery repeatedly and ferociously while both in the living room and the bedroom, that that must have occurred while she was bleeding, and that when she was put to bed she must have been bleeding profusely, then they should have proceeded on that basis, and it would follow in that respect again that each of the accounts given by Kieran Lynch was necessarily untrue. These matters are referred to here by way of illustration only. However, the fact that a more elaborate jury instruction could have been given does not mean that the instruction here, to which no objection was raised, was inadequate, or can now be challenged on appeal.
Decision on Grounds of Appeal: III. Application to Admit Fresh Evidence
50. The issue in O’Regan was whether this jurisdiction should adopt a broader based test such as the interest of justice, in which the matters identified in Willoughby would be factors but not preconditions. While the Court did not accept the proposition in this stark form, it did express the test in terms that would permit evidence to be adduced in exceptional cases without satisfying the Willoughby test. Specifically the test should not be seen as negativing the overarching requirement that justice be seen to be done having regard to all the circumstances and facts of the particular case. In this regard the Court was satisfied that the “saver” contained in the first of the stated principles was adequate to safeguard that particular requirement, and “[n]o statement of principle enunciated in The People (Director of Public Prosecutions) v. Willoughby  IECCA 4 … is to be seen or understood as abrogating that requirement” (para. 72).
51. This statement ensures that the test is applied with sufficient flexibility to fairly balance the competing public policy considerations at play when it is sought to introduce fresh evidence with a view to overturning a verdict and requiring a retrial. For example, in this case as in many cases in this sequence such as Willoughby and O’Regan, the end point of the expert evidence sought to be admitted is to some extent at least equivocal. It is difficult however to believe that if the evidence was more compelling, that consideration would not weigh heavily with the court in applying the O’Regan test. Furthermore, while the structure of analysis is the same, there are important differences between civil cases and criminal cases. In a civil case, the court can, by an appropriate costs order, mitigate if not remove the burden necessarily imposed on the other parties when a retrial is ordered to take account of new or fresh evidence. On the other hand, where the omission of evidence in a civil case is alleged to be due to culpable default on the part of legal advisors, that fact may provide a separate and different remedy for a client, without requiring that the other party be put to a retrial. Neither of these factors are present in criminal cases which can mean that there may be subtle differences in the outcome of the application of the test in different circumstances.
52. However, here there is no doubt that the evidence sought to be adduced is of a similar nature to that in issue in both O’Regan and Willoughby. It is expert evidence after the fact commenting on information adduced at the trial. By definition it was not available at the trial because the relevant witnesses had not been asked to and had not formed any opinion on these matters, but equally clearly this evidence or similar evidence could with reasonable diligence have been obtained at the time of the trial. Accordingly, if the evidence could be admitted, it can only be by reference to the saver referred to by Kearns J. and the overarching requirement that justice be seen to be done having regard to all the circumstances and facts of the particular case. In this regard, the applicant lays particular stress on the feature of this case whereby the defence at all times had been one of diminished responsibility and that the events which meant that this defence had to be abandoned occurred, without any fault on the part of the accused’s legal team, at almost the every last moment, and just before the closing of the prosecution case. The prosecution, while acknowledging this point, respond by pointing out that the defences of diminished responsibility and provocation are not mutually incompatible, that to some extent the evidence with regard thereto may overlap, and that there was nothing to prevent preparation and presentation of a defence of provocation with any supporting expert evidence of the effect of benzodiazepines on their own, or in conjunction with alcohol. As a matter of logic this is correct, but as a matter of practicality it is perhaps not surprising that on the facts of this case the defence would seek to focus on diminished responsibility, and consequently be wrong footed by an unexpected turn of events.
53. As the judgment of Kearns J. in O’Regan observes (paras. 55-57), there is a close parallel between the test applied here, and that laid down in Cronin in respect of the argument of a point on appeal not raised at the trial. In this Court’s view, it is perhaps preferable to treat the fresh evidence aspect of the matter as part of the general background, and as one of the factors to be considered when addressing the overarching requirement that justice be seen to be done having regard to all the circumstances and facts of the particular case. In that regard, the Court is satisfied that this issue, even if not dispositive on its own, provides support to the decision on the first point of appeal in relation to permitting the appellant to challenge on appeal the instruction given to the jury in response to the jury’s question even though no objection was raised by the defence at the time. Accordingly, on the particular facts of this case, it is necessary to quash the conviction and direct a retrial, which will have the consequence that the evidence now relied on can in any event be adduced.
54. It cannot however be ignored that a retrial of events which occurred so long ago is not desirable from the point of view of any of the participants. It will for example require the assembly of witnesses and the revisiting of traumatic matters. On the part of the applicant it is also, at a minimum, unsatisfactory that he should be in prison serving a sentence while there remains any doubt as to the legal validity of the conviction and consequent sentence. The matter has taken a considerable time in these courts. But more significant in this case was the protracted process of seeking an expert witness, and subsequently refining that evidence through correspondence, and analysis of the opposing evidence. It is more than a little ironic that while the bulk of the papers in this appeal, and the time spent, was concerned with this issue, there was already within the case a point upon which an appeal could, and did, succeed. It does not seem unreasonable to require that an appeal be prepared and presented within a reasonable time, particularly now when considerable efforts are being made to address the backlog in criminal appeals. Furthermore, where it is sought to advance as a ground of appeal the admission of fresh evidence, it does not seem unreasonable to observe that if the point is of sufficient cogency to merit a retrial, it should firstly be one that is readily apparent and capable of being stated in clear and simple terms in early course. If it requires protracted investigation, refinement and qualifications, particularly in the case of expert evidence, it is unlikely to rise to the level of evidence which would satisfy the test in O’Regan. There is a significance difference between the preparation of a defence in which evidence of the nature presented to this Court would be deployed, and the advancement of fresh evidence on appeal. Furthermore, and in addition, while the issue in this case was pursued with undoubted commitment, the same cannot be said for the preparation of the papers for the appeal. The papers were disorganised, difficult to follow, and repetitive, with the same reports reproduced in a number of different places within the papers. The books of authorities were also very limited. In particular, although Kelly was included, neither Davis nor the subsequent line of authority on provocation was included. The courts, at both trial and more particularly appellate level, are correctly becoming less indulgent of these matters. This is not a merely procedural complaint: if the papers are not properly and clearly presented, it becomes more difficult to isolate, identify, and understand the points, and if the authorities are incomplete there is an inevitable risk that the court will not be able to address the legal issues with the desirable accuracy and precision. In the circumstances of this case however, the Court is satisfied that the conviction must be quashed and a retrial ordered.