DPP v Brannigan

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 03 March 2017
• Neutral Citation: [2017] IECA 72
• Docket Number: RECORD NO. CA308/2015
• Court: Court of Appeal (Ireland)
• Date: 03 March 2017

[2017] IECA 72

THE COURT OF APPEAL

Edwards J.

Birmingham J.

Mahon J.

Edwards J.

RECORD NO. CA308/2015

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND–

PAUL BRANNIGAN

APPELLANT

Conviction – Assault – Self-defence – Appellant seeking to appeal against conviction – Whether trial judge erred in law by misdirecting the jury in respect of the application of the principles of self-defence to the facts of the case

Facts: The appellant, Mr Brannigan, on the 1st December 2015, was arraigned and pleaded not guilty to each of three counts on an indictment before Dublin Circuit Criminal Court. Count 1 charged the appellant with the manslaughter of Mr Saunders on the 18th March 2014. Count 2 charged the appellant with assaulting Mr Saunders on the same date contrary to s. 3 of the Non Fatal Offences Against the Person Act 1997. Count 3 charged him with producing an article capable of inflicting serious injury, to wit, a golf club during the course of a dispute in a manner likely to unlawfully intimidate another, at the same date and place, contrary to s. 11 of the Firearms and Offensive Weapons Act 1990. On day 5 of the trial, by agreement between the prosecution and the defence, Count 2 was severed into two s. 3 assaults. On day 6 of the trial, the appellant was found guilty by the jury in unanimous verdicts on counts 2 and 3 respectively and guilty by a majority verdict on count 4. The jury disagreed in respect of count 1. The appellant appealed to the Court of Appeal against his conviction in respect of count 2 (assault by head butt) and count 4 (assault by striking with the golf club) on the following grounds: (i) The trial judge erred in law in relation to count 2 by misdirecting the jury in respect of the application of the principles of self-defence to the facts of the case, by removing from the accused any consideration of his subjective view of the threat as he saw it; (ii) The judge erred in law in refusing to allow the jury to consider self-defence in respect of count 4.

Held by the Court that, having regard to the evidence in the trial, possible self-defence was the central issue in the case in so far as count 2 was concerned. It was the centrality of that issue in the circumstances of the case which tipped the scales for the Court, as it did for the Court of Criminal Appeal in The People (DPP) v O’Reilly [2004] IECCA 27. The Court was satisfied that on the evidence alone the low threshold for allowing self-defence to be considered by the jury was met, and that the trial judge was in error in refusing to allow the jury to consider self-defence as a possibility in the context of count 4.

The Court held that in circumstances where it upheld both of the appellant’s grounds of appeal it would quash his conviction on counts 2 and 4 respectively. The Court would hear submissions concerning whether or not it should direct a re-trial on those counts.

Appeal allowed.

JUDGMENT of the Court delivered 3rd of March 2017 by Mr. Justice Edwards

Introduction

1 On the 1st December 2015 the appellant was arraigned and pleaded not guilty to each of three counts on an indictment before Dublin Circuit Criminal Court. Count no. 1 charged the appellant with the manslaughter of Jason Saunders on the 18th March 2014. Count no. 2 charged the appellant with assaulting Jason Saunders on the same date contrary to s. 3 of the Non Fatal Offences Against the Person Act 1997 and count no. 3 charged him with producing an article capable of inflicting serious injury, to wit, a golf club during the course of a dispute in a manner likely to unlawfully intimidate another, at the same date and place, contrary to s. 11 of the Firearms and Offensive Weapons Act 1990.

2 On day 5 of the trial, just prior to the commencement of closing speeches, and by agreement between the prosecution and the defence, count no. 2 was severed into two s. 3 assaults. Count no. 2 was amended to charge that ‘Mr. Brannigan did … assault one Jason Saunders by head butting him, thereby causing him harm’ and an additional count was added to the indictment charging that ‘Mr. Brannigan did … assault one Jason Saunders by striking him with a golf club, thereby causing him harm’.

3 On day 6 of the trial, the appellant was found guilty by the jury in unanimous verdicts on counts nos. 2 and 3 respectively and guilty by a majority verdict on count no. 4. The jury disagreed in respect of count no. 1.

4 The appellant appeals against his conviction in respect of count no. 2 (i.e. assault by head butt) and count no. 4 (i.e. assault by striking with the golf club) on the following grounds:-

(i) The trial judge erred in law in relation to count no. 2 by misdirecting the jury in respect of the application of the principles of self defence to the facts of the case, by removing from the accused any consideration of his subjective view of the threat as he saw it.

(ii) The trial judge erred in law in refusing to allow the jury to consider self defence in respect of count no. 4.

The evidence before the jury

5 A party took place in the appellant's flat, which was located on Fassaugh Avenue in Cabra, on a section of the street that comprised a number of grocery shops, a Chinese restaurant, a pub and some other establishments. The entrance to the flat was next door to a Spar shop at 70, Fassaugh Avenue. When one entered the street level door to the premises, one went up a stairs and then through a further door to access the flat itself. Various witnesses gave evidence of being at the party and of consuming large amounts of alcohol and it appeared that there were no difficulties or incidents at the party and it was effectively an open house with various people coming and going into the early hours of the 18th March 2014.

6 The court heard further evidence from a number of witnesses who were socialising with the deceased man, Jason Saunders, on the 17th March 2014 at the Autobahn pub in Finglas and that the group were drinking in the pub throughout the day until they left at approximately 8 p.m. and went back to the house of one of the girls in Finglas for a party. The court heard in particular from Darren Mulholland that he met Mr. Saunders for the first time that day, in circumstances where Mr. Saunders was in the company of the cousin of Mr. Mulholland's girlfriend, and that Mr. Mulholland and Mr. Saunders were ‘sniffing coke and doing E's all day’. The court heard that an argument had taken place between Mr. Mulholland and his girlfriend while at the party in Finglas and that Mr. Mulholland and Mr. Saunders left that party at approximately 6 a.m. on the 18th March 2014.

7 After leaving the party in Finglas, the two men were out on the street sharing a bottle of vodka between them and they then crushed an ecstasy tablet on the back of a phone and inhaled it before getting into a taxi and making their way to Cabra, where Mr. Saunders lived.

8 On arriving at Fassaugh Avenue, they went into the door of No. 70 and entered the appellant's flat. The time at this stage was between 6.30 a.m. and 7.00 a.m.. The court heard from witnesses who were in the flat at the time that Mr. Saunders arrived. The evidence was that Mr. Saunders was drinking from a bottle of vodka and was talking loudly. The appellant turned down the music on a number of occasions and then was overheard telling Mr. Saunders that he would have to leave. The appellant and Mr. Saunders then left the flat through the upstairs door that led to the stairs, which in turn led down to the street. Witnesses had not noted arguments or aggression prior to the two men leaving the flat.

9 A Mr. Kevin Coffey gave evidence that he was working as the store manager of Spar at 72, Fassaugh Avenue on the morning of the 18th March 2014. While he and other staff members were getting ready to open the shop, he heard two people shouting outside the shop. The shouting was loud and unfriendly but he could not hear what was been said. He was some distance back inside the shop at the time and when he heard the shouting he moved towards the door of the shop. He recognised the appellant and Mr. Saunders and saw the two of them having a bit of a scuffle. He saw Mr. Brannigan head butt Mr. Saunders following which Mr. Brannigan ‘kind of turned to walk away and he then went back to him and proceeded to hit him…well, I didn't see him hit him with the golf club but he certainly swung it a number of times’. Mr. Coffey's recollection was that after the initial head butt Mr. Saunders looked as if he was just turning away as though he was going to go home, and Mr. Brannigan headed towards his door. When asked what did Mr. Brannigan do after that he replied ‘They then…both seemed to turn around and they gave…they went again’. The interaction ended when Mr. Saunders walked away and Mr. Brannigan proceeded back to his door. The incident was partly captured on CCTV and Mr. Coffey acknowledged that he had watched the CCTV of the incident prior to giving his full statement to the gardaí but maintained that he gave his evidence from memory and that it was not coloured by the CCTV recording he had viewed.

10 Under cross examination he acknowledged that he had said in his statement that Mr. Brannigan had a golf club in his hand and was swinging it at Jason Saunders. He had said ‘He was swinging it like mad. He didn't seem to have any preference for where he was looking to hit Jason. From what I witnessed I can't be sure if he made contact with Jason with the golf club. I did see him head butt him though. After this, I saw Jason walk away and I went back into the shop’. He was asked whether he was able to observe whether Mr. Saunders had something with him and he said he couldn't see it. When pressed on whether Mr. Saunders may have had something with him he replied ‘He may have but I couldn't see it’.

11 The jury also heard...