DPP v Delaney

• Jurisdiction: Ireland
• Judge: Mr Justice Fennelly
• Judgment Date: 20 December 2010
• Neutral Citation: [2010] IECCA 123
• Court: Court of Criminal Appeal
• Date: 20 December 2010

[2010] IECCA 123

THE COURT OF CRIMINAL APPEAL

Fennelly J.

Budd J.

O'Keeffe J.

DPP v Delaney

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

STEPHEN DELANEY

APPLICANT

DPP v KELLY 2000 2 IR 1 2000 2 ILRM 426 1999/8/1902

R v DUFFY 1949 1 AER 932

DPP, PEOPLE v MACEOIN 1978 IR 27 1978 112 ILTR 53

DPP v DAVIS 2001 1 IR 146 2001 2 ILRM 65 2000/7/2471

CRIMINAL LAW

Murder

Defence - Provocation - Stabbing of victim following ejection from caravan - Refusal to permit defence of provocation to be fully advanced - Refusal to allow jury consider defence arising from events occurring prior to ejection - Necessity for provocation to emanate from deceased - Availability of defence where mistaken killing of person other than provoker - Function of trial judge - Burden on accused - Whether trial judge mistaken in law - Viva voce evidence - Inconsistent and contradictory evidence - Statements - Whether error in refusing to allow video recording of interview be shown to jury - Prosecution speech to jury - Misstatement of position in law - Correct explanation by trial judge - Discretion of trial judge - People (DPP) v Kelly [2000] 2 IR 1; R v Duffy [1949] 3 All ER 932; People (DPP) v MacEoin [1978] IR 27 and People (DPP) v Davis [2001] 1 IR 146 considered -Leave refused (14/2010 - CCA - 20/12/2010) [2010] IECCA 123

People (DPP) v Delaney

Facts The applicant was found guilty by a jury of murder. The applicant had accepted throughout his trial that he had unlawfully caused the death of the deceased by stabbing but he advanced the defence of provocation. However, the learned trial judge only partly allowed that defence to be argued before the jury and the applicant submitted that the learned trial judge erred in not allowing that defence to be fully advanced before the jury. It was also submitted on behalf of the applicant that the learned trial judge erred in declining to permit the applicant to have shown to the jury a video recording of the garda interview of one of the prosecution witnesses and also erred in refusing to correct some of the statements made by prosecuting counsel in his closing address to the jury. The evidence at the trial disclosed that a number of people including the applicant and the deceased had been drinking in a caravan on the night of the stabbing and during the course of the evening a Mr Duggan and the deceased engaged in fighting on and off over a period. Due to the drunkenness and behaviour of the deceased he was put outside the caravan and an ambulance was called for him due to an injury sustained by him in the course of a fight with Mr Duggan. Subsequently, Mr Duggan angrily told the applicant to "fuck off" or "fuck you and your caravan" and the applicant immediately went over, took a knife and stabbed the deceased. At the close of the prosecution case, counsel on behalf of the applicant applied to the trial judge to be allowed to present a defence of provocation on two distinct bases, firstly, based on the earlier events inside the caravan, namely the fighting, violent behaviour, drunkenness and the inappropriate advances by the deceased on the applicant's girlfriend. The second basis related to the abusive remarks made by Mr Duggan outside the caravan. It was submitted that the applicant had intended to stab Mr Duggan but mistakenly stabbed the deceased. The learned trial judge rejected the argument for provocation on the first basis but allowed the defence of provocation to be put to the jury in respect of the second basis.

Held by C.C.A., Fennelly J. (Budd, O'Keeffe JJ) in dismissing the application: That the primary source of evidence as to provocation would normally come from the accused. Here the applicant did not give evidence but relied on statements he made to the Gardai. However, the applicant did not, in any of his statements to the Gardai, say that he had been provoked into the act of stabbing the deceased by anything said or done by the deceased at any stage of that evening or night. It was not accepted that the role played by the deceased as a victim of battering by Mr Duggan could conceivable amount to provocation by the deceased of the applicant. The learned trial judge was not in error in the ruling he made regarding the defence of provocation. There was no evidence to connect the deceased either with the words spoken by Mr Duggan or with any provocative words or acts directed towards the applicant. Furthermore, the learned trial judge was correct in his ruling regarding the admission of the video of interview of the witness and his ruling was within his jurisdiction. Similarly, the learned trial judge, having correctly directed the jury as to the legal elements of provocation did not err in failing to correct the misstatement of the law as to provocation made by counsel for the prosecution.

Reporter: L.O'S.

1 1. On 15 ^th May 2009, the applicant was found guilty by a jury presided over by Birmingham J in the Central Criminal Court in Dublin of the murder of one Anthony Cullen at Burmah Caravan Park, Mauritiustown, Rosslare, Co Wexford on 8 ^th April 2007.

2 2. The applicant accepted throughout his trial that he had unlawfully caused the death of Anthony Cullen (hereinafter "the deceased") by stabbing. He advanced the defence of provocation. The learned trial judge partially allowed that defence to be argued before the jury. He explained to the jury that, if they accepted that defence, the verdict would be manslaughter rather than murder. The principal complaint of the applicant on this application for leave to appeal is that the learned trial judge declined to permit the defence of provocation to be advanced on the full basis for which the defence had argued.

3 3. There are two further grounds, namely that the learned trial judge declined to permit the applicant to have shown to the jury a video recording of the garda interview of one of the prosecution witnesses, one Karl Thomas, and that the learned trial judge refused to correct some of the statements made by prosecuting counsel in his closing address to the jury.

The facts

4 4. The deceased met his death by stabbing with a knife about 3:30 am on Easter Sunday 8 ^th April 2007 against a sordid background of alcohol and drug-fuelled debauchery. A group of young people met in a caravan of which the applicant had the use. The deceased was somewhat older, being 37 years of age when he met his death.

5 5. A number of people, who came to play various roles in the events of the night, had been drinking at a place called The Rocks near Wexford town from early afternoon on 7 ^th April 2007 and were invited, or at least went to the caravan park, taking a 9 o'clock train, from Wexford to Rosslare. The applicant and his friend, Karl Thomas had permission to use the caravan. Kirsty O'Callaghan was the applicant's girlfriend. Karl Thomas also had a girlfriend, Christine Emmerson. The deceased was accompanied by a friend called Aiden Duggan. The latter described the deceased as his nephew's uncle. Also present were David Philips, whose nickname was Bidda, and a girl called Jody Black.

6 6. A great deal of drink was consumed particularly by the applicant, the deceased and Aiden Duggan. Some took cannabis or ecstasy.

7 7. In the course of the evening in the caravan, the behaviour of the deceased and Aiden Duggan became disorderly and unpleasant. This behaviour forms the essential subject-matter of the aspect of the defence of provocation which was disallowed by the learned trial judge. It consisted essentially of the following:

1 Aiden Duggan and the deceased engaged in a bizarre alternation of fighting, punching each other, then hugging and making up; Aiden Duggan struck the deceased particularly hard and also punched him and kicked him or stamped him on the head; although the deceased may have started this fighting, it does not appear that the applicant saw this;

2 the deceased, as he became more drunk, began falling around: he fell and knocked over a table and spilled drinks;

3 the deceased commenced making unwelcome advances to Kirsty O'Callaghan by feeling her leg: this caused Kirsty O'Callaghan to become upset; it also annoyed the applicant;

4 at a late stage, the deceased so lost control of himself that he soiled himself.

8 8. It is accepted that the evidence of provocation need not necessarily be given by an accused person. Nonetheless, it is the contents of the applicant's own statements which were advanced at the hearing as the primary basis for the provocation defence. It is important, therefore, to quote his account of the fighting between the deceased and Aiden Duggan in his first statement to the gardaí. He refers to Aiden Duggan as "the blonde fella" and the deceased as Kojak. This is his description:

"We were all drinking in the caravan for a while and everything was okay. Then Kojak and the blonde-haired fellow started fighting. The blonde fella started boxing Kojak. I don't know what they were fighting about. I don't know what time it was. The blonde fella would hit Kojak a few times and Kojak would fall down and when he got up it was like everything was forgotten about. The blonde fellow was boxing Kojak in the face and kneeing him in the face. Kojak fell down then and when he got up, everything would be okay for a while. Then Kojak would say something and it would all start again. The red haired fellow joined in with the blonde lad and gave Kojak a few slaps as well. This happened about four or five times. Kojak was pissed out of his head and was falling all over the place. He was grabbing Kirsty's leg and I was getting a bit annoyed about it. Kirsty tried to stop the two boys from hitting Kojak. Kojak had fell through the table and he had a cut over his left eye and it was bleeding but it wasn't...