DPP -v- Cronin, [2006] IESC 9 (2006)

Docket Number:117/04
Party Name:DPP, Cronin
Judge:Geoghegan J. / Kearns J.
 
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JUDGMENT BY: Geoghegan J.

THE SUPREME COURT

117/04

Geoghegan J.

Fennelly J.

McCracken J.

Kearns J.

Macken J.

IN THE MATTER OF SECTION 29 OF THE COURTS

OF JUSTICE ACT, 1924

BETWEEN/

THE PEOPLE AT THE SUIT OF THE

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

and

MARK CRONIN

Appellant

JUDGMENT of Mr. Justice Geoghegan delivered the 3rd day of March 2006

This is an appeal brought under section 29 of the Courts of Justice Act, 1924 from the decision of the Court of Criminal Appeal (Hardiman, O'Sullivan and Quirke JJ) refusing an application by the appellant for leave to appeal to that court from his conviction of murder in the Central Criminal Court (Smith J. and a jury).

The certified point of law was the following:

Having regard to the evidence given at the trial of the applicant, was the learned trial judge obliged more specifically to direct the jury as to the possibility that due to accident or mistake the applicant may have caused the death without intending to do so or cause serious injury?

In accordance with the recognised jurisprudence relating to section 29 appeals, the appellant in addition to appealing the grounds to which the certified point of law is relevant, has appealed to this court on other grounds also. I will refer to those additional grounds and express my views on them later on in this judgment. I think it better to concentrate first on the certified question.

At the trial for murder, the prosecution case was that a woman died as a result of the appellant firing a gun in a Limerick nightclub intending to kill or seriously injure not that woman but the appellant's wife who was in her company and that due to the gun being pushed away (according to one witness by his wife) the wife was not injured or killed but the other woman was killed.

There was abundant evidence from persons attending the disco in the nightclub implicating the appellant though as is often the case not all of it was consistent in detail. Stripped to its essentials the story which emerged from the witnesses was this. Earlier in the evening quite a noisy row had broken out between the appellant and his wife at the bar section of the disco. The appellant departed from the disco leaving his wife behind. In the early hours of the morning the appellant returned to the disco and after approaching his wife, the shooting incident referred to above occurred.

Mr. Gageby, S.C. acted for the appellant at the trial. From beginning to the end of the trial only one defence was put up both on behalf of the appellant and by the appellant himself in evidence that at no stage did he ever have a gun and, therefore, still less fired one. At no stage whether by way of evidence by or on behalf of the appellant, by way of submission by his counsel, by way of cross-examination or in any other mode was an alternative defence of accidental firing of the gun raised. It is argued now, however, on behalf of the appellant who has a new team of solicitor and barristers and on foot of an amended ground of appeal that the trial judge was under an obligation to put that possible defence to the jury even though it was never raised or adumbrated. More particularly, it is submitted on behalf of the appellant that the trial judge erred in his charge in the following respects.

(a) Failed to convey to the jury the matters of fact to be determined and the law to be applied in making such determination.

(b) Failed to direct the jury that if it was reasonably possible that the firearm was discharged as a result of the firearm being knocked to the side, then the appropriate verdict was not guilty of murder but guilty of manslaughter.

(c) Failed to direct the jury that the statutory presumption under s. 4(2) of the Criminal Justice Act, 1964 regarding intent as to consequences

(i) is not relevant to the question of whether the firearm was discharged by a mistake,

(ii) may be rebutted and the prosecution must prove beyond reasonable doubt that it has not been rebutted.

(d) Erred in appearing to direct the jury that the said statutory presumption did not arise but in directing that 'the law is that every person is presumed to intend the natural and probable consequences of their conduct'.

On this issue as to whether an alternative defence which has not been raised has to be placed before a jury by the trial judge, the Court of Criminal Appeal in its judgment delivered by Hardiman J. cited two Irish cases which had not been referred to in argument namely, D.P.P. v. Halligan (Court of Criminal Appeal unreported 13th July 1998) and D.P.P. v. McDonagh (Court of Criminal Appeal unreported 31st May 2001). Both of these cases would seem to me to be of limited assistance in that the suggested alternative defence in each case was provocation. The defence of provocation of its nature concerns a deliberate rather than an accidental act. If it appeared to a trial judge to arise at a trial in which it had not been pursued it could only do so by way of inference in the circumstances surrounding a deliberate act by the accused. In that respect it seems to me to be an issue fundamentally different from an issue involving the defence of accident.

A second and even more important distinguishing feature between this case and those cases was that in each of those cases the trial judge had been asked to leave the alternative defence of provocation to the jury. In this case no application was made in relation to any alleged defence of accidental discharge of the gun.

The judgment of the Court of Criminal Appeal goes on to review various English authorities on the subject of an alternative defence including the well-known case of Woolmington v. D.P.P [1935] A.C. 462. I will return to the English authorities in due course but I think it important at this stage to quote a passage from the judgment of the Court of Criminal Appeal delivered by Hardiman J. as it appears in the judgment immediately after the review of the English authorities. This passage reads as follows:

"In assessing the reality of the alternative defence it appears to us that a trial judge is entitled to rely on all the circumstances of the case including the effect of the accused's omission to rely on the other defence. The significance of this will vary with the facts of a particular case. In certain cases a defendant who gives evidence inconsistent with a line of defence of which, if there were any reality in it, he would have knowledge, may reduce the chances of its being effective virtually to nil."

The essence of the decision in the Court of Criminal Appeal seems to me to be contained in that passage and I am in full agreement with it.

In this particular case, I have no doubt whatsoever that counsel for the appellant did not overlook the possible alternative defence of accident but deliberately did not pursue it for the very good reason that in the eyes of a jury it might weaken the defence which the appellant himself made in the witness-box. The Court of Criminal Appeal took the view that in such a situation any requirement as suggested by the English authorities for the trial judge to put an alternative defence to the jury would be "difficult to reconcile with the rights of an accused person as understood in this jurisdiction". The court went on to make the following comment:

This is because, on a literal reading, they trench on the right of an accused to conduct his own defence, or have it conducted professionally on his instructions, without its being undermined even by the entirely benevolent introduction of a middle course which neither he nor the prosecution have been minded to contend for.

In my opinion, for the purposes of determining this appeal it is not necessary to consider whether there is any discrepancy between cited English authorities and the constitutional principles applied in this jurisdiction in relation to the rights of a defendant to a fair trial. I am not convinced that there is a conflict. It is the duty of a trial judge to ensure that the case ultimately presented to the jury represents a fair trial as between prosecution and defence. In protecting the rights of a defendant the judge cannot be exclusively dictated by the way a defendant chooses to run his own defence. On the other hand, the judge must pay heavy regard to that factor. A judge must, at the same time, bear in mind factors which a jury in the jury room might themselves legitimately consider relevant. Taking the example of the facts of this case, if counsel for the appellant had in fact run the alternative defence as well as the main defence, I have little doubt that the learned trial judge would have had to specifically deal with the possibility of accident or mistake when addressing the jury. It would not have been enough merely to enunciate general principles and leave to the jury the possibility of a verdict of not guilty but guilty of manslaughter. However, in circumstances such as this, where the alternative defence was not in fact raised, the learned trial judge, in my view, was engaging in a correct and proper balancing exercise by confining his remarks to explaining the possible verdict of manslaughter. That verdict could have no conceivable relevance to the actual defence which was pursued at the trial. Yet the jury was being permitted at least to consider whether the death could have happened unlawfully but without the intention to kill or cause serious bodily harm which the trial judge had made clear were essential elements of murder. To any juror with common sense the possibility that the gun fired unintentionally could only conceivably arise if he or she considered that the gun might have fired accidentally because of being pushed. Otherwise the intention to fire the gun would clearly constitute murder. I would quote with approval the following passage from the judgment of the Court of Criminal Appeal.

"The jury were also properly charged in relation to intent and were told that if they were not...

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