DPP v O'Connor

JurisdictionIreland
JudgeO’Donnell J.
Judgment Date24 November 2014
Neutral Citation[2014] IECCA 39
Date24 November 2014
Docket NumberCCA No. 1/12
CourtCourt of Criminal Appeal

[2014] IECCA 39

THE COURT OF CRIMINAL APPEAL

O’Donnell J., Herbert J., Edwards J.

CCA No. 1/12

Between/
The People at the Suit of the Director of Public Prosecutions
Respondent
And
Thomas O’Connor
Appellant

Conviction – Provocation – Self-defence – Appellant seeking to have his conviction quashed – Whether the ruling of the trial judge was correct

Facts: The appellant, Mr O’Connor, killed Mr O’Brien in June 2010 as a result of a blunt force trauma to his head caused by being struck by a rock. He was arrested by the gardaí and gave an account claiming he was provoked. On day 6 of the trial the accused applied to the court that the jury might consider the defence of provocation. The trial judge permitted the defence of provocation to go to the jury. As the jury was about to be called back into court, the accused observed that unlike provocation he did not need the leave of the court to argue any issue of self-defence. The trial judge then made it clear that he had considered the question of self-defence and did not consider that it arose sufficiently to go to the jury. The trial judge said that self-defence presupposed a functioning mind and a person who makes a rational decision, presumably contrasting it with the situation where provocation arises. Accordingly the jury was addressed on the question of provocation but not on the question of self-defence. The central issue in the appellant’s subsequent appeal to the Court of Criminal Appeal was whether that ruling was correct.

Held by O’Donnell J that, having considered the law on self-defence, there is a threshold question for the judge whether an issue has been raised sufficient for it to go to a jury; the threshold can be met from the evidence before the court even if all the evidence has been tendered by the prosecution. O’Donnell J held that the only burden on the accused is to identify the evidence sufficient to allow the matter to go to the jury. O’Donnell J held that where there is a conflict of evidence, the court must for the purposes of this exercise take the version most favourable to the accused; the account given by the accused must be looked at as a whole to consider whether it is capable of raising the defence of self-defence as a complete defence or as a partial defence reducing murder to manslaughter, applying The People (Director of Public Prosecutions) v O’Carroll [2004] IECCA 16. O’Donnell J noted that the difficulty of the exercise was compounded by the fact that a defence has not been raised directly by the accused either by giving evidence on his own behalf, or in any of the many interviews which he had with the gardaí; therefore, if the defence has been raised, it can only be by inference from the evidence as a whole. O’Donnell J stated that the evidence was not strong and that it was on the margins as far as a complete defence of self-defence was concerned. Considering the evidence on the question of an assault or an attack being initiated by the victim, O’Donnell J appreciated the trial judge’s frustration with the flimsy nature of the evidence from which it is suggested an inference of self-defence could be drawn. Considering The People (Director of Public Prosecutions) v Nally [2007] 4 IR 145, where the trial judge effectively directed a verdict of guilty leaving the jury to decide between murder and manslaughter while provocation was raised and let go to the jury, O’Donnell found it difficult to distinguish Nally save that in the present case the judge did not even permit the partial defence go to the jury. O’Donnell J noted that there was evidence in this case suggesting that the victim had been violent earlier in the evening, that he initiated the attack, that he had been the first to seek to use the rock as a weapon, and furthermore that all of this occurred in the course of a drunken tussle. The Court of Criminal Appeal thus considered that there was a sufficient case to go to the jury, albeit that the judge would have been entitled to make clear to the jury how limited that evidence was and the weight of contrary evidence.

O’Donnell J held that the appeal be allowed, the conviction quashed, and a retrial directed.

Appeal allowed.

O’Donnell J.
Judgment of the Court delivered on the 24th of November 2014, by O’Donnell J.
1

On the 5th of June 2010 the appellant Thomas O’Connor, a young man aged 22, killed his friend and neighbour John O’Brien, then also a young man aged 22 and about to get married. John O’Brien died as a result of a blunt force trauma to his head caused by being struck by a rock which was recovered as part of the garda investigation and found to weigh 1.6 kilograms.

2

The evidence was that during the evening of the 4th of June both the appellant and the victim had been drinking in the underground car park of Superquinn in Greystones and driving around the area with the victim’s brother Jimmy. There was evidence that in the course of the evening the victim had struck two younger men and was restrained by Thomas O’Connor. There was a dispute as to just how serious this altercation was, but it was something upon which, understandably, the defence placed some stress.

3

Finally, in the early hours of the morning having disagreed about what to do next, they separated at a roundabout on the road between Greystones and Charlesland and started in different directions. As it happened, there was a considerable amount of evidence from both passing motorists and residents who witnessed part at least of what transpired. Among those accounts was some evidence that the appellant was shouting something and cursing, and then made a u-turn and doubled back. A number of witnesses gave evidence that they saw a man wearing a grey hoodie, as the appellant was, standing over another man who was then lying on the ground, and striking him repeatedly. There was also evidence that the victim was very badly injured indeed, was bleeding profusely, and in particular, that his head was seriously deformed. Dr Curtis, the Deputy State Pathologist, gave evidence that the victim suffered a catastrophic head injury.

4

After this incident, the appellant went to the home of his former girlfriend. He told her a story which is now accepted to be completely untrue of having been assaulted by a man carrying a knife. He obtained bleach from her to wash the blood from his hands, and scrubbed his clothes to remove the blood stains. He then got two firelighters from her and left. It is clear that his former girlfriend was very agitated about the scene in her house. The appellant then went to the house where he lived with his current partner and tried to burn his clothes in a bin. He also returned to the scene of the incident, and spoke to gardaí there. He did not at that stage admit any involvement in the incident. Later on that day when confronted by members of the victim’s family he said that John O’Brien had been fine the last time he had seen him the previous night.

5

Later on the 5th of June the appellant contacted his partner, told her what he had done and then set off to see his daughter. He was however arrested by the gardaí. There were a number of interviews during which he did not require the attendance of a lawyer. The account he gave was contained in the following lengthy statement which was introduced in evidence on Day 3:

“I first met him over Superquinn in Greystones about 8.30 pm or earlier. I had to go to the shop and get bread and I bought drink and I bumped into John O’Brien and he asked me did I want to go drinking. We sat down in the underground car park at Superquinn and started drinking. We were there for a while and then I said I had to head home to drop the [bread] home. I came back over to the car park after speaking to Jimmy O’Brien. We then came over in the car and sat in the car for a while drinking. Then I just went spinning the car with John and Jimmy, just all over the place then. Me and John went back over to Superquinn car park where we met two other fellows and started hanging around with them - drinking. We were over there for a while. We then went out to the car park and John started getting into an argument with the two boys we had met up with and he started hitting them. We were there for about half an hour longer. Then we walked out of the car park near the Chinese at Superquinn and John started to have an argument with a fellow in a car and the lads, the lads we were with went home then. He went up to his nanny’s house, I think they call her nanny; we were there for about five seconds. She put us out. We were too drunk. So then we just went walking around Charlesland. We were giving some man abuse in Charlesland. We climbed over the fence that separates the two estates, Charlesland and Burnaby Lawns or Court. We went up the main road, going on a mission to find more drink. We just walked around for ages seeing if people were in their houses, like friends. There was no one in their houses so we just kept walking up the road and went into some estate and just sat there drinking more. We were there for a while just drinking and acting the bollocks and then the drink was gone he said let’s go back to his house because his girlfriend wasn’t there and I said ‘no I’m going to a friend’s house’ and he said ‘fuck you so’ and the two of us just walked up the road and we got as far as the roundabout and I crossed over and then I heard my name being called and I turned around and I got a couple of boxes in the head from John O’Brien and the two of us were tussling on the ground and he picked up the...

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