DPP v Davis

• Jurisdiction: Ireland
• Judge: Hardiman J.
• Judgment Date: 23 October 2000
• Neutral Citation: 2000 WJSC-CCA 2471
• Docket Number: [C.C.A. No. 39 of 1997]
• Court: Court of Criminal Appeal
• Date: 23 October 2000

2000 WJSC-CCA 2471

THE COURT OF CRIMINAL APPEAL

Hardiman J.

O'Higgins J.

Kearns J.

39/97

DPP v. DAVIS

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

and

STEVEN DAVIS

APPLICANT

Citations:

RULES FOR THE GOVT OF PRISONS 1947 SR & O 320/1947 REG 17

RULES FOR THE GOVT OF PRISONS 1947 SR & O 320/1947 PART XIII

RULES FOR THE GOVT OF PRISONS 1947 SR & O 320/1947 RULE 77

ESTELLE V WILLIAMS 425 US 501

EADDY V THE PEOPLE 151 COLO 488

R V MCARTHUR 34 OTC 370

DPP V MACEOIN 1978 IR 27

CHARLETON OFFENCES AGAINST THE PERSON (1992) PARA 4.02

MCAULEY & MCCUTCHEON CRIMINAL LIABILITY (2000) 851

DPP V KELLY 2000 2 ILRM 426

Synopsis:

Criminal Law

Criminal; appeal against conviction; appellant claimed that there had been insufficient evidence that the death of the deceased was caused by his actions, that the defence of provocation had not been properly put to the jury and that the jury should have been discharged at the request of the defence after a number of photographs showing him heavily chained were published in the newspapers; whether jury's finding of guilt was supported by the evidence; whether repeated publication of photographs of the appellant in restraints prejudiced the defence; whether defence of provocation properly left to the jury.

Held: Appeal dismissed.

DPP v. Davis - CCA: Hardiman J., O'Higgins J., Kearns J. - 23/10/2000 - [2001] 1 IR 146 - [2001] 2 ILRM 65

The applicant had applied for leave to appeal against his conviction for murder. Hardiman J, delivering judgment, rejected the application. The evidence adduced during the trial clearly supported the jury's verdict. The publishing of photographs showing the accused during his trial in handcuffs was inappropriate and could amount to contempt of court. The defence of provocation had correctly not been left to the jury to consider.

1 JUDGMENT of the Court delivered on the 23rd day of October 2000 by Hardiman J.

2 The court is satisfied, and has already so ruled, that this application for leave to appeal must be dismissed. However, we believe that two of the issues raised related to matters of general importance on which we wish to express a view in somewhat more detail than might otherwise be required. It is also appropriate to deal with a third topic, that of causation.

3 The defendant seeks to appeal against his conviction for the murder of Mary Doogue on the 20th October 1995. The grounds of appeal actually urged that the hearing before us may be summarised as follows: there was insufficient evidence that the death of the deceased was caused by actions which could be attributed to the accused; the learned trial judge failed to put the defence of provocation properly to the jury; and the jury should have been discharged at the request of the defence after a number of photographs showing him heavily chained, and certain editorial comments, had been published in different newspapers.

(1) Causation.

4 It is convenient to deal with the issue of causation first. The evidence plainly established that the deceased had been savagely assaulted, especially by kicking, by the defendant shortly after midnight on the 19th/20th October 1995. Particularly savage kicks were delivered to the unfortunate woman's genital area, but she seems to have been kicked all over the upper body. She was brought home, carried by the defendant over his shoulder like a sack of potatoes, and seems to have fallen from this position. There is some, but unsatisfactory, evidence suggesting that she may have fallen down the stairs in her house. There was also evidence that at an earlier stage on the evening of the 19th, about 10pm, she had been given a lift into Athy from Carlow by a lady who noticed tears in her trousers and whom she told that she had been chased by two fellows. This witness, however, specifically stated that she did not notice any injuries on the deceased. Finally, there was a suggestion that injuries to her ribs might have been caused in an attempt to resuscitate her when she suffered a heart attack taking her to hospital in the early evening on the 20th October.

5 Each of these alleged alternative causes of injury is utterly lacking in credibility as a possible source of any significant part of the multiple injuries which the unfortunate deceased lady sustained. She had no injuries whatever when seen just before and just after 10 o'clock by the lady who gave her the lift and by her babysitter, respectively. There is only the defendant's statement to suggest that she fell down the stairs and he first described her doing so in the presence of the babysitter, which is simply false. Dr. John Harbison, the State Pathologist, virtually excluded the other two episodes as causes of significant trauma in the course of his conspicuously fair minded evidence in which he considered every possibility put to him. On the other hand, the injuries he observed are absolutely consistent with the defendant's own description of the appalling assault he perpetrated on her. In particular the kicks to the genital area, causing rupture of the bladder and gross damage to the tissue in the area are uniquely consistent with the defendant's action, and with no other event known or suggested to have occurred on the evening in question. The head and brain injuries, shoulder injury and trauma to the body are also consistent with this, on the defendant's own description.

6 The cause of death was heart failure secondary to severe shock which was itself the cumulative result of the injuries described and in particular the very severe pain associated with them. Of these, probably the most significant contributor was the bladder and pelvic injuries. It seems overwhelmingly probable the defendant's attack was the sole cause of all significant injuries. In point of law, however, it is unnecessary to go so far: it is sufficient if the injuries caused by the defendant were related to the death in more than a minimal way. There was ample evidence on which the jury could be satisfied beyond reasonable doubt that these injuries were the sole or principal cause of death and it is clear from the verdict that they were so satisfied. The only other cause of injury suggested remotely capable of serious effects is the alleged fall down the stairs and the jury were quite entitled to disbelieve the account of this given by the defendant to the Gardaí. He did not give evidence at the trial.

7 Accordingly we are quite satisfied that the jury's verdict finding the defendant guilty of murder was one amply supported by the evidence. The challenge to it based on the proposition that there was insufficient evidence to allow a conclusion that the defendant caused the deceased's death is based on nothing but mere speculation with no remotely sufficient basis in fact.

Prejudicial publicity.

8 On four occasions in the course of the trial different newspapers carried photographs of the defendant entering or leaving court when he was both handcuffed and chained to a prison officer. These photographs were naturally a matter of concern to the defence, and it is clear from the transcript that this concern was shared by the prosecution and by the judge himself. The latter expressed in unambiguous terms his disapproval of the photographs and his earnest desire that the publication should not be repeated. If these concerns were communicated to the newspapers (and the press were represented throughout the trial) they were entirely ignored. The learned trial judge requested that his concerns be drawn to the attention of both the Director of Public Prosecutions and the Attorney General and we have been told that this was done. No step appears to have been taken on foot of such communication.

9 The overwhelming, uncontradicted and high quality evidence in this case allows us to be entirely satisfied that in the particular circumstances these publications did not bring about a situation in which the trial was unsatisfactory. It is scarcely conceivable that any other verdict could have been come to. For this reason we do not propose to quash the conviction on the basis of the appearance of prejudicial material in the media. The appearance of such material, however, has become more than an occasional feature of media coverage of criminal trials and we therefore propose to address it in this judgment.

10 The public depiction of any person, but particularly an unconvicted prisoner, wearing the double restraints which are now commonly used in the prison service is a depiction of him in a position of humiliation and indignity. This is a matter of common experience and has been chronicled by many who have been so depicted or exposed. No-one who has read Oscar Wilde's description of being made to stand in chains on a railway station platform during a transfer from one prison to another can doubt this. The effect, both on the restrained person and on the public perception of him has been recognised in a number of instruments dealing with the treatment of prisoners.

11 The European Prison Rules, basically a set of model prison rules to which, according to the Department of Justice's report Management of Offenders a five year plan [1994], Ireland has subscribed, have certain provisions of interest. At paragraph 50.1 it is provided that:

"Where prisoners are being removed to or from an institution, they shall be exposed to public view as little as possible, and proper safeguards shall be adopted to protect them from insult, curiosity and publicity in any form."

12 The same instrument at paragraph 39, prohibits the use of "handcuffs, restraint jackets or other body restraints" except in three circumstances. Two of these relate to medical situations or situations requiring medical authorisation. The third is:

"...... if necessary, for precaution against escape during a transfer, provided that (the restraints) shall be...