DPP v Bambrick

• Jurisdiction: Ireland
• Judge: Lynch, J.
• Judgment Date: 08 March 1999
• Neutral Citation: 2003 WJSC-CCA 2904
• Docket Number: 83/98
• Court: Court of Criminal Appeal
• Date: 08 March 1999

2003 WJSC-CCA 2904

THE COURT OF CRIMINAL APPEAL

Lynch, J.

Carroll, J.

Cyril Kelly, J.

83/98

DPP v. BAMBRICK

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLICPROSECUTIONS

v.

SÉAN BAMBRICK

Appellant.

Citations:

CRIMINAL JUSTICE ACT 1964 S4

DPP, PEOPLE V MACEOIN 1978 IR 27

DPP, PEOPLE V MULLANE CCA 11.3.1997 UNREP CCA 11.3.1997 1998/16/5885

Synopsis

- [1999] 2 ILRM 71

Counsel for the appellant had mistakenly linked provocation to intention at the outset of the trial and this was replicated in the charge of the trial Judge to the jury. Further, the use of the phrases "likely" and "probably" in relation to the alleged provocation in the charge to the jury could have given the jury the impression that there was a burden of proof on the appellant. The Court of Criminal Appeal so held in allowing the appeal and directing a retrial.

1 JUDGMENT of the Court delivered the 8th day of March, 1999 by Lynch, J.

2 This was an appeal against a conviction of murder in the Central Criminal Court on the 24th April, 1998. Leave was given by the learned trial Judge (Barr, J.) to appeal on the grounds that:

"The verdict of the jury was against the weight of the evidence and in the circumstances was perverse".

3 The appeal was heard by this Court on the 1st March, 1999 and at the conclusion of the submissions the Court allowed the appeal and directed a retrial and stated that it would give its reasons later. This the Court now does.

THE FACTUAL BACKGROUND

4 The Appellant was tried on one count namely that:

"Séan Bambrick on the 30th day of April, 1997 at or near the grounds of the Mill Hill Missionary Fathers, Waterford Road in the city of Kilkenny murdered Michael O'Sullivan".

5 The Appellant was born on the 23rd March, 1975. He was therefore 22 years old in April, 1997 and is now 24 years old. The victim Michael O'Sullivan was 45 years old in April, 1997.

6 The Appellant had a very deprived and unhappy childhood and adolescence including physical and sexual abuse. In addition his intelligence quotient is in a very low range. He became, or at least was well on the way to becoming, an alcoholic by 1997. He lived on Social Welfare and in addition received some small monies as a runner for a bookiesoffice.

7 The victim was a man who was down and out. He was married with one child but separated and was a chronic alcoholic. He also lived on Social Welfare and on charity from members of the public.

8 By night time on the 30th April, 1997 the victim was extremely drunk staggering around the streets of Kilkenny and scarcely able to stand without support. The Appellant was very drunk but by no means helpless. He was able to walk and to wheel his bicycle and indeed also perhaps to ride it. The appellant and the victim knew each other slightly. They met by chance on the night of the 30th April, 1997 in the vicinity of a public house and a chip shop. The Appellant shared his food with the victim. The victim gave the Appellant money to buy alcohol for him with which the Appellant bought a 2 litre bottle of cider. The victim asked the Appellant to drink the bottle with him. They made their way to the grounds of the Mill Hill Fathers in Kilkenny which was on the way home for the Appellant and they entered the grounds and sat down on the grass. The Appellant says that he had one drink from the bottle of cider: that the victim then made suggestive homosexual remarks to him: that he (the Appellant) then got up to get his bicycle and go home and that the victim then made a physical homosexual advance towards him which brought back memories of boyhood abuse which he had suffered and which made him lose all control of himself. The fact is that the Appellant pulled from the ground a strong wooden stake about 6ft. long which was supporting a young tree and the Appellant battered the victim to death with that weapon.

THE TRIAL

9 At the commencement of his trial in the Central Criminal Court on the 20th April, 1997 the Appellant pleaded not guilty of murder but guilty of manslaughter. That plea was not accepted by the Director of Public Prosecutions and the trial proceeded resulting in the verdict of murder on the 24th April, 1997. The essence of the Appellant's defence was that he was so provoked by the verbal and physical homosexual advances made by the victim that he lost all control of himself and by reason of such provocation the killing should be regarded as manslaughter and not asmurder.

10 At the trial no issue arose before the jury as to who was the killer of the victim. After Counsel for the prosecution had opened the case to the jury Counsel for the appellant then made lengthy formal admissions of facts pursuant to Section 22 of the Criminal Justice Act, 1984. Having made those admissions of facts Counsel then went on tosay:

"And...