Director of Public Prosecutions v Dauksa

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní Raifeartaigh
• Judgment Date: 13 October 2023
• Neutral Citation: [2023] IECA 321
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 111/2021

Between/

The People at the Suit of the Director of Public Prosecutions

Respondent

and

Edmundas Dauksa

Appellant

[2023] IECA 321

Edwards J.

McCarthy J.

Ní Raifeartaigh J.

Record Number: 111/2021

THE COURT OF APPEAL

JUDGMENT of the Court delivered on the 13th day of October 2023 byMs. Justice Ní Raifeartaigh

1 The appellant appeals his conviction for murder on the ground that the trial judge wrongly refused to leave the (partial) defence of provocation to the jury. He also contends that the trial judge failed to deal adequately with the issue of intoxication in his charge to the jury.

Background Facts

2 The appellant and the victim of the killing the subject of this appeal, Ms. Ingrida Maciokaite, were the parents of a young child. They were not living together, and the appellant had been the sole custodian and primary carer of the child, “L”, for the six years prior to the date of the fatal incident. L had lived with the appellant and his wife as part of an informal agreement between the parties. It seems that Ms. Maciokaite had little contact with her daughter until 2017 when she returned to live in the same area and started to have greater access to her daughter, including sleepovers. Difficulties arose between the parties, however, and this included a breakdown in access for three weeks prior to Thursday, 13th September 2018. On this date, the deceased arrived at the appellant's address with two friends seeking the return of her daughter. The Gardaí were called but no further action was taken as it was treated as a civil matter.

3 On the following day, Friday the 14th September, Gardaí arrived at the appellant's house and took L away on foot of a court order requiring her to be produced before the District Court. The appellant was taken by surprise as he was unaware of the existence of any court proceedings or that an application had been made for such an order.

4 He attended at the District Court without legal representation and, following a hearing which he says lasted a little over four minutes, the child left the court in the custody of the deceased.

5 The appellant was greatly aggrieved and distressed by this turn of events. His son gave evidence at the trial that the appellant spent the weekend drinking and taking painkillers, but not sleeping or eating. His wife described him as “completely destroyed as a human being”. The appellant left messages on the deceased's Facebook account threatening to go on hunger strike and saying that he would fight the court decision to the end. One message in particular stated that the child ‘had been ripped from her family after six years by a person who had no interest in her’.

6 On Monday, 17th September 2018, both parties visited the child's school to make arrangements arising from the change in custody. There was evidence from the school principal of the appellant's distressed state, and also that the deceased appeared to be somewhat confused about the effect of the court order and seemed somewhat surprised at the speed with which matters had moved.

7 The appellant's wife said that on the morning of Tuesday, 18th September 2018, the appellant made an attempt on his own life. He was drunk, took sedatives and appears to have tried to harm himself with a knife. She stopped him and together with her son, helped him to bed. She said that later in the day his mood improved because he was given to understand that the deceased was going to bring the child over to the house after school. He had not seen the child since Friday morning when the Gardaí took her from the house.

8 At 2.01pm, however, the deceased phoned the appellant's wife and told her that “that she is not going to bring [the child] around and that's it”. The appellant's wife conveyed this message onwards to the appellant. She said that he said he was going to speak to the deceased, but that he was in “very bad form” and had been drinking and she refused to let him drive. He left the house on foot. His wife's evidence was that he left around 2.30pm but she was not completely sure. The message received at 2.01pm and conveyed to the appellant represented a volte face on the part of the deceased as to an informal arrangement between them and was the act relied upon by the appellant as constituting provocation, albeit in the context of what had gone before.

9 It seems that the appellant took a knife with him when he left his own house. There was CCTV footage of his movements, which showed him walking towards the deceased's address at 2.30pm, and arriving at 2.36pm. The footage shows the deceased coming out of her house with the child and following the appellant into an alleyway. What happened thereafter was not visible from the footage. After about three and a half minutes, the footage shows the child running away from the alleyway, and a woman and a man are seen running into the alleyway (to assist the deceased, as it later emerged). The man telephoned the Gardaí at 2.44pm. The total time from the phone call at 2.01pm was therefore of the order of 43 minutes, but the time-frame from when the appellant received the message and left the house was less than that, perhaps under 20 minutes.

10 A witness, Mr. Callan gave evidence that he passed the parties shortly before the fatal stabbing. He heard some loud words being spoken but was not sure whether by a man or a woman. The deceased was leaning up along the archway on her right shoulder out towards the street, and he could see a child in the archway. There was a man leaning in on her three to four feet away, as if talking to her. He thought it was a domestic row and he continued on.

11 Another witness, Mrs Awosanya, heard screams which brought her from her apartment to the scene. She saw the little girl running in the courtyard. She saw the man and woman in the archway, and she saw the woman falling to the ground. The appellant was at the gate turning around, and he sat slumped at a small wall a short distance away and remained there until the Gardaí arrived. He did not make any attempt to leave the scene and was arrested. He showed the Gardaí where he had thrown the knife, which was 15.5cm in length. Various other witnesses described arriving at the scene and seeing the appellant sitting there, with his hand to his head or looking at his phone. One described him as looking “confused”.

12 According to Dr. Linda Mulligan, Pathologist, a total of 19 stab wounds were inflicted upon Ms. Maciokaite. Dr Mulligan opined that death was caused “due to multiple stab wounds to the chest and back, and contributing factors were the stab wounds to the face and left arm”. The pathologist was also satisfied that the stab wounds on the left arm were in keeping with defensive type injuries on the deceased.

The first issue: Provocation

The trial judge's ruling

13 The appellant applied during the trial to have the defence of provocation left to the jury, on the basis that the phone call from the deceased at 2.01pm cancelling the child's visit constituted the provocative act. Having heard submissions from both sides which addressed the Supreme Court decision in People (DPP) v. McNamara[2020] IESC 34, [2021] 1 IR 472 (“ McNamara”), the trial judge ruled against allowing the defence to go to the jury, in the following terms:

“It seems to me on the evidence that, under this scenario, that if the provocation in considering the provocation issue, he appears to have armed himself just before or after hearing about the phone call, there is a required intention to kill or cause serious injury, a sudden lack of self control to such an extent that it continues at that level for the period from his hearing about the phone call and continues up to the time that he kills the deceased and the lack of self control in that instance must be total. There mustn't be any degree to which any of this is premeditated or is the result of revenge. We have the footage of the walk through the town. We have the footage of his going up to the door of Bridgewater Mews and the mother of the child, Ingrida, leaving, following him out over to the arch, standing for a period looking back at the child, going under the arch and then the events followed under the arch. Bearing in mind that he told his wife that he was going to talk with the deceased and bring [the child] back.

The time period within which this occurred was 20 to 25 minutes and perhaps up to 44 to 45 minutes. They are the time ranges that might be contended for for (sic) this continuing total loss of self control which is said on the evidence to exist. There is a significant interval on either assessment within which to not only, for the purposes of the act, to view this loss of self control as occurring but also to regain control. It is said that there is a view of the evidence open to the jury that his loss of control was total up until the stabbing, notwithstanding the fact that he doesn't engage with her violently at all when meeting her at the Mews. Indeed they don't have a there's no altercation in the courtyard. There is a period clearly before the stabbing occurs under the archway and the child only becomes distressed after the interval which was identified on the CCTV footage.

In all the circumstances, I have come to the conclusion, bearing in mind the test and bearing in mind the McNamara review of the test and its considerations in that judgment, that, and for the reasons which have been advanced by [counsel for the prosecution] in relation to the matter, that this is a case in which I am satisfied that there is not a basis upon which a jury properly instructed could, on the evidence available, conclude that there's a reasonable possibility that the accused was operating without any control under the archway when he stabbed the deceased because of the phone call received at 2.01. So, on either scenario, I'm not satisfied that provocation is open as a...