DPP v Anthony Barnes

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman.
• Judgment Date: 21 December 2006
• Neutral Citation: [2006] IECCA 165
• Docket Number: [C.C.A. No. 55 of
• Court: Court of Criminal Appeal
• Date: 21 December 2006

DPP v BARNES

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor/Respondent

and

ANTHONY BARNES

Defendant/Applicant

[2006] IECCA 165

Hardiman J.

Hanna J.

Feeney J.

55/06

THE COURT OF CRIMINAL APPEAL

Abstract:

Criminal law - Self defence - Robbery - Leave to appeal - Whether the defendant acted in self defence in killing the householder in the course of a burglary.

Facts: The applicant for leave to appeal in these proceedings admitted that he had killed the deceased in the course of a burglary of the deceased's private home. However, the applicant relied on the defence of self defence. The defence argued that the applicant was not an aggressive burglar and it would have been unlawful for the deceased to respond to his presence with any force or threat of force at all. Accordingly, if the deceased did so respond, then the applicant was entitled to defend himself. In his charge to the jury, the learned trial judge mistakenly advised the jury in relation to the burden of proof. However, following requisitions he corrected his mistake. Furthermore, the learned trial judge, in his charge, treated the issue of self defence in this case in substantially the same was as it would be treated in the case of an attack in a public place and gave only incidental significance to the fact that the incident took place in the course of a burglary of a private dwellinghouse.

Held by the Court of Criminal Appeal (Hardiman, Hanna, Feeney JJ) in refusing the application for leave to appeal:

1. That every burglary committed in a dwellinghouse is an act of aggression and any burglar, although he is not liable to be killed by the householder simply for being a burglar, he may expect to be met with retaliatory force to drive him off or to immobilise or detain him and to end the threat which he poses to the householder's personal rights and those of his family or guests.

2. That having regard to the respect for life expressed in Article 40 of the Constitution, there must be some scope for self defence by a burglar. However, that scope is limited to an attempt by a householder to kill a burglar simply for being a burglar.

3. That the error and its correction in the charge to the jury did not render the verdict unsafe or unsatisfactory. Furthermore, the applicant was considerably advantaged by the learned trial judge's omission to address specifically the consequences of the defendant being a burglar.

Reporter: L.O'S.

AG, PEOPLE v DWYER 1972 IR 416

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S12(1)(a)

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S20

HALSBURYS LAWS OF ENGLAND 1ED V9 587

ARCHBOLD 26ED 887

R v HUSSEY 1924 18 CR APP R 160

CONSTITUTION ART 40.3.1

LANHAM DEFENCE OF PROPERTY IN THE CRIMINAL LAW 1966 CRIM LR 368

SEMAYNES 1604 5 CO REP 91

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S1(2)

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S18(7)

MIN INDUSTRY & COMMERCE v STEELE 1952 IR 304

COURTS & COURTS OFFICERS ACT 1995 S49

1 JUDGMENT of the Court delivered the 21st day of December, 2006 , by Mr. Justice Hardiman.

2 Mr. Richard (Dick) Forrestal aged 69 years was stabbed to death in his house at Carrigavantry, Tramore, Co. Waterford, on the afternoon of the 21st July 2005. He was killed by Anthony Barnes, the applicant for leave to appeal in these proceedings. Barnes, together with another man called Andrew Halligan had come to the house on that day to burgle it having first checked it out sometime previously. They knew that a man lived alone there, that he was an old man and they assumed from the fact that he was engaged in the equine business that he had money. They apparently entered the house in the belief that there was no one there, which was true. But just after four minutes past two on the afternoon of the 21st July Mr. Forrestal returned to his house. He was dropped off there by a friend, Mr. Louis Murphy, a very active octogenarian, precisely at that time. Mr. Murphy then went off to get diesel for his car and to collect another person: the two of them together with Mr. Forrestal were going to have lunch in the latter's house. Mr. Forrestal had been dropped off so that he could start preparing the lunch, he having bought some fish for that purpose.

3 When Mr. Forrestal and the other person, Mr. Kent, returned to the house at twenty five past two they found an appalling situation. The outer door "was driven off the hinges" and when the inner door was opened its travel was stopped by the dead body of Mr. Forrestal, lying with the feet against the door.

4 There was no account of what had happened in the house other than that of the applicant, Anthony Barnes. His fellow burglar, Halligan, a young man with more than thirty convictions for burglary alone, claimed to have left the house before the stabbing. Barnes account will be discussed in detail below. It is, however, common case than Barnes and Halligan were in the house to commit burglary. Barnes defence was one of self defence: he claimed in statement to the Gardai that he and Halligan had been disturbed by Mr. Forrestal who had (his accounts vary) either come at him with a knife or had come at him and then left the room in which he was confronting Barnes and got a knife, or come at him, dragged him from a window through which he was trying to escape, threw him onto a bed and left the room to get a knife. Barnes claims to have disarmed Mr. Forrestal and stabbed him to death in self defence. The principles of law bearing on this situation — an admitted burglar who slays the householder in purported self defence — compose the substance of this appeal.

Detailed facts

5 Mr. Forrestal was a bachelor who had lived in Carrigavantry all his life. He had some rental property and a herd of cattle but his principal interest and occupation was the breeding of horses. "He was a horse man through and through", according to his friend Mr. Murphy. He was a successful breeder and had horses in training who apparently raced with some success. But he was a man of remarkably simple life living in a small house with only basic equipment. He was a religious man, a teetotaller, devoted to his animals and one who rose at 5.30 each morning. He was a kindly and popular figure if a little eccentric. Horses apart, his standard of living was far below what he could easily have afforded. For the most part he lived alone but for some months Mr Murphy had been living with him. Shortly before the events which are the subject of the case Mr. Murphy had moved to another house belonging to Mr. Forrestal because a family member was expected to move in with Mr. Forrestal. Though eccentric in the way described above, there is no doubt that he was more than competent in business, as a farmer and above all as a horse breeder. In Mr. Murphy's evidence he summed up Mr. Forrestal's lifestyle with understated eloquence "Dick lived in his own world — and it was excellent". He was a strong, healthy and active man for his years.

6 On the day of the killing Mr. Forrestal rose at his usual hour and later had breakfast with Mr. Murphy in the house. It may be of some significance, in view of what later happened, that he followed his invariable custom of clearing and washing the knives and other items used for breakfast and put them back on the table. He then travelled, with Mr Murphy, some distance to a yard where he had horses in training. It should be noted that they travelled in Mr. Murphy's car leaving Mr. Forrestal's 1999 Mondeo outside his house.

7 They remained at the trainers" until 12 o'clock. At that time they left to attend a funeral of a local girl who had been tragically killed in a bomb explosion in Turkey. They left the funeral at about a quarter to two and returned to the house after a small detour. Mr Murphy put the time of their arrival back at the house precisely four mines past two o'clock in the afternoon. Mr Murphy did not then enter the house but simply let Mr. Forrestal out of the car and after a little badinage drove off to collect Mr. Kent as already explained.

8 The foregoing details of Mr. Forrestal's personality and way of life, and his activities on the day of his death, may have some relevance in considering the account of events later offered by Mr. Barnes. It may also be noted that, according to Mr. Murphy whom there is no reason to doubt, Mr. Forrestal had suffered some four or five burglaries in the past. He did not keep any substantial amount of money around the house but used cheques for his transactions apart from ordinary shopping. He would keep the money for that sort of purpose on him. The knife with which he was killed was one of two identical knives which he and Mr. Forrestal used when eating, and which were kept on the kitchen table when out of use.

9 Mr. Murphy described the condition of the house, as he saw after finding the body, as being "like the war effort passed through. It was in — it was tossed, hopelessly tossed". He said "the house was in a — was ransacked. Dick's bed was upside down. Presses were knocked over. Tables were turned upside down. My bedroom across the way that had nothing to do with Dick's house was ransacked. My bed was turned over. My table was turned over. There was a beautiful mahogany wardrobe. Three four doors were tore off it, for whatever they were searching for."

10 The television was upside down on the floor. The door to Mr. Forrestal's room was off its hinges. All this suggests a violent and frenzied search.

11 It appears that the first witnesses to come on the scene — Mr. Murphy, some gardaí and perhaps others, were of the opinion that Mr. Forrestal had been shot because of the size of the wounds apparent. The State Pathologist, Dr. Marie Cassidy, who examined the body later in the...