DPP v Cronin

• Jurisdiction: Ireland
• Judge: Hardiman J.
• Judgment Date: 16 May 2003
• Neutral Citation: 2003 WJSC-CCA 3202
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A. No. 66 of 2000]
• Date: 16 May 2003

DPP v. CRONIN

Between:-

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

and

MARK CRONIN

Applicant

2003 WJSC-CCA 3202

Hardiman J.

O'Sullivan J.

Quirke J.

66/00

THE COURT OF CRIMINAL APPEAL

Synopsis:

CRIMINAL LAW

Conviction

Appeal - Defence of mistake - Firearms offences - Whether trial judge incorrectly failed to consider issue of mistake - Whether applicant received fair trial (66/2000 - Court of Criminal Appeal - 16/5/2003)

People (DPP) v Cronin - [2003] 3 IR 377

The applicant sought leave to appeal against a murder conviction on a number of grounds. The applicant had been convicted of the murder of a woman in a nightclub. There was evidence that the applicant had a row with his wife on the night in question and had left the premises and had returned with a firearm. A woman who had been standing close to his wife was killed. At his trial the applicant denied that he had a gun at any stage of the evening and that he had nothing to do with any shooting that had occurred. It was contended that the trial judge had failed to consider and put the issue of mistake to the jury. Counsel for the prosecution contended that the possibility of the gun having been accidentally discharged had never been raised during the trial.

Held by the Court of Criminal Appeal (Hardiman J delivering judgment; O'Sullivan J and Quirke J agreeing) in dismissing the application. There was no merit in imposing an unqualified obligation on a trial judge to put an alternate line of defence before a jury for which there is some evidence but which is inconsistent with the defence actually raised. The possibility of accidental or mistaken discharge had not been mentioned by or on behalf of the applicant at any stage during the trial.

Citations:

CRIMINAL JUSTICE ACT 1964 S4(2)

DPP V HALLIGAN UNREP O'FLAHERTY 13.7.1998 1999/8/1747

R V CAMBRIDGE 1994 2 AER 760

PEOPLE V OGLESBY 1966 IR 162

PEOPLE V GREY 1944 IR 326

WOOLMINGTON V DPP 1935 AC 462

R V MANCINI 1942 AC 1

SEAN DORAN 1991 CRIM LR 878

DPP V HANLEY UNREP BARRINGTON 5.11.1999 2000/7/2413

R V CRISITINI 1987 CRIM LR 504

AG, PEOPLE V BYRNE 1974 IR 1

DPP V WALLACE UNREP KEANE 30.4.2001 2001/8/2212

AG V GILLIGAN UNREP 1929 SANDS CRIMINAL LAW 180

AG, PEOPLE V COUGHIN 1968 1 FREWEN 325

DPP V MOLONEY UNREP CCA 2.3.1992 2001/15/4270

DPP V REDMOND 2001 3 IR 390 2000/8/3164

DPP V NOONAN 1998 2 IR 439

1 JUDGMENT of the Court delivered by Hardiman J. on the 16th day of May, 2003 .

2 On the 4 ^th April, 2002 the applicant was convicted in the Central Criminal Court of the murder of Georgina O'Donnell. At the same time he was convicted of the offence of possession of a firearm with intent to endanger life. These verdicts were returned after a trial lasting seven days in the Central Criminal Court (Smith J. and a jury). He received a sentence of ten years imprisonment on the firearms count. He now applies to this Court for leave to appeal against these convictions.

Factual background

3 Georgina O'Donnell was shot in a nightclub in Limerick about 2am on Saturday morning, 2 ^nd May, 1998. She died of the gunshot wound.

4 According to the evidence which, having regard to the verdict, must have been accepted by the jury, the accused was in the licensed premises part of which was the nightclub where the shooting took place from about 7pm on the evening of the 1 ^st May until about 1am. For much of this time he was with his wife, Biddy Collins. There was evidence, denied by the accused, that he had an altercation with his wife during that time and assaulted her. He left the premises about 1am and returned shortly before 2am. He was admitted by door staff. He entered the nightclub, crossed the dance floor and approached his wife. According to one witness he "raised a gun to her chest and she pushed his hand away from her and the gun went off". This witness however stated in cross-examination "I didn't actually see the gun, just seen the fire coming out and heard the bang". Another witness saw the applicant approaching his wife and heard a bang. As he left she saw what looked like a gun in his hand. A third witness said that he saw the accused coming into the disco and walked straight down to the back and had a few words with Biddy Collins. He then said "I seen Biddy Collins moving to the side. She hit his hand, like, I mean... I couldn't see what was in his hand, you know what I mean... when I heard the bang I seen Georgina falling on the ground and Mark just turned away and walked out as cool as a breeze".

5 The accused gave evidence in his own defence and stated that he never had a gun at any stage of the evening in question. He also denied any altercation with his wife. He said left the premises because they were too crowded and there was an unpleasant atmosphere. He returned looking for his wife. He located her and moved his head to attract her attention. He said "I saw her looking in my direction and I went like that to salute her to let her know I was there". The stenographer then noted "witness has his hand in the air pointing forward". He said he then spoke to a person who was in his wife's group, Robert O'Donnell, who told him there was going to be trouble in a minute. This was because "Dean was fighting with the boys from Moyross". Immediately after O'Donnell said this, the applicant said that he himself was hit in the face with a bottle which had been thrown. He "stumbled back, grabbed my mouth and kind of crouched down to the side... the bang came a couple of seconds later then". He decided to get out and as he did so he pulled up his shirt to dabble at the side of his mouth where he was bleeding. About an hour later some people came to his house and told him that he was being blamed for the shooting. He repeated "I had nothing got to do with the shooting".

The nature of the defence.

6 As appears from the summary of the applicant's evidence set out above, his defence at the trial was that he had nothing to do with the shooting and never had a gun at any stage. On the hearing of this appeal counsel for the Director stated, without contradiction, that no other defence was mooted at any time. Specifically, he said, the possibility that the firearm had been discharged by accident, as a result of the gunman's hand being moved by another person, was not raised at any time. Counsel said that the defence of accident, or the very concept of the gun having possibly been discharged accidentally did not arise in examination or cross-examination of witnesses, in the defence counsel's speech or at any time the course of the evidence or speeches. Indeed, a defence along the lines that a gun in the applicant's hand had been accidentally discharged would have been quite inconsistent with the defence actually offered by the applicant which was that he never had a gun at all.

7 Notwithstanding this, the principle ground urged by counsel on the hearing of this appeal (who had not appeared in the Court of trial) was that the learned trial judge erred in that he failed to charge the jury adequately or at all as to the defence of mistake and in particular in that regard:-

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

9 (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 and guilty of manslaughter.

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

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

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

13 (d) Erred in appearing to direct the jury to 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"."

14 This ground of appeal was added pursuant to the applicant's Notice of Motion dated the 20 ^th January, 2003 . It did not form part of the original grounds of appeal of the 10 ^th April, 2000. The defence did not suggest to the judge at trial that his charge to the jury should refer to the possibility of accidental or mistaken discharge of the gun. Nevertheless, the applicant has contended on the hearing of this appeal that the reference to the defendant's hand being pushed aside in the evidence of two prosecution witnesses sufficiently raised the possibility of what was variously referred to as mistake and as accident for the judge to draw that possibility to the attention of the jury and to inform them that it was for the prosecution to rebut it beyond reasonable doubt. This obligation, it was contended, it is entirely unaffected by the fact that the defendant gave evidence and did not support or even refer to the possibility of accident or mistake, but ran an inconsistent defence.

Irish authorities on the alternative defence.

15 Although not referred to in argument, a similar contention has been made to this Court in two previous cases, DPP v. Halligan (Court of Criminal Appeal unreported 13 ^th July, 1998) and DPP v. McDonagh (Court of Criminal Appeal unreported 31 ^st May, 2001). In the first of these the judgment of the Court was delivered by O'Flaherty J. who said:-

"Mr. Sammon S.C. has referred us to a decision of the Court of Appeal (Criminal Division) in England: R. v. Cambridge [1994] 2 All English Reports 760, which decided that even where the prime line of defence is that the accused did not inflict the wounds, or whatever, it is still open to a jury to find provocation. We expressly reserve our position as to whether that is a course that Irish Law should take".

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