DPP v O'Brien

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 12 May 2016
• Neutral Citation: [2016] IECA 146
• Date: 12 May 2016
• Court: Court of Appeal (Ireland)
• Docket Number: Record No CA 33/2015 Bill No LK 32/2014

Birmingham J.

Mahon J.

Edwards J.

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

DAMIEN O'BRIEN

Appellant

[2016] IECA 146

Record No CA 33/2015

Bill No LK 32/2014

THE COURT OF APPEAL

Conviction – Assault – Self–defense – Appellant seeking to appeal against conviction – Whether the trial judge misdirected the jury on the law with respect to self–defence

Facts: The appellant, Mr O?Brien, entered Gleeson?s Spar shop at Henry Street, Limerick, on the 10th October, 2013. Having been interrupted in the course of serving another customer by the appellant, who was observed to be behaving aggressively, a Mr M Gleeson asked the appellant to leave his shop. The appellant started shouting and uttering threats. He then lunged at a Mr Stradomnski who was working behind the counter grabbing him by the neck, and in the course of doing so knocked over a display stand. The appellant was then forcibly restrained by Mr M Gleeson and other members of the staff. He was put out of the premises. The incident was recorded on a CCTV system. Mr Stradomnski testified in his evidence in chief that he had not offered any provocation to the appellant and had done nothing to cause, or to justify, the appellant in grabbing him. It was suggested by the defence that Mr Stradomnski had made ?a swipe? at the appellant prior to the appellant?s lunge. This formed the basis for a claim of self–defence advanced at the trial. The defence also complained that excessive force was applied to the appellant when he was being restrained. Later that day the appellant entered?Gleeson?s other shop at Catherine Street, Limerick, and stole a Bounty bar. He then left the shop. A nephew of the shop owners, a Mr S Gleeson and another employee, a Mr Hanley, went outside to confront him. Mr Hanley asked the appellant to return the bar. The appellant then produced and brandished a syringe and threatened to kill both Mr S Gleeson and Mr Hanley. The appellant then chased Mr S Gleeson along a nearby street. The appellant, having been later arrested, claimed in interviews conducted by members of An Garda Siochána that he did not have a syringe but that what he had in his hand was in fact a bookmaker?s biro. On the 30th January, 2015, the appellant was convicted by a jury at Limerick Circuit Criminal Court?on a count of assault contrary to s. 2 of the Non Fatal Offences Against the Person Act 1997, and also on a count of making a threat to injure another with a syringe, contrary to s. 6(1)(b) of the 1997 Act. The appellant was sentenced to 6 months imprisonment in respect of the s. 2 offence, and to five years imprisonment in respect of the s. 6(1)(b) offence. The appellant appealed to the Court of Appeal against his conviction on the grounds that: 1) the trial judge misdirected the jury on the law with respect to self–defence; 2) a direction ought to have been granted on the s. 6(1)(b) count in circumstances where there had been no evidence that the appellant?s victim perceived a risk of infection with disease; 3) the trial judge failed to accede to a defence request made in the course of requisitions following the judge?s charge to adjourn the trial overnight so that the jury could instead deliberate in a refreshed and rested state on the following morning.

Held by Edwards J that the formulation used by the trial judge in recharging the jury did not fall on the right side of the line between an adequate direction and a misdirection; Edwards J was not convinced that it served to make it sufficiently clear to the jury that the test to be applied at all stages was a subjective one. The Court was satisfied that it was not necessary for the prosecution to prove that Mr S Gleeson actually perceived a risk of infection with disease. The Court was entirely satisfied that the trial judge?s decision not to accede to defence counsel?s application to adjourn the balance of the case until the following day represented a legitimate exercise of the trial judge?s discretion, and that it did not result in any unfairness.

Edwards J held that he would allow the appeal in respect of count no 1. However, in respect of count no 2 he was satisfied that the appellant?s trial was satisfactory and his conviction was safe. He therefore dismissed his appeal against conviction in respect of count no 2.

Appeal allowed in part.

Judgment of the Court delivered on the 12th day of May 2016 by Mr. Justice Edwards .

Introduction.

1 In this case the appellant appeals against his conviction by a jury at Limerick Circuit Criminal Court on the 30th of January 2015 on a count of assault contrary to s. 2 of the Non Fatal Offences Against the Person Act 1997 (the Act of 1997), and also on a count of making a threat to injure another with a syringe, contrary to s. 6(1)(b) of the Act of 1997.

2 Following his conviction the appellant was sentenced to 6 months imprisonment to date from the 21st of October 2014 in respect of the s.2 offence, and to five years imprisonment, also to date from the 21st of October 2014, in respect of the s. 6(1)(b) offence. The appellant also appeals against the severity of his sentences. However, this judgment is concerned solely with his appeal against conviction.

The evidence in the case

3 The evidence adduced by the prosecution was largely, though not entirely, uncontroversial. The counts in respect of which the appellant was tried related to two separate incidents which occurred on the same afternoon.

4 Count No 1, which charged the s. 2 assault, was preferred in respect of an incident that occurred at Gleeson's Spar shop at Henry Street, Limerick, on the 10th October, 2013. A Mr. Michael Gleeson and his brother own this shop. The Gleeson family also has another shop at 43, Catherine Street, Limerick.

5 The jury heard that Michael Gleeson was working at his said shop at Henry Street when the appellant entered the premises shortly after 5.00 p.m. on the 10th October, 2013. Having been interrupted in the course of serving another customer by the appellant, who was observed to be behaving aggressively, Mr Gleeson asked the appellant to leave his shop. The appellant started shouting and uttering threats and then, at about 5.04 p.m., he lunged at a Mr. Andrzej Stradomnski who was working behind the counter grabbing him by the neck, and in the course of doing so knocked over a display stand containing chocolate and sweets. The appellant was then forcibly restrained by Michael Gleeson and other members of the staff. He was put out of the premises. The incident was recorded on a CCTV system. Relevant footage was played at the trial.

6 Mr Stradomnski testified in his evidence in chief that he had not offered any provocation to the appellant and had done nothing to cause, or to justify, the appellant in grabbing him. Asked what he did next, i.e., after he had been grabbed, Mr Stradomnski said ?Well, I tried to defence me.? It was suggested by the defence that Andrzej Stradomnski had made ?a swipe? at the appellant prior to the appellant's lunge. In the course of being cross-examined, Mr Stradomnski was being asked to comment on the CCTV footage, when the following exchange occurred:

Q. ? He has you by the jumper, he hasn't touched your skin. He has you by the jumper. You pull him into you, isn't that right? Play it on now, guard. Here comes Mr what you call him, catch him, first of all, around the left-hand side of the neck and now his left hand is there around my client's neck as well, isn't that right? Did you see that?

A. I see that.

Q. You saw that and then he pulls him away. Are you sure you didn't make a lunge for my client because it looks very like it to me, that you made a lunge for him when he was outside the counter, causing him to back off?

A. I just said -- excuse me.

Q. You don't understand?

A. I just said: ?Leave the shop.?

Q. You just said: ?Leave the shop? you said more than that. You're leaning across with your hand out there, isn't that right? In fact you made a swipe at him, didn't you?

A. Yes.

7 This formed the basis for a claim of self defence advanced at the trial. The defence also complained that excessive force was applied to the appellant when he was being restrained.

8 Count No 2., which charged the s.6(1)(b) offence, was preferred in respect of an incident that occurred at the Gleeson's other shop at Catherine Street, Limerick, later on the same afternoon.

9 The prosecution evidence was that the appellant entered the shop in Catherine Street and stole a Bounty bar. He left the shop with the Bounty bar. A nephew of the shop owners, a Mr. Seaghan Gleeson and another employee, a Mr Karl Hanley, went outside to confront him. Mr Hanley asked the appellant to return the Bounty Bar. The appellant then produced and brandished a syringe and threatened to kill both Mr Gleeson and Mr Hanley. Mr Gleeson in his evidence in chief testified to the following (inter alia):

Q. Now when he produced the syringe, as you have described it, did he say anything at that time?

A. He was threatening to kill me.

Q. Anything else?

A. Just abusive. I can't really remember most of what his -- what was said. I just remember being frightened and that was it. I -- and next -- once the syringe was produced, I ran. That was ?

Q. What was your reaction?

A. Just one of instant shock. Just one of instant fear.

Q. Fear of what?

A. Of being stabbed with a syringe.

10 The evidence was that, armed with the syringe, the appellant then chased Mr Gleeson along a nearby street. Mr. Gleeson managed to escape his pursuer after he had successfully positioned himself such that there was a car between him and the appellant. Asked about this, Mr Gleeson gave the following further evidence:

Q. You were dodging him using the car?

A. Yes. Yes.

Q. And at the car, was he saying anything to you?

A. More threatening and abusive, just, ?I'll kill...