DPP v Brendan O'Sullivan

• Jurisdiction: Ireland
• Judge: Mr Justice Fennelly
• Judgment Date: 04 June 2013
• Neutral Citation: [2013] IECCA 18
• Docket Number: Record No. 280/2010
• Court: Court of Criminal Appeal
• Date: 04 June 2013

[2013] IECCA 18

THE COURT OF CRIMINAL APPEAL

Fennelly J.

Herbert J.

Birmingham J.

Record No. 280/2010

DPP v O'Sullivan

Between

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

-and-

BRENDAN O'SULLIVAN

Applicant

OFFENCES AGAINST THE STATE ACT 1939 S30

DPP, PEOPLE v DWYER 1972 IR 416

DPP v O'CARROLL 2004 3 IR 521 2005 1 ILRM 241 2004/37/8624 2004 IECCA 16

CRIMINAL PROCEDURE ACT 1993 S3

CRIMINAL PROCEDURE ACT 1993 S3(1)(A)

Z v DPP 1994 2 IR 476 1994 2 ILRM 497 1994/7/1980

Practice and procedure – Jury direction - Self-defence – Murder – Manslaughter

Facts: The case involved a claim that the direction given by the trial judge in a murder trial failed to properly direct the jury as to the elements of self-defence, as there was no reference to the subjective belief of the accused. Further, the applicant proposed the trial judge should have discharged the jury when they inquired about an item which was referred to but was not introduced into evidence.

Fennelly J held that although the trial judge failed to mention the subjective state of mind of the accused the charge was not deficient, as there was reference to intention. The former approach was however to be preferred, People (Attorney General) v Dwyer [1972] IR 41 considered.

In regard to the issue of evidence, the trial judge was held to be correct in deciding not to discharge the jury. The presiding judge was in the best position to assess the significance a piece of evidence carried. The step of discharging a jury would only be adopted in exceptional circumstances that posed a serious risk of prejudice. A clear direction had been given to the jury to ignore the irrelevant item.

Permission to appeal was refused.

1 Judgment of the Court of Criminal Appeal delivered the 4th day of June 2013 by Mr Justice Fennelly

2 1. On 8 ^th November 2010 the applicant was convicted of murder by a jury in the Central Criminal Court after a six-day trial before McCarthy J.

3 2. It was not in dispute at any stage that the applicant had killed Leslie Kenny (hereinafter "the deceased") by shooting him with four shots from a double-barrelled shotgun. The fatal shooting took place at Pound Street (also known as O'Gorman Street), Kilrush, County Clare during the morning of 29 ^th July 2009. Both the applicant and the deceased lived there, some houses apart. The deceased was admittedly a person of bad reputation with several previous convictions. He was believed to have stolen from and to have assaulted and threatened members of the applicant's family. He had a reputation for misuse of drugs and alcohol. On the morning of his death, he had collected his medication from the pharmacist and seemed calm.

4 3. The evidence at trial fell into three broad parts:

5 i Eyewitness accounts of the course of the dispute between the applicant and the deceased leading up to the killing;

6 i ii. Forensic evidence regarding the wounds of the deceased and the likely distance away the applicant had been when he discharged each of the four shots;

7 iii The statements of the applicant made in a number of garda interviews.

8 4. The applicant accepted that he had shot the deceased. He maintained that he had been acting in self-defence. The defence also, though at the suggestion of the learned judge, raised the alternative of partial self-defence, i.e., that, if the accused had used excessive force in his own defence, he believed the force was justified, with the potential to reduce the verdict to one of manslaughter. The applicant did not give evidence. The defence is based on his statements to the gardaí.

9 5. The central point made on the appeal is that the learned trial judge did not properly direct the jury in his charge regarding the elements of the defence of self- defence.

10 6. The applicant also complains that the trial judge should have discharged the jury when they inquired about an item of evidence, described as a "target sheet," which had been inadvertently referred to by a garda witness in the course of his evidence but not introduced into evidence.

The evidence

Eyewitnesses

11 7. On the 29 ^th July, 2009, the deceased had attended, as he did daily, at a pharmacy for the purpose of collecting medication. He returned to his home in O'Gorman St. at approximately 10:00 a.m. Within the next half hour there was a verbal altercation between the applicant and the deceased, of which evidence was given by Thomas Casey, Joanne Carrig, Pat Brassil, John Gallery, Gerard Tevlin and Maureen Tevlin.

12 8. The deceased was at his own house and the applicant was shouting at him from his own front garden. The deceased walked down to the applicant's house. A number of bangs were heard, and the Gardaí were called.

13 9. The deceased was found dead at the inside of the front of the applicant's garden, lying face up and against the wall. He had suffered four shotgun wounds: one to the upper right trunk; one to the right hip; one to the left knee; and one to the right knee. Forensic evidence (see paragraph 24 below) indicated that the shots had been fired from progressively decreasing distances from the deceased.

14 10. A double barrelled shot gun was recovered from the applicant's house. Four discharged cartridges were found in a coal scuttle in the applicant's sitting room. Live cartridges were found at three locations in the house.

15 11. Mr. Thomas Casey said that shortly after 10 am he heard two men arguing and cursing, saying 'We'll sort out the mess.' He looked out his door, and saw the deceased at the door of his own house. He thought the argument had taken place in the street. He went back into his house, and then heard a loud noise.

16 12. Joanne Carrig, the sister of the deceased's partner, heard an argument, went out to see if she could see anything and, when she could not, returned to her house. She heard a bang which, she thought, sounded like a shotgun. She went out again but came back in. Then she heard two more shots: "it was bang-bang." There was a pause of about forty to forty five seconds before the second pair of shots. She rang the Gardaí. She went outside and saw the applicant pacing up and down in his garden speaking on his phone. He did not appear agitated. The applicant's family then arrived, as did the deceased's partner.

17 13. Mr. Pat Brassil was outside his house, which is across the street from that of the applicant, and was talking to his neighbour. The applicant came out of his house, stood on a garden bench near the front door and started shouting at the deceased, who was about 8 houses up the street. The applicant shouted: 'Come down and we'll talk about it,' in an agitated manner. The deceased began to make his way towards the applicant's house, and was about two doors away, when the witness went inside his own house. He heard nothing because he has a hearing problem.

18 14. Mr. John Gallery testified that he saw the deceased outside his own house and the applicant outside his. They were shouting at each other; the applicant told the deceased to come down and they would talk about it. He thought that there might be a fight or an argument about to develop, and he went inside.

19 15. Mr. Gerard Tevlin dropped his daughter off in the area about 10:20 am and saw one man shouting-he used the word "roaring"- at another man who was walking up the street. The man who was shouting, who must have been the applicant, was standing on something in his garden. He shouted: "Will you fucking come down and talk to me." The man who was being shouted at was walking away. He says the man who was shouting was "roaring" at the other man.

20 16. Ms. Maureen Tevlin took in Mr. Tevlin's daughter. She saw the applicant standing on a garden bench, shouting. She didn't see whom he was shouting at. He was using strong language. She came inside and rang the Gardaí, because there appeared to be a dispute in the neighbourhood and "they could do something."

21 17. In spite of this number of eyewitnesses, it remains the fact that nobody saw the actual shooting.

22 18. The applicant's father gave evidence that his son rang him between 10:30 and 10:40 am and said: 'I've killed him in the garden,' but without saying whom he had shot. He and his wife went over to his son's house, arriving in about 5 minutes. The applicant was sitting on a bench. He asked him whom he had shot. The applicant said: "turn around." He saw the deceased at the front wall of the garden, dead. He testified that he asked his son why he did it, saying that he was going to spend the rest of his life in jail." His son gave no explanation.

23 19. Garda Richard Bourke was the first Garda on the scene. He reported that the Applicant seemed calm. He found the deceased at the front of the garden. The Applicant told him: "He chased my children into the house" He reported how Dr. Carr came to the scene and pronounced death at 10:53 am.

Forensic evidence

24 20. Dr. Marie Cassidy, State Pathologist, gave evidence that she attended the scene of the crime and found the deceased face up lying against the front wall of the garden. She found shotgun injuries. The body was removed and an autopsy performed. There were four shotgun injuries to the body, one to the right side of the trunk, one to the right hip area, and one to each knee. Internally, there were injuries to the right lung, the liver, the right femoral and both popliteal vessels. She concluded that the injury to his trunk; wound number 1, was from a distance of about 15 feet. The injuries to the right hip and the knees were from closer range. Given the wound path of the bullets, she concluded that the first injury most likely occurred while the deceased was standing, but the next three injuries most likely occurred while the deceased was lying on the ground in the position in which he was...