D.P.P.-v- Fergal Cagney, [2004] IECCA 10 (2004)

Docket Number:155/02
Judge:Denham J.
 
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COURT OF CRIMINAL APPEAL[C.C.A. NO. 155 of 2002]

Denham J.

Ó Caoimh J.

Butler J.

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONSANDFERGAL CAGNEYAPPLICANT

Judgment of the Court delivered on the 27th day of May, 2004 by Denham J.

  1. Fergal Cagney, the applicant, hereinafter referred to as the applicant, has sought leave to appeal against his conviction and sentence by Dublin Circuit (Criminal) Court (His Honour Judge Patrick McCartan) on 26th June, 2002. This court heard his application to appeal his conviction together with the application of Ronan McGrath.

  2. The applicant was brought before a judge and jury in the Dublin Circuit (Criminal) Court on an indictment containing two charges:-

    Count No. 1

    Statement of Offence

    Manslaughter contrary to common law.

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

    Count No. 2

    Statement of Offence

    Reckless endangerment contrary to section 13 of the Non-Fatal Offences Against the Person Act, 1997.

    Particulars of Offence

    Ronan McGrath and Fergal Cagney on or about the 25th of 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.

  3. At the close of the prosecution case, on the sixth day of the trial, counsel for the applicant applied to the trial court for a direction to withdraw both Count No. 1 and Count No. 2 from the jury. The application was refused by the learned trial judge.

  4. On 26th June, 2002, the applicant was acquitted by the jury on Count No. 1, manslaughter. He was convicted on Count No. 2 by a majority verdict and was sentenced to fifteen months imprisonment.

  5. The applicant has sought leave to appeal against his conviction and sentence. He applied for and was granted bail pending the application for leave to appeal. The applicant seeks leave to appeal against conviction on the following grounds:-1. That the learned trial judge erred in law in refusing, at the conclusion of the prosecution case, to withdraw from the jury Count No. 2 on the indictment, a charge of endangerment contrary to section 13 of the Non-Fatal Offences Against the Person Act, 1997.

  6. That the learned trial judge erred in law in finding that there was evidence, which, if accepted by a jury, could as a matter of law lead to a conviction of the applicant of the offence of endangerment, contrary to section 13 of the Non-Fatal Offences Against the Person Act, 1997.

  7. David Langan was born in 1981 and died on the 30th of August, 2000, in Beaumont

    Hospital as a result of injuries he sustained to his head near Portobello Bridge in the early

    hours of the 26th August, 2000. He was buried on 2nd September, 2000. At the time of his

    internment it was believed that he sustained his injuries as a result of an accidental fall. More

    information as to the circumstances of his death then emerged. By order of the Minister for

    Justice, Equality and Law Reform his body was exhumed on 18th December, 2000, for further

    autopsy.

  8. The evidence given at the trial was that David Langan, the deceased, aged 19 years, had attended the Palace Nightclub on Camden Street in Dublin on the evening of the 24th August, 2000. At about 1 a.m. on the 25th August, 2000, the applicant and his cousin Ronan McGrath arrived. The applicant was aged 19 years of age at the date of the incidents in issue. At about 3 a.m. the Palace Nightclub was closing and a number of people congregated outside the club. It was common case that a large amount of alcohol had been consumed by all concerned. An incident arose outside the nightclub during the course of which the deceased David Langan was seen to push Ronan McGrath with some degree of force into the shutters of the nightclub. Ronan McGrath became annoyed and was heard to shout at the deceased in an aggressive manner. At this point various friends intervened to hold both parties back from each other. The deceased, David Langan, was lead away by Philip Rahill down Camden Street in the direction of Portobello Bridge. Philip Rahill was seeking to find a taxi for David Langan. Ronan McGrath went up the road after David Langan, he was accompanied by Thomas Rooney and his cousin Fergal Cagney, the applicant. Ronan McGrath was restrained by Thomas Rooney and the applicant. At the times when Ronan McGrath was nearest David Langan there was shouting between them. Ronan McGrath was heard to say words to the effect of "why did you push me into the shutters." When David Langan reached Grove Road on the far side of Portobello Bridge he sat on a low wall by the canal while Philip Rooney tried to hail a taxi. Ronan McGrath, Thomas Rooney and the applicant reached the bridge. The argument between Ronan McGrath and the deceased continued. At some point Ronan McGrath was held back by Thomas Rooney while the applicant placed himself between Ronan McGrath and the deceased. Thomas Rooney gave evidence that Ronan McGrath was trying to get past him and was threatening the deceased. (Examples of the evidence are set out herein. They illustrate high points of the prosecution case). The transcript sets out the evidence of Thomas Rooney as follows:"744 Q. What happened?A. And then they started squaring up for each other and I thought Ronan was going to go for him. 745 Q. You said 'squaring up'?A. Squaring up, yes, they got in each other's face.746 Q. What happened?A. Then I thought Ronan was going to go for him; it looked like he was. I grabbed Ronan by his jacket at the front around his neck, around that area and pushed him right back.747 Q. What was his reaction to that?A. He was trying to come forward, still trying to push past me.748 Q. Was he saying anything?A. And then he told Fergal to hit David.749 Q. Before that, as you were pushing him back was he saying anything or what was his reaction to your interference?

    1. He wasn't really saying anything to me, he was more trying to get by me and saying things to David.750 Q. What was he saying to David?A. He was threatening David.751 Q. What was he saying to threaten him or what was he threatening him with?

    2. Threatening to beat him up and threatening to kill him.752 Q. Was this said in a calm fashion?A. No, it was heated.753 Q. Did you find it easy to hold him back?A. Not very, at all, no.754 Q. Now, where was Fergal at that stage?A. Fergal was on my left-hand side beside the canal wall.755 Q. What happened?A. And then when Ronan asked Fergal to hit him he went and hit

      him.756 Q. Can we take that slowly? What did Ronan say?A. Ronan said 'hit him Fergal.'757 Q. Meaning to hit who?A. Hit David.758 Q. Now was this said in calm fashion?A. No.759 Q. Would you describe what happened?A. He shouted, he roared it.760 Q. He shouted, he roared at him. What happened then?A. Then Fergal went and hit David once and David crouched forward and he hit him again. Then I went to…I went…turned to my left to try and get a hand to Fergal and then Ronan came forward again and started pushing me back. So I turned and started pushing him forward again. And when I turned around again David was on the road on my right.761 Q. Now you said you saw Fergal hit him once and then hit him

      again?A. Hit him again, yes.762 Q. Could you describe the first blow? What did he hit him with, where did he hit him?

    3. This part of his hand here. (INDICATING).763 Q. You are using the heel of your right hand.A. The heel of my hand.764 Q. You have your fist closed?A. My fist closed, yes.765 Q. That is what he hit him with?A. Yes.766 Q. Where did he hit him?A. Around the ear, just above the ear.767 Q. Is this his left ear or right ear?A. His left ear.768 Q. You say you saw then there was a second blow?A. Then David's head was lower for this one and he hit him in the back of the head with the same part of his hands.769 Q. Could you indicate yourself where you mean in the back of the head?

    4. I would say around there. (INDICATING).770 Q. You are indicating the lower crown of the head?

    5. Yes.

      771 Q. Now you said David was doing something at that stage, between the two blows?

    6. He was crouched down at this stage kind of grabbing onto

      Fergal's jacket, the bottom of it.772 Q. What happened then?A. And then Ronan came forward and pushed me off balance when

      I tried to grab Fergal and I turned around to push him back.

      When I turned around again David was down on my right-hand

      side on the road.773 Q. When you say he was down on your right-hand side of the road, could you just have look at either photograph No. 3 or any of them, No. 2 or No. 3 and see if you can help us as to where he was on the road when you saw him?A. He was lying on the yellow lines; his head was on the yellow lines and his feet were towards the bridge.774 Q. Now was his body all along the yellow lines or was it partially on the foot path or straight or at an angle?

    7. I am pretty sure it was all off the foot path.775 Q. Can you say how did he fall, did he fall face down or back down or on his back?

    8. When I saw him he was back down. I never saw him fall.776 Q. You did not see him fall?A. I didn't see him fall, no.777 Q. What happened then?A. Then, Ronan phoned an ambulance.778 Q. What happened?A. And I think it was Philip, Ronan and Fergal were trying to

      revive David by, they dipped the coat Fergal was wearing into

      the canal to dampen it and were dabbing his head.779 Q. At this stage was he on the road or?A. They had picked him up and brought him back to the canal wall

      and had him sat against it.780 Q. Sat against the canal wall?A. Sat against it, yes.…796 Q. Now you have described the blow, the blows should I say that were given. You have described them being with the heel of the right hand?A. Yes.797 Q. Can you make any comment about the strength of them?A. They look quite powerful punches." (See Transcript of evidence heard on Tuesday 18th June, 2002, Book B).

      A local resident...

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