D.P.P. -v- Ismet Ceka, [2004] IECCA 25 (2004)

Docket Number:45/03
Party Name:D.P.P., Ismet Ceka
Judge:Fennelly J.
 
FREE EXCERPT

COURT OF CRIMINAL APPEAL

Fennelly J.

Peart J.

Ryan J.

45/03

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

-v-

ISMET CEKA (aka ISUF KRYXI) Applicant

JUDGMENT delivered on the 28th day of July, 2004 by FENNELLY J.

This is an application for leave to appeal against a conviction for murder. On 12th March 2003, the Applicant was convicted in the Central Criminal Court, after a trial of seven days, by a majority jury verdict of 10:2 of the murder on 13th August 2001 of Thomas McAuley.

The killing took place in the open street at Manor Street, Waterford, shortly before 8 o'clock on a summer evening before a large number of witnesses. The Applicant is of Albanian nationality. He had been living in a hostel at Manor Street in Waterford since May 2000. He spoke English with difficulty and gave his evidence with the assistance of an interpreter. It was not in issue that the Applicant killed the deceased with a knife, which he had purchased several hours before the killing. The defence turned exclusively on issues of self-defence and provocation.

On this application, the Applicant advances the following:

· That the learned trial judge, having regard to the state of the evidence and in particular the aggressive and threatening behaviour of the deceased towards the Applicant both immediately before and in the period leading up to the killing, should have withdrawn the issue of murder from the jury at the end of the prosecution case, leaving them only to consider whether the Applicant was guilty of manslaughter;· That the learned trial judge misdirected the jury both with regard to the law relating to the defence of provocation and the evidence on that issue;· That the learned trial judge was unfair and unbalanced in his references to the evidence, in making certain rulings and his treatment of the Applicant's language and related difficulties.

It is necessary to recount some of the background history leading up to the tragic events of 13th August 2001. Prior to the events leading up to his death, the deceased had had a long-term relationship with Ms Samantha O'Brien, who had borne him a child, a girl called Dineke. The Applicant commenced a relationship with Ms O'Brien shortly after the beginning of 2001. The deceased strongly resented this relationship, even though it appears that he himself had commenced a relationship, about the same time, with another woman. The Applicant alleged in evidence that the deceased used to threaten him, when he went to stay with Ms O'Brien. He claimed that the deceased threatened to kill him, even claiming that he was in the IRA. He said he saw newspaper reports stating that the deceased had been in prison for bombing for a long period of time. Ms O'Brien largely confirmed, in evidence, that her relationship with the deceased was a violent one. She had got a barring order. He had started a relationship with another woman.

Ms O'Brien gave evidence that, on the day of the killing, the deceased had come to her house, though he should not have done so in view of the barring order. He was shouting at Dineke. He was accusing the Applicant of hitting Dineke. Ms O'Brien said she knew this was untrue. There followed an extraordinary series of mobile-phone text messages from Ms O'Brien to the Applicant, in which she dealt with the deceased's allegations that the Applicant had hit Dineke, and explained that the deceased had threatened Dineke into saying this. Most materially, Ms O'Brien conveyed to the Applicant, in a number of these messages, that the deceased was after him, was going to a park to "sort him out" and that he wanted to fight the Applicant. She explained that the deceased had been screaming to her on the phone: "where is he?"

The scene then moves to Manor Street at a time fixed by the evidence as being shortly before 7:50 pm. It will suffice to summarise the gist of the evidence given or largely confirmed by at least twelve eyewitnesses. It is appropriate to recall that the first ground of appeal is that the issue of murder should have been withdrawn from the jury. The issue is whether there was evidence to go to the jury. Accordingly, it is legitimate to refer in particular to those parts of the evidence which tend to support the case made by the prosecution, namely that, though the deceased physically attacked the Applicant, a stage was reached when the Applicant had repelled and overcome the physical threat from the deceased and that it was after that point that he killed the deceased.

The following is a summary of the principal features of this evidence. Mr James Geary was walking with his daughter along Manor Street. They both saw a man, now known to be the deceased, a few doors away walking towards them and shouting very aggressively. He picked up speed and commenced to run as he passed them. He ran towards another man, now known to be the Applicant, and jumped at him. Miss Geary had seen this man come from the hostel, already mentioned, on the other side of the road. The two men had a tussle or fighting match. This part of the event, as confirmed by other witnesses, appears to have taken place on the footpath. Mr Geary described it as follows:

"Dragging out of one another, tussling with one another. Dragging one another's clothes, trying to push one another away….." They were out of view for a few seconds. When they came back into view, they moved out onto the road. Mr Geary tried to contact the gardaí on his mobile phone and shouted at the men to stop. The deceased "peeled off the other gentleman. He was kind of falling down on his knees." He and his daughter heard him say: "please don't, please don't." The deceased fell onto the road. "The other gentleman was standing over him and I shouted…to break it up." Miss Geary described the Applicant as standing over the deceased and kicking him. She also saw a glint of something in the hands of the Applicant, with which he had lunged at the deceased.

Mr Shane Crowley was employed in a pub beside the scene of the incident. In response to a suggestion of something happening outside, he went out and saw "two men in a scuffle…" The scuffle went out onto the roadway. One man, whom he was able to identify as the Applicant, since he knew him, "got the better." The other man with his back on the ground asked him to stop and was trying to push him away. But "it didn't matter." The Applicant then made three lunges to the side of the body, having taking out something white and shiny, which he thought looked like a piece of Perspex. Ms Sara Mee saw matters from the time the deceased was on the ground. The man on the ground was trying to defend himself. She noticed a knife in the hand of the man standing over the deceased. He was swinging his hand at the latter. She saw three or four swings.

Several key features of this evidence, as confirmed by other witnesses, should be noted. The deceased was the initial aggressor. There were two stages to the struggle. A hand-to hand struggle took place on the footpath. It then moved onto the road. The Applicant got the upper hand. The deceased either fell or was pushed to the ground. He commenced to plead with the Applicant to stop. The Applicant produced a knife and stabbed the deceased at...

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