DPP v Cahoon

• Jurisdiction: Ireland
• Judgment Date: 04 March 2015
• Neutral Citation: [2015] IECA 45
• Date: 04 March 2015
• Court: Court of Appeal (Ireland)

[2015] IECA 45

THE COURT OF APPEAL

The President

Birmingham J.

Sheehan J.

[CCA 159/2012]

[CC0002/2009]

DPP v Cahoon

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

V.

STEPHEN CAHOON

APPELLANT

Conviction – Murder – Provocation – Appellant seeking to appeal against conviction – Whether the judge”s instruction on the law in respect of provocation was incorrect

Facts: The appellant, Mr Cahoon, in May 2012, was convicted of murdering Ms Quigley on 26th July 2008 in Derry City. The trial took place in the Central Criminal Court pursuant to the provisions of the Criminal Law (Jurisdiction) Act 1976. The appellant admitted killing Ms Quigley but denied it was murder because he did not have the intention to kill or cause serious injury or, alternatively, by reason of provocation. The appellant appealed to the Court of Appeal alleging that the judge”s instruction on the law in respect of provocation was incorrect. Secondly, he argued that the judge made a significant error of fact in regard to police questioning of him, which had an adverse impact on his position in the eyes of the jury. Thirdly, he contended that the charge as a whole was unbalanced in that the judge spent a disproportionate amount of time on the prosecution case compared with that of the defence. On the issue of conflating mens rea with provocation, the respondent, the DPP, submitted that the trial judge dealt with the issues of intention and provocation separately, referring to and explaining first the concept of mens rea, before later turning to provocation, and showing that it is a partial defence which reduces murder to manslaughter. It was further submitted that the recharge of the jury continued this dual approach, and that the overall tenor of the charge as a whole would have left the jury under no misapprehension. On the second ground, the respondent submitted that although there was a factual misstatement, at no point did the trial judge invite the jury to draw an adverse inference. In regard to the suggested imbalance of the charge based on the length of respective summations, the respondent contended that that was of no relevance and the proposition was unsupported by specifics.

Held by the President that, having considered People (DPP) v MacEoin [1978] IR 27, the judge telling the jury that provocation prevented a person from forming the necessary murderous intention was wrong and conflated two separate legal concepts; therefore, that part of the judge”s direction was incorrect as a matter of law. Considering whether the Court could legitimately conclude that this clear misdirection could be ignored on the basis that it was practically incapable of having influenced the jury, the President held that the incorrect part of the re-charge was brief but it was relevant to the specific defence; in those circumstances, the misdirection on provocation could have influenced the jury in their consideration of the case. The statement by the judge to the jury that the accused could not have been questioned by the Police Service of Northern Ireland or the Gardaí because of the Criminal Law (Jurisdiction) Act 1976 was held to be an error; the fact was that the accused had been questioned by the Gardaí but nothing emerged material to the case because of the appellant”s choice to remain silent in respect of the circumstances of the suspicious death of Ms Quigley. The President held that the decision to do nothing to put the facts right in that regard seemed to have been correct because embarking on any correction would have been fraught with peril. The Court”s view was that the issue, although unfortunate as an error, did not render the trial unsatisfactory and could not justify upholding the appeal; it would not have been helpful or fair to the accused to say that he had been questioned by the Gardaí but had remained silent, or had not said anything relevant even though he was perfectly entitled to do so. As to the balance of the charge in point of time and words devoted respectively to prosecution and defence cases, the Court was satisfied that the point did not have any validity; the trial judge put the prosecution case and the defence case adequately and fairly, and his charge could not be impugned on the basis that the time spent on the prosecution was disproportionate or in any sense unfair.

The President held that the Court would allow the appeal, quash the conviction and order the appellant to be re-tried for the offence pursuant to s. 3(1)(c) of the Criminal Procedure Act 1993.

Appeal allowed.

1 JUDGMENT of the Court delivered by The President on the 4th day of March 2015

Introduction

2 1. On 1 ^st May 2012, the appellant was convicted of murdering Ms. Jean Quigley on 26 ^th July 2008, at an address in Derry City. The trial took place in the Central Criminal Court pursuant to the provisions of the Criminal Law (Jurisdiction) Act 1976. The appellant admitted killing Ms Quigley but denied it was murder because he did not have the intention to kill or cause serious injury or, alternatively, by reason of provocation.

3 2. Three issues arise in this appeal concerning the learned trial judge's charge to the jury before and after requisitions. First, the appellant alleges that the judge's instruction on the law in respect of provocation was incorrect. Secondly, he argues that the judge made a significant error of fact in regard to police questioning of him, which had an adverse impact on his position in the eyes of the jury. Thirdly, he contends that the charge as a whole was unbalanced in that the judge spent a disproportionate amount of time on the prosecution case compared with that of the defence.

Background

4 3. The appellant and the deceased, Ms. Quigley, had a relationship that began around mid-March 2008, and continued until early July. They had not lived together but he had often stayed overnight at her home and she had sometimes stayed at his apartment. At the time of her death she was ten weeks pregnant with his child. The relationship broke down in mid-July but some communication continued and they met and spent time together in two public houses in Derry on the night of Wednesday 23 ^rd July. Ms. Quigley went home alone at about 2.30 am on the Thursday morning, but before the babysitter left the appellant arrived and stayed for a short time. Following his departure, the appellant and Ms. Quigley exchanged text messages for some hours. There were more text messages on Friday 25 ^th.

5 4. In the early hours of 26 ^th July, after a night out with friends, the appellant took a taxi from the city centre area of Derry to a place close to the home of Jean Quigley. He made his way into her home in circumstances that are a matter of dispute. At 6:30am, he called a taxi using a false name and alighted close to the building where his own apartment was located.

6 5. Later on the same day, at about 1,00pm, Jean Quigley's body was discovered and the police were notified and began investigating the crime. It was clear that the victim had been strangled and she also had other signs of injury on her body. Police found that the lock on an inner door was broken, DNA tests established that the appellant and the deceased had had? sex, and such tests made other connections between the appellant and the scene.

7 6. When the police came looking for the appellant following the discovery of the body of Jean Quigley, he had disappeared.

8 7. Gardaí arrested the appellant in Donegal town on 5 ^th August 2008. They questioned him about the death of Jean Quigley but nothing of evidential value came of it in circumstances in which the appellant chose to rely on his constitutional right to silence, as Counsel expressed it at the hearing of the appeal.

The Trial

9 8. The trial took place in the Central Criminal Court, pursuant to the Act of 1976. The appellant made formal statutory admissions for the purpose of his trial of which the most important was that he had killed Ms. Quigley. He gave evidence. His defence included a plea of provocation that arose in the following circumstances. He said that he and Ms. Quigley had had sex on two occasions, which was consensual, and which involved one or other being voluntarily restrained. They smoked cigarettes together between the occasions when they had intercourse. When they were having sex for the second time, his mobile phone rang and subsequently Ms. Quigley asked who had called and became very angry when he told her the name of the caller, a woman who was a friend of his. He said that Ms. Quigley shouted at him demanding that he leave immediately. He refused, because he maintained that she had agreed to his staying overnight and he was not accepting her change of mind. During these angry exchanges, he testified, Ms. Quigley said that the baby she was having was not his and that she was going to have an abortion. He said that she repeated these statements. The appellant then gave the following evidence:

"That's when I lost it, I just grabbed her."

Q.	You lost it. What do you mean by you lost it?
A.	I snapped, I just saw red and grabbed her.

10 The appellant went on to describe his reaction further:

"Q.	And can you tell us, when you say you grabbed her, can you give us more detail on that?
A.	I just grab her, like. I put my hand here and put my hand here and just grabbed her and pushed her on the bed and grabbed her by the throat then.
Q.	And why did you do that?
A.	Just - I don't know, I lost it. I just wanted her to stop saying the things she was saying, like, to be quiet, like. It just riled me up, so it did.
Q.	Sorry, what was that you said?
A.	She just riled me up, she got me mad, like. I just lost it."

11 ...