DPP v Dunne

• Jurisdiction: Ireland
• Judge: O"Donnell J.
• Judgment Date: 31 July 2014
• Neutral Citation: [2014] IECCA 29
• Date: 31 July 2014
• Docket Number: 39/12
• Court: Court of Criminal Appeal

Between/

The People at the Suit of the Director of Public Prosecutions

V

Jonathan Dunne

Appellant

[2014] IECCA 29

39/12

COURT OF CRIMINAL APPEAL

Shooting – Victim – Disability – Death – Attempted Murder – Firearms – Trial – Appeal Conviction – Practice and Procedure – Admission – Duress – Jury Direction and Influence

Facts: On the 4 ^th July 2007, the appellant shot and seriously wounded Mr Ian Kenny. The appellant claimed that he had been forced, by individuals he refused to name, to carry out the crime because he owed a favour to these unnamed individuals and that his life and the lives of his family had been threatened if he failed to carry out the act. There was no doubt that based on the facts and admission of the appellant, that if Mr Kenny had died at the scene or shortly thereafter, Mr Dunne would have been guilty of murder. However, the victim of this shooting did not die at the scene or shortly thereafter, he remained in a permanent vegetative state for two years before his death on the 31 ^st July 2009. Over the two years during which Mr Kenny was cared for in St Doolagh"s hospital he was transferred to Beaumont hospital a number of times for treatment of infections. Following the incident, the appellant had been charged with the attempted murder of Mr Kenny and with the unlawful possession of a firearm. He pleaded guilty and was convicted of both offences. In May 2008 the Central Criminal Court imposed a sentence of 12 years imprisonment for the attempted murder charge and a sentence of 10 years imprisonment for the charge of possession of a firearm with intent to endanger life. However, following the death of Mr Kenny on the 31st July 2009, the appellant was charged with the offence of murder and subsequently convicted. The appellant appealed that conviction. He also made a number of admissions pursuant to section 22 of the Criminal Justice Act 1984 at his murder trial including the issue of causation and whether the defence of duress was open to the appellant. A large amount of evidence was given at trial from the members of the medical profession who were involved in the care of Mr Kenny. They stated that he had suffered a wound to the head which was closed, not to revive him neurologically, but to avoid infection which could be caused by such an open wound and also for the sake of the family. The period of time which was at the centre of the issue of causation raised in the appeal was from the 29th July 2009 to Mr Kenny"s death on the 31st July 2009. Dr John Veale, who was responsible for the care of Mr Kenny in St Doolagh"s, gave evidence at trial that on the 29th July 2009 Mr Kenny was transferred to Beaumont Hospital with suspected pneumonia. He testified that due to the condition which Mr Kenny was in, that resuscitation would not take place. That decision was made in conjunction with his family. The Deputy State Pathologist, Dr Michael Curtis conducted a post-mortem on the deceased on the 1st August 2009 and certified the cause of death as bronchial pneumonia caused by being in a permanent vegetative state which was in turn caused by the brain injury suffered by gunshot wound. The gunshot wound to the deceased"s upper right arm was a contributory factor to his death. In appealing, the appellant submitted that the learned trial judge erred in law and in fact in refusing the application made by counsel for the appellant for a direction to the jury on the issue of causation consequent upon the decision not to provide full medical intervention. The appellant further submitted that the learned trial judge erred in law and in fact in refusing to allow the issue of duress to go to the jury as a defence on behalf of the appellant. The appellant submitted that he was under duress to carry out the shooting of the deceased as a result of the threats he claims were made to his own life and to the lives of his family. In relation to the question of causation, counsel for the appellant argued that although there appeared to be a straight line of causation in this case from gunshot wound to vegetative state, to pneumonia, to death, this did not take into account the circumstances in which the deceased died. It was submitted that although the appellant acknowledged his guilt in respect of the attempted murder of the deceased, a decision was taken by the father of the accused and by his physicians almost two years later, and in circumstances in which he was suffering from pneumonia, to withhold medication from him which would have maintained his life. On the issue of availability of the defence of duress the [1934] I.R. 518, that that defence was not available in cases of murder, reliance on that defence should be permitted in such cases on the basis that there has been a move in other common law jurisdictions towards allowing the use of this defence to a murder charge. Finally, the appellant also submitted that the learned trial judge erred in law and in fact when, on the second day of the deliberations of the jury, he responded to a question posed by the jury by stating that the appellant killed the deceased and intended to kill him. The appellant submitted that this response effectively amounted to a direction to the jury on the part of the trial judge that the appellant was guilty of murder. The respondent submitted that the trial judge did not error in law or in fact in refusing to grant an application for a direction on causation. It was also submitted that the learned trial judge did not error in law or in fact in refusing to permit reliance on the defence of duress at the trial. The respondent submitted that on the matter of caution that the legal position in Ireland had been clearly outlined in the decision of the Court of Criminal Appeal in The Director of Public Prosecutions v. Stephen Davis [2001] I.R. 149. That decision made it clear that if the injuries caused by an individual contributed to the death of the victim in more than a minimal way, the causative link was established. The submission of the appellant that a substantial link must be established was deemed to be incorrect. In The Director of Public Prosecutions v. Michael Murphy [2005] 4 I.R. 504 it was stated that causation could be inferred from the circumstances of an individual"s conduct towards a victim and the subsequent result even where the precise cause of the result could not be shown. Based on the facts and in reliance upon the post-mortem evidence of Dr Curtis, it was argued that there could be no doubt but that in the circumstances of this case, the gunshot injury to the head of the deceased caused his death. The respondent further submitted that the appellant"s submission that the deceased died as a result of lack of medical treatment rather than as a result of his injuries was unsustainable as the decision to refrain from certain aggressive treatments, did not amount to abnormal or negligent treatment that would break the causative link. On the matter of the defence of duress, the respondent submitted that that defence was not available for murder. Finally, in respects of the appellant"s submission that the learned trial judge erred in his response to a question of the jury, the respondent argued that the comments of the judge must be understood in the context that the appellant had already admitted attempted murder. Furthermore, counsel for the appellant did not raise any other requisition in relation to that charge at the time nor was the discharge of the jury sought.

Held by Justice O"Donnell that where the charge is one of murder, the prosecution must prove that the action(s) of the accused caused the death of the victim in order to establish the actus reus of the offence. Counsel for the appellant argued that a decision had been made by Mr Kenny"s family and his doctors not to continue treatment and that this decision constituted a break in the chain of causation. Justice O"Donnell stated that the test for causation was whether the injuries caused by an accused related to the death in more than a minimal way. Thus, in his opinion there was no doubt in the case at hand, in circumstances where Mr Dunne had entered a guilty plea to attempted murder, that causation had been established. He further reasoned that the decisions made in respect of the treatment of Mr Kenny, which were accepted to be lawful and proper, were not such as to completely, break the connection between the appellant"s action in shooting Mr Kenny and Mr Kenny"s death. Mr Dunne, he reasoned, clearly contributed to Mr Kenny"s death 'in more than a minimal way' and accordingly that ground of appeal was dismissed. In respects of the Duress argument, Justice O"Donnell referred to the cases of The Attorney General v. Whelan and The Director of Public Prosecutions v. Patchell (Unreported, 10th June 2013) which stated that the defence of duress was not available in Ireland as a defence to murder. Counsel for the appellant had sought to argue that this position should be revised in light of developments in other common law jurisdictions which had relaxed that rule. In light of Patchell and the limited arguments and materials advanced by the appellant, Justice O"Donnell determined that there was no compelling basis for considering that the court should depart from established rules. Turning to the response of the trial judge to the question posed by the jury, it was acknowledged that during deliberations that the jury had made a request to pose a question. The jury asked the judge to define murder and explain causation. The trial judge defined murder as contained in section 4 of the Criminal Justice Act 1964 and stated that the appellant had killed Mr Kenny unlawfully. The trial judge then went on to explain causation and stated that Mr Kenny was shot by the appellant unlawfully. Counsel for the appellant argued that the trial judges answers in effect directed the jury in terms that "Mr Dunn...