DPP v Clarke

• Jurisdiction: Ireland
• Judge: O'Flaherty J.
• Judgment Date: 01 January 1995
• Neutral Citation: 1995 WJSC-CCA 2083
• Docket Number: [1993 No. 34 CCA],34/93
• Court: Court of Criminal Appeal
• Date: 01 January 1995

DPP v. CLARKE

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

.V.

JOHN CLARKE

Applicant

1995 WJSC-CCA 2083

O'Flaherty J.

Keane J.

Carney J.

34/93

THE COURT OF CRIMINAL APPEAL

Synopsis:

CRIMINAL LAW

Murder

Defence - Self-defence - Jury - Judge's charge - Adequacy - Impeccable charge vitiated by reference to theoretical possibility of acquittal - Evidence - Written statement made by accused - No testimony by accused at his trial - Statement to be considered by jury in its entirety - (34/94 - Court of Criminal Appeal - 6/7/94)- [1994] 3 IR 289 - [1995] 1 ILRM 355

|The People v. Clarke|

EVIDENCE

Admissibility

Statement - Accused - Trial - Charge - Murder - Defence - Self- defence - No testimony by accused - Statement admitted in evidence - Accused entitled to have jury consider statement in its entirety - (34/94 - Court of Criminal Appeal - 6/7/94) - [1994] 3 IR 289 - [1995] 1 ILRM 355

|The People v. Clarke|

Citations:

AG, PEOPLE V QUINN 1965 IR 366

AG, PEOPLE V DWYER 1972 IR 416

R V MCINNES 1971 1 WLR 1600

R V HOWE 1958 100 CLR 448

PALMER V R 1971 55 CAR 223

AG, PEOPLE V CROSBIE 1 FREWEN 231

FINDLAY DUNCAN 1981 78 CAR 359

R V SHARP 1988 86 CAR 274

SMITH & HOGAN CRIMINAL LAW 2ED 231

1 Judgment of the Court delivered by O'Flaherty J. on the 6th day of July, 1994.

2 John Clarke, having been indicted for murder, was convicted of the manslaughter on the 29th June, 1991, at Coolock, Dublin of Glen Larkin after a three-day trial at the Central Criminal Court before O'Hanlon J. and a jury which culminated on the 1st March, 1993. He was sentenced to ten years penal servitude. He was also convicted of certain firearms offences but this judgment is concerned essentially with the manslaughter conviction, against which conviction the applicant applies for leave to appeal on a number of grounds of which the pertinent ones will be set forth later in this judgment.

Background Facts.

3 The background facts to the case were as follows. The applicant, who was then just short of 21 years of age, went on the day in question, 29th June 1991, to the Camelot Hotel, Coolock, to play pool with a companion, Brian McCabe. The time was around 8.30 p.m. when Glen Larkin and a companion, Gavin Lambert, came in. It appears that Glen Larkin came into the pool room looking for money to make a phone call and that he then accused the applicant and Brian McCabe of talking about him behind his back; in fact nothing had been said about him. Glen Larkin got very annoyed without any cause and he hit the applicant in the face. The applicant described what happened in the course of a statement that he made on the 30th June, 1991, the day after the fatality, to the gardai and in regard to the essential facts of which there was no dispute - certainly as far as this first fracas was concerned. He said as follows:-

4 [Larkin] turned around to me and said, "I'm fuckin going to kill you." They're the sort of words he uses. He gave me a punch in the jaw. He then picked up a pool ball and threw it at me. I grabbed him then and held onto him and pleaded with him to calm down saying, "Glen you're doing this for nothing." At about this point one of the bouncers, named Angus Andrews, came in. He grabbed a hold of Glen. Glen said, "I'm only talking to him (me)." Then Glen broke loose from Angus and hit me another clout on the other side of the face. I was afraid of getting involved in a fight because of serious head injuries I got in a traffic accident. I said, "I can't fight and I don't want to fight ya

5 because of these head injuries, just one slap would open my skull." I said, "You're just doing it for nothing." I said that to him. Then another bouncer and a barman came in. Paul is the barman and the bouncer was "Harpo" Norris. They restrained Glen but he succeeded in breaking away from them. He came over to me and hit me again. I picked up a pool cue and hit him with it. I hit him on the shoulder. He kept coming and eventually he got me against the wall and started hitting my face. He actually succeeded in biting and cutting my lip and tried to bite my face but didn't succeed. The bouncers came over and grabbed him off me again. The blood was pouring out of me. I still kept telling him to stop but he was going mad. He was as high as a kite he was. He was definitely on gear* at the time. I went into the toilet to wash my

6 * meaning drugs.

7 face and to get away from him. Just when I came out of the toilet he was coming down to the toilet. He started threatening me. He said, "I'll kill you and Brian (McCabe)" and then he started on me. He said, "I'm coming back here with a hatchet. You think your head is bad now but when I come back with the hatchet you'll be a write-off. I'll kill you stone dead." I believed that he was capable of doing this and I was very much afraid of him. Then he started threatening my family. He said, "It's not just you I'll get, I'll get all of your family and all of the Roes as well." He had a glass in his hand and was threatening me with it. The bouncer was nearby and should have heard this conversation. So should two of the bar girls - Rhonda McClusky and a girl named Liz. Brian was also nearby, .... I told the bouncer Angus to take the glass of him because I was afraid he was going to hit me with it.

8 He didn't. He was probably afraid of his reputation and his family. Glen told me he was going to "Get a hatchet to chop your head up and then I'm going to get your family." I was ......, afraid of my life because I knew he came into that pub before with a hatchet. Angus, the bouncer, told me this. I asked Rhonda McCluskey to ring my dad at ...... - home - to come up and collect me, but when she went out to make the call Glen was still there so she came back and gave me back the 20p I gave her for the "phone call. Angus told me not to go out because Glen was still outside. I waited for Angus to come in and say he was gone. I was just leaving when my brother, Tommy, came in. Tommy is 22 and living with his girlfriend at I Marigold Court, Darndale. Tommy and I had a chat about what had happened. I said, "What am I going to do? He's coming back with a hatchet and he's going to

9 chop me up and then me family." Tommy said, "You'd better get out of here and go down to my ma's." Me and Tommy walked down. We didn't walk, we actually ran.

10 The significance of the reference to the "Roes" is that John Clarke had a girlfriend, with whom he was living, Christine Roe.

11 Christine Roe went to the Camelot Hotel after this initial fracas and was told about it and she at this stage met Glen Larkin who had returned to the hotel with his brother, Tommy, and another man. This was David Pearson. Christine Roe gave evidence that Glen Larkin had said to Brian McCabe that he was going to smash his house and burn it. She said that Tommy Larkin had opened his jacket and had a machete with a green cover on it and that he took the green cover off. According to her, Glen Larkin said that he was going to chop John Clarke's head off and that he would burn her mobile home whether she and the children were in it or not.

12 The next phase of activities was that Glen Larkin together with his brother Tommy and David Pearson left the Camelot Hotel and headed for home. After they had gone a certain distance John Clarke approached them and, according to Pearson, Glen Larkin said: "There is no need for guns". Pearson left on Glen Larkin's bicycle and Tommy ran in another direction. About five minutes later they heard the sound of a gun shot from the area of a nearby industrial estate.

13 Tommy Larkin's evidence was to the effect that he saw the defendant coming from the side entrance of Darndale with a rifle barrel hanging down under his coat. He also saw the accused's father. He said that John Clarke was moving the gun upwards and said: "Glen, I want you." According to him Glen Larkin replied: "Leave it out, John, no guns" and then shouted "run" to his brother, Tommy. He had got home by the time he heard the shot. His home was a couple of hundred of yards away.

14 Geoff Hawkins, a security man attached to the industrial estate, where the incident happened said that at about 9.50 he heard a loud bang and on going to investigate he saw a body outside the security fence.

15 Marie Carr, a sister of John Clarke, said that she went to the Camelot Hotel and was on the way home in her car when she heard that someone had been shot. She said that she met John Clarke and that he was in a bad state. He said he wanted to do away with himself. He thought he had shot someone. She said that she left him and went off to the Camelot and spoke to her parents. She brought the defendant John Clarke to St. Brendan's Psychiatric Hospital.

16 To revert to the account given by the accused in his statement. Having recounted that when he got home his mother told him that Larkin was a "junkie" and in view of the bite that he had got that he should go to hospital because he might get AIDS, he then went on to say:-

17 I was worried about the AIDS but I was more worried about him coming down and chopping my head up or attacking my family because he knows where I live. While I was there I got a "phone call from my girlfriend Christine to tell me that "Glen was up here - that's at the Camelot because she was ringing from the Camelot - with a hatchet and he's gone up to Tommy's house." I knew my father had two guns upstairs; a shotgun and a rifle. I went up and grabbed the shotgun and loaded it. It's a single barrel shotgun and I only put one cartridge in it. I didn't take any more with me. I only intended using it to frighten him - to get him to stop. Tommy and I then ran back up to Darndale. Tommy actually went ahead of me. We left just minutes apart. I was wearing a long blue jacket. I wasn't actually wearing the jacket but I carried it over the gun to...