DPP v Curran

• Jurisdiction: Ireland
• Judgment Date: 14 December 2011
• Date: 14 December 2011
• Docket Number: [C.C.A. No. 132 of
• Court: Court of Criminal Appeal

[2011] IECCA 95,

Court of Criminal Appeal

[C.C.A. No. 132 of 2010]

The People (Director of Public Prosecutions) v. Curran

The People (at the suit of the Director of Public Prosecutions)

Prosecutor

and

David Curran

Accused

Cases mentioned in this report:-

A.-G. v. Holley [2005] UKPC 23, [2005] 2 A.C. 580; [2005] 3 W.L.R. 29; [2005] 3 All E.R. 371; [2005] 2 Cr. App. R. 36; [2005] Crim. L.R. 966.

Bedder v. Director of Public Prosecutions [1954] 1 W.L.R. 1119; [1954] 2 All E.R. 801.

Moffa v. The Queen (1977) 13 A.L.R. 225; (1977) 138 C.L.R. 601; (1977) 51 A.L.J. 403.

The People v. MacEoin [1978] I.R. 27; (1978) 112 I.L.T.R. 53.

The People (Attorney General) v. Dwyer [1972] I.R. 416; (1972) 108 I.L.T.R. 17.

The People (Director of Public Prosecutions) v. Bambrick[1999] 2 I.L.R.M. 71.

The People (Director of Public Prosecutions) v. Brady(Unreported, Court of Criminal Appeal, 5th May, 2005).

The People (Director of Public Prosecutions) v. Byrne(Unreported, Court of Criminal Appeal, 24th February, 2003).

The People (Director of Public Prosecutions) v. Cleary [2006] IECCA 25, (Unreported, Court of Criminal Appeal, 3rd March, 2006).

The People (Director of Public Prosecutions) v. Davis[2001] 1 I.R. 146; [2001] 2 I.L.R.M. 65.

The People (Director of Public Prosecutions) v. Delaney[2010] IECCA 123, (Unreported, Court of Criminal Appeal, 20th December, 2010).

The People (Director of Public Prosecutions) v. Doyle(Unreported, Court of Criminal Appeal, 22nd March, 2002).

The People (Director of Public Prosecutions) v. Kehoe[1992] I.L.R.M. 481.

The People (Director of Public Prosecutions) v. Keith Kelly[2000] 2 I.R. 1; [2000] 2 I.L.R.M. 426.

The People (Director of Public Prosecutions) v. James McDonagh[2001] 3 I.R. 201; [2002] 1 I.L.R.M. 225.

The People (Director of Public Prosecutions) v. Mullane(Unreported, Court of Criminal Appeal, 11th March, 1997).

The People (Director of Public Prosecutions) v. Noonan[1998] 2 I.R. 439; [1998] I.L.R.M. 154.

The People (Director of Public Prosecutions) v. Tuohy[2006] IECCA 153, (Unreported, Court of Criminal Appeal, 5th December, 2006).

R. v. Duffy [1949] 1 All E.R. 932.

R. v. Khan (Shakeel) [2001] EWCA Crim. 486, [2001] Crim L.R. 673

R. v. Mawgridge (1708) Kel. 119; 84 E.R. 1107.

R. v. Miah [2003] EWCA Crim 3713, [2003] All E.R. (D) 357 (Dec).

R. v. Richens [1993] 4 All E.R. 877; (1992) 98 Cr. App. R. 43; [1993] Crim. L.R. 384.

R. v. Smith (Morgan) [2001] 1 A.C. 146; [2000] 3 W.L.R. 654; [2000] 4 All E.R. 289; [2001] 1 Cr. App. R. 31; [2000] Crim. L.R. 1004.

R. v. Taylor [1998] Crim. L.R. 822.

R. v. Wright [2000] Crim. L.R. 510.

Reg. v. Camplin [1978] A.C. 705; [1978] 2 W.L.R. 679; [1978] 2 All E.R. 168; (1978) 67 Cr. App. R. 14.

Victor v. Nebraska (1994) 511 U.S. 1.

Criminal law - Murder - Defence - Provocation - Loss of self-control - Subjective test - Whether accused had sudden and temporary loss of self-control - Whether no longer master of his own mind - Judge's charge - Onus of proof - Standard of proof - Evidential burden on accused - Presumption of innocence - Obligation to give evidence - Failure to call witness - Moral certainty - Whether onus of proof correctly stated - Whether jury misdirected - Whether inference could be drawn from failure to call witness - Whether Lucas warning should have been given - Whether prosecution negatived defence - Criminal Justice Act 1964 (No. 5), s. 2.

Application for leave to appeal

The facts have been summarised in the headnote and are more fully set out in the judgment of the Court of Criminal Appeal delivered by O'Donnell J., infra.

The accused was tried and convicted of two counts of murder by the Central Criminal Court (McKechnie J. and a jury) on the 6th May, 2010 and was sentenced to mandatory life imprisonment on the 7th May, 2010.

The accused issued a notice seeking leave to appeal to the Court of Criminal Appeal on the 30th July, 2010, having been refused leave to appeal in the Central Criminal Court.

The application for leave to appeal was heard by the Court of Criminal Appeal (O'Donnell, Moriarty and Hanna JJ.) on the 13th, 14th and 15th July, 2011.

The accused was convicted of a double murder following a trial before the Central Criminal Court and sentenced to two mandatory life imprisonment terms. In the course of that trial, the accused raised the defence of provocation, stating, inter alia, that both the words and actions of the two deceased persons had amounted to provocation, causing him to lose control.

The accused sought leave to appeal on a number of grounds including, inter alia, that the judge's charge to the jury was inaccurate and misleading by suggesting that there was an onus on the accused to adduce evidence and that the direction 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; the failure by the trial judge to address, in his direction to the jury, the comments made by the prosecution in relation to the failure by the accused to call a particular witness; and the failure of the judge to direct the jury in the nature of the "Lucas" warning.

The accused contended that the jury was not correctly charged in relation to a number of other specific aspects, which taken together, amounted to the overall charge being inadequate. These other aspects included, inter alia, the subjective nature of the defence of provocation, that a series of events could be taken into account and that individual jury members were bound by their oath to exercise independent judgment.

It was further submitted on behalf of the accused that it was not correct to direct the jury that they were not required to be morally certain as this amounted to a dangerous formulation that was liable to be interpreted as an understatement of the burden of proof.

Held by the Court of Criminal Appeal (O'Donnell, Moriarty and Hanna JJ.), in dismissing the application, 1, that the recognition of provocation as a partial defence to the most serious crimes tolerated unchecked displays of anger.

2. That the charge to the jury, when viewed in its full context, was not defective. The charge had to be viewed as a whole in the context of instructions delivered to the jury over a period of two days in order to assess the impact it might have had on the jury. It was not desirable to select individual words and phrases and subject them to a detailed analysis if the jury would not have done that.

3. That the function of the jury charge was to put the jury in a position to address the issues of fact in the correct legal framework to enable them to deliver a verdict. The failure by a court to adopt the specific language suggested by counsel when requisitioned did not automatically render the charge inadequate.

4. That the comments made by the prosecution to the jury in relation to the accused's failure to call a particular witness could not be seen to have rendered the trial unfair or the jury's verdict unsafe in circumstances where the comment was countered by counsel for the accused and where the judge had given a general and repeated instruction to the jury that the accused was under no obligation to call any witness.

5. That the trial judge's direction to the jury that moral certainty was not required illustrated for the jury the standard of proof required and could not be said to have mislead them in any way.

Victor v. Nebraska 511 US 1 (1994) considered.

Obiter dicta: The move to a wholly subjective approach in relation to the defence of provocation was, unless carefully defined and applied, particularly capable of creating a dangerously loose formulation liable to extend the law's indulgence to conduct that should deserve censure rather than excuse.

The People (Director of Public Prosecutions) v. Davis [2001] 1 I.R. 146 considered.

Cur. adv. vult.

In accordance with the provisions of s. 28 of the Courts of Justice Act 1924, the judgment of the court was delivered by a single member.

O'Donnell J. 14th December, 2011

The facts

[1] On the evening of the 23rd February, 2008, the accused 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 accused 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 accused, along with his cousins Stephen McGuirk and Sean Keogh, proceeded to steal a moped and set it on fire in the nearby park. The accused 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 accused who had a history of drug abuse, had consumed a considerable amount of alcohol and taken roughly 15 to 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 accused'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 accused 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 accused admitted that he had received a call from...