DPP v Cronin (No. 2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan,Mr. Justice Kearns
• Judgment Date: 03 March 2006
• Neutral Citation: [2006] IESC 9
• Court: Supreme Court
• Docket Number: [S.C. No. 117 of 2004]
• Date: 03 March 2006

DPP v CRONIN

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

[2006] IESC 9

Geoghegan J.

Fennelly J.

McCracken J.

Kearns J.

Macken J.

117/04

THE SUPREME COURT

CRIMINAL LAW:

Murder

Appeal - Charge to jury - Inferences - Defence not raised at trial and not left to jury - Whether trial judge under obligation to charge jury in relation to defence not raised - Whether ground of appeal should be allowed where not raised at trial - People (DPP) v Donnelly (Unrep, CCA, 10/2/2005) doubted; R v Cambridge [1994] 1 WLR 971 and R v Jones (Robert James) [2000] 3 Archbold News 2 (CA) considered; People (DPP) v Maloney (Unrep, CCA, 2/3/1992) approved; People (DPP) v Noonan [1998] 2I R 439, People (DPP) v Sweetman (Unrep,CCA, 23/10/2000) and Lee Chun-Chuen v The Queen [1963] 1 AC 220 considered - Appeal dismissed (117/2004 - SC -3/3/2006) [2006] IESC 9, [2006] 4 IR 329; [2006] 2 ILRM 401 People (DPP) v Cronin (No 2) New grounds - Additional grounds - Not argued at trial - No objection taken at trial - Challenge to DNA - Challenge to witness whose evidence differs from statement -

Facts: This was an appeal under s. 29 of the Courts of Justice Act 1924 from the decision of the Court of Criminal Appeal. The appellant contended that the trial judge was under an obligation to put a defence to the jury even though it was never raised by the appellant's legal representation at trial.

Held by the Supreme Court in dismissing the appeal that the learned trial judge struck the correct balance in, on the one hand, paying due regard to the defence actually put forward and on the other hand to his duties as a trial judge to ensure that in the interests of the public and in the interests of the jurors when they would retire into their jury room, all relevant issues were identified. It would be wrong to set aside the conviction on foot of matters which were deliberately never raised in requisitions unless the court was of the view that a fundamental injustice had been caused.

Reporter: R.W.

COURTS OF JUSTICE ACT 1924 S29

DPP v HALLIGAN UNREP 13.7.1998 1999/8/1747

DPP v MCDONAGH 2001 3 IR 201 2002 1 ILRM 225 2001/8/1953

WOOLMINGTON v DPP 1935 AC 462

R v CAMBRIDGE 1994 2 AER 760

HOMICIDE ACT 1957 (UK) S3

R v MANCINI 1942 AC 1

AG, PEOPLE v BYRNE 1974 IR 1

DPP v WALLACE UNREP CCA 30.4.2001 2001/8/2212

AG v CASEY (NO 2) 1963 IR 33

CRIMINAL JUSTICE ACT 1964 S4(2)

FIREARMS & OFFENSIVE WEAPONS ACT 1991 S15

RSC O.84 r4

CRIMINAL JUSTICE ACT 1964 S4(ii)

DPP v MOLONEY UNREP CCA 2.3.1992 2001/15/4270

DPP v NOONAN 1998 2 IR 439

DPP v SWEETMAN UNREP CCA 23.10.2000 2001/15/4288 (EX TEMPORE)

DPP v CAMPBELL UNREP CCA 4.5.2005

OFFENCES AGAINST THE STATE ACT 1939 S9

DPP, PEOPLE v MADDEN 1977 IR 336

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

DPP v DONNELLY UNREP CCA 10.2.2005

LEE CHUN-CHUEN v Q 1963 AC 220

DPP v MCEOIN 1978 IR 27

DPP v KELLY 2000 2 IR 1

DPP v DAVIS 2001 1 IR 146

R v JONES 2000 3 ARCHBOLD NEWS 2

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

2 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).

3 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?"

4 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.

5 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.

6 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.

7 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.

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 determination.

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 but guilty of manslaughter.

10 (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

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

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

13 (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"."

14 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.

15 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.

16 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."

17 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.

18 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...