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URL: http://www.bailii.org/ie/cases/IESC/2007/S46.html
Cite as: [2008] 2 ILRM 293, [2008] 2 IR 111, [2007] IESC 46

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Judgment Title: D. P. P. -v- Cagney & D. P. P. -v- McGrath

Neutral Citation: [2007] IESC 46

Supreme Court Record Number: 481/04 & 464/04

Court of Criminal Appeal Record Number: 2002/154 & 2002/155

Date of Delivery: 25 October 2007

Court: Supreme Court

Composition of Court: Murray C.J., Hardiman J., Geoghegan J., Fennelly J., Kearns J.

Judgment by: Hardiman J.

Status of Judgment: Approved


Judgments by	Result	Concurring
Hardiman J.	Other (see notes)	Murray C.J., Fennelly J., Kearns J.
Geoghegan J.	Other (see notes)	Murray C.J., Fennelly J., Kearns J.

Notes on Memo: Allow appeal & quash conviction

THE SUPREME COURT

481/04 and 464/04

Murray C.J.
Hardiman J.
Geoghegan J.
Fennelly J.
Kearns J.

Between:

Fergal Cagney

Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

and

Between:

RONAN McGRATH

Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT of Mr. Justice Hardiman delivered the 25th day of October, 2007.
This is an appeal, brought pursuant to s.29 of the Courts of Justice Act, 1924, from the judgment and order of the Court of Criminal Appeal delivered the 27th day of May, 2004. By that judgment and order the Court of Criminal Appeal (Denham J., O Caoimh J., and Butler J.), dismissed the respective appellants’ applications for leave to appeal. This leave has been sought to appeal their convictions, after a trial by judge and jury, of the offence of endangerment. The trial took place between the 17th June, 2002, and the 26th June, 2002, inclusive. Each appellant had been charged with the offence of manslaughter of one David Langan and also with the offence of endangerment, contrary to s.13 of the Non-Fatal Offences Against the Person Act, 1997. Ronan McGrath was also charged with a third offence, now irrelevant, which was withdrawn from the jury by the judge in the course of the trial.

The relevant charges against these appellants were as follows:
Count 1.
Statement of Offence.
Manslaughter contrary to Common Law.

Particulars of offence.
Ronan McGrath and Fergal Cagney on the 30th August, 2000, at Grove Road in the County of the City of Dublin did unlawfully kill one David Langan.

Count 2.
Statement of offence.
Reckless endangerment contrary to s.13 of the Non-Fatal Offences Against the Person Act, 1997.

Particulars of offence.
Ronan McGrath and Fergal Cagney on or about the 25th August, 2000, at Grove Road in the County of the City of Dublin did intentionally or recklessly engage in conduct which created a substantive risk of death or serious harm to another.

___________________________________________________________

Each accused was acquitted on Count No. 1, manslaughter, but convicted of Count No. 2, endangerment. It is common case that each offence related to David Langan i.e. in terms of the statute, that David Langan is the “other” referred to in the endangerment charge.
The jury at the trial reached its verdicts after a deliberation exceeding seven hours in length. The conviction was, in each case, by a majority of ten jurors to two.

The deceased, David Langan, was nineteen years old at the time of the events leading to his death. Ronan McGrath was also nineteen and Fergal Cagney was then seventeen years old. None of the three had any previous convictions or had come to the attention of the gardaí. The two appellants have not come to the unfavourable attention of the gardaí since the events of August, 2000 either. The evidence at the trial was that they were most unlikely to re-offend, and this was accepted by the learned trial judge. Each received a sentence of fifteen months imprisonment. Having regard to the issues raised on appeal, each was admitted to bail shortly after the conviction and has remained on bail since. The two appellants are cousins.

The facts.
The factual background to the death of Mr. Langan can be shortly stated. The deceased and the two accused attended a night club and bar called the Palace, on Camden Street, Dublin. When they left, the deceased, for reasons unknown, laid hands on Mr. McGrath and threw him into the shutters which had been lowered at the entrance to the premises. After this, the deceased and the two appellants, together with other acquaintances, walked a distance of about 600 yards southwards to Portobello Bridge. The apparent reason for this was that the junction of Rathmines Road and Grove Road, which runs west along the southern bank of the Grand Canal, was thought to be a good place for getting taxis, which all present intended to do. Mr. McGrath, however, resented what Mr. Langan had done to him outside the Palace and on several occasions shouted at him inquiring why he had treated him in that way. Mr. McGrath was regarded by some at least of those present as aggressive in view of what happened to him. Some of his friends walked with him, ready to restrain him if necessary. Equally, it was common case that Mr. Cagney had been calm and good humoured on the journey from the Palace to Portobello Bridge and that his endeavours were directed at “keeping the peace”, a phrase used by several of the witnesses, clearly referring to keeping the peace between Mr. McGrath and Mr. Langan.

The physical location at Portobello Bridge was minutely described in the course of the trial. The bridge spans the Grand Canal, between South Richmond Street on the North side and the Lower Rathmines Road on the South side. Immediately to the west of the bridge are the old 18th century lock workings consisting of a lock chamber and two sets of lock gates. On the Rathmines side these are separated from the roadway and associated pavement by a low wall, the top of the lock workings being a foot or two below street level. One can cross the canal either by the main Portobello Bridge or by a plank bridge attached to the lock gates, as at least one of the witnesses did.

It appears that, when the party of young men who had been in the Palace nightclub came to the Grove Road area to look for taxis, Messrs. Langan and McGrath were in closer proximity to each other than they had been on the walk up to Portobello Bridge. There was a confrontation between them. This was vocal and noisy enough to awaken a man who was sleeping in his apartment in an adjacent block of flats. Mr. McGrath was restrained by one of the witnesses, Mr. Thomas Rooney. Mr. Cagney interposed himself between Mr. McGrath and Mr. Langan. The two last mentioned “started squaring up before each other… they got in each others face”, to use phrases from Mr. Rooney’s evidence. Rooney then grabbed Mr. McGrath by his jacket “… and then [McGrath] told Fergal (Mr. Cagney) to hit David”. He continued “And then when Ronan asked Fergal to hit him he went and hit him… Ronan said ‘Hit him Fergal’.”

Mr. Rooney said Mr. Cagney hit the deceased with the heel of his hand around the ear or just above the ear, meaning the left ear.

Mr. Cagney, on the other hand, made statements to the gardaí and answered questions posed by them in which he said he had indeed struck Mr. Langan, but did so in self defence when Mr. Langan came towards him with his hands raised. Mr. Cagney said he did not hear Mr. McGrath saying “Hit him”. It was common case that, shortly after being struck, Mr. Langan had fallen on the road and on being attended to by the group present appeared to be unconscious. He did not subsequently recover consciousness and died on the 30th August in hospital. There was however some dispute as to whether he fell close to where he was hit, as the prosecution suggested or about eleven metres away, as the appellants contended. The blow or blows struck by Mr. Cagney was described as not being a boxers’ blow. This description is not precise or helpful, but does not suggest a planned or skilfully struck blow.

The medical evidence.
The only relevant charges are the two set out above. Specifically, there was no charge of assault. In course of argument on this appeal counsel for the Director could not offer any specific explanation as to why the endangerment charge was brought, and no assault charges were brought, but he indicated that the weakness of the manslaughter case, as perceived by the prosecution, related to causation i.e. to the difficulty of proving that the deceased’s death had been caused by the blow struck by Mr. Cagney.

The medical evidence at the trial was principally that of Professor John Harbison, then the State Pathologist and of Mr. Allcutt, Consultant Neurosurgeon.

Dr. Harbison had occupied the position of State Pathologist in a most distinguished manner since 1974 and had unrivalled experience in post mortem examination in cases of suspicious death. His thoroughness and impartiality were well known to all who had dealings with him.

The deceased had been taken to St. James’s Hospital in the first instance, where he was assessed, and subsequently transferred to Beaumont Hospital which has a specialist neurosurgical unit. A doctor from St. James’s, Dr. Phelan, said that, on admission, the deceased had a wound to his scalp at the right side towards the back, not quite in the middle of the back of the head, a little to the right of that. When he went for a brain scan it showed that he had bruising to his brain at that site and also on the opposite side at the front. This latter injury was referred to as the contrecoup injury i.e. an injury in the left front of the brain caused by a trauma to the right rear of the head, and was fully discussed in evidence by Dr. Harbison.

The deceased was intubated to help him breathe and transferred to Beaumont Hospital. He was received there by Mr. Allcutt, Consultant Neurosurgeon. He said:

“His injuries appear to be confined to his head. We noted that he had a laceration and some associated bruising over the back of his head which had already been sutured in St. James’s Hospital…”.

He confirmed the position of the wound as described by Dr. Phelan. Scans confirmed the existence of contusions in the left frontal region as also mentioned by Dr. Phelan. X-rays revealed
swelling in the brain which produced raised inter-cranial pressure which in the end became uncontrollable. By the 30th August, 2000, the deceased had suffered brain stem death.

Dr. Harbison performed a post mortem some months after these events, on the 18th December, 2000, after the deceased’s body had been exhumed. He described the deceased as “a large young man” and he found:

“a fracture of the right side of the back of his skull with bruising of the overlying muscles… this fracture and bruising were

consistent with a fall

, as a result of which the right side of the back of his head struck an immovable object, which I presume was the ground.

I could not give an exact cause of death from this examination because the brain had already been cross-sectioned by Professor Farrell who is an expert neuropathologist.

… this appears to have been a fall, his head hit the ground with considerable force sufficient to cause a fracture at the base of his skull.” (Emphasis added)

Prosecuting counsel elicited that Dr. Harbison was aware that it had been alleged that the deceased had been struck in the face on the left hand side prior to his fall. The doctor said:

“So I had been informed. I carried out an extensive dissection of the skin of the head, including the entire face, and found no evidence of any deep facial bruising, although the overlying skin of the left cheek was considerably darkened. In the absence of bruising, or bleeding, beneath this dark area,

I could not corroborate

an allegation of a blow to that site. The deep bruising of the right side of the back of the head was the only injury to the head.

It must be borne in mind however that if the deceased had been caught off balance, or was inebriated - that is drunk - a push could have toppled him over and thus he could have incurred his fractured skull.” (Emphasis added)

Dr. Harbison then gave the blood alcohol reading of the deceased as taken about the time he was brought to St. James’s Hospital at 192mg per 100ml and conceded in cross-examination that it might have been higher at the time of the episodes, perhaps at the level of 210mg per 100ml.

Dr. Harbison then discussed the findings of the post mortem conducted immediately or very shortly after death by Dr. Farrell, Neuropathologist. It was he who used the term contrecoup to describe the injury to the front of the brain. Dr. Harbison said that it was “a French word meaning ‘opposite blow’ with coup referring to the ‘actual blow’ or ‘forcible contact’, here involving the right inferior cerebellar hemisphere (the injury to the back of the head).” The cause of death identified at the first post mortem was the compression of his brain stem due to the accumulation of blood and swelling in his brain. He said “The contact with the ground which caused the fracture was at the right back of the head, and therefore the brain would suffer its maximum injury front left.”

It appears that it was the omission, in the first post mortem results, to identify evidence of a blow, or to posit a blow as a necessary part of the sequence to events leading to death, which perturbed the prosecution.

The charges.
The medical evidence summarised above was of course within the knowledge of the prosecution when they framed the charges against the two appellants. As mentioned above, those in charge of the prosecution were concerned about weakness in the evidence linking the blow(s) struck by Mr. Cagney to the brain stem damage suffered by the deceased. The only externally visible injury on the deceased was the injury to the back of his head which two doctors said was consistent with a fall. The State Pathologist said that the level of intoxication of the deceased would be likely to cause “in-coordination” which he defined as a propensity to fall. He said that an intoxicated person might also fall easily in response to a push, or being mildly unbalanced, by tripping, or otherwise.

In this state of the evidence, it is easy to see why a prosecutor would wish to bring another charge in case the manslaughter charge could not be sustained either because of the difficulty in showing causation or for any other reason. The most obvious alternative reason why it might fail would be if Mr. Cagney’s allegation of an attack by Mr. Langan were accepted by the jury, or were found to create reasonable scope for self defence, or a reasonable doubt on that issue.

The most obvious alternative charge to that of manslaughter was some form of assault charge, either in the basic form of common assault or its statutory equivalent (s.2 of the Non-Fatal Offences Against the Person Act) or in one of its aggravated forms. Section 2 assault would expose a person of conviction to a penalty of up to six months imprisonment: s.3 assault, assault occasioning harm, would expose him to a penalty of up to five years imprisonment and an unlimited fine. Assault occasioning serious harm exposes a person on conviction to imprisonment for life and an unlimited fine. In the circumstances of the present case, it is obvious that any difficulties that might be thought to attach to proving that the appellant Mr. Cagney’s actions caused the death of the deceased would also attach to proving that they caused serious harm to him.

In any event, none of these options were taken by the prosecution who instead opted to charge both accused with the offence of endangerment. This is a statutory offence created by s.13 of the Act of 1997 which provides as follows:

“13(1) A person shall be guilty of an offence who intentionally or recklessly engages in conduct which creates a substantial risk of death or serious harm to another.

(2) A person guilty of an offence under this Section shall be liable -

(a) On summary conviction to a fine not exceeding

€1,500 or to imprisonment for a term not exceeding

twelve months or both or

(b) On conviction on indictment to a fine or imprisonment

for a term not exceeding seven years or to both.”

It will be seen that a major feature of this offence is that it resides in the creation of the risk of death or serious harm, and not the accomplished reality of either. Secondly, the penalty on indictment exceeds that available for all but the most serious form of assault.

The question certified by the Court of Criminal Appeal in this case, pursuant to s.29 of the Act of 1924, is as follows:

“Is the offence of endangerment contrary to s.13 of the Non-Fatal Offences Against the Person Act, 1997 capable of being construed so as to cover circumstances such as in the instant case?”

This is an important question. In the first place, this appears to be the first case where the offence created by s.13 has been fully considered by the appellate courts. It will be seen that the offence itself is general in scope and not specific, so that it may be applied after the event to events which are not obviously criminal in themselves and whose legality or otherwise cannot be accurately assessed in advance. For example, would the terms of the statute extend to an omission to assist an individual in circumstances which, perhaps, would involve some risk to an intervener? Does it extend to actions done with the alleged victims consent, as in the context of extreme sports? These are important questions and the fact that the answers to them are not immediately apparent indicates just how radically the law has (or, at least, may have been) altered by s.13.

The offence of endangerment.
It is beyond doubt, and was accepted by the learned trial judge (transcript of the hearing of the 26th July, 2002, p.28) that the death of the unfortunate deceased man, Mr. Langan, was unintentional.

In this case, the two counts were left to the jury in the following way. Prosecuting counsel (transcript F, p.18) told them that:

“… if you decide not to convict on manslaughter, you must then go on to consider reckless endangerment, because they both relate to the same incident, they are alternatives for the purpose of your decision.”

It should however be noted that in Charleton et al Criminal Law (Butterworths Ireland, 1999), the comment is made at p.735, during a discussion of the offence of endangerment:

“If death does occur, murder or manslaughter should be charged depending on what may be proven.”

In the judgment of the Court of Criminal Appeal in this case, delivered by Denham J., considerable attention was paid to the recommendation of the Law Reform Commission which led to the enactment of the offence constituted by s.13 of the 1997 Act. Indeed it was said that:

“This offence came to the Statute Book subsequent to the recommendation of the Law Reform Commission: Report on Non-Fatal Offences Against the Person (LRC 45 - 1994), hereinafter referred to as the Law Reform Commission Report. The Act of 1997 repealed a large portion of the Offences Against the Person Act 1861 and is a reform of the law…

The Law Reform Commission envisaged that this would not be an offence to replace existing offences. Rather it would be a supplement, a residual generic offence.”

In my view, this observation of the Court of Criminal Appeal is evidently correct. The Law Reform Commission, in the sections of its report quoted in the judgment of the Court of Criminal Appeal, observed that the creation of a general offence of this kind is not an easy matter or one to be undertaken lightly: there is a danger of “unduly extending the scope of the criminal law.” But the offence has been enacted and the legislature’s decision in that regard must be respected. There is however a possibility that the Section might be interpreted over-broadly so as to cover circumstances which the legislature had not considered, and to criminalise certain things which are not and were not intended to be the subject of prohibition. I have given an example earlier in this judgment, relating to a possibly criminal omission to act in particular circumstances. Equally, the question may arise of whether the consent of the person allegedly endangered to run a risk, if established, is of any relevance: this could clearly be a crucial matter if a person is killed while engaging voluntarily in a dangerous sport. This question is not addressed in the statute.

From a legal and constitutional point of view, it is a fundamental value that a citizen should know, or at least be able to find out, with some considerable measure of certainty, what precisely is prohibited and what is lawful. Thus, in Attorney General v. Cunningham [1932] IR 28 O’Byrne J. said at the Court of Criminal Appeal:

“The offence as charged in the indictment is one of maliciously firing into a dwellinghouse and it seems to us that the proper question for our determination is whether that is, at Common Law, an indictable offence. In considering that question the Court must have regard to the

fundamental doctrine recognised in these courts that the criminal law must be certain and specific, and that no person

is to be punished unless and until he has been convicted of an offence recognised by law as a crime and punishable as such”. (Emphasis added)

Equally, in King v. Attorney General [1981] IR 223, Kenny J. said:

“It is a fundamental feature of our system of government by law (and not by decree or diktat) that citizens may be convicted only of offences which have been specified

with precision

by the judges who made the common law, or offences which, created by statute, are expressed

without ambiguity

… in my opinion both governing phrases (in s.4 of the Vagrancy Act, 1824) ‘a suspected person’ and ‘reputed thief’

are so uncertain that they cannot form the foundation for a criminal offence

.” (Emphasis added)

In the present case, there was no root and branch attack on the Section by suggesting that it was inconsistent with the Constitution, and it is of course entitled to the benefit of a presumption of constitutionality. Nevertheless the obvious potential for conflict with the fundamental value that crimes must be defined with precision and without ambiguity so that the criminal law is “certain and specific” require that this notably open ended Section be carefully, and indeed strictly, construed in accordance with fundamental principles of law and of construction.

Considerations of the same sort, in my view, make it undesirable that so vague and open ended a Section should be used in circumstances such as those of the present case where the actions of the defendants as alleged by the prosecution would clearly constitute an established and recognised criminal offence, viz. assault in one or other of its variants. In those circumstances, in my view, it is desirable that the obvious offence should be charged. This is for the same reason as led Mr. Justice Charleton and his co-authors of the work cited above to suggest that where death does occur manslaughter or murder should be charged, depending on what can be proven, rather than endangerment. I wish specifically to endorse that sentiment and to express concern about the bringing of a charge of endangerment in all its uncertainty where a more specific charge is available. With regard to the mental element of the offence, I agree with what is said in the judgment about to be delivered by Mr. Justice Geoghegan.

The Law Reform Commission Report, which features so heavily in the judgment of the Court of Criminal Appeal, contains a good deal of interesting historical material. Amongst the fruits of their researches is the fact that, prior to the beginning of the Victorian era, a Commission in the former United Kingdom recommended the creation of a general offence such as that created here by s.13. This is a factor of great historical interest: it must however be balanced against the fact that this advice was not taken and that the Victorian legislatures instead preferred to rely on a great number of highly specific offences such as the provision of the Offences Against the Person Act, 1861, which prohibits (on pain of life imprisonment) the throwing of stones or other implements at moving trains. Indeed, to this day there is in the U.K. no such general offence as that provided in this jurisdiction by s.13. Any conclusion about why people long since dead acted as they did is of necessity speculative but, having regard to the terms of the report of the Law Reform Commission itself, it seems quite likely that the Victorian legislators were careful not “unduly to extend the scope of a criminal law” and not to create a criminal offence whose parameters were uncertain so that they could not be predicted in advance and might lead to the criminalisation of an activity which the legislature had not decided to criminalise and might have decided not to criminalise. It is one of the glories of the Common Law tradition of civil liberties that in general it is safe to proceed on the basis that what is not prohibited is allowed (nullum crimen sine lege): this situation can only be preserved by taking care that the criminal law is “certain and specific”, in the words of O’Byrne J., cited above.

Since the Law Reform Commission has undertaken such conspicuous historical research it may be appropriate to point out that, as long ago as 1815, the House of Commons repealed a Thames Police Act passed the previous year because, unknown to the legislators, by a “pious fraud” a clause which banned swimming in the river had been slipped in. The banning of swimming in public places was then a major preoccupation of the Evangelical lobby, led in Parliament by William Wilberforce M.P. Another M.P. of that remote date said that “… this is one of those melancholy evils which result from an itch for legislating which prevails in the subordinate offices of the State”. A similar attitude may have informed the omission to act on the Report to which the Law Reform Commission refers (see Wilson Decency and disorder - the age of Cant - 1789 - 1837, Faber and Faber 2007).

It is inconceivable, in my view, that a s.13 charge would have been preferred in this case were it not for the fatality. Four doctors gave statements or reports to the prosecution, at least two of whom had a special professional interest in head injuries. None, however, were asked to opine on whether the blow or blows said to have been struck by Mr. Cagney were such as to create a “substantial” risk of death or serious harm to a healthy nineteen year old in Mr. Langan’s position, or whether there were grounds to advert to such a risk on the facts proved. Alternatively, such a drastic result might have been improbable, unlikely, odd or even freakish. The omission to explore this topic may be due to a failure adequately to consider the mental element of the offence created by s.13 or of the state of recklessness in general, or to notice that an element of advertence is required in either case.

Instead of offering medical or other evidence on this topic, the prosecution appears to me to have proceeded on the basis that the fatality itself was the indicator of the existence of a substantial risk. No other evidence of the existence of such risk was offered. This is both illogical and ignores the obvious fact that huge risks are often taken without any actual consequence at all while tiny risks, unpredictably and improbably, may result in catastrophe.

In this case, the s.13 offence was left to the jury as an “alternative” to manslaughter without any explanation from the prosecution or the learned trial judge of the sense in which the second charge was alternative to the first.
I am of the opinion that s.13 is often presented as an alternative to a jury who may not fully understand the seriousness of the offence created by that Section, in the hope that the jury may think it is a trivial or technical offence only. In my view, if the State prefers a charge as an “alternative” to another, the sense in which it is an alternative and the circumstances in which the alternative may become relevant, should be explained. This is always done in dealing with the classic alternative charges of stealing and receiving (now handling stolen property). In this case, no explanation of any kind was given other than the statement quoted elsewhere in this judgment. This mode of proceeding, in my opinion, was not fair to the defendants or to the jury. On the hearing of this appeal, where naturally there was no jury, the prosecution frankly referred to their possible difficulties in proving causation. They may have felt that to do this in the presence of the jury would have gravely undermined their chances of a conviction on the manslaughter charge. This approach made the s.13 charge, not an alternative in any real sense, but a fall back. If there was genuine doubt as to causation, there should not have been a conviction of manslaughter in any event and in fact the appellants were acquitted on that charge. But the case was left to the jury on the basis that the prosecution told them that the endangerment charge was alternative to manslaughter without further explanation. The prosecution did not discuss the elements of the offence of endangerment but left that to the trial judge; they offered no assistance when he charged the jury without referring to the need for advertence.

There is further evidence of confusion on the part of the prosecution as to what, precisely, these defendants were guilty of (if anything) and why. In the State’s written submissions to the Court of Criminal Appeal it was contended that:

“There was evidence from which the jury was entitled to infer that Fergal Cagney by allowing himself to become the instrument of his cousin’s rage against David Langan, shared his intention to do the deceased serious harm.”

By reason of s.4 of the Criminal Justice Act, 1964, that mens rea, if established, would have made the defendants guilty of murder, assuming causation were proved between the alleged assault and the death. This was a very extraordinary submission to make in the case of two defendants each of whom had already, prior to the submissions being filed, been acquitted of manslaughter in respect of the same incident. They had never been charged with murder. Neither in the Court of Criminal Appeal, nor in this court, was any attempt made to stand over this submission, which raises the question of why it was made in the first place. As already noted, the learned trial judge accepted that the death of the deceased was unintentional.

The new statutory offence created by s.13 took its rise from the Law Reform Commission Report quoted aptly and extensively in the judgment of the Court of Criminal Appeal. As that report makes clear, it was designed to fill a gap and not merely to provide an alternative. If an alternative to a charge of manslaughter is needed, because of difficulty in proving causation or otherwise, it already exists in the form of assault either in its basic form or in some aggravated form. In this respect there is no “gap” to be filled in a case like the present.

The Law Reform Commission was, as I have already pointed out, conscious that an offence of this sort might constitute an undue expansion of criminal liability. It considered however that:

“The undue expansion of liability may be avoided, in the view of the Commission, by limiting the offence:

(a) To acts of

advertent

risk taking i.e. recklessness; and

(b) To such acts as create a substantial risk of death or a serious harm to another person. Recklessly placing another in danger of injury less than ‘serious harm’ should not be covered and the circumstances must be sufficiently serious to create a ‘substantial risk’ of such harm, this being a question of fact for determination on the evidence (at para. 9.243).” (Emphasis added)

This is a very significant quotation, not least because it defines recklessness as advertent risk taking. This aspect of the requirements of the offence were extensively discussed by defence counsel, in particular Mr. Murphy S.C. for Mr. Cagney, in applying for a direction at the end of the prosecution case but does not seem to feature at all in the charge to the jury. Moreover, a passage of the judgment of the Court of Criminal Appeal at p.21 is open to the interpretation - it is not possible to say more - that advertence is required only as to the external actions said to constitute the conduct of the defendant or the actus reus of the offence. The relevant passage is as follows:

“Thus the constituent parts of the offence as applicable may be construed as the applicant intentionally or recklessly, engaging in conduct, which created a substantial risk of death or serious injury to David Langan. Considering this aspect of the matter the Court is satisfied also that it was within the trial judge’s jurisdiction to leave this matter to the jury”.

This formulation, in my view, fails to make it clear that recklessness involves not merely the taking of a risk but the advertent taking of the risk. The Courts (as the Court of Criminal Appeal pointed out in this case), are not of course bound by the views of the Law Reform Commission on this or any other question. However, it appears to me that the well established principles of law in relation to recklessness amply support the Commission’s view that this offence, when committed recklessly as opposed to intentionally, requires advertence. It is to this point that I now turn.

On the hearing of this appeal it was submitted on behalf of Mr. Cagney, referring to the portion of the judgment of the Court of Criminal Appeal quoted above:

“On this analysis the requirement for

mens rea

extends only to the physical act or omission of the accused, and the question of substantial risk of death or serious harm is to be assessed objectively without regard to the state of mind of the accused… the insertion of commas around the phrase ‘engages in conduct’ suggests that the requirement for intention or recklessness relates only to the conduct and not to the substantial risk of death or serious harm created thereby. Such an analysis is inconsistent with the requirement for a guilty mind. Indeed, it is submitted, that it may be said of the offence of endangerment that the substantial risk of death or serious harm is the very gist of the offence and therefore the ordinary requirement for proof of a guilty mind with respect to that element applies.”

I believe that this submission is well founded. I would prefer rephrase the summary of the Section offered by the Court of Criminal Appeal (quoted above) as follows:

“Thus the constituent parts of the offence as applicable may be construed as the appellant intentionally or recklessly engaging in conduct which creates a substantial risk of death or serious injury, to which he has adverted, to another.”

I believe that this approach is consistent with the authorative statement of the requirements of recklessness in this jurisdiction. The locus classicus on this topic is the decision of this Court in DPP v. Murray [1977] 360. The law on recklessness in Ireland is, by virtue of this decision, in decided contrast with that applied in the United Kingdom in such cases as Elliott v. C. (A Minor) [1983] 2 AER 1005. There, a mentally retarded fourteen year old girl was found guilty of a serious offence because the Court applied an objective test for recklessness and held that she had taken a risk, the possible consequences of which was obvious to the ordinary individual, even if not to her. As a result of the judgment in Murray, an accused in Ireland must have foreseen the risk that his conduct would bring about the relevant result, but have elected to proceed with his conduct nonetheless. The superiority of this approach is perhaps indicated by the fact that, in the English case cited, Goff LJ said that he would prefer to reach the opposite result, but felt precluded from doing so. (See .1012h of the report).

Murray was the well known case in which two defendants were charged with the (capital) murder of a garda. The issue was, so far as relevant here, whether the mens rea must extend not only to an intention to cause death or serious injury but the knowledge of, or at least recklessness about, the victim’s status as a member of An Garda Síochána. In the Murray case, this distinction literally was the distinction between life and death: the defendants would have been liable to a death sentence if the mens rea were restricted in the manner for which the prosecution contended.

Walsh J. in the Supreme Court said:

“It is well established that, unless a statute either clearly or by necessary implication rules out

mens rea

as a constituent part of a crime, a court cannot find a person guilty of an offence against the criminal law unless he has a guilty mind. It has been pointed out earlier in this judgment that s.4 of the Act of 1964 makes murder an offence of specific intent. A person cannot be guilty of a capital murder of a Civic Guard in the course of his duty unless that person intends to murder a Civic Guard in the course of his duty or intends to do serious injury to a Civic Guard in the course of his duty, and that injury causes the death of the guard. To intend to murder, or to cause serious injury to, a Civic Guard in the course of his duty is to have in mind a fixed purpose to reach that desired object. Therefore, the state of mind of the accused person must have been not only that he foresaw

but also willed

the possible consequences of his conduct. There cannot be intention unless there is also foresight, and it is this

subjective

element of foresight that constitutes the necessary

mens rea

.”

Henchy J. said:

“Once the prosecution proved (as they clearly did) that the appellant Marie Murray murdered Michael Reynolds, it was necessary for a conviction on the capital offence to prove the further

mens rea

of intention (or recklessness, its alternative in the law of

mens rea

in this context) as would be required if the charge were one of assaulting a police officer in the course of his duty. That, in my judgment, is the

mens rea

required for the element in the capital murder charge which referred to a member of the Garda Síochána acting in the course of his duty.”

What, then, was the state of her mind? Its importance is that the test of her guilt for capital murder as well as murder must be a

subjective

one. The Court of trial was not entitled to judge her by what a reasonable person would have done in the circumstances, but it was entitled to evaluate what she did in the light of what she

must have adverted

to at the time…”.

The test of recklessness in this context is well stated in the Model Penal Code drawn up by the American Law Institute:

‘A person acts recklessly with respect to a material element of an offence when he

consciously

disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves culpability of a high degree.’ ” (Emphasis added)

It appears to me that, despite the extensive submissions made on this point at the trial by Mr. Murphy S.C., the prosecution continued to treat the offence as one which did not require any advertence by the defendant to the serious risk of death or harm. The prosecution expressly contended for an objective standard, saying, in reply to Mr. Murphy’s submission:

“The next point is made in relation to the second count, the substantial risk of serious harm. I say there certainly is always a substantial risk of serious harm if one deliberately strikes another a blow, and that comes within what is considered in the question of reckless endangerment.”

As already remarked, the learned trial judge in his charge to the jury did not at all advert to the question of the mental state required to constitute recklessness but rather bypassed the issue by simply quoting the words of the Act and analysing them in a way fundamentally similar to the analysis of the Court of Criminal Appeal, quoted above.

The contrast with manslaughter.
The omissions referred to in the last section of this judgment are, in my opinion, all the more significant when one considers the very considerable degree of overlap between the charge under s.13 and the charge of manslaughter of which the defendants were both acquitted.
In Charleton et al, cited above, manslaughter is described as follows:

“Manslaughter occurs where the accused kills the victim in one of the following circumstances:

(1) Intending to kill or cause serious injury while lacking self control to an act of provocation;

(2) Being in a situation where he is entitled to use force against the victim or to use as more force than was objectively necessary but no more that he honestly believed to be necessary;

(3) Where the death of the victim is caused by a criminally negligent act or omission;

(4) By an assault;

(5) By a criminal and dangerous act.

It is clear from a consideration of the facts of this case, summarised at the start of this judgment, that the manslaughter alleged here fell into the fourth and/or fifth category and that, for the purpose of this case they overlap because the “criminal and dangerous act” can only be the assault alleged. Equally, the same assault is the “conduct” relied upon for the purpose of the charge under s.13 of the 1997 Act. There is, therefore, a huge overlap on the facts between the two charges. Moreover, the state of mind alleged against the defendants appear to be the same in each case, recklessness. So complete is the overlap between the charges that, but for one factor, I would consider the conviction on the s.13 charge to be inconsistent with the acquittal on manslaughter. This saving factor is that of causation, considered at some length above. There was, as the Director pointed out at the hearing of this appeal, genuine scope for the jury to be unconvinced that the action in question caused the death of the deceased.

That, in my opinion, is in the circumstances of this case sufficient to prevent the conviction of s.13 from being logically and legally inconsistent with the acquittal of manslaughter.

Another aspect of the Charge.
There is a further difficulty in relation to the learned trial judge’s charge to the jury in this case and it is one which, having regard to the nature of the evidence adduced in support of the prosecution, may be significant. The learned trial judge told the jury that if “two views were equal” the defendants were entitled to the benefit of the doubt which would thus arise, so that the view favourable to them or either of them should be adopted in preference to another tendering to favour the prosecution. This form of charge is an erroneous one and the error resides in the suggestion that two views must be “equal” presumably in the sense of equally plausible or probable, before the prisoners entitlement to “the benefit of the doubt” arises.

The law on this subject was exhaustively discussed in the Court of Criminal Appeal (the judgment is that of Kenny J.) in The People (Attorney General) v. Douglas Byrne [1974] IR 1. The Court followed the High Court of Australia arriving at the following formulation, on p.9:

“The correct charge to a jury is that they must be satisfied beyond reasonable doubt of the guilt of the accused, and it is helpful if that degree of proof is contrasted with that in a civil case. It is also essential, however, that the jury should be told that the accused is entitled to the benefit of the doubt and that when two views in any part of the case are

possible

on the evidence, they should adopt that which is favourable to the accused unless the State has established the other beyond reasonable doubt.”

(Emphasis added)

Moreover, at p.5, the Court cited with approval the speech of Viscount Sankey in the leading case of Woolmington v. DPP [1935] AC 462 at 481 as follows:

“If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal… if the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted.”

These passages make clear that it is a grave misstatement of the law to say that the defendants’ entitlement to the benefit of the doubt arises when two views (presumably those advanced by the prosecution and the defence respectively) are equally plausible. That is simply not true. It is sufficient from the defence perspective if the view upon which the defendant relies is a reasonably possible view, because the existence of a (reasonably) possible view consistent with innocence necessarily and coercively indicates the ground for reasonable doubt as to guilt.

The Court of Criminal Appeal has on a number of occasions recently drawn attention to the importance of properly delivering the charge required by A.G. v. Byrne; the self same error which was made here as was made in a number of recent cases. The significance of the error will depend very much on the nature of the case. In the present case where a significant part of what the jury had to do was to assess the plausibility of the defendant Cagney’s account of, in effect, acting in self defence. It would be indeed serious, and pregnant with the possibility of error, to approach it on the basis that his entitlement to the benefit of the doubt arose only if his account was equally plausible as that on which the prosecution relied.

The foregoing discussion is, however, obiter since no point was taken on this deficiency in the charge in the Grounds of Appeal.

Conclusion.
The unfortunate fact is that neither the prosecution nor the learned trial judge at any time referred to the necessity to establish advertence by the defendants or either of them to the serious risk which the prosecution were alleging in order to bring home a charge under s.13 on the basis of recklessness. They failed to address this important issue notwithstanding that it was the subject of elaborate submissions addressed on behalf of the defence. This is, in my view, a grave defect in the trial affecting both defendants, since it obviated the need for the jury to address the question of the respective defendants’ state of advertence or the lack of it which it was legally necessary for the jury to address. On that basis I would quash the convictions. In all the circumstances of the case, notably the fact that it is now more than seven years since the tragic incident at Portobello Bridge, the general good character of the accused and the fact that one of them, as the Court was informed by Mr. Murphy S.C. without contradiction, has in the meantime suffered devastating injuries in a road traffic accident, I would not order a retrial.

JUDGMENT of Mr. Justice Geoghegan delivered the 25th day of October 2007
This is a combined judgment relating to two separate appeals from the refusal in each case of the Court of Criminal Appeal to grant leave to appeal against convictions under section 13 of the Non-Fatal Offences Against the Person Act, 1997. The prosecution in each case arose out of the same set of facts. The certificate of the Court of Criminal Appeal enabling such appeals to be brought was in identical terms in each case. The point of law which the Court of Criminal Appeal considered to be of exceptional public importance and that it was desirable in the public interest an appeal should be taken to the Supreme Court is expressed in the form of a question in the following terms.

“Is the offence of endangerment contrary to section 13 of the Non-Fatal Offences Against the Person Act, 1997 capable of being construed so as to cover circumstances such as in the instant case?

The question as framed in that form is, in my view, unintentionally slightly ambiguous. In both of these cases there were manslaughter counts arising broadly out of the same circumstances and it is not entirely clear whether the question is a purely abstract one as to whether a section 13 count should ever be included in an indictment along with manslaughter if the relevant facts on the ground are the same or whether the question relates peculiarly to the actual and somewhat unusual facts of this particular case. I do not think that this really matters because the certificate is merely the condition precedent to the appeal being brought. What is of importance is the grounds of appeal in each case and I intend now to refer to those.

In the Cagney case the three grounds of appeal can be summarised as follows:

1. The learned trial judge ought to have withdrawn the section 13 count at the end of the prosecution case.
2. The learned trial judge was wrong in making a finding that there was evidence which if accepted by a jury could as a matter of law lead to a conviction of the appellant of the section 13 offence.
3. The certified question itself or in other words whether section 13 can be construed to cover the circumstances of this appeal.

In the McGrath case there are four grounds of appeal contained in a document headed “Amended Grounds of Appeal” and dated 28th March, 2007. The first three grounds are identical to the grounds of appeal in the Cagney notice of appeal. The fourth ground reads as follows:

“The verdict of the jury is inconsistent in so far as he was acquitted of manslaughter but was found guilty of endangerment contrary to section 13 of the Non-Fatal Offences Against the Person Act, 1997.”

The charges arose out of the tragic occurrence which happened on the night of the 24th August, 2000. The two appellants who are cousins of each other had attended the Palace Nightclub in Camden Street, Dublin on that night. More accurately, they arrived at the club in the early hours of the following morning. Fergal Cagney was aged 19 years and Ronan McGrath 17 years. The Nightclub closed around 3.00 a.m. and there was then a congregation of people outside the club. It is not in dispute that a considerable amount of alcohol had been consumed both by the appellants and by their companions who included the deceased David Langan, the victim of the alleged crime. There was evidence to the effect that the deceased had pushed Ronan McGrath with some force into the shutters of the nightclub and that the latter had become angry and aggressive as a result. Various other friends joined the group with a view to calming them down. Ultimately, David Langan was led away by one of the friends Philip Rahill down Camden Street in the direction of Portobello Bridge. This was with a view to finding a taxi. The two appellants accompanied by another friend Thomas Rooney followed behind. At times Ronan McGrath surged towards David Langan. On such occasions he was restrained by Mr. Rooney and by the co-appellant Fergal Cagney. The appellant, Ronan McGrath was still complaining apparently about being pushed into the shutters.

David Langan and Philip Rooney reached the far side of Portobello Bridge and sat on a low wall attempting to hail a taxi. Fergal Cagney and Thomas Rooney following behind reached the bridge and the argument continued. Ronan McGrath shouted an instruction to Fergal Cagney with the words “hit him Fergal”. Fergal Cagney then struck two blows at David Langan. These were described by one witness as “not being a boxer’s blow”. In a statement to the guards, Fergal Cagney raised a self-defence issue alleging that the deceased had started “to come at him”. There was no direct evidence whether by way of admission or otherwise that Fergal Cagney heard the instructions given to him by Ronan McGrath. However, Fergal Cagney’s attack on David Langan was made after those instructions were given and David Langan was seen to stagger backwards and fall to the ground hitting his head. An ambulance was procured and David Langan was taken to hospital in an unconscious state and sadly died a few days later. The medical evidence established that there were no injuries to the deceased’s face or neck and the cause of death noted by the first pathologist was “severe injuries and that the appearances were consistent with having occurred following a fall.”

There was considerable evidence to the effect that Fergal Cagney had at all times attempted to act as a peacemaker between Ronan McGrath and David Langan. On occasions, he had physically restrained Mr. McGrath in attempting to calm him down.

It can hardly be disputed that the immediate cause of the death was the fall. In this connection, the appellants placed reliance on evidence that the fall occurred at a point over 11 meters away from the place where the blows were struck.

Mr. Rooney was obviously a key witness and under cross-examination by Mr. Shane Murphy, S.C., counsel for Mr. Cagney, Mr. Rooney stated that he did not think that blows struck by Fergal Cagney on David Langan had caused the latter to fall. Indeed it was put to him that that is what he told the gardaí and he accepted that that was possible.

The evidence of the State pathologist, Professor Harbison, established that Mr. Langan’s blood alcohol reading was 192 mg per 100 ml of serum and that allowing for the time which had elapsed his blood alcohol level could even have been higher and indeed as high as 210 mg per 100 ml at the relevant time. Professor Harbison agreed in evidence that with such a blood alcohol reading a person might fall more easily and would be likely to fall more heavily.

An accurate summary of the factual evidence is contained in paragraph 32 of the written submissions on behalf of the appellant, Fergal Cagney. It reads as follows:

“It is submitted that the prosecution evidence, in summary, was that one or two blows were struck by the appellant in circumstances of considerable noise and confusion, where he had been consistently and continuously, over a long period of time, acting as a peace maker in a dispute between others, and where one of the parties involved in that dispute, whom he was trying to restrain approached the appellant with his hands up. Furthermore, the medical evidence adduced by the prosecution was to the effect that there was no indication that there had been a significant blow struck by the appellant. The evidence was that the appellant had used the side of his fist, that the blow is not the sort of punch thrown by a boxer, and that it had not caused Mr. Langan to fall. There was evidence that, in fact, Mr. Langan had stumbled or slipped and the evidence established that he fell a distance of more than 11 meters from where the confrontation had taken place. There was evidence of alcohol consumption and resulting incoordination (sic) which could explain the fall.”

I do not find it necessary to go into any further detail in relation to the evidence especially having regard to the fact that it is analysed in rather more detail in the judgment of Hardiman J. and there are substantial relevant extracts from the transcripts in the judgment of the Court of Criminal Appeal, delivered by Denham J. with whom Ó Caoimh J. and Butler J. sat. There is just one other matter relating to the evidence on which I would like to comment. It is set out in one of the extracts of transcript contained in the judgment of the Court of Criminal Appeal that Mr. Rooney gave evidence to the effect that the appellant, Ronan McGrath, had threatened the deceased and that this threat took the form of a threat “to beat him up” and “to kill him”. There was some limited discussion about this at the hearing of the appeal before this court and the interesting argument was made by counsel for the appellant, Fergal Cagney, that the threat to kill had formed part of a third count in the indictment against Ronan McGrath only, that a direction had been given by the trial judge in respect of that count because of the thinness and uncertainty of the evidence and that for that reason the evidence of this threat should be excluded.

Whilst this submission from a common sense point of view has its attractions, I do not think that it can stand up in law. Even if there had been a voir dire in relation to it, the evidence could not have been excluded. It was actual evidence given at the trial. Once the evidence went to the jury that evidence had to be considered like any other part of the evidence. The most that could have been done would be that a requisition could have been made to the trial judge that in his charge he should have explained to the jury that this threat had been the basis of the third count as against Ronan McGrath and that he was directing the jury to enter a not guilty verdict in respect of it because he took the view that since that was the only evidence it was too thin and uncertain to ground a conviction. He could have then been asked to say to the jury that possibly they might take a similar view of this particular evidence and might ignore it if they did so. No such requisition was ever made however and provided that the judge was correct in allowing the case go to the jury it would seem to me that that evidence had to be included.

It is only fair to say, however, that the case was run in relation to both counts on the basis of conduct of Fergal Cagney with Ronan McGrath being treated merely as an aider and abettor and in that context neither in the speeches nor in the charge did the threat to kill, if it existed, play any part.

I now turn to the grounds of appeal. In this connection it would seem logical to deal first with the Cagney appeal. This is because the case went to the jury rightly or wrongly on the basis that in relation to each count i.e. the manslaughter and the endangerment, Mr. McGrath’s criminal liability, if any, was as an aider and abettor only. To illustrate this it is only necessary to cite the following short passage from the charge of the learned trial judge.

“As has been pointed out, if Fergal Cagney is not guilty of manslaughter it follows then that Ronan McGrath is not guilty of the manslaughter. The same applies to count 2, because it is the prosecution’s case that the principal offender in relation to count 2 was Fergal Cagney and that he was aided and abetted by Ronan McGrath in the commission of the crime.”

It might have been open to argument that Ronan McGrath could be convicted of the endangerment offence as a principal and not merely as an aider and abettor on the basis of the directions which he purported to give to Fergal Cagney. I merely use the word “arguably” because of course other aspects such as mens rea would have to be considered. It is not indeed entirely clear from either the opening or closing speeches of counsel for the prosecution that on both counts Mr. McGrath was being prosecuted merely as an aider and abettor. It is not necessary to resolve any such ambiguity however because the trial judge in his charge was entirely unambiguous as I have illustrated by the passage cited above. That is the only case that went to the jury and that is the only case which should be considered.

In the event, the jury found both appellants not guilty of manslaughter. They found both appellants, however, guilty of the section 13 offence by a majority. This meant that the Court of Criminal Appeal was concerned only with the endangerment counts. Suddenly, all the arguments of counsel were focused on section 13 and its meaning and on the factual matrix relevant to it. On the basis of the transcript of the trial, I am of opinion that while this obviously had to be the case, there is an inherent artificiality about it. On any reading of the transcript, in my view, it is perfectly obvious that the focus of all counsel and of the trial judge was almost entirely on the manslaughter charges and that minimum thought and consideration was given either by counsel or the trial judge to the necessary proofs in relation to the endangerment count. In making this comment, I am attaching no blame to either counsel or the trial judge. In the case of defence counsel, they were in a near impossible position, in my view, trying to defend both counts. Obviously, and quite rightly they would have regarded the manslaughter as the more serious count. But, strange as it may seem, the harm which had to be contemplated for the purposes of either the concept of intention or the concept of recklessness in the case of a section 13 offence was much more serious than the harm which had to be contemplated for the purpose of the manslaughter count. In the latter case, as the learned trial judge correctly pointed out, there had to be an intention of doing the deceased some physical injury “not merely trivial or negligible in character”. For the purposes of the section 13 count however, there had to be intentional or reckless engagement in conduct which created “a substantial risk of death or serious harm to another”. These different ingredients of the mens rea would seem to me to put counsel in an impossible position. If he were to explain to the jury that a much more serious form of intention or recklessness was required for the second count which was in terms of sentence etc. the less serious count there would be a danger that the jury might opt for the manslaughter count. In one sense and fortunately from the point of view of counsel for the defence, the learned Circuit Court judge, with all respect to him, made no attempt at all properly to explain to the jury what was meant by “reckless” engagement in conduct which created a substantial risk of death or serious harm to another. Still less did he explain that there would have had to be an appreciation that there was such a substantial risk or in other words a subjective mens rea in relation to this aspect of the offence as well as any other. The judge did to some extent refer to arguments made by counsel but only as arguments made by counsel. He did not himself give proper judicial direction. The trial judge seemed to take the view that the real defence of the section 13 count was self-defence under section 18. That defence did arise under the statement of Fergal Cagney but the subjective mens rea was also of crucial importance. It is clear from the questions asked by the foreman that the jury itself was wholly confused as to the meaning of section 13.

At a late stage Mr. Hartnett, S.C., counsel for the appellant, Ronan McGrath realised this and I think realised the inadequacy of the judge’s charge when he made the following submission while the jury was in its room.

“I am just concerned My Lord, the jury are clearly concerned about this very strange section 13, which is a new offence, and I submit that they should be told that they cannot extrapolate backwards, or they cannot look backwards from the death that they must examine what was in the minds of the accused, or either accused, and that before they could find him guilty of that offence they have to find that there was actually an intention to create a risk that was more than just an ordinary risk, that it was a substantial risk of death or injury that could lead to death or the loss of a limb, or damage to a limb. Or alternatively in relation to recklessness, that the accused must be shown to have acted not only in gross breach of duty of care, but recklessly in the sense that he realised that he was creating an appreciable risk of death at the moment of striking and of course having assessed and appreciated the risk that he chose to run the risk.”

I believe that Mr. Hartnett’s submission was correct. Its contents had not featured sufficiently in the trial for the obvious reason that the concern was primarily in relation to the manslaughter count.

Where “recklessness” is a constituent of a criminal offence in Ireland the leading authority on its meaning is The People (DPP) v. Murray [1977] I.R. 360. The judgments of Henchy J., Walsh J. and Griffin J. make it clear that the required mens rea for the purposes of recklessness as to consequences is subjective and not objective. In particular Henchy J. endorsed the American Law Institute definition in the “Model Penal Code”. In Charleton and McDermott Criminal Law at p. 46 it is submitted that the definition contained in s. 2.02(2)(c) of the Model Penal Code “constitutes the definition of recklessness in Irish Law”. It is cited as follows:

“A person acts recklessly with respect to a material element of an offence when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves culpability of high degree”.

It seems clear therefore that for the purpose of a count under section 13 based on recklessness as was the case here the accused would have had to consciously disregard a risk not of just causing harm but of causing serious injury or death.

As a result of further discussion in relation to Mr. Hartnett’s submissions, the trial judge recalled the jury and instructed them as follows:

“I have already read the section to you, section 13 of the Non-Fatal Offences Against the Person Act, 1997. Just to be of assistance to you in the legal sense, firstly you must be satisfied beyond a reasonable doubt that there was an engagement in conduct which created a substantial risk of death or serious harm to another and that it was done intentionally or recklessly. Intentionally means that an intention must have been formed and recklessly means the conscious running of a non-justifiable risk.”

The trouble with that further clarification is that it still did not explain that subjectivity rather than objectivity was involved in the necessary mens rea.

How does any of this fit in with the actual grounds of appeal? Not very well in my view because the grounds of appeal do not include any criticism of the charge. On the other hand having regard, in particular, to the new territory being traversed in relation to section 13 and the terms of the certificate of the Court of Criminal Appeal, I do not think that too narrow a view should be taken of the notice of appeal and I intend to approach it in the following way.

Assuming that the Director of Public Prosecutions was entitled to include the endangerment count in the indictment along with the manslaughter count (which assumption was not challenged at the trial by the defence at or before the stage of the application for the direction), there can be no criticism in my view of the learned trial judge’s refusal to grant the direction. There was evidence on which a jury could have convicted on either count if both counts were properly before them. There was a vast amount of evidence and the jury was entitled not merely to assess whether there was express evidence in relation to any relevant matter but also as to whether inferences could be drawn which established a particular matter beyond reasonable doubt. An example of the latter for instance would be as to whether Fergal Cagney heard the instructions coming from Ronan McGrath. But there are other examples also relating for instance to the causality of the fall. A judge is only obliged to deal with an application to withdraw a case from the jury on the grounds put forward to him by counsel. On that basis, I do not think that the learned trial judge can be faulted. I would, therefore, dismiss the first two grounds of appeal.

As I have already pointed out there are some problems of interpretation of the certified point of law and in effect the third ground of appeal is simply requesting the court to give a negative answer to the certified question. At least until there have been more cases of prosecutions under section 13 of the 1997 Act it would seem to me to be unwise for this court to give too absolute an answer. For my own part, I do not find it necessary even to attempt one as I am quite satisfied that the inclusion of the endangerment count in the same indictment as the manslaughter count where the manslaughter alleged was based essentially on the same set of facts was inappropriate and likely to give rise to a confused and unfair trial. I am very doubtful whether an endangerment count should, in any circumstances, be included in an indictment which contains as its primary count an assault manslaughter charge. But I think it is only necessary for me to express the view that on the facts of this particular case, at any rate, the endangerment count ought not to have been included and a conviction on that count ought to be quashed.

There is an obligation on the Director of Public Prosecutions and on the trial judge in a criminal case to ensure a fair trial. I do not know how that could have been achieved in a case such as this where in the case of the more serious offence i.e. manslaughter, the jury had simply to consider whether the act was likely to cause some injury above the level of trivial with an objective test in relation to that evaluation whereas in relation to the lesser offence of endangerment, complex instructions would have to be given to the jury first of all that they had to consider the matter as of the time the danger was created and not have regard to the actual damage that resulted and secondly, that the mens rea required an actual subjective appreciation of the likely creation of a substantial risk of death or serious injury as defined.

I agree with the view expressed by Hardiman J. that if the Director of Public Prosecutions considered that there ought to be a second count included in this case it ought to have been one of say common assault.

It has been argued in the Court of Criminal Appeal and in this court that the Oireachtas never intended there to be a section 13 prosecution when it was alleged in another count that death did in fact result. In making this submission heavy reliance is placed on the report of the Law Reform Commission which resulted in the legislation. I do not think that this court should follow that particular approach. In interpreting a section, a court is always entitled to have regard to similar antecedent legislation or to a report of the Law Reform Commission etc. which may have given rise to the legislation. But that is where there is some problem or ambiguity in relation to interpreting the legislation following the normal canons of statutory construction. The common law courts and in particular the courts of this jurisdiction have never ruled out as applicable a piece of legislation which on its wording would be applicable simply because it would not have been part of the policy behind the legislation. In my view, the court is bound to look in the first place at the words of the section irrespective of what the policy leading to it may have been. Applying that criterion, I find it difficult to assert or even suggest that the Director of Public Prosecutions was ipso facto precluded from bringing a prosecution under section 13 on the facts of this case. For instance, if the Director of Public Prosecutions had done so without including a count of manslaughter it is not clear to me on what basis it could be suggested that section 13 would not be applicable.

My objection to the Director of Public Prosecutions having included this count is based therefore not on a suggestion that the section as a matter of policy was not intended to be used this way but rather on the basis that it created a basic unfairness in the conduct of the trial. I have explained in some detail my reasons for forming that view and I do not think it is necessary to go into it any further.

On that basis therefore and taking a broad view of the third ground of appeal, I would allow the appeal and since the hearing of the application for leave to appeal was in practice a hearing of the appeal itself, I consider that this court ought to quash the conviction in each case in relation to the endangerment count.

It is necessary only very briefly to deal with the additional ground of appeal which is in the McGrath case. In my view, the appeal could not have been allowed on that particular ground because the verdict of the jury whereby there was an acquittal of the manslaughter but conviction in relation to the section 13 offence was not necessarily inconsistent. If the jury, for instance, took the view that the injury was caused by an independent fall the jury would have had to acquit of manslaughter but would not necessarily have had to acquit of the endangerment.

I favour therefore the appeal being allowed on the third ground only and in the sense explained.