Director of Public Prosecutions v C.C.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Tara Burns |
| Judgment Date | 02 November 2023 |
| Neutral Citation | [2023] IECA 295 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 56/2023 |
[2023] IECA 295
Birmingham P.
Kennedy J.
Burns J.
Record Number: 56/2023
THE COURT OF APPEAL
JUDGMENT of the Court delivered on the 2 nd day of November, 2023 by Ms. Justice Tara Burns
This is an appeal against conviction. On 11 November, 2022 the appellant was convicted by majority verdict of the jury of the single charge before them, namely murder of Urantsetseg Tserendorj on 29 January, 2021. As the appellant was a minor at the time of sentencing, he was sentenced to detention for life with a review after 13 years which was backdated to 21 January, 2021.
The appellant had previously pleaded guilty to attempted robbery of the deceased, contrary to common law, and production of an article capable of inflicting serious injury, contrary to s. 11 of the Firearms and Offensive Weapons Act, 1990.
On 20 January, 2021, at approximately 9.30pm, the deceased was walking home from work along Custom House Quay, Dublin 1 when she was accosted by the appellant. The area was deserted, presumably because this was during a Covid lockdown period. The location where the appellant interacted with the deceased is covered by CCTV cameras. The footage downloaded from the CCTV cameras depicted the appellant approaching the deceased, very quickly, on a bicycle. He got off the bicycle and walked towards the deceased, whereupon he produced a knife from his pocket and swiped it at the deceased who attempted to avoid his attack by walking backwards and raising her arms. The appellant again swiped the knife at the deceased but on this occasion towards her neck. Contact was made with the deceased's neck following which he separated from her. The deceased began to touch her neck and appears to talk to the appellant. She showed him her backpack. He got on his bicycle, cycled towards her and then cycled away.
The deceased continued on her journey home but walked at a slower pace and can be seen on the CCTV footage holding her neck. She rang her husband and spoke to him about what had just occurred. He told the jury that she told him “ there was one guy with black hat and black mask…he asked me, just give me the money, then she said that I don't have money. He just stab her, then go away… cycling away.” The deceased said to her husband that she was dying and for him to hurry up. Her husband ran to meet her on her route home. He met her at Connolly station where he summonsed the assistance of a taxi man. The deceased again said to her husband “ Umba, I am dying and what shall we do, I am dying”. Ambulance staff and members of An Garda Síochána interacted with the deceased at this location.
The deceased was brought to the Mater Hospital. It transpired that the deceased had sustained a significant, life-threatening laceration to her carotid artery which had been partially transected. Various procedures were carried out in an attempt to save her life, however she was declared brain dead on 29 January, 2021, and died on 4 February, 2021, when life support was turned off.
In relation to the appellant, when he heard on the radio the next day that a woman had been hospitalised following a robbery and an assault, he confessed his involvement to his family, whereupon it was agreed that he would go to the gardaí. As it happened, members of An Garda Síochána arrived to his house in relation to another matter very shortly after this decision was made. The appellant admitted to the gardaí that he stabbed the deceased. Having been cautioned, the appellant stated to the gardaí “I pulled the knife out of my pocket. I panicked and stabbed the woman in the neck. I done it. I didn't mean to do it. I'm sorry for it”. The appellant was subsequently arrested and detained in garda custody for the purpose of interview. In the course of an interview with members of An Garda Síochána, the appellant stated “I did not mean to stab that woman, you know, it was an accident. And if I could sit in front of her now, I'd say I'm sorry.”
Twenty five minutes after the attack on the deceased, the appellant was involved in another incident with another woman. On this occasion, the appellant tried to grab an iPhone from this woman's hand but was unsuccessful. Words passed between this woman and the appellant resulting in the woman challenging the appellant's assertion that he was only messing. She cursed at him during this exchange. The appellant then said to the woman “ what did you say” and continued “ that could have been a lot worse for you” as he opened up his jacket and took out a knife. The woman said “ sorry” to which the appellant replied “ right” and put the knife back into his jacket. He then departed the scene. The appellant had been charged with attempted robbery and production of an article capable of inflicting serious injury in relation to this event and had pleaded guilty. Evidence of this interaction was adduced before the jury. When questioned by An Garda Síochána in relation to this matter, the appellant stated “ It's true, I did it. I'm sorry but I did it… I was just out of my head. I didn't know what I was doing and I wanted money… I was out of my head, that's all.”
By notice of appeal dated 7 March, 2023, the appellant appealed against his conviction and sentence and set out his grounds of appeal as follows:-
“1. The Learned Trial Judge erred in failing to discharge the Jury following the opening speech of Counsel for the Prosecution, in circumstances where a sensationalist and purely prejudicial comment had been made that the Appellant had ‘gone for the jugular’.
2. The Learned Trial Judge erred in law in admitting into evidence a hearsay account of the assault given by the deceased to her husband, and erred in particular in finding that the hearsay account fitted the criteria of a valid dying declaration.
3. The Learned Trial Judge erred in permitting the Prosecution to call evidence of an attempted robbery by the accused that took place shortly after the fatal assault and of comments made during that robbery, in circumstances where this evidence had no probative value at all, or alternatively, where the prejudicial effect of the evidence was disproportionate to any probative value it might have had.
4. The cumulative effect of the prejudicial evidence and other circumstances of the Appellant's trial are such that the verdict is unsafe.”
The sole matter at issue before the jury was the question of the appellant's intention, namely whether the respondent had established beyond reasonable doubt that the appellant intended to kill or cause serious injury to the deceased when acting as he did. It was accepted by the appellant that he had stabbed the deceased and that the injury he perpetrated caused her death.
Section 4 of the Criminal Justice Act, 1964 sets out the intentional element which must be proved by the respondent to establish the offence of murder. It states:-
“(1) Where a person kills another unlawfully the killing shall not be murder unless the accused person intended to kill, or cause serious injury, to some person, whether the person actually killed or not.
(2) The accused person shall be presumed to have intended the natural and probable consequences of his conduct, but this presumption may be rebutted.”
The intention which must be proved is the subjective intention of the actual accused rather than the intention of some other individual. This is a difficult task for a jury, however they have a number of tools available to them. Firstly, they have the benefit of the presumption that an accused is presumed to have intended the natural and probable consequences of his conduct, although this presumption may be rebutted. Accordingly, a jury are entitled to determine what the natural and probable consequences of an action are and presume that the accused intended such consequences unless they are not satisfied beyond reasonable doubt that the accused before them so intended. Secondly, the jury are entitled to have regard to the surrounding factual circumstances in determining an accused's intention. By implication this means that the surrounding factual circumstances are highly relevant to the determination of what an accused's intention was when carrying out the criminal act which caused death.
The Supreme Court decision in DPP v. FN [2022] 1 ILRM 279 Charleton J. provided the following analysis regarding the issue of intention:
“4. ….As to that [the intention of an accused] the question may sometimes be asked: how is the jury to look into the accused's mind? The answer is that people may be inferred to have intended what they have done where the circumstances so suggest; in other words, to have as their purpose what naturally flows from what they have done. A person who on all the available evidence goes up to someone and hits them may be inferred to have intended this action. But this is not in any way an inflexible legal rule: it is simply a commonsense way whereby intention may be inferred: there is no rule requiring any jury to make that inference since interpreting the facts are for them…
…
6. …[I]ntent means nothing more complex than that the purpose of the accused was to bring about the criminal wrong; that he or she acted purposely, and not, as might happen in the context of an apparent assault, accidentally….”
The prosecution intended to adduce, before the jury, evidence of the interaction between the appellant and the other woman to whom he produced a knife, shortly after he had assaulted the deceased. This was objected to by the appellant. Having heard legal argument, the trial judge refused to accede to the defence objection to exclude the evidence.
The appellant asserts that the trial judge was incorrect...
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