DPP v Curran

• Jurisdiction: Ireland
• Judge: O'Donnell, J.
• Judgment Date: 14 December 2011
• Neutral Citation: [2011] IECCA 95
• Court: Court of Criminal Appeal
• Date: 14 December 2011

[2011] IECCA 95

THE COURT OF CRIMINAL APPEAL

O'Donnell J.

Moriarty J.

Hanna J.

[CCA no.: 132/10]

DPP v Curran

Between:

Director of Public Prosecutions

PROSECUTOR/RESPONDENT

V

David Curran

ACCUSED/APPLICANT

Abstract:

Criminal law - Murder conviction - Defence of provocation - Charge to the jury - Failure to call witness - "Lucas" warning - Whether defence of provocation adequately explained to jury - Whether trial judge's charge defective.

Facts The applicant had been convicted of the murder of two men, having stabbed both of them with a screwdriver. The applicant sought leave to appeal against his conviction on a number of grounds. The evidence was that as a result of an earlier altercation the applicant had gone to the house where the two deceased men lived and had stabbed them outside the house. The applicant contended that as a result of a phone call he had gone to the house in question. Issue was taken as to the whether the defence of provocation had been properly explained to the jury and that in respect of certain issues the judge's charge to the jury had been inaccurate and misleading. It was submitted that the charge incorrectly blurred the distinction between the judge's task in determining whether there was evidence of provocation to go to a jury, and the jury's task in deciding whether such evidence was credible. A submission was also made regarding the failure by the defence to call a certain witness and comments made in relation to this.

Held by the Court of Criminal Appeal (O'Donnell J delivering judgment) in dismissing the application. The applicant, based on all the evidence, had already been engaged on a trail of destructive activity long before he received any phone call. Nothing suggested that the applicant's mood or mental state was brought on by anything done or said by the victims of the attack. There had been a repeated instruction to the jury that the onus was at all times upon the prosecution to prove every element of the offence, and in particular to disprove provocation, beyond any reasonable doubt. The court correctly identified the elements which must exist for the defence of manslaughter, and then correctly instructed the jury as to the approach to be taken as to the evidential standard in respect of these elements. The trial judge had given repeated instruction to the jury that the accused was under no obligation to call any witness.

Reporter: R.F.

The Facts

1 On the evening of 23 ^rd February, 2008, David Curran (hereafter "the Applicant") stabbed and killed two Polish men, Pawel Kalite and Marius Szwajkos, with a screwdriver, outside their home at 48 Benbulbin Road, Dublin 12.

2 In relation to the earlier part of the day there appears to be little controversy. The Applicant and four friends, Sean Keogh, Katy Doherty, Catherine Dempsey, and Stephen McGuirk, spent the late morning and early afternoon hours at a nearby canal smoking cannabis and consuming alcohol and benzodiazepines. When the group dispersed later that afternoon the Applicant along with his cousins Stephen McGuirk and Sean Keogh, proceeded to steal a moped and set it on fire in the nearby park. The Applicant had taken a screwdriver from the stolen vehicle and had left with the intention of breaking into and robbing nearby factories. By this time, the Applicant who had a history of drug abuse, had consumed a considerable amount of alcohol and taken roughly 15-20 benzodiazepines.

3 Meanwhile at the Drimnagh Takeaway, located on Benbulbin Road, a scuffle had broken out between Stephen McGuirk and Pawel Kalite. It appeared that Mr McGuirk had brushed against Mr Kalite outside the takeaway. Mr Kalite had taken offence, and a scuffle ensued. Katy Doherty and Catherine Dempsey joined in the altercation. Mr Kalite had fallen to the ground, and all three young individuals began to kick him while on the ground. The fight broke up when the Applicant's father arrived at the scene and escorted his nephew, Stephen McGuirk away from the Takeaway. At that time, Mr Kalite got up and walked back up to his house at 48 Benbulbin Road.

4 Moments later, the Applicant was seen running to the Takeaway with the screwdriver in his hand. In his interview at the garda station a few days after the incident, the Applicant admitted that he had received a call from Katy Doherty telling him that his cousin had been in a fight with a Polish man outside the Drimnagh Takeaway. Ms Doherty confirmed this account in her evidence at the trial. However, when the Applicant came to give evidence at the trial he claimed that he had no recollection of any phone call from Ms Doherty. Instead he said that he had received a phone call from Stephen McGuirk, telling him that his father had been stabbed. The Applicant contends that it was this call and this news that brought him to the scene of the Takeaway. The phone records from that evening obtained from Ms Doherty's phone indicated there were four phone calls placed from that phone to the Applicant's phone immediately prior to the Applicant's arrival at the Takeaway. The suggestion at the trial was that Mr McGuirk might have used Ms Doherty's phone but there was no positive evidence to that effect. Stephen McGuirk did not give evidence at the trial.

5 Although there are conflicting accounts as to the source of the phone call and the information given, the information received was enough to bring the Applicant to the scene of the Takeaway. When he arrived at the Takeaway there is uncontradicted evidence that he was enraged and acting in an extremely aggressive manner. He began to attack an occupied car by kicking the vehicle and attempted to damage it with the screwdriver. Independent witnesses described the Applicant as being "out of control" and "hopping mad". One of the occupants of the vehicle recalls the Applicant shouting "was it youse?" to which another individual responded "it's not them". Catherine Dempsey, one of the accused's companions, gave evidence that when the Applicant arrived at the Takeaway he had been shouting "he stabbed me da". No other witness could confirm that the Applicant had said anything in relation to his father being stabbed and it does not appear, even on his own account, that the Applicant took any steps to ascertain his father's condition.

6 Once the Applicant had been informed that the individuals in the car were not involved he took the screwdriver and proceeded to run up Benbulbin Road to number 48. Stephen McGuirk, Sean Keogh, Katy Doherty and Catherine Dempsey followed the Applicant up the road to the house. By the time the Applicant had reached number 48 three Polish individuals had emerged from the house. The Polish man who had been in the scuffle at the Takeaway, Pawel Kalite, was at the front gate with a female occupant of the house Kamila Szeremeta, while a second man Marius Szwajkos was further back. The Applicant gave evidence that the two men were shouting in their own language and "moving towards" him. It was these actions by the two Polish men that the Applicant contends compelled him to advance towards the Polish people. The Applicant swiped at Kamila Szeremeta and then plunged the screwdriver into the head of the first victim, Pawel Kalite, who had been standing behind her. Seconds later the Applicant struck the second man Marius Szwajkos in the head with the screwdriver after Mr Szwajkos had jumped the garden fence to come to the aid of the first victim. The two men died as a result of the head wounds inflicted by the Applicant. After the two men were struck, the Applicant and his friends fled the scene.

7 This sequence of events, starting from the moment the Applicant arrived at Drimnagh Takeaway to the final blow to the second victim, took place over a course of a 20 minute period starting just past 6.30 pm. There are varying accounts of the interactions between the victims and the Applicant at the scene of 48 Benbulbin Road. Neighbours who had witnessed the stabbing from their homes recalled that there had been shouting and confirms the words or movements made by the victims towards the Applicant. Ms Szeremeta gave evidence that there was "loud conversation"; however she could not confirm that the first victim was moving towards the Applicant. On the other hand, Ms Szeremeta's brother Raddek Szeremeta testified that when Mr Kalite emerged from the house, he did not shout or say anything to the teenagers who were coming up the street. There was evidence that Pawel Kalite changed his shoes to heavier boots before going out of the house to confront the accused and his companions. That there was a confrontation there is no doubt. During his evidence, the Applicant recounted that the Polish individuals had been screaming at him in their own language and that he believed that the two men were moving towards him. When asked what had been going through his mind immediately before he stabbed the first victim, the Applicant responded by saying "they were coming for me now and that made me go mad". In answer to the question "when you stabbed him were you in control of yourself or not?" the Applicant responded "no". After objection, the Applicant was asked what he meant when he said he went mad and replied that he had "lost control". The Applicant was tried along with Sean Keogh for the murder of Mr Kalite and Mr Szwajkos. He pleaded not guilty. After a 15 day trial in the Central Criminal Court he was convicted of murder. He now appeals his conviction.

Provocation

8 The main, if not the sole, issue in this trial was whether the accused was entitled to the defence of provocation. It appears that prior to the landmark decision in People (DPP) v MacEoin [1978] 1 IR 27, provocation had not been the subject of any reported case in this jurisdiction. Since that date however, the issue has...