THE SUPREME COURT
[Appeal No. 58/2016]
Clarke C.J.
O'Donnell J.
MacMenamin J.
Dunne J.
O'Malley J.
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
PROSECUTOR/RESPONDENT
DEFENDANT/APPELLANT
Judgment of Mr. Justice John MacMenamin dated the 14th day of February, 2018
1. The apparently straightforward issues in this appeal touch on questions which date back many centuries. As far back as the medieval period, courts had to consider how the law might mitigate the effect of a finding of homicide, when a conviction for murder would lead to the imposition of the death penalty. Judicial thinking evolved so that, under law, a “subjective” element was introduced to the concept of intent when there was a finding of homicide. The law recognised the partial defence of provocation. But how should the law give recognition to this question? This remains a controversial issue. (See the recent observations of Charleton J. in DPP v. Heffernan [2017] 1 I.R. 82, at p.91, and the earlier remarks of O’Donnell J. in the Court of Criminal Appeal in The People (DPP) v. Curran [2011] 3 IR 785; also see Law Reform Commission, Consultation Paper on Homicide: The Plea of Provocation, LRC CP 27-2003; and particularly, Law Reform Commission, Report on Defences in Criminal Law, LRC 95-2009).
2. Some commentators, pointing to “individual” issues, such as type of personality and gender, criticise the defence as lacking in certainty and objectivity. These considerations form the background to this appeal.
3. The appellant (hereinafter “the defendant”) was charged with murder. He relied on the defence of provocation. He told lies immediately afterwards about what happened. The question which arises directly here is as to how, on this charge of murder, when the defence raised was provocation, the judge at this trial should have dealt with the lies which the appellant told in the immediate aftermath.
4. Counsel for the defendant contends that the trial judge should have explicitly charged the jury to the effect that lies of this type may be as consistent with a defendant who has been “provoked” in the legal sense, as one who has been guilty of murder. It is said that the trial judge failed to draw this distinction in his charge to the jury, and that as a consequence the charge was fundamentally flawed.
5. The general issue as to how a jury should be instructed in the case of lies out of court arose in the seminal decision of R v. Lucas [1981] QB 720, from which is derived the eponymous “Lucas warning” as to how such lies should be dealt with in the charge to the jury.
6. Lucas itself, and subsequent application of the principles identified there, establish that, in an appropriate case, it will be necessary that the judge sufficiently instruct a jury that a defendant may have told lies for a number of different reasons, such as shame and embarrassment; and that the very fact of having told lies out of court is not to be equated with an admission of guilt.
7. But applying this precept in a trial for murder when provocation is raised is not always easy. The judge must gauge the context and the content of the warning. An over-elaborate charge to a jury, posing many questions and sub-questions, each based on contingent answers to prior questions, makes the jury’s task significantly more difficult. The scales must be weighed fairly between prosecution and defence.
8. This is, too, an area where one must guard against the inapposite citation of precedent. This caveat arises for two reasons. The first is obvious, that each trial and charge is to be looked at in its own unique context. But, second, authorities cited to this Court from the courts of England and Wales must be carefully considered, arising as they do against a different statutory background regarding the partial defence of provocation in murder cases. In our law, the test remains predominantly a subjective one. (See DPP v. MacEoin [1978] I.R. 27). The situation in England and Wales governed by statute imposes a more nuanced “reasonable person” test. (See U.K. Homicide Act, 1957; and later s.54 Coroners & Justice Act, 2009).
9. Where the defendant has told lies, a judge must consider the context of those lies. There is a range of possibilities as to why the lies were told. When there are lies, a warning will almost always be necessary. But the precept does not always lend itself to easily expressed bright line or “one size fits all” jurisprudence. The nature, timing and the context of the lies is a consideration. The lies may be to the very forefront of the entire case; but this is not always so. A “Lucas warning” is not some form of mantra, or formula of words in the same form, for all purposes. The warning is, rather, to be tailored according to the context in which it arises. Such lies may relate to the issue of whether a defendant actually committed the offence at all, or, alternatively, more directly relevant here, to the nature of the defence, when the fact of homicide is not in issue. The weight and content of the warning is to be measured against the proximity of the lies to the offence. Some lies, by their timing or their nature, will be less important or essential in the charge than others. Where the lies go to the core of the case, a judge may have to engage in a fuller form of Lucas warning. Where necessary, the judge may have to point out that the lies may be as consistent with provocation as with murder, and that the jury should be satisfied beyond reasonable doubt on this question. The question then is, what form of warning was necessary on the facts of this case?
10. Seen in isolation from its own particular factual context, Lucas recognises a simple but vital principle. It is that juries must be warned that lies told by a defendant out of court should not be equated with guilt of the offence with which the defendant is charged in court, and that defendants may tell lies for reasons other than simply trying to exculpate themselves. The fact of telling lies, therefore, should not, of itself, be taken by a jury as corroboration of guilt. To make this illogical deduction or leap is, in the words of one commentator, “impermissible reasoning”.
11. The task of framing the terms of a warning is quintessentially one for the trial judge, although he or she may wish to hear submissions from counsel as to its format and content. But neither prosecution nor defence is entitled to words of their own choosing. In general, however, it is difficult to conceive of a situation where, nowadays, when defendant’s lies out of court are part of the case, a judge would not give such a warning. A complete failure to do so would undoubtedly put the propriety of a trial at high risk. It is a matter of basic fairness.
12. In this case the judge did give a “modified Lucas warning”. A simplistic analysis of this appeal could portray the main issue as being reducible to the absence of just one sentence in the judge’s warning. The defence now says that, on the facts, the judge should have told the jury that a defendant who has been provoked may have as strong a reason for telling lies, as a person who has actually committed murder, and that the jury should be satisfied that the lies derived from a realisation of guilt of murder. In fact, the judge’s modified warning was quite extensive, and took up to 30 lines in the transcript. The overall charge itself was detailed and fair. Counsel who acted for the defendant at the trial suggested there should be a warning. In fact, the judge said he was already minded to warn the jury about the defendant’s lies, and did so. Different counsel appeared on this appeal.
13. A second issue also arises for consideration. It is the extent to which this Court should apply the well-known dicta of Kearns J., speaking for the Court, in The People (DPP) v. Cronin (No. 2) [2006] 4 IR 329. This precludes the raising of issues on appeal in criminal cases which were not the subject matter of a requisition at the trial. There is, in fact, a telling connection between these two points which becomes evident. As counsel for the respondent (“the Director”) points out, defence counsel did not requisition on the form of warning given at the trial. The question which arises is as to why? There is no explanation available. But one inference might be that counsel did not consider that, in the context, there was anything objectionable in the judge’s warning.
14. Consequently, yet a further matter must be considered: that of context. The points and issues do not exist in a vacuum or as abstract propositions. They are to be seen in the context of this trial. It is necessary to set out the relevant circumstances of the case, as it was presented before the jury.
15. In fact, as matters turned out, the paramount issue during the trial was not the question of the defendant’s lies in the immediate aftermath of the offence, but rather his own credibility as a witness when he was called to testify as to the events on the night and following morning in question. There was pathologist’s evidence as to the severity of the deceased’s injuries. This testimony, largely uncontested, was irreconcilable with the defendant’s own account about what he did on the night. This case is distinct from others also, in that, by the time of the trial, it was not in dispute that the defendant had killed his partner, Mary Ryan. The sole issue for determination was whether the verdict should be murder or manslaughter.
16. The defendant was convicted of the murder after an eight day trial in the Central Criminal Court before McCarthy J. The evidence showed that the defendant and Ms. Ryan had been involved in a relationship for some time. They lived together in a flat in the centre of Dublin. The relationship between them was not always an easy one. The deceased had a serious drinking problem. She could become “difficult” and argumentative when she took too much drink. This had led to her engaging in disruptive behaviour in the couple’s flat on a previous occasion, which led to trouble with the neighbours, and complaints to An Garda Síochána.
17. As a result, the landlord told the defendant and Ms. Ryan that they would have to leave the flat. He told them this on the 18th May, 2012. During that day, the defendant and the deceased were with friends at a flat in another part of town. The two returned to their flat in the evening. They had both had a lot to drink.
18. During the evening of the 18th May, 2012 there was a row in the flat. The row escalated into violence. The defendant accepted he was angry with Ms. Ryan, because they both might find themselves on the streets with nowhere to live. Yet he wanted to continue living with the deceased. He was worried that her disruptive history might be a problem in obtaining alternative accommodation. The defendant had been offered a place to live in Portobello, but this offer was not open to the deceased. In a violent struggle which ensued, Ms. Ryan sustained serious injuries which caused her death. The defendant was charged with murder. The defence relied, inter alia, on provocation and lack of intent to murder.
19. Provocation may arise as a defence in circumstances where an accused has suffered a temporary and sudden loss of self-control, such that he was unable to prevent himself from committing the homicide.
20. In raising the defence at this trial, counsel had to deal with the fact that, in the immediate aftermath of the homicide, the defendant gave an entirely fictitious account as to what happened on the night. He gave this account on two occasions; first, to friends in a telephone call on the morning of the 19th May, and later, to members of An Garda Síochána.
21. In the phone call, he told his friends a fabricated story that Mary Ryan had sustained her fatal injuries when she was attacked in the street by three men, some 50 metres away from their own flat. In fact, the forensic evidence showed that the deceased sustained her injuries in the flat. The defendant was arrested on the day following the death. He persisted in this false account in the first six garda interviews. Ultimately, he accepted that he had killed the deceased. From then on, his involvement in the homicide was no longer in issue. The real question for the jury was as to his intent or state of mind.
22. But in the trial, the defendant faced further difficulties. He gave evidence. His narrative of the struggle in the flat simply did not tally with the serious injuries which the deceased sustained. He claimed Mary Ryan had started the fight and had attacked him. But his account was irreconcilable with the severe injuries to her face and body, and significant brain damage. The deceased had been grabbed by the throat in such a forceful manner that two cartilage bones in her neck were fractured.
23. A further issue for the defence was the delay in seeking help. While the fatal fight apparently took place during the night or early morning of the 18th May, 2012, the defendant did nothing in the immediate aftermath to get emergency aid for the deceased, who was obviously seriously injured. In fact, he only sought emergency assistance at 11 a.m. on the morning of the 19th May, 2012, after he had spoken to his friends. Such background features were not easily reconcilable with a “sudden loss of control”, following which the defendant came to his senses. He never satisfactorily explained why he did not call an ambulance immediately. Instead, in the morning, when he first telephoned his friends, he told them what the counsel for the Director described as a “cock and bull” story about the alleged attack by three men. By the time the matter went to the jury, the complexion of the case had considerably changed; this was as a result of the credibility of the defendant’s own evidence.
24. It was necessary to call the accused in an attempt to make out the defences of provocation and lack of intent. But his direct evidence was inconsistent with the ascertainable facts. The account he gave came nowhere near explaining the nature of the deceased’s facial, cranial and bodily injuries. But more directly, there was, in fact, little significant evidence of the defendant having suddenly lost control of his faculties, such that a defence of provocation, or lack of intent, could properly arise. The provocation defence was, therefore, well-nigh unsustainable. The judge allowed the issue go to the jury nonetheless.
25. The defendant accepted he slapped the deceased on the face, but denied striking her more than once with his fist. Blood was found in a number of locations in the flat, as well as on the deceased. The defendant admitted grabbing Mary Ryan by the throat, but he claimed, not in such a way as to kill her. One can therefore fairly describe the question of the judge’s charge on the lies as being on a secondary issue; at one remove from the main question which the jury had to determine, that is, the defendant’s own credibility as a witness, a question on which they were to apply their own judgement. The issue, therefore, was simply whether the jury believed the defendant’s account of what happened on the night. The lies related to whether the defendant had been involved in Mary Ryan’s death: that question was no longer in issue.
26. The defence was not assisted either by the fact that the defendant introduced a further and new element in his description of the struggle. He testified the deceased had tried to get out of the flat, and had threatened to burn the whole building down. He gave this evidence for the first time in the witness box. In cross-examination he accepted he had not previously told the gardaí about this threat, but said that he understood that the deceased was threatening something, and had mentioned a fire extinguisher. There was indeed some evidence that an incident involving a fire extinguisher had occurred, but this was on a previous occasion.
27. In describing the aftermath, the defendant said that later he saw Mary Ryan lying fully clothed on the bed with blood on her face. He testified that, in the early morning, he tried to assist her, but claimed that she was “sleeping” at that stage. He accepted that he might have caused some injury to her throat, but denied that this could have intentionally caused her death, as he had no intention to strangle her. He said that the deceased went “to sleep” after the struggle. She had woken during the night or in the early morning to ask him for a glass of water. He did not check her later on in the morning, but rather, he said, went to the shops. He testified that when he came back from the shops, the deceased looked “very bad”, and that he left a lighted cigarette on the bedside table where she lay fully clothed. When he shook her arm, he discovered that there was no reaction. His contention was that it was then he called his friends and told them the untrue story. He accounted for his lies by saying he was afraid. The jury convicted him of murder.
The Court of Appeal
28. The appeal came before the Court of Appeal (Birmingham J., Sheehan J., Edwards J.). That Court dismissed all the grounds of appeal in a detailed judgment. Edwards J. pointed out that the defendant’s written submissions criticised the modified Lucas warning given by the trial judge for not adverting to the specific explanation given by him for the lies which he told, and that the warning had, rather, recited in general terms, explanations that, in undefined circumstances, defendants might lie. Edwards J. pointed out that the trial judge had, in fact, referred to what the defendant had said in explanation for lying; that is, that he was afraid, and the trial judge had told the jury precisely that. The problem was that, in the explanation, the defendant himself had claimed that everything was “okay” during the night. But later, this statement in itself raised questions. Edwards J. quoted the trial judge as charging the jury to this effect:
“He, [the accused] said that everything was okay during the night time into the morning hours. He was afraid later and then thought about telling the gardaí about the three guys. It was put to him that he had put that story together by the time he had phoned his friend. He said he didn’t know whether or not she was going to die.”
One can see from this passage that, in fact, the defendant’s explanation as to why he told the lies was very cursory.
29. The defendant was represented by experienced counsel at the trial. As pointed out earlier, counsel did not requisition on the warning. The judge brought the jury through the defence evidence, as far as that evidence went. The defendant’s involvement in the homicide was clear. The issue for the jury was equally clear. It was either murder or manslaughter.
30. Edwards J. considered the context of the judge’s warning as to the defendant’s lies. He observed that, in the particular circumstances of the case, the lies were not as significant as they might have been in other cases. They went to the question of whether it was the defendant who had killed Ms. Ryan. But, by the time of the trial, this fact was not in issue. He observed that this was not to say that the lies were completely irrelevant. Obviously, they potentially impinged on the defendant’s credibility, and any damage to his credibility did not assist in making out the defence of provocation. However, the Court of Appeal went on to conclude that, on balance, the trial judge’s warning to the jury on the lies had, in fact, been more than adequate.
31. The Court of Appeal were, obviously, fortified in their conclusion by the fact that there had been no requisition on the issue. At no stage has it been suggested that the omission to seek a requisition on this issue was due to error or inadvertence. No explanation was furnished for this omission to the Court of Appeal, or to this Court, as is required, in order to come within the exceptional principles identified in Cronin.
Application for Leave to Appeal to this Court
32. On the application for leave to appeal, this Court determined that two issues properly fell to be determined. As put in the application, the phraseology of the first point is very complex indeed. Thus, this Court was asked to determine whether, in the factual context of this trial, the judge had sufficiently explained to the jury that the fact that the accused had lied in earlier accounts to An Garda Síochána regarding Mary Ryan’s death should not, of itself, be treated as evidence that could provide proof of his guilt of murder, as opposed to manslaughter, but rather that such evidence could go to the credibility of the accused, and in that context be taken into account by the jury in assessing, on the basis of all of the evidence, whether the prosecution had negatived provocation to the criminal standard. Such detail, length and complexity would have involved a series of questions, and sub-questions being put to the jury in the charge. The wording is, undoubtedly, derived from R v. Richens [1994] 98 Cr. App. Rep. 43. But, Richens, and the other illuminating English authorities cited, were decided in a different statutory and factual context from this case. The Cronin issue is considered later in this judgment.
The Issues in this Appeal
33. What form of warning was, in fact, necessary? It is not in dispute that a modified Lucas warning was given. It was quite detailed. The defendant says there was a failure to contextualise; or to direct the jury, that as the accused had committed the homicide, lies which indicated that he was guilty of killing the deceased were not prescriptive of a lack of provocation. It is said there was also a failure to contextualise the defendant’s explanation as fear, and, even now at risk of repetition, an omission to direct the jury that, in order to rely on such lies as evidence of guilt, the jury would have to be satisfied beyond reasonable doubt that such lies went towards disproving provocation, such as being a deliberately false account intended to support the existence of provocation, and were not open to any other reasonable explanation, such as fear of disclosing the killing. In essence, the case is that the trial judge should have used the wording applied in Richens. He was certainly not asked to do this at the trial, or to adopt any particular phraseology.
34. However, even as a preliminary observation, one might almost say these criticisms are themselves decontextualised. The points made are not sufficiently connected to the true issues which the jury had actually to decide. Those issues were extremely obvious, and did not, in my view, require the degree of prescription or elaboration now suggested. It can be said that the prosecution did rely on the lies, as the factual context of the case did effectively touch on the lies as corroboration in the charge of murder. But these had not figured large in the trial. It is self-evident from their content that the lies had nothing to do with the question of provocation. Instead, they came within a quite different category, one mentioned earlier, as relating to the question of whether the defendant had actually killed Mary Ryan – a fact which was no longer in issue at the trial. The judge’s charge on the defendant’s credibility was fair, when the true issues were simply those of provocation or lack of intent, the defendant’s much earlier and immaterial lies out of court can almost be described as “background”.
The Lucas Warning
35. Standing back from the facts of this case, it is clear that the core principle in R v. Lucas [1981] QB 720, is that, where an accused’s lies are capable of constituting corroboration, the jury must be instructed that there are many possible reasons why people lie, and that, before relying on the lie in question, it must be satisfied that the motivation behind the lie was a realisation of guilt, and a fear of the truth.
36. But the subsequent English authorities relied on in this appeal, arrived at under the different legislation, are not only themselves fact-specific, but share a common characteristic; that is, where the decisions on appeal expressly, or by clear implication, had concerns on the overall balance of the judge’s charge taken as a whole. The real issue in the judgments is the apprehension of “impermissible reasoning”, where the jury was left in a situation where, without sufficient guidance, they might jump to the conclusion that, in the case of provocation, the lies of an accused equated to guilt of murder.
37. Lucas, on its own facts, established that, first, the lie must be identified in the context of the circumstances and events said to indicate that it constitutes an admission against interest; second, that in order to constitute corroboration, it must be shown it was deliberate, and related to a material issue; third, again on the facts, it is necessary to show that what was said was a lie by evidence other than that of an accomplice who is to be corroborated, that is to say, by admission, or by evidence from an independent witness (see Lucas [1981] QB 720, at p.724).
38. In those circumstances, the Court of Appeal of England and Wales held the jury was to be instructed that it must be satisfied that the motivation for the lie was a realisation of guilt, and a fear of the truth. Thus, a judge should remind a jury that there may be many reasons why people lie, such as, shame, desire to conceal other disgraceful behaviour from family members, panic, misjudgement, bolstering up a just cause, indignation at the suggestion of having done something wrong, or in an effort to hide that an accused or others might have engaged in other wrong conduct. There is, too, the possibility of a failure of recollection at interview, which on cross-examination, an appellant does actually recollect. Not all of those circumstances applied here by any means. Hence, what was needed was a modified warning.
39. The importance of a warning of this general nature is has been explained. The risk is that a jury might jump to the conclusion that simply because an appellant told lies, he is, ipso facto, guilty of the offence. (See, generally, Coonan & Foley, The Judge’s Charge in Criminal Trials, (Dublin, 2008); 33-68 et seq; 41-02 and 33-72; McGrath, Evidence, 2nd Ed., (Dublin, 2014); 4-269 to 4-277; JS v. DPP [2013] IECCA 41). But this appeal can be decided only on the question of the judge’s charge on the specific facts which arise.
40. The way in which English law evolved on warnings in the case of provocation is well illustrated by Richens itself, and subsequent decisions. In Richens, the Court of Appeal of England and Wales (Criminal Division) held that, if the issue of provocation was left to a jury, the judge should, if relevant, give a direction as to the possible effect of any lies told by the defendant to the police in relation to the issue of provocation. This was not the case here: the lies were not directly relevant in the way that they were in Richens.
41. Richens was a case where the circumstances showed that not only could the partial defence of provocation arise, but have a close connection with the offence. The judgment concerned a 17 year old accused, who, the defence claimed, was enraged that the victim claimed that the defendant’s girlfriend, who he had raped, had actually consented to have sex. Both the defendant and the girl disposed of the body. The defendant maintained a false account of what occurred for a considerable period. Critically, the accused denied any involvement at all in the crime. He was arrested 17 days after the crime and on the following day admitted his involvement.
42. But, the trial judge’s charge in Richens differs fundamentally from that in the instant case. In Richens, the judge had simply not sufficiently directed the jury as to how, as a matter of law, they should regard the lies that the accused admitted he had told about his movements and involvement in the offence of murder. In a case where the lies were very relevant, the trial judge had, without any sufficient warning, effectively invited the jury to consider the accused’s lies as being potentially probative of the prosecution case. This was not the factual situation in this appeal.
43. In the circumstances just described, the English Court of Appeal held that a person who has killed by reason of loss of self-control may have almost as strong a reason for attempting to conceal what he did, and to lie about his involvement, as a person who had killed deliberately. The appeal court concluded, that the jury should, on those facts, have been alerted to that possibility, and should be told that they should be sure that there was not some other possible explanation for the lies, which destroyed their potentially probative effect.
44. Similarly, in R v. Jefford [2003] EWCA Crim. 1987, the Court of Appeal pointed out that the trial judge had indicated that it was not automatic that the jury should disbelieve the defendant and count this towards the prosecution’s case, but beyond that, gave the jury no guidance, simply leaving it up to them what conclusion they should draw from the appellant’s different accounts. Jefford was, again, a case where, in the context of the charge, taken as a whole, a fuller warning was held necessary. It was again a situation where impermissible reasoning might have occurred.
45. In R v. Miah [2003] EWCA Crim 3713, a very complex murder case with multiple accused, the Court of Appeal of England and Wales was constrained to hold that, where provocation was raised on the then current English law, a trial judge should deal with lies told out of court in upwards of seven different contingencies, each of which should have been put to the jury. (cf. para. 47 of the judgment). What is the position in our law?
Case Law
46. In McGrath, Evidence, 2nd Ed., (Dublin, 2014) the learned author comments that the Irish jurisprudence on this issue is more “embryonic” than that in the neighbouring jurisdiction. I would prefer to use the word “contextualised”. (See McGrath, para. 4-277).
47. It is hard, now, to envisage, in a case on these or similar facts, any circumstances in which a judge would decide against giving a modified Lucas warning. But it is necessary to remind oneself of the true issues, and evidence the jury had to face in this case. The extent of the warning must be determined by the factual context and prominence of the lies to the case.
48. The way Lucas has been properly applied in Irish law is well illustrated by two cases. In The People (DPP) v. Brady (Unreported, Court of Criminal Appeal, 5th May, 2005) the accused who was charged with a sexual offence had told the gardai who questioned him about the offence that he had been at work at the time of the assault, but thereafter admitted he had been present, although he denied assaulting the complainant.
49. In those circumstances, the Court of Criminal Appeal, correctly, considered it obvious that the fact that the accused had given a completely false “alibi” account, which was certain to discredit him in the eyes of the jury, was an appropriate case for the jury to be warned along the lines set out in Lucas. The Court observed that this was not simply something to be dealt with in regard to the burden of proof. It was, rather, something specific which was going to weigh with the jury, and upon which they should have been directed, in light of the way in which the evidence could be used against the applicant. In those circumstances, it was up to the jury to be satisfied, beyond reasonable doubt, that being the general standard of proof, that there was no innocent, that is to say, no non-criminal explanation, for the untruthful answers.
50. More recently, in The People (DPP) v. Curran [2011] 3 IR 785, O’Donnell J., in the Court of Criminal Appeal, made a number of observations which are very pertinent, although again not going so far as to hold that a question as to whether a Lucas warning should always be given to a jury was definitively settled. In Curran, the Court of Criminal Appeal was in no doubt that there were cases in which it would be appropriate to give a warning, particularly where the accused admits or concedes at or before the trial that an earlier account given was false and untruthful. (See O’Donnell J.’s judgment at page 808). The judgment in Curran makes clear that an admission or proof that an accused has been telling lies can have a potent impact upon a criminal trial. Such an admission brings with it the natural tendency to assume that, if it had been established that the accused was lying on a previous occasion, then there was no reason that the accused was telling the truth when in court. In such circumstances, it was necessary to remind the jury that they should not necessarily make the “leap” from an acknowledgement of lying to a determination of guilt. I agree with each of these observations, noting that the instant appeal is a case where a detailed warning was given. (See also JS v. DPP [2013] IECCA 41).
51. Other judgments on the question are based on their own facts. In The People (DPP) v. Doyle [2006] IECCA 163, and The People (DPP) v. Tuohy & Wallace [2006] IECCA 153, the Court of Criminal Appeal expressed the view that it was not necessary that, in each and every case in which lies had been told, there was a positive obligation on the trial judge to give a specific direction in the course of his or her charge to those lies. Each case in this area is highly fact specific. I confine myself to observing, therefore, that in this appeal a modified Lucas warning was, undoubtedly, necessary.
52. If, therefore, there is a real risk the jury may move from lies to a conclusion of guilt, a warning must be the proper course. The question arises then, was the warning in this case fundamentally deficient as a result of faulty wording or significant omission? It is desirable that a warning given should be contextualised, but to what degree is that always necessary, or even possible? Where necessary, a trial judge should, undoubtedly, instruct the jury that the prosecution should satisfy them beyond reasonable doubt that the particular statements relied on were deliberate falsehoods, and not due to mistake, confusion, or some erroneous but nonetheless legitimate and genuine belief on the part of the accused. One can envisage circumstances in which a jury might have to be given a warning, as to whether or not a defendant was complicit in the event at all. There are, indeed, a myriad of hypothetical possible circumstances in which a detailed warning may be necessary, and where, in some cases of murder, a distinction would have to be drawn between lies which may be consistent with provocation, and lies which may be evidence of guilt of murder. But is that the situation here? Was the jury given sufficient warning?
The Judge’s Charge on the Issue
53. The judge’s charge on the defendant’s lies was phrased in the following terms:
“Now, there is a commonsensical proposition of which you will all be aware, which is of course that one can tell lies, potentially for a number of different reasons, not necessarily indicative of guilt. And you must therefore bear that proposition in mind when considering whether or not the lies constitute evidence of guilt on the part of the accused. There are, to put it shortly, other reasons why people might tell lies. It is a matter of common sense.
In many instances of course, there is a debate as to whether lies have actually been told, but this has not in fact been in debate in the present case. So I just want to tell you perhaps in a little more precise terms.
Yes, now, one of the judges has put the matter in this way, that the judge should warn you quite clearly that a person – and I do so, that a person may have lied for a reason other than his guilt, such as something that he wishes to conceal from his family because it might disgrace him in the eyes, for example, of members of his family. That is … merely an example of the type of lie which might be told indicative of something other than guilt… You must be satisfied that the motivation for the lie is a realisation of guilt and fear of the truth. Every case of course is dependent on its own facts, but you will know that people may lie for many reasons other than guilt, including shame, a desire to conceal disgraceful behaviour from their family, an attempt to bolster up a just cause, out of panic, misjudgement, confusion, out of indignation at the suggestion that they have done wrong when they haven’t, or an attempt to hide the fact that they or others have been engaged in what we call other criminal wrongful conduct. So in this particular instance some of these factors, might as a matter of principle, be present and they are what you bear in mind, well as much as anything else, which as a matter of commonsense may recommend itself to you, which is a matter for you, when you are deciding on the significance, so to speak, of the admitted lies told by the accused.” (line 7 to 34, page 14, and lines 1 to 4, page 15, day 7).
54. The charge, as a whole, was detailed and fair. It is not to be parsed and analysed with a view to finding some small detail or omission which contains a flaw of no significance. One might rhetorically ask what more should the judge have said on the basis of the evidence before the jury? It is, theoretically, possible to criticise the charge on the basis that the omission of what I might characterise as a Richens warning. But this charge did contain a detailed warning in a case where the issue was entirely obvious: was the defendant guilty of murder or manslaughter? The judge took care to ensure that the jury were aware of the fact that the defendant accounted for his lies on the basis that he was afraid, and then “thought about telling the gardaí about the three guys.” He accounted for the fact that he told his friends the lies, on the basis that he did not know whether or not the deceased was going to die. The judge gave the essence of the Lucas warning. He gave illustrations of the application of the warning. And, by the time of the trial, what was in the lies was not in dispute, and was by then a secondary issue. It was clear that the defendant had committed a homicide, and did not dispute that. It was no longer the central issue.
55. The question must be, how material was the omission of this one hypothetical sentence, which counsel for the defendant now suggests? Was the charge fundamentally flawed? In my view, it was not. No injustice was done in this case. One must assess the relationship of the lies both in time, and in their nature, to the circumstances of the offence. The jury might have paid regard to the lies, but this was not the central consideration when in the trial itself the vista had changed. This case does not concern theoretical possibilities. It must be anchored in its own facts. I do not consider the omission to be fatal to the charge or the subsequent conclusion.
Cronin Case
56. It is necessary now to turn briefly to the second aspect of this appeal. The principles which were identified by this Court in Cronin (No. 2) [2006] 4 IR 329. Cronin, as is well known, establishes that only in circumstances where the court was of the view that, due to some error or oversight of substance, a fundamental injustice had occurred, should the court allow a point not raised at trial be argued on appeal. In addition, an explanation must be furnished as to why it was not raised at trial.
57. As Kearns J. observed in Cronin:
“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. …”
58. As pointed out earlier, the defendant was represented by experienced counsel. They faced a difficult task, not rendered easier by the defendant’s own evidence. Cronin requires an explanation be given to a trial court for the failure to raise a point at the trial itself. It is clear that the requirements of Cronin are not satisfied in this appeal. No reason has been advanced as to why there was no requisition on the warning. It is, in fact, reasonable to conclude no requisition was made because the charge to the jury was fair, and the trial judge had furnished the jury with an extensive modified warning against impermissible reasoning, adverting, as he did, to the accused’s explanation for his lies.
59. I would, therefore, dismiss this appeal, and affirm the conviction for murder. Neither of the issues raised can succeed.
