D. P. P. -v- Cagney & D. P. P. -v- McGrath, [2007] IESC 46 (2007)

Docket Number:481/04 & 464/04
Party Name:D. P. P., Cagney & D. P. P. -v- McGrath
Judge:Hardiman J. / Geoghegan J.
 
FREE EXCERPT

THE SUPREME COURT

Record No. 481/2004

Murray C.J.

Hardiman J.

Geoghegan J.

Fennelly J.

Kearns J.

BETWEEN/

THE PEOPLE AT THE SUIT OF THE

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

and

FERGAL CAGNEY

Appellant/Applicant

and

THE SUPREME COURT

Record No. 464/2004

BETWEEN/

THE PEOPLE AT THE SUIT OF THE

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

and

RONAN McGRATH

Appellant/Applicant

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 The learned trial judge ought to have withdrawn the section 13 count at the end of the prosecution case.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...

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