JUDGMENT of Mr. Justice Kearns delivered the 3rd day of March, 2006
I have read the judgment to be delivered herein by Geoghegan J. in which the background facts are helpfully set out in detail which I gratefully adopt. I do not propose therefore to refer to the facts other than is necessary by way of background in the two areas of particular relevance to this judgment.
Further, I entirely agree with Geoghegan J that the point of law certified by the Court of Criminal Appeal should be interpreted both in its exact terminology and also in a more general way so as to provide an answer to the question whether or not a trial judge should direct a jury that certain portions of evidence given at trial might give rise to an additional or alternative defence to an accused person, or create a reasonable doubt in the minds of the jury as to the guilt of the accused, notwithstanding the fact that a legally represented accused person elected for one particular line of defence only and did not rely on other evidence which might support such alternative defence, particularly in circumstances where the chosen line of defence may be seen as incompatible or inconsistent with those portions of the evidence which point towards such alternative defence.
Before addressing that issue, however, I wish to consider the situation arising where a point is not taken at trial, but is sought to be argued for the first time on appeal. In what circumstances should the Court of Criminal Appeal entertain such an argument?
The applicant was convicted of murder and possession of a firearm with intent to endanger life contrary to s.15 of the Firearms and Offensive Weapons Act, 1991, following a trial in the Central Criminal Court in which verdicts of guilty were delivered by the jury on the 27th March, 2000.
The applicant, who was professionally represented at all stages during his trial, caused a Notice of Application for leave to appeal to be lodged in the Court of Criminal Appeal on the10th April, 2000. The grounds attached to the Notice of Application did not include any complaint that the learned trial judge had erred in his charge to the jury by failing to direct the jury as to the possibility that the applicant might have caused the death of Georgina O’Donnell without intending so to do because of an accidental firing of the gun when his arm was pushed aside by his wife.
From the papers lodged in this case, it appears that a Notice of Motion dated the 13th March, 2001, was filed in the office of the Court of Criminal Appeal seeking an order pursuant to Order 86, Rule 4 of the Rules of the Superior Courts, 1986, granting the applicant liberty to argue additional grounds at the hearing of his appeal against conviction. The attached grounds of appeal, filed by the same solicitors which he had retained at trial, did not, even in amended form, advert to the point of law subsequently sought to be argued before the Court of Criminal Appeal. It seems that motion was never moved.
It was only by Notice of Motion brought in January, 2003, almost three years after the trial, that a new firm of solicitors who had come on record sought an amendment of the grounds of appeal to include the following ground:-
“The learned trial judge failed to charge the jury adequately or at all as to the defence of mistake and in particular in that regard -
(a) failed to convey to the jury the matters of fact to be determined and the law to be applied in making such determination
(b) failed to direct the jury that if it was reasonably possible that the firearm was discharged by mistake as a result of the firearm being knocked to the side, then the appropriate verdict was not guilty of murder and guilty of manslaughter
(c) failed to direct the jury that the statutory presumption under s.4(ii) of the Criminal Justice Act, 1964, regarding intent as to consequences
(i) is not relevant to the question of whether the firearm was discharged by mistake
(ii) may be rebutted and the prosecution must prove beyond reasonable doubt that it has not been rebutted.”
Leave to argue the amended ground outlined above was granted only at the commencement of hearing of application for leave to appeal. The certified point thus arose only at a very late stage and long after the trial had been concluded and the grounds of appeal filed. It seems clear that the point ultimately emerged following a meticulous scrutiny of the transcript by new legal advisors who had not been present at the trial.
These being the facts, it seems to me that a threshold difficulty requires to be addressed at the outset in this matter.
Although it did deal with the certified point, the Court of Criminal Appeal nonetheless was strongly of the view that a new point should not be allowed to be argued unless the essential justice of the case so required. The Court quoted with approval the following passage from the judgment of O’Flaherty J. in DPP v Moloney (Unreported, CCA, 2nd March, 1992) where he stated:-
“We would wish to reiterate the jurisprudence of the court which has been in place for many years that there is an obligation on counsel on both sides, the prosecution and the defence, to bring to the attention of the trial judge any inadequacies they perceive in his directions to the jury. If an appeal is brought before this court on a point that was not canvassed at the trial this court will regard any person making such a new point as having an obligation to explain why it is sought to be made on appeal when not made at the trial. That is not to say but that if the essential justice of the case calls for intervention we have an obligation to intervene.”
As was noted by Hardiman J. when giving judgment in this case in the Court of Criminal Appeal:-“The reason for this rule or statement of principle is not at all a technical one, or one designed to assist in the orderly conduct of trials and appeals. It is to ensure a proper relationship, based in reality, between the conduct of an appeal and the task on which the court is engaged, which is to say whether or not the trial was a safe or satisfactory one.”
In DPP v Noonan [1998] 2 IR 439, the Court of Criminal Appeal had to consider what should be done in a situation where an error as to the legal requirements for provocation had been made in a judge’s charge, but had not been the subject of any requisition. Geoghegan J., giving the judgment of the court, referred to the error and to the absence of a requisition on it and said:-“That being so, this Court must consider whether the application for leave to appeal should be refused. There is absolutely no doubt that this court can refuse to entertain an objection to a judge’s charge where that objection did not form the subject matter of a requisition. But it does depend on the particular circumstances of the case whether this Court takes that course or not. An obvious example where it might take that course would be where there might appear to have been a deliberate omission to raise the requisition for tactical reasons in the circumstances where perhaps other parts of the charge had been highly favourable to the accused.”
Hardiman J. in the course of his judgment in the present case in the Court of Criminal Appeal noted that in Noonan the court permitted the point to be argued, Geoghegan J having observed that “it is impossible in this case to conceive of any tactical reason why such obvious defects in the learned trial judge’s directions that the jury on provocation would not have given rise to a requisition if that had been adverted to”.
In arguing his entitlement to argue a new point on appeal, Mr. Hartnett, senior counsel for the applicant, very much relied on a decision of the Court of Criminal Appeal in DPP v Sweetman (Unreported, ex tempore, 23rd October, 2000). In that case the applicant was convicted of murder. The only evidence linking him to the offence was an alleged confession that he went with others to frighten a farmer but that the plan did not involve inflicting violence. His co-accused was alleged to have confessed to taking part in the enterprise with a view to inflicting a shot-gun blast on the farmer.
The trial judge directed the jury repeatedly that two separate trials were being conducted in respect of each accused in the same court, but failed to direct the jury that the confession of the co-accused could not be taken into account in assessing the case against Sweetman. Delivering the judgment of the court, Keane C.J. stated as follows (at p.5):-
“It is right to say that the problem for the learned trial judge was compounded by the fact that unfortunately no requisition was raised in respect of this aspect of his charge. The explanation given to us today on behalf of the applicant is that counsel on the occasion in question, who are not the same counsel as argued the case here in court today, may have been concentrating so much on whether the statements had been made at all, because it was contested vigorously that they had not been made, simply overlooked the fact that they should have drawn the trial judge’s attention to the fact that he should have charged them on this basis.
It is not necessary for the court to consider whether that indeed is an entirely satisfactory explanation for what occurred in this trial. It is sufficient to say that, as this court has said on numerous occasions in the past, of course it is the duty of counsel for the prosecution on the defence to draw the attention of the trial judge to any aspects of his charge which require reconsideration on his part so as to give him an opportunity of putting any matter right before the jury reach their verdict.
There are also cases in the context of the whole trial and what is of issue being of relative insignificance, this court can overlook a defect in the charge and can take into account a failure to raise any requisition. This court is satisfied that this is not such a case because this was central to the trial, it was a matter of crucial importance, it was the critical evidence against the applicant and consequently the court is satisfied that that ground of appeal has been made out.”
Counsel for the applicant submitted that these cases show that where there has been an omission or failure in the court of trial to raise a particular point by way of requisition, or to seek a ruling in respect thereof, the Court of Criminal Appeal, historically at least, has not debarred itself from dealing with the point in the course of an appeal where the interests of justice so required.
However, in the instant case, there was for almost three years no suggestion that an error or omission had taken place either on the part of the trial judge in his charge or by defence counsel in relation to the point sought to be argued in the Court of Criminal Appeal. Nor even now is there any suggestion that the applicant’s legal representatives had either been lacking in legal acumen or in competence in their conduct of the case. Indeed, any such suggestion is expressly repudiated in the written submissions filed on behalf of the applicant. This was emphatically not a case where there had been either an error or omission or incompetence of that sort.
That being so, what are the circumstances which would justify a court of appeal in allowing a point such as that raised in the instant case to be argued for the first time on appeal? It seems to me, at least, that this court should give some clear guidance in that regard.
In the course of his submissions, Mr. Hartnett sought to distinguish the instant case from the facts which arose for consideration in the recent case of DPP v Campbell (Unreported, CCA, 4th March, 2005).
The appellant in that case had been part of the Real IRA, a group which broke away from the Provisional IRA in 1997 because it did not agree with the Peace Process. During his trial in the Special Criminal Court, no point was taken or argued that the Suppression Order published pursuant to s.9 of the Offences against The State Act, 1939, could not apply to an organisation which was said to have come into existence only in 1997. Throughout his trial in the Special Criminal Court, a “non-oppositional defence” (as so characterised by counsel for Campbell) was tendered, in consequence whereof Campbell obtained the benefit of a reduced sentence and one considerably less than if he had fully contested the offence with which he had been charged. It was only for the first time sought to argue the point about the non-applicability of the Suppression Order in the context of the appeal. In rejecting that application, I stated as follows on behalf of the Court (at p.25):-
“If this Court were to allow this appeal to be argued in the manner sought, it is quite clear that the exercise would be one totally unrelated to any ruling or determination made at the court of trial. Furthermore, there is not a scintilla of evidence to ground the appeal on the point taken. This Court cannot have judicial notice in some way of matters not dealt with in evidence or borrow evidence from other trials or sentencing hearings for the purpose of determining an appeal against conviction. Thus while there are background historical matters which may explain why this point is being taken now, it does not in any way detract from the requirement to both lead evidence and obtain a ruling on the point from the court below and we do not accept that it was not possible to do so.”
I think Mr. Hartnett is correct in stating that the facts in Campbell can be distinguished from those in the instant case. This is certainly not a case where any real point of substance was being held back for tactical reasons, to be rolled out only in the context of a later appeal. In any case where such a strategy was adopted, I would most certainly decline to allow the point to be argued for the first time on appeal.
It seems to me that the situation in the instant case is more similar to that which arose in DPP v Noonan, with the important difference that in the present case there is no suggestion there was any oversight or error on the part of the applicant’s legal advisers.
The function of the Court of Criminal Appeal was eloquently described by O’Higgins C.J. in The People v Madden [1977] I.R. 336 in the following terms (at p. 340):
“In the appeals now before this court, we have transcripts of the rulings of the Special Criminal Court made in the course, and at the end, of the trial on questions of law and findings of facts in relation to the admissibility of evidence, the sufficiency or cogency of the evidence, and the reasons for the rulings and verdict given. Therefore, subject to the grounds of appeal, it would seem to be the function of this court to consider the conduct of the trial as disclosed in the stenographer’s report to determine whether or not the trial was satisfactory in the sense of being conducted in a constitutional manner with fairness, to review as far as may be required any rulings on matters of law, to review so far as may be necessary the application of the rules of evidence as applied in the trial, and to consider whether any inferences of fact drawn by the court of trial can properly be supported by the evidence, but otherwise to adopt all findings of fact, subject to the admonitions in the passages cited above.”
It seems to me that some error or oversight of substance, sufficient to ground an apprehension that a real injustice has occurred, must be demonstrated before the court should allow a point not taken at trial to be argued on appeal. There must in addition be some sort of explanation tendered to explain why the particular point was not taken. Furthermore, as noted above, the Court of Criminal Appeal is concerned only with a review of the trial and the rulings made therein, and not with other suggested errors or oversights which may pre-date the trial or have been amenable to remedy in some other manner.
Without some such limitations, cases will continue to occur where a trawl of a judge’s charge years after the event will be made to see if a point can be found which might have been argued or been the subject matter of a requisition at the end of the judge’s charge at the original trial, even though competent lawyers at the trial itself did not see fit to do so. It is an entirely artificial approach to a review of a trial and one totally disconnected from the reality of the trial itself. For these reasons and for the reasons offered by Hardiman J when this case was in the Court of Criminal Appeal, this court should abhor the practice and strongly discourage it.
If one applies the limitations outlined above to the present case, there is, firstly, no suggestion of error or oversight on the part of the legal advisors retained for the trial. Indeed, this court would be aware that the senior counsel who conducted the appellant’s defence was both competent and highly experienced. Nor was any supposed failure of the trial judge to advert to the possibility of accident or mistake in specific terms a “matter of crucial importance” in the way that arose in DPP v Sweetman. For the reasons I will later set out, I feel the general terms adopted by the trial judge when charging the jury as to the difference between the intent in murder and that in manslaughter were entirely appropriate to the facts of this case. That being so there can be no question of any failure on the judge’s part causing or leading to a risk of an injustice to the applicant. Nor was any explanation offered as to why any possible argument about ‘accident’ or ‘mistake’ was not made at trial, or at the end of the judge’s charge, all of which strongly suggests that the only possible inference to be drawn is that the applicant’s legal team considered the possibility of running such a defence, concluded it was a defence without merit and/or one which might in fact altogether destroy the defence which the applicant elected to make.
Direction as to manslaughter
It should, I think, be fairly obvious that the directions given by a trial judge to a jury should reflect the real issues in the case. Further, the charge should be expressed in straight-forward language, stripped of any unnecessary legal terminology or surplusage which may tend to confuse or bewilder the jury. Nonetheless in every case the trial judge must direct the jury as to the legal elements of the crime alleged against the accused or of any defence offered on his behalf. In the case of murder this means that the accused must have “intended to kill or cause serious injury”. That necessarily means that it must be sufficiently conveyed to the jury that the accused committed the specific act, in this case the firing of the gun, intentionally. The critical portion of the judge’s charge in relation to the offences of murder and manslaughter was as follows:-
“Now, as I said, the section says (the trial judge had already referred the jury to the terms of s.4 of the Criminal Justice Act, 1964) unless the person intended to kill or cause serious injury to some person, whether the person actually killed or not. The fact that he missed one and hit another doesn’t reduce the offence so it doesn’t interfere with the definition of murder. So before you can convict of murder, you must be satisfied (a), that Mr. Cronin was the man involved in this killing; and you must be satisfied that he intended to kill or cause serious injury to some person, whether the person actually killed or not. Now, subsection 2 of that section provides as an accused person shall be presumed to have intended the natural and probable consequences of his conduct, that this presumption has been rebutted. So the presumption doesn’t arise in this case but the law is that every person is presumed to intend the natural and probable consequences of their conduct.
Now, you can only convict, as I said, of murder if you are satisfied (a), that it was the accused man; and (b), that he intended to kill or cause serious injury. Now, if you are satisfied that it was the accused man, you can bring in a verdict a murder or manslaughter. If you are satisfied that he intended to kill or cause serious injury, that is murder. If you are not so satisfied that the accused man intended to kill or cause serious injury, then that reduces the offence to one of manslaughter. So, you do have an option as to whether it is a murder verdict or a manslaughter verdict. But, as I said, you must first of all be satisfied that it was in fact Mr. Cronin, Mark Cronin who was the man in the nightclub with the gun on this particular morning.”
This charge - which obviously contains some minor transcription errors - seems to me nonetheless to be quite adequate in any event to cover any anxieties the applicant may have had that some other possibility in the nature of a mistake or accident be sufficiently put to the jury. It seems to me that, by referring to manslaughter in the terms in which he did, the learned trial judge adequately covered the uncanvassed possibility that the killing of the actual victim was unintended or mistaken without highlighting that possibility to a degree where he might have undermined the defence that “he did not do it”. Had he done so in the manner now contended for, it is not difficult to imagine that the applicant’s first ground of appeal in the Court of Criminal Appeal would have been that the trial judge thereby destroyed the applicant’s chosen line of defence.
However, the more important point in the context of this reference relates to the role of the trial judge in respect of alternative defences. It comes down to this: should a trial judge, who throughout the trial performs an essentially passive function, adopt an interventionist or active role when addressing the jury who have been presented with a particular line of defence by the defence by interposing or highlighting an alternative defence for their consideration? If so, should he stop with one possible alternative, or, if more than one suggests itself to any degree from the evidence, should he also highlight that alternative also, even in circumstances where highly experienced counsel have raised neither of these alternatives?
The evidence in this case was susceptible to a number of possibilities in terms of both the case alleged by the prosecution and the range of defences open to the defence, including possibilities that
(a) Mr. Cronin did intend to kill his wife, but because his arm was deflected when in the act of firing the gun, he shot someone else instead (i.e. the prosecution case),
(b) That he had no gun and had nothing to do with the shooting (i.e. the defence case),
(c) The possibility that the gun was accidentally fired by Mr.Cronin when his arm was pushed to one side (i.e. the case which, for the first time three years after the trial, defence counsel say the judge should have canvassed with the jury),
(d) That the gun was never intended to be fired, but only discharged accidentally because of the way Mr. Cronin’s hand or arm was caught or pushed (i.e. misadventure)
The last possibility mentioned above can, however, be disregarded in this discussion because it formed no part of the applicant’s argument, either in the Court of Criminal Appeal, or in this Court, that such a case should have been left to the jury for consideration. The applicant’s case is now focussed on the trial judge’s obligations which are said to arise in respect of possibility (c) above, which of course is an alternative defence to and inconsistent with that offered by him at trial.
The applicant’s claim to have alternative defences put to the jury rested substantially upon the decision of the House of Lords in Mancini v. DPP [1942] A.C.
The headnote to that case reads:-
“On the trial of a person charged with murder it is the duty of the judge in his summing up to deal adequately with any view of the evidence given which might reduce the crime to manslaughter. The fact that the defending counsel may not have stressed the possibility of such an alternative case does not relieve the judge from directing the jury to consider it, if there is material which justifies such a direction, but the possibility of a verdict of manslaughter instead of murder arises only when the evidence is such as might satisfy the jury as the judges of fact that the elements are present which would so reduce the crime, or might induce a reasonable doubt whether this may not be the right view.”
At p 7 Viscount Simon L.C. stated:
“The fact that a defending counsel does not stress an alternative case before the jury (which he may well feel it difficult to do without prejudicing the main defence) does not relieve the judge from the duty of directing the jury to consider the alternative, if there is material before the jury which would justify a direction that they should consider it”
It is, of course, important to bear in mind the important qualifications to this requirement outlined in the case by Viscount Simon L.C. who stated as follows (at p.12):-“If the evidence before the jury at the end of the case does not contain material on which a reasonable man could find a verdict of manslaughter instead of murder, it is no defect in the summing up that manslaughter is not dealt with. Taking, for example, a case in which no evidence has been given which would raise the issue of provocation, it is not the duty of the judge to invite the jury to speculate as to provocative incidents, of which there is no evidence and which cannot be reasonably inferred from the evidence. The duty of the jury to give the accused the benefit of the doubt is a duty which they should discharge having regard to the material before them, for it is on the evidence, and the evidence alone, that the prisoner is being tried, and it would only lead to confusion and possible injustice if either judge or jury went outside it.”
The difficulty associated with alternative or conflicting defences was considered recently in this jurisdiction in a number of cases. In DPP v. McDonagh [2001] 3 I.R. 201, the Court of Criminal Appeal had to consider whether the trial judge had correctly refused to allow the question of provocation to go to the jury notwithstanding that the accused did not put forward that defence. In refusing the application, Murray J (as he then was) stated:
“when considering whether the defence of provocation should go to the jury, the question was whether the state of the evidence was such that it would be open to a jury to conclude that it was reasonably possible that the accused had been the subject of provocation which triggered a total loss of self-control … some evidence from which provocation leading to total loss of control could be inferred was required.”
However, the Court had to consider also whether a trial judge could permit the defence of provocation to be considered by the jury even where the defence had not been raised by or on behalf of the accused during the course of the hearing before the jury and in particular where the accused had relied on a defence which was in contradiction to the defence of provocation. Ultimately, the court did not resolve the wider issue, but simply dealt with the appeal on the particular facts stating:-
“To have left the defence of provocation to the jury… would have been to invite them to speculate without any evidence concerning provocation leading to a loss of control. The reality is that provocation was never an issue in this trial. There was simply no evidence from any quarter that the accused was provoked.
Accordingly, the court is of the view that the learned trial judge was correct in refusing the defence application to allow the defence of provocation to be left to the jury.
In view of the above conclusions it is not necessary to decide whether the fact that an accused gives evidence at his trial which does not raise or is in direct contradiction with the defence of provocation precludes the trial judge from allowing the defence of provocation to go to the jury even where there is other evidence on which the possibility of provocation could be inferred.”
In the earlier case of The People (DPP) v. Halligan (Unreported, CCA, 13th July, 1998) the court equally decided this issue on the sole question as to whether there was any evidence of provocation to be considered by the jury while reserving its position on the point of law.
More recently, in The People (DPP) v. Donnelly (Unreported, CCA, 10th February, 2005,) the issue was again considered when at the conclusion of the evidence, counsel on behalf of the applicant submitted to the trial judge that a defence both of self-defence or defence of another in addition to a defence based on provocation should be allowed go to the jury. The learned trial judge (O’Donovan J.) permitted the defence of provocation, but refused to allow the defence of self-defence, saying in general that the two defences were contradictory. Therefore, only the defence of provocation went to the jury. There was no doubt in that case that a defence of provocation was one proper for the jury, because the accused, as he himself had described to the Gardaí, had “lost it” and gone out of control on the occasion of the incident. The Court however then noted that there was only a “low threshold set by the authorities for allowing a defence of self-defence” and that there was some such evidence in the present case, concluding:-
“Looked at all in all and looking at the evidence that was before the jury, it seems to this Court that while the evidence that would base a defence of self-defence or defence of another is somewhat thin, nevertheless there was sufficient evidence to allow it go to the jury and the learned trial judge erred in principle in refusing to allow that defence in addition to the defence of provocation. It should have been left to the jury to decide on the facts whether self-defence was something which they accepted. On that account the trial was unsatisfactory.”
It seems to me that consideration of the difficulties which may arise in the context of alternative defences can most usefully be carried out by recognising an important distinction between a situation where the defence requests a judge to leave alternative defences to a jury and a situation where no such request is made.
It goes without saying that the defence have the right to run whatever line of defence commends itself to the accused and his advisers, even if the trial judge believes it to be misguided or inappropriate having regard to the evidence. The defence are also entitled to adopt a ‘wait and see’ approach to the evidence and to test it in a general way before determining ultimately what defence to offer at the end of the case, although clearly such a strategy may contain as many dangers as advantages for the defence.
I have also come to the view that a judge, on being requested so to do, can and should leave alternative defences to the jury, even logically inconsistent defences such as self-defence and provocation, providing there is an adequate evidential basis for doing so.
I frankly confess to having had difficulty with the concept that logically inconsistent defences be left to a jury, not least because one defence can subvert the other, but a convincing rationale for doing so is to be found in the decision of the Privy Council in Lee Chun-Chuen v Q [1963] A.C.220. The Court had to consider in that case whether the defence of provocation could arise where a person did intend to kill or inflict grievous bodily harm, but his intention to do so arose from sudden passion involving loss of self-control by reason of provocation. The accused in giving evidence did not testify to loss of self-control and had also put forward self-defence as well as provocation. Having referred to a number of cases where the accused had put forward accident or self-defence as well as provocation, Lord Devlin stated:
“The admission of loss of self-control is bound to weaken, if not to destroy, the alternative defence and the law does not place the accused in a fatal dilemma. But this does not mean that the law dispenses with evidence of any material showing loss of self-control. It means no more than that loss of self-control can be shown by inference instead of direct evidence. The facts can speak for themselves and, if they suggest a possible loss of self-control, a jury would be entitled to disregard even an express denial of loss of temper, especially when the nature of the main defence would account for the falsehood. An accused is not to be convicted because he has lied.”
This passage explains well how, particularly in a case in which self-defence is the chosen line of defence, a request to let the jury consider also the defence of provocation may well be justified, providing of course the evidence meets the threshold test for doing so as described in cases such as DPP v McEoin [1978] I.R. 27, DPP v Kelly [2000] 2 I.R. 1, and DPP v Davis [2001] 1 I.R. 146. It is less easy to see how the converse can arise, namely, an assertion in evidence or in a statement by an accused of actual loss of self-control accompanied by a request to leave self-defence (where no loss of self-control occurs) to a jury and I have some difficulty on that account with the reasoning of the Court of Criminal Appeal in DPP v Donnelly. I find it hard to think of circumstances where an accused would elect for a defence of provocation (which can only reduce an offence of murder to manslaughter) if there was real evidence in the case supporting self-defence (which, if accepted, would result in acquittal). Nevertheless, in any case where there is a real basis in evidence for leaving one or more alternative defences to a jury, it seems to me that the trial judge on being requested so to do should in principle do so. However, the evidence must be real and not just a speculative possibility. Thus in R v Jones (Robert James) [2000] 3 Archbold News 2, CA, it was held that where a defence was self-defence, with no reliance by the defence on provocation, the judge should not leave provocation to the jury where the evidence of provoking conduct by the deceased, or the evidence that such conduct caused a loss of self-control by the defendant is minimal or fanciful. While there is in this jurisdiction a subjective test for provocation the point is nonetheless well made: there must be evidence which enables the trial judge to rule that a sufficient threshold test has been met to permit the alternative to be considered by the jury.
Of course when he does so rule, the judge, and not merely prosecuting counsel, will be entitled – and, in the judge’s case obliged – to point out the inconsistencies which may exist between the alternatives he has been requested to leave for the jury’s consideration. As noted above, the judge is bound to explain the legal elements both of the crime alleged and of any defence raised. Absent such guidance from the judge, the potential for disagreement, confusion and uncertainty amongst jurors is obvious. These considerations strongly suggest that where defence counsel intend requesting the trial judge to leave alternative defences to the jury, appropriate discussion and rulings should be sought and made in the absence of the jury between the judge and counsel for both prosecution and defence prior to counsels’ closing addresses and the judge’s summing up.
I turn now to consider whether a judge should ever of his own volition raise with the jury a defence which the defence has not sought to raise and which may be in conflict or inconsistent with the chosen line of defence. I share the reservations expressed in this regard by Hardiman J. in this case when he stated (at pp.15/17):-
“It seems to us that this Court should be slow to impose an obligation on a trial judge to intervene in a manner adverse to the prisoner’s chosen defence except in very unusual circumstances.
In DPP v. Hanley (Court of Criminal Appeal, unreported, 5th November, 1999) this Court pointed out that:-
“…while the trial judge may regard the defence as being unmeritorious, nevertheless it is a fundamental rule in a criminal trial that the defence must be put to the jury and that it is the right of defence counsel to say what his defence is.”
Hanley was a case where the defence as formulated by counsel was never put to the jury by the trial judge. But the principle underlying the decision is that it is the right of defence counsel (or the defendant) to say what his defence is, and that the defence so identified by the defendant or his advisors is the defence which should be put to the jury in the judge’s charge.
Where a competently defendant prisoner advances a defence which opens the prospect of a verdict of acquittal if it is accepted, or if it raises a reasonable doubt in any essential matter, it would be a grave responsibility to interfere with its prospects of success by introducing, uninvited, the possibility of what Lord Taylor called ‘a compromise verdict’. If the defendant wishes to introduce such topics as provocation or mistake, the threshold for having them considered by the jury is a low one and this fact has presumably been considered by defending counsel. A decision not to introduce them will normally be taken either on the client’s expressed instructions or because of realistic tactical apprehensions which must be presumed to have been discussed with a client. The trial judge cannot, in the nature of things, be privy either to the instructions or the tactical considerations and may run the risk of doing considerable harm to the predetermined defence.”
I entirely agree with these views. There may be exceptional cases as, for example, where an accused is unrepresented and has clearly gone down a wrong path in presenting a line of defence, or where utterly incompetent legal advisors have fallen into similar error, that a trial judge may actively intervene in the interests of justice to suggest an alternative line of defence, but such instances will be rare and would require great care on the part of the judge not to do more damage than good.
When an accused person is represented by experienced counsel, I would be strongly of the view that a trial judge should not of his own motion raise possible lines of defence which an accused’s legal team have not elected to pursue. In a case such as this where the defence is “I didn’t do it - I didn’t fire the gun”, the trial judge runs the very real risk of subverting that defence if he actively intervenes in the course of his summing up to raise with the jury for the first time the possibility that it was the accused who fired the gun, but that the gun may have discharged in circumstances which make the offence manslaughter rather than murder. The effect of the judge’s intervention might well be to deprive the accused of the opportunity of a complete acquittal.
That is not to say that the jury should be instructed by the trial judge that if they don’t believe the accused’s account, they should then convict of murder. It is a perfectly appropriate direction, and indeed a necessary direction, to tell a criminal jury that, even if they reject the accused’s account, they must nonetheless be satisfied beyond reasonable doubt on the State’s evidence that the accused is guilty as charged. That, however, is not to raise a different form of defence, it is rather in the nature of a general warning which again reminds the jury that the onus of proof at all times remains on the prosecution to prove its case beyond reasonable doubt.
I would re-iterate my view that problems of this nature should be fully dealt with before closing speeches and the judge’s summing up.
I fully agree with Geoghegan J. on the other grounds of appeal which are dealt with in his judgment and I would therefore also dismiss the appeal
Approved NJK
