DPP v David Bourke
| Jurisdiction | Ireland |
| Judge | MacMenamin J. |
| Judgment Date | 25 January 2013 |
| Neutral Citation | [2013] IECCA 2 |
| Judgment citation (vLex) | [2013] 1 JIC 2505 |
| Court | Court of Criminal Appeal |
| Date | 25 January 2013 |
[2013] IECCA 2
THE COURT OF CRIMINAL APPEAL
MacMenamin J.
de Valera J.
McGovern J.
BETWEEN:
AND
CRIMINAL JUSTICE ACT 1964 S4
DPP v CRONIN (NO 2) 2006 4 IR 329 2006 2 ILRM 401 2006/13/2579 2006 IESC 9
DPP, PEOPLE v KELLY 2000 2 IR 1 2000 2 ILRM 426
DPP v CURRAN 2011 3 IR 785 2011/16/3841 2011 IECCA 95
DPP, PEOPLE v DAVIS 2001 IR 146 2001 2 ILRM 65 2000/7/2471
DPP v KENNY UNREP CCA 6.2.2004 2004/15/3520
CRIMINAL JUSTICE ACT 1964 S4(1)
DPP, PEOPLE v MACEOIN 1978 IR 27 1978 112 ILTR 53
DPP v NOONAN 1998 2 IR 439 1998 1 ILRM 154 1998/16/5937
Criminal law - Murder - Manslaughter - Appeal against conviction - Provocation - Standard of proof - Premeditation - Direction to jury - Criminal Justice Act 1964
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. 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.
The appellant did not deny he had killed his wife but asserted that the conviction should have been manslaughter. He stated that he had discovered his wife had been involved in an extra-marital affair that had left him depressed and angry. His wife had also told him that she wished to end the marriage. At the time of the incident, the appellant confirmed he had been thinking of stabbing his wife for a number of hours and had taken a steak knife from the kitchen before confronting his wife who he believed had been with her lover the previous night. He had stated in police interview that he was considering stabbing her but only formed the intention to do so when he confronted her. He stated he had meant to hurt but not kill her and that he was deeply remorseful for what he”d done. The only complaint was the direction made to the jury in that the elements of provocation were not explained adequately.
Held by MacMenamin J (with DeValera J and McGovern J concurring) that in determining whether murder or manslaughter was applicable to the appellant, the court would need to consider whether the appellant was provoked and whether that question was rendered irrelevant through premeditation of the killing. The judge had asked the eyewitness accounts of the children, who had been in the same room when the stabbing occurred, to be read to the jury along with the contents of the 999 call of the appellant. It was held that the contents of these materials did not purport any provocative action on the part of the deceased immediately before the incident.
Following the direction of the judge to the jury, a requisition was made on the issue of provocation but it was by the prosecuting counsel. The defence counsel confirmed that he had intended to make an application but the prosecuting counsel had made his point for him and saw no benefit in reiterating the point after it was rejected by the judge. It was held that the decision not to make the requisition by the defence counsel was in fact a tactical move and because it was not raised then, the court was not obliged to entertain the appeal.
In terms of the direction to the jury, the appellant took issue with the fact the judge had averred that an accused who not ‘master of his mind’ could not form intent to murder. The appellant had stated he had considered using the knife for some hours prior to the stabbing to cause harm but not to kill. The point was that just because he had considered a certain action for a number of hours did not mean he then lost self control at the moment of the stabbing. However, 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. 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 had been fair to the appellant throughout in explaining the law on provocation. It was held to be for these reasons that his counsel did not make a requisition and so the point could not now be relied upon.
Conviction affirmed.
JUDGMENT of the Court delivered the 25th day of January, 2013 by MacMenamin J.
1. On the 30 th March, 2009, the appellant herein was convicted of the murder of his wife, Jean Gilbert. This conviction by the Central Criminal Court (Mr. Justice Barry White) followed a five day trial. The decision of the jury was by a majority of eleven to one. The jury had previously received directions for a majority verdict having deliberated for three hours and one minute. The appellant was sentenced to life imprisonment on the same date, following the jury verdict. He now appeals against that conviction complaining that there was misdirection to the jury on the part of the trial judge in relation to the ingredients of the offence of manslaughter. This point was not raised by counsel for the appellant in requisitions before the learned trial judge following his charge to the jury which it must be said was conspicuously fair, and can in no sense be seen as having been hostile to the appellant's case that while not guilty of the murder, he was guilty of manslaughter.
2. The appellant, David Bourke, lived with the deceased, his wife Jean Gilbert and their three children at 28 Laverna Dale, Castleknock, Co. Dublin. On the morning of the 28 th August 2007 the appellant made a 999 call from that address. What he said was clearly of great importance to the jury as they asked for the contents of the call to be read out to them after the judge's charge. The appellant spoke to a fire-fighter stationed at Tara Street Fire Station and told him that "I've just killed her, I've just tried to kill her, stabbed her several times". As a result, the emergency services were despatched and arrived at the family home finding the late Mrs. Gilbert unconscious on the living room floor. The Gardai arrived at the scene and the accused pointed out a black handled knife to the Gardai and informed them that he had stabbed her with that knife. The deceased was taken to hospital and later that day was pronounced dead. The cause of death was identified as the stab wounds to the deceased. There is no doubt that the appellant stabbed his wife. This issue was not contested and, therefore, the only question in the case was whether the appellant should be convicted of murder or manslaughter. The evidence showed that the deceased had reformed a relationship with an old acquaintance, Mr. Campion, who she had met through a joint interest in Buddhism. The appellant had found intimate correspondence between his wife and Mr. Campion some months earlier and was depressed, angry and very hurt by the discovery. The deceased had told the appellant that the marriage was at an end and that she intended to leave him to live with Mr. Campion.
3. At the outset, it is necessary to identify one of the fundamental legal questions facing the jury. It was as to the issue of the appellant's state of mind or intention when he engaged in the attack on his wife. Section 4 of the Criminal Justice Act 1964 provides:
2 "(1) Where a person kills another unlawfully the killing shall not be murder unless the accused person intended to kill, or cause serious injury to, some person, whether the person actually killed or not.
(2) The accused person shall be presumed to have intended the natural and probable consequences of his conduct; but this presumption may be rebutted."
From this issue of intention, further questions flow. First, was the appellant provoked? Second, was there evidence of premeditation which would negate the partial defence of provocation? It is necessary now to revisit parts of the evidence which were most material to the issues in the appeal.
4. The appellant and his wife had three children aged 10 years, 7 years and 4 years. At the time of the incident, the eldest two, Emily Bourke and Alex Bourke, and their younger brother, Harvey, were sitting in the sitting room with their mother. Both Emily Bourke and her brother, Alex, made statements admitted in evidence that their father came into the living room and was speaking aggressively to their mother; that he stepped forward to her with the knife in his hand at a time she was sitting down, and that he pushed her on a chair. The deceased tried to grab the appellant's hand to stop him and he said "let go, let go". Emily Bourke testified that she saw the knife go into her mother's body.
5. In her statement, Emily Bourke stated that it was about 10 o'clock in the morning. She was in her pyjamas. The children's channels were on the television. The appellant came in and spoke to the deceased. He was talking aggressively, "like you do when you get cross with somebody". Emily is recorded as saying that her father asked her mother whether she had taken their son Alex's phone. The full significance of this question is explained later. In brief, the appellant believed that the deceased had taken Alex's phone to give to her boyfriend, Robert Campion, an Englishman who had arrived in Ireland by arrangement with the deceased and was staying in...
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DPP v Cahoon
...test, the respondent points to the recharge on that issue. In addition, Counsel for the respondent cited People (D.P.P) v. David Bourke [2013] IECCA 2, where the Court of Criminal Appeal, albeit obiter, approved a charge on provocation which he described as being "almost identical." However......