DPP v O'Carroll

JudgeHardiman J.
Judgment Date06 July 2004
Neutral Citation[2004] IECCA 16
CourtCourt of Criminal Appeal
Docket Number[C.C.A. No. 10 of 2003]
Date06 July 2004

[2004] IECCA 16


Hardiman J.

O'Donovan J.

Gilligan J.







DPP V CRONIN UNREP CCA 16.5.2003 2003/15/3202


DPP V DAVIS 2001 1 IR 146





DPP V REDMOND 2001 3 IR 390

DPP V NOONAN 1998 2 IR 439

DPP V DUNNE UNREP CCA 25.11.2002 2003 15 3316

R V COCKS 1976 63 CAR 79






- [2004] 3 IR 521 [2005] 1 ILRM 241

Facts: On 12 December 2002 the applicant was convicted of murder. Subsequent to the trial grounds of appeal were submitted and the applicant gave notice of application for leave to appeal. Subsequently, the applicant's solicitor lodged two further grounds of appeal. The first additional ground was that the court erred in law by failing to leave the question of provocation before the jury. The second additional ground stated that the learned trial judge erred in law in failing to direct the jury adequately on the burden and standard of proof on the prosecution in respect of negativing the issue of self defence raised by the applicant. However, it was accepted by counsel on behalf of the applicant that the ground relating to provocation was not arguable having regard to the decision of DPP v Mark Cronin, CCA unreported, 16 May, 2003.

The applicant did not give evidence at his trial. However, the prosecution proved as part of their case certain statements made by him to the gardai. From those statements it appeared that the deceased man had produced the knife and that the two men wrestled around with the knife and the deceased got stabbed. There was evidence from the state pathologist at the relevant time which supported the applicant's version of events. The trial judge in his charge to the jury stated that if they were to find self defence, then they had to find the accused not guilty. On the following day, counsel for the DPP raised certain requisitions on the charge. He drew the attention of the trial judge to the case of AG v Christopher Dwyer [1972] IR 416. Counsel for the defence did not comment specifically on that submission but simply stated that he was in the court's hands in that regard. However, the learned trial judge declined to recharge the jury on any of the points raised either for the prosecution or the defence. The applicant applied for leave to appeal against his conviction for murder.

Held by the Court of Criminal Appeal(Hardiman, O'Donovan, Gilligan JJ) in allowing the appeal, quashing the conviction and ordering a retrial:

1. That having regard to the evidence summarised before the court the defence at the trial had discharged the evidential burden which lay upon them to raise self defence. The evidential burden of raising the defence of self defence was not a heavy one. It involved the accused being able to point to evidence of some sort suggesting the presence of the elements of self defence.

2. That prosecuting counsel was correct in the fundamental requisition which he made. The jury should have been told to consider, not only whether there was evidence that a situation of self defence had arisen, but whether the defendant had or had not employed more force in self defence than was reasonably necessary, and whether he had used more force than was reasonably necessary, but no more than he honestly believed to be necessary. In the latter event, they should have been told that the appropriate verdict was manslaughter. The jury were left with an erroneous view of the role of self defence, one overly favourable to the accused.

AG v Christopher Dwyer [1972] IR 416 followed.

3. That the court was required to consider whether the applicant could be said to have adopted the charge actually given by failing to make relevant requisitions on it, on the basis that it misstated the law in a manner overly favourable to him, and thereby maximised his chances of total acquittal. There was ample authority for the proposition that there must at least be an explanation when an applicant seeking leave to appeal wishes to raise a point that was not raised by him or on his behalf in the court of trial.

4. That in circumstances such as occurred in this case, where the accused is professionally represented, consideration must be given to the duty of defence counsel in those circumstances. Neither the cases cited nor the Code of Conduct of the Bar of Ireland dealt with the situation where the trial judge misinterpreted the law in the defendant's favour. There was no authority for the proposition that defence counsel was obliged to make a requisition which would disimprove the client's position at trial.

5. That the conduct of defending counsel at the trial was not open to criticism. The trial judge had received all appropriate assistance from the prosecution and was under no misapprehension. Defence counsel very properly refrained from criticising or casting doubt on what the prosecution had said. Defence counsel was not under any duty, either to the court or to his client, to do more in the circumstances of this case.

Reporter: L.O'S


6th day of July, 2004 by Hardiman J.

Hardiman J.

This is the applicant's application for leave to appeal against his conviction for murder. On the 12 th December, 2002 he was convicted by a jury of the murder of Keith Fortune on the 2 ndMay, 1999. This conviction followed a trial lasting seven days.


Subsequent to the trial, the applicant discharged his solicitor and counsel. This is a significant feature in view of certain submissions made on this application, to be considered below. It is also relevant to say that the Court having read the transcript and heard the submissions on this application is quite satisfied that the applicant was properly and skilfully defended at his trial.


The applicant himself gave notice of application for leave to appeal dated the 9 th July, 2003. Grounds of appeal in typescript had been submitted on the 22 nd May, 2003: it is not clear whether these were submitted by the applicant himself or by a solicitor on his behalf. He subsequently retained the firm of John J. Rice and Co., Solicitors, of Belfast. This firm issued a motion on the 12 thMay, 2004 seeking to rely upon additional grounds of appeal. On the 11 th June, 2004 a further additional ground of appeal was lodged. Further submissions were also filed.

Original grounds of appeal.

The original grounds of appeal were as follows:-


(1) The trial was rendered unsatisfactory and unfair by the Court's holding of an inquiry in front of the jury into the non-attendance of several state witnesses.


(2) The Court erred in failing to accede to an application for a direction of no case to answer at the close of the prosecution case.


(3) The Court erred in failing to direct the jury at all on the possible verdict of manslaughter.


(4) The convictions based on such tenuous evidence is in all the circumstances unsafe.


The first additional ground of appeal of the 11 th May, 2004 was that:-

"The Court erred in law by failing to leave the question of provocation before the jury".


The second additional ground of appeal, of the 11 th June, 2004 was as follows:-

"The learned trial judge erred in law in failing to direct the jury adequately on the burden and standard of proof on the prosecution in respect of negativing the issue of self defence raised by the applicant".


On the hearing of this application the applicant was represented by Mr. Paul Ramsey Q.C. and Mr. Ronan Daly of counsel instructed by John J. Rice and Co. Here again, the applicant was properly and skilfully represented but in view of certain of the submissions made it is proper to point out that only one of these gentlemen was concerned with the case at trial.


On the hearing of this appeal Mr. Ramsey accepted that ground relating to provocation was not arguable having regard to the decision of this Court in DPP v. Mark Cronin (CCA. unreported, 16 th May, 2003).


Indeed, this case is a striking illustration of the unreality that would attach to requiring a trial judge to charge a jury in relation to the defence of provocation when it had not been relied on. Cronin held that this should not be done, at least without request. At the trial counsel then appearing for the applicant, Mr. Ciaran O'Loughlin S.C., was extremely clear and realistic on the topic of provocation. He said at Book H at page 9:-

"Obviously the issue of provocation, there was no cogent evidence in the case to allow that to be raised and it would I think in any event have been at odds with the defence generally...".


In the course of his application for a direction Mr. O'Loughlin referred to the case of DPP v. MacEoin [1978] I.R. 27 but for a purpose other than submitting that provocation was an issue in this trial. Indeed he said:-

"In any event it ( MacEoin) ended up as a manslaughter on the basis of provocation. I say that has no relevance here".


Notwithstanding this, the submissions filled on the part of the applicant contended that the issue of provocation should have been left to the jury. Portion of Mr. O'Loughlin's submissions were cited in support of this proposition, but not the portions quoted above which made it perfectly clear that provocation was not relied upon. The defence actually relied on was self defence or accident: the form in which this arose will be discussed below. These were the only defences available and had been raised in the applicant's statements to the...

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