High Court of Ireland Decisions

Neutral Citation No: [1989] IEHC 24

THE HIGH COURT

1987/1361P

BETWEEN/

COLM ROSS

PLAINTIFF

AND

PATRICK CURTIS

DEFENDANT

Judgment of Mr. Justice Barr delivered the 3rd day of February, 1989

There is no significant controversy on the facts of this case. The Defendant resides alone in a bungalow in the village of Kilmessan, County Meath beside a small supermarket which he owns. There is an internal door between the dwelling and the shop. On the date of the incident complained of the Defendant also owned a public house and a shop in Trim. At about 1.20 a.m. on 22nd December, 1985 he returned from Trim to his dwelling at Kilmessan and he had in his possession the day's takings from all three businesses amounting to about £25,000, most of which was in cash. He took the money to his bedroom but did not secure it in any way there. He went to bed. He kept a .22 rifle near at hand for protection and his premises were also wired up to a burglar alarm system comprising an alarm bell and siren outside and another bell in his bedroom within. Some hours earlier the Plaintiff and three other young men had stolen a car and had embarked on a campaign of robberies in various parts of County Dublin and County Meath. There modus operandi was to throw missiles through shop windows or doors of premises in small villages and thus gain entrance to the various premises concerned. They robbed and took away in the car everything of interest they could find in these places. It is evident that they relied on numbers and that they were indifferent as to whether or not they might be discovered on the premises by the occupiers thereof in course of the crimes or whether they might activate an alarm system. The Plaintiff and his confederates arrived at the Defendant's shop premises at about 4 a.m. on the night of the incident. They broke most of the glass in the main shop door from the street. So much was broken that they could walk through the hole thus made. The glass was a quarter inch plate which would have required major force to achieve that result. The Plaintiff and two others entered the shop, one took cash from the till and the others took a cigarette dispenser which they carried out to the waiting car. The Plaintiff then went back in search of more cash followed by the other two but having entered the shop and while he was still close to the broken door a shot was fired and a bullet struck the top of his skull. The Plaintiff conceded that at the time of the shooting he saw a man in the shop about 30 feet away from him. He also conceded that the alarms could have gone off when the door was broken at the outset of the attack. The Defendant's evidence, which I believe, was that he was awoken by the alarms and he went to the shop with his gun. He stood in the shop close to the internal door and in a position where he was illuminated by a fluorescent light a few feet away. I am satisfied from his evidence and that of Guard Duffy that he, the Defendant, was visible to the robbers from the time when they entered the shop originally. He saw the two men carrying the cigarette machine towards and through the broken shop door. He also saw one of them look back in his direction. He says he had got a dreadful fright and had frozen where he stood. Then the Defendant saw for the first time a third man as he approached the broken door to enter the shop after the other two had left with the cigarette machine. He knew that the third man could see him but he continued to advance apparently caring nothing for his, the Defendant's, presence. The Defendant believed then that the three robbers were all coming back to attack him. He put the .22 rifle to his shoulder and pointed it upwards at the top of the shop door. He thought that he would fire a warning shot so that they would not attack him. It was specifically accepted by Mr. Mackey on behalf of the Plaintiff that the Defendant did not intend to shoot his client or injure him in any way. The Defendant also confirmed that he had no such intention but only wished to scare away the robbers. In the event the single shot he fired struck the top of the Plaintiff's skull.

In the light of the foregoing circumstances the net issue in this case is whether in doing what he did the Defendant acted in reasonable self defence and in defence of his property or whether in firing the shot he acted with reckless disregard for the Plaintiff intruder. With hindsight it might be concluded that the Defendant could perhaps have achieved his purpose by firing into the ceiling of the shop or in a direction well away from the Plaintiff. However, one has to bear in mind the nature of the ruthless, vicious crime which the Plaintiff and his accomplices were perpetrating at the Defendant's premises at the time. I am satisfied that the Defendant had good reason to fear that he was in imminent personal danger from the robbers. In my view this entitled him to fire a warning shot in the hope of scaring them away. Unhappily in the terror of the moment he failed to aim the gun sufficiently high when pointing it in the general direction of the Plaintiff as he entered the shop. I am satisfied that the Defendant acquitted himself reasonably in all the circumstances of the case and that he was not guilty of reckless disregard for the safety of the Plaintiff which is the test appropriate to the circumstances of this case. Accordingly the action fails.