DPP v David Bourke
| Jurisdiction | Ireland |
| Judge | MacMenamin J. |
| Judgment Date | 23 January 2014 |
| Neutral Citation | [2014] IECCA 2 |
| Court | Court of Criminal Appeal |
| Date | 23 January 2014 |
[2014] IECCA 2
THE COURT OF CRIMINAL APPEAL
MacMenamin J.
de Valera J.
McGovern J.
Between/
And
Criminal law – Murder - Manslaughter - Appeal against conviction - Provocation - Premeditation - Direction to jury - Criminal Justice Act 1964 - Manifest error in judgment - Criminal Justice Act 1924 - Certification
Facts: The appellant was charged and convicted of the murder of his wife on the 30 th March 2009 and sentenced to life imprisonment. He subsequently appealed against the conviction on the basis that the direction to the jury was flawed in relation to the alternative conviction of manslaughter that was available in that the elements of provocation were not explained adequately. The circumstances of the case were that on the 28th August 2007, the appellant rang emergency services and told them ‘I”ve just killed her, I”ve just tried to kill her, stabbed her several times’. An ambulance arrived at the property and took the appellant”s unconscious wife to hospital where she later died. The cause of death was confirmed as four stab wounds. By a judgment dated the 25 th January 2013, the Court of Criminal Appeal dismissed the appeal, noting that s. 4 of the Criminal Justice Act 1964 stated that a killing would not be murder unless an intention was formed to kill ‘or cause serious injury to some person…’ The appellant had admitted he had considered causing serious harm. It was said that in the direction to the jury there had been emphasis placed on the prosecution”s duty to disprove the appellant”s defence of provocation beyond a reasonable doubt and the trial judge had been fair to the appellant throughout in explaining the law on provocation to the jury. It was also said that the appellant”s counsel had not made a requisition on the issue of provocation and so the point could not then be relied upon.
In these proceedings, the appellant brought a notice of motion seeking a number of reliefs. The appellant claimed that the court should either set aside the judgment of the 25th January 2013 or add an addendum to it to address a point which he argued was not addressed. Alternatively, the appellant contended that a number of points of law arose, which he said should be certified for the consideration of the Supreme Court pursuant to s. 29 of the Criminal Justice Act 1924. In support of the motion, it was argued that the trial judge should have charged the jury specifically that a person may have the intention to commit a serious injury, and yet still be in a position to avail of the defence of provocation. It was further said that this point was not addressed in the judgment of the 25 th January 2013.
Held by MacMenamin J (with DeValera J and McGovern J concurring) that it was clear from the appellant”s evidence that he had been considering causing serious harm to the deceased for hours before he stabbed her. In the direction to the jury, the trial judge has directed that the jury should consider this evidence against the backdrop of the victim”s prior conduct to the appellant; however, after the direction was made, the appellant”s counsel refrained from making a requisition on the issue of provocation. In fact, counsel for the appellant specifically asked the judge not to recharge the jury on provocation. It was said that this was because it was very clear that the judge”s direction was fair to the defence. Because the defence had refrained from making a requisition, and because that decision was said to be justifiable, it was held that the Court would not entertain an appeal on that point. The case of Director of Public Prosecutions v Cronin (No.2) [2006] 4 IR 329 was relied on in that regard. It was also said that the Court would generally only consider revisiting an earlier judgment if it could be shown that it was affected by a manifest error, but there was no allegation by the appellant that that was the case. For those reasons, it was held that there was no basis for setting aside or writing an addendum to the earlier judgment.
On the second relief sought, it was said that applications to the Court of Criminal Appeal for a certificate under s. 29 of the Courts of Justice Act 1924 could only be sought when the question to be considered was a point of law of exceptional public importance. However, it was held that the questions raised in the appellant”s application had been conclusively considered in a number of recent cases.
Reliefs sought dismissed.
1. On the 25 th January, 2013, this court upheld the appellant's conviction for murder of his wife, Jean Gilbert. The substantive judgment was of some 35 pages, addressing issues raised on the appeal. That judgment should be read in conjunction with this judgment. The appellant, having been convicted of murder, and having unsuccessfully appealed, now seeks a number of alternative reliefs outlined in his notice of motion herein. In essence, the applicant asks first, that the court either set aside, or add an addendum, to its earlier judgment, addressing a point which, it is said, was not addressed in the judgment. Alternatively, counsel contends that a number of points of law arise which should be certified for the consideration of the Supreme Court pursuant to s. 29 of the Criminal Justice Act 1924.
2. The point raised on behalf of the appellant can be simply stated. The appellant says that the judgment of this court did not address an important point in the appeal, namely, whether the trial judge should have charged the jury specifically that a person may have the intention to commit a serious injury, and yet still be in a position to avail of the defence of provocation.
3. In the charge, the trial judge did pose an alternative to the jury. He said that if the appellant had engaged in a calculated killing where he intended to cause death or serious injury, this was murder, even if he had been in a rage or lost his temper when he stabbed the deceased. As an alternative to this, the judge put a proposition to the jury which he said was one which would reduce the verdict to manslaughter. The jury could arrive at that verdict if they found that the appellant was not "the master of this own mind", that he was so out of control that he was not acting rationally, that, in effect he could not prevent himself from stabbing his wife.
4. The question raised relates to whether, despite his intention to kill or injure, the appellant was still entitled to avail of provocation as a defence. This court in its earlier substantive judgment concluded that the question did not arise for consideration inter alia by reason of the judgment of the Supreme Court in Director of Public Prosecutions v Cronin (No.2) [2006] 4 IR 329 ( "Cronin").This court pointed out that the point, now sought to be relied on by the appellant, was not taken at the trial. The court found that the defence did not ignore the point at trial through some inadvertence, but rather made a tactical decision not to pursue the point in a requisition. For this reason, this court did not entertain the point. But this is not the only determining factor. This court also found there was no question of there having been an injustice to the accused in the judge's charge, taken as a whole.
5. The substantive judgment, which should be read in conjunction with this judgment, contains an extensive description of the appellant's conduct, and his state of mind, in a continuum of events over a period of 24 hours which led up to the killing of his wife. The case was made that the appellant had not formed the intention to kill his wife until he entered the living room where she was with the couple's two children. From the court's point of view, the narrative in the substantive judgment also demonstrated the difficulty with any "provocation" defence. There was no evidence that the victim said, or did, anything provocative at the time of the attack. But the trial judge set out every extenuating circumstance from the appellant's point of view in detail. Despite the fact the appellant did not do anything provocative in the immediate time frame prior to the attack, the appellant contended there was something in her demeanour which caused him to "snap". The trial judge set out the defence case that, the victim's conduct prior to the attack had been extremely difficult, involving the conduct of an adulterous affair in a very obvious way to the appellant. She had said she was going to leave him. The trial judge described all the events in what he called the "build up" to the attack. He specifically told the jury that they must have regard to these matters in reaching their verdict between murder and manslaughter. He asked them, in effect, to bear in mind the affront to the appellant caused by the victim's conduct, the fact that the appellant had previously found love letters between the victim and her boyfriend, and the fact that the victim had been out with her boyfriend for the entire night before the attack. In effect, he outlined a range of circumstances which might mitigate against murder and in favour of manslaughter. The trial judge could only fully and extensively engage in this exercise in the context of distinguishing between murder and manslaughter, and in the context of putting matters before the jury which might be considered by them in determining whether what had occurred was, in fact, murder.
6. There was clear evidence that the appellant had been ruminating on causing the victim serious harm for hours beforehand while he was at home in bed on the night before the attack. Prior to the attack, the appellant came downstairs and went into...
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