DPP v Almasi

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 26 July 2018
• Neutral Citation: [2018] IECA 372
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 100/2016
• Date: 26 July 2018

[2018] IECA 372

THE COURT OF APPEAL

Edwards J.

Birmingham P.

Edwards J. Hedigan J.

Record No: 100/2016

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

ZOLTAN ALMASI

Appellant

Crime & sentencing – Offences against the person – Murder – Deceased striking appellant’s van – Attack on deceased – Appeal against conviction

Facts: Following an incident in which the appellant’s vehicle had been struck by the deceased, the appellant had attacked the deceased with a baseball bat and killed him. He now appealed against conviction, arguing that the trial judge had fallen into error in respect of admission of evidence and the defence put forward.

Held by the Court, that the appeal would be dismissed. The trial judge had made rulings on the admission of evidence and the defence of provocation that were well within the margin of her discretion.

JUDGMENT of the Court delivered on 26th July 2018 by Mr Justice Edwards .

Introduction

1 The appellant in this case was charged with a single count of the murder of Mr Joseph Dunne (‘the deceased’) on the 16th of May 2014 at Harbour View, Naas, Co. Kildare. On the 24th of February 2016 he was arraigned and pleaded not guilty. Following a 12 day trial he was convicted on the 10th of March 2016 by a majority jury verdict.

2 On the 16th of March 2016, the appellant was sentenced to the mandatory penalty of life imprisonment pursuant to s. 2 of the Criminal Justice Act, 1990.

3 The appellant now appeals against his conviction.

Summary of the evidence before the jury

4 On the 16th of May 2014, the deceased had been consuming alcohol in a place known as the Harbour which was on the canal and in the proximity of the main street in Naas, Co. Kildare. At approximately 10.30 p.m., the deceased, together with at least four other persons, made their way back from the canal to take the bus to Kildare town. It was established in evidence that the deceased was quite drunk and in a bad mood and that as the group proceeded, the deceased confronted another man who he did not know, with a view to provoking him into some sort of violent altercation. He was persuaded by his friend to desist from this and was guided away. The group then passed by the appellant's van which was parked outside his residence. As he was passing the appellant's van, the deceased apparently struck the appellant's van in some fashion and then continued on. There was a conflict on the evidence as to how many times the appellant had struck the van. However, it was clearly established that the appellant's van was interfered with.

5 The appellant, who worked as a courier driver, had arrived home from work a short time earlier and had just finished showering when he heard the noise of his van being struck. He picked up a baseball bat which was sitting at the doorway of his house and pursued those he believed had been involved in striking his van. The appellant told the Gardaí at interview that this baseball bat had not been purchased by him but had been in the house when he had rented it and moved in.

6 The group, including the deceased, became aware of the appellant pursuing them and ran away, scattering in a number of directions. The appellant pursued the deceased. CCTV footage was available and used at the trial which showed the deceased running while being pursued by the appellant who was holding the baseball bat in his right hand.

7 The deceased ran past a restaurant known as the Vie De Châteaux. A number of witnesses to this chase gave evidence at the trial. One such witness was Maria Flood who at the time having emerged from the restaurant with her husband, had returned to their car which was parked nearby and had just sat into the vehicle when she saw people in front of her and heard shouting. She described seeing a young fellow in a blue and white tracksuit top, a girl in a white hoodie top and another girl. She gave evidence that she then heard a shout of ‘what are you doing with the baseball bat?’ and a reply coming ‘you broke my car’. The young fellow, who was doing the shouting, was being pulled back by one of the girls. She was able to give a description of the person who had replied ‘you broke my car’ and agreed in cross-examination that she had said in her statement that he had a baseball but that ‘he was holding it down’. She agreed she did not see him swinging it. She said that shortly after the exchange she had witnessed that ‘it all dispersed’.

8 The trial court also heard from Donal Dockery, who had also dined at the Vie De Châteaux restaurant, accompanied by his wife and some friends. Towards the end of his meal he had gone outside for a cigarette and a coffee. His evidence was that he ‘could see some people on the opposite side of the road, opposite the patio where we were sitting, one either side of a vehicle…. And they were arguing.’ He said: ‘Both men were agitated’ and that ‘[o]ne of them was carrying a baseball bat’. Mr Dockery had also heard one man saying ‘[s]top messing with my car’ and the person opposite saying ‘[d]rop the baseball bat and come over here’. He gave evidence that ‘they were both aggressive towards each other’, and that the man with the baseball bat was concerned about his car. He heard him say that ‘[t]his has happened before’ and that ‘I've had enough’. Mr Dockery stated that he then went over and said to them ‘look, stop this, there's no need for this’ but that they ignored him and were shouting loudly at each other. Mr Dockery's evidence was then that, a short time later, as he and his party were leaving the curtilage of the restaurant, ‘the guy with the baseball bat had gone to the left, down towards the canal, to the harbour. And we looked up towards the right and there was a guy lying just right at the corner of the adjacent building, lying on the ground. So we went over to him and he was alive when we went there, because I grabbed his hand and we called 999, because we could see he was bleeding.’

9 A number of witnesses who had been with the deceased, gave evidence as to the striking of the deceased by the appellant. There was a conflict on the evidence as to whether the appellant had struck the victim more than once. The evidence of Mickey McDonagh, Gavin Breen and Zoe Drewitt was that the appellant hit the deceased with the bat on one occasion. However, Alannah Piercy gave evidence that the appellant hit him once in the head, and then ‘Jo Jo [i.e., the deceased] hit to the ground and your man hit him again to the head’. Under cross-examination Ms Piercy initially accepted that she had stated to the Gardaí that ‘He only hit JoJo once’. however, she then stuck to her assertion given in evidence that the deceased had been struck twice. She then purported to blame the Gardaí for mis-recording what she had said.

10 The jury also heard evidence from Dr Michael Curtis, Deputy State Pathologist, who testified that the injuries suffered to the deceased's head were consistent with the interpretation that he had been struck once with the baseball bat, and that the deceased had been struck by the tip of the descending baseball bat, striking at the rear of his head, causing him to fall to the ground. Dr Curtis gave very detailed evidence of his examination of the deceased and of various small injuries to the head and neck. He also gave evidence of abrasions and other injuries to the hands and other limbs of the deceased. He said that these were in keeping with what he described as ‘a collapse, or fall or terminal collapse’. His evidence was also that the deceased had been struck by a blow to the upper occipital region of the back of the head, centrally and this had resulted in a comminuted depressed skull fracture. There was a left sided haematoma amounting to 100grams of blood clot which had caused pressure effects on the brain with brain swelling and left sided tentorium herniation. In layman's language this meant the brain was displaced and pushed against a rigid membrane, namely the tentorium membrane, leaving a groove on the surface of the brain. In addition, there was a subarachnoid haemorrhage into the brainstem area. Any bleeding in this area is irritant to the vital centres controlling basic functions such as heartbeat, blood pressure and respiration and causes rapid death.

11 There were other marks of injury on the body including abrasions on the face and head which were possibly indicative of the deceased's involvement in a scuffle. Dr Curtis also stated that a toxicology report indicated that the deceased had a blood alcohol level of 231 mg. per cent, a urine alcohol level of 362 mg. per cent and that no drugs were detected.

12 Dr Curtis gave the cause of death as blunt force trauma to the head. He offered the opinion that the injury was infinitely more likely to have been caused by a blow with a baseball bat rather than a fall. He was asked to deal with evidence that the baseball bat did not reveal any traces of the deceased's blood or DNA and he offered the opinion that the first blow with an implement usually does not lead to a contamination with blood or tissue. On cross-examination he confirmed that the toxicology confirmed a high level of alcohol. He also confirmed that the injury was consistent with being struck by the very tip of the baseball bat.

13 Garda Stephen Flaherty told the jury that he was on patrol duty on the night in question along with his colleague Garda David Maher. Having received a call at approximately 10.20pm on the evening in question, Garda Flaherty was one of the Garda who arrived at the scene. He gave evidence of coming to the scene and speaking to the appellant. He then related that he cautioned him and asked him again if he had witnessed anything and he noted the replies which were:

‘Coming home, I parked my car behind garage. I went into house for sugar. This was after work; I finished at 21:30 in TNT Dublin. I heard bang, bang,...