DPP v Fergal Cagney

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 25 October 2007
• Neutral Citation: [2007] IESC 46
• Court: Supreme Court
• Date: 27 July 2009

[2007] IESC 46

THE SUPREME COURT

Murray C.J.

Hardiman J.

Geoghegan J.

Fennelly J.

Kearns J.

481/04

464/04

DPP v Cagney & McGrath

DPP v Cagney & McGrath

Between:

Fergal Cagney

Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

and

Between:

RONAN McGRATH

Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

CRIMINAL LAW: Endangerment

The appellants brought appeals pursuant to section 29 of the Courts of Justice Act, 1924, from the judgment and order of the Court of Criminal Appeal (CCA) dismissing the respective appellants' applications for leave to appeal. Both appellants were acquitted of manslaughter but found guilty of the offence of endangerment contrary to section 13 of the 1997 Act. The charges arose out of an incident, whereby Mr Cagney hit the deceased and shortly thereafter the deceased fell to the ground, hit his head off the ground and later died. It was alleged that Mr McGrath had instructed Mr Cagney to strike the deceased immediately prior to the attack. It was submitted on behalf of both appellants that the learned trial judge ought to have withdrawn the section 13 count at the end of the prosecution case, that the learned trial judge erred in making a finding that there was evidence which if accepted by a jury could as a matter of law lead to a conviction of the appellants under the section 13 offence and further that section 13 could not be construed to cover the circumstances of this appeal. Mr McGrath submitted a fourth ground of appeal, namely that the verdict of the jury was inconsistent in so far as he was acquitted of manslaughter but was found guilty of endangerment. The question certified by the CCA in this case was, "Is the offence of endangerment contrary to s.13 of the Act of 1997 capable of being construed so as to cover circumstances such as in the instant case?"

Held by the Supreme Court (Murray C.J., Hardiman, Geoghegan, Fennelly, Kearns JJ) in allowing the appeals, quashing the convictions and not ordering retrials: That in this case the s.13 offence was left to the jury as an alternative to manslaughter without any explanation from the prosecution or the learned trial judge of the sense in which the second charge was alternative to the first and this was neither fair to the jury nor the appellants. The learned trial judge in his charge to the jury did not at all advert to the question of the mental state required to constitute recklessness. Neither the prosecution not the learned trial judge at any time referred to the necessity to establish advertence by the defendants to the serious risk which the prosecution was alleging in order to bring home a charge under s.13 on the basis of recklessness. Consequently, there was a grave defect in the trial affecting both defendants, since it obviated the need for the jury to address the question of the respective defendants' state of advertence or the lack of it which it was legally necessary for the jury to address.

Reporter: L.O'S.

1 JUDGMENT of Mr. Justice Hardiman delivered the 25th day of October, 2007.

2 This is an appeal, brought pursuant to s.29 of the Courts of Justice Act, 1924, from the judgment and order of the Court of Criminal Appeal delivered the 27th day of May, 2004. By that judgment and order the Court of Criminal Appeal (Denham J., O Caoimh J., and Butler J.), dismissed the respective appellants' applications for leave to appeal. This leave has been sought to appeal their convictions, after a trial by judge and jury, of the offence of endangerment. The trial took place between the 17th June, 2002, and the 26th June, 2002, inclusive. Each appellant had been charged with the offence of manslaughter of one David Langan and also with the offence of endangerment, contrary to s.13 of the Non-Fatal Offences Against the Person Act, 1997. Ronan McGrath was also charged with a third offence, now irrelevant, which was withdrawn from the jury by the judge in the course of the trial.

3 The relevant charges against these appellants were as follows: Count 1. Statement of Offence.

4 Manslaughter contrary to Common Law.

5 Particulars of offence.

6 Ronan McGrath and Fergal Cagney on the 30th August, 2000, at Grove Road in the County of the City of Dublin did unlawfully kill one David Langan.

7 Count 2. Statement of offence.

8 Reckless endangerment contrary to s.13 of the Non-Fatal Offences Against the Person Act, 1997.

9 Particulars of offence.

10 Ronan McGrath and Fergal Cagney on or about the 25th August, 2000, at Grove Road in the County of the City of Dublin did intentionally or recklessly engage in conduct which created a substantive risk of death or serious harm to another.

11 Each accused was acquitted on Count No. 1, manslaughter, but convicted of Count No. 2, endangerment. It is common case that each offence related to David Langan i.e. in terms of the statute, that David Langan is the "other" referred to in the endangerment charge.

12 The jury at the trial reached its verdicts after a deliberation exceeding seven hours in length. The conviction was, in each case, by a majority of ten jurors to two.

13 The deceased, David Langan, was nineteen years old at the time of the events leading to his death. Ronan McGrath was also nineteen and Fergal Cagney was then seventeen years old. None of the three had any previous convictions or had come to the attention of the gardaí. The two appellants have not come to the unfavourable attention of the gardaí since the events of August, 2000 either. The evidence at the trial was that they were most unlikely to re-offend, and this was accepted by the learned trial judge. Each received a sentence of fifteen months imprisonment. Having regard to the issues raised on appeal, each was admitted to bail shortly after the conviction and has remained on bail since. The two appellants are cousins.

The facts.

14 The factual background to the death of Mr. Langan can be shortly stated. The deceased and the two accused attended a night club and bar called the Palace, on Camden Street, Dublin. When they left, the deceased, for reasons unknown, laid hands on Mr. McGrath and threw him into the shutters which had been lowered at the entrance to the premises. After this, the deceased and the two appellants, together with other acquaintances, walked a distance of about 600 yards southwards to Portobello Bridge. The apparent reason for this was that the junction of Rathmines Road and Grove Road, which runs west along the southern bank of the Grand Canal, was thought to be a good place for getting taxis, which all present intended to do. Mr. McGrath, however, resented what Mr. Langan had done to him outside the Palace and on several occasions shouted at him inquiring why he had treated him in that way. Mr. McGrath was regarded by some at least of those present as aggressive in view of what happened to him. Some of his friends walked with him, ready to restrain him if necessary. Equally, it was common case that Mr. Cagney had been calm and good humoured on the journey from the Palace to Portobello Bridge and that his endeavours were directed at "keeping the peace", a phrase used by several of the witnesses, clearly referring to keeping the peace between Mr. McGrath and Mr. Langan.

15 The physical location at Portobello Bridge was minutely described in the course of the trial. The bridge spans the Grand Canal, between South Richmond Street on the North side and the Lower Rathmines Road on the South side. Immediately to the west of the bridge are the old 18th century lock workings consisting of a lock chamber and two sets of lock gates. On the Rathmines side these are separated from the roadway and associated pavement by a low wall, the top of the lock workings being a foot or two below street level. One can cross the canal either by the main Portobello Bridge or by a plank bridge attached to the lock gates, as at least one of the witnesses did.

16 It appears that, when the party of young men who had been in the Palace nightclub came to the Grove Road area to look for taxis, Messrs. Langan and McGrath were in closer proximity to each other than they had been on the walk up to Portobello Bridge. There was a confrontation between them. This was vocal and noisy enough to awaken a man who was sleeping in his apartment in an adjacent block of flats. Mr. McGrath was restrained by one of the witnesses, Mr. Thomas Rooney. Mr. Cagney interposed himself between Mr. McGrath and Mr. Langan. The two last mentioned "started squaring up before each other... they got in each others face", to use phrases from Mr. Rooney's evidence. Rooney then grabbed Mr. McGrath by his jacket "... and then [McGrath] told Fergal (Mr. Cagney) to hit David". He continued "And then when Ronan asked Fergal to hit him he went and hit him... Ronan said 'Hit him Fergal'."

17 Mr. Rooney said Mr. Cagney hit the deceased with the heel of his hand around the ear or just above the ear, meaning the left ear.

18 Mr. Cagney, on the other hand, made statements to the gardaí and answered questions posed by them in which he said he had indeed struck Mr. Langan, but did so in self defence when Mr. Langan came towards him with his hands raised. Mr. Cagney said he did not hear Mr. McGrath saying "Hit him". It was common case that, shortly after being struck, Mr. Langan had fallen on the road and on being attended to by the group present appeared to be unconscious. He did not subsequently recover consciousness and died on the 30th August in hospital. There was however some dispute as to whether he fell close to where he was hit, as the prosecution suggested or about eleven metres away, as the appellants contended. The blow or blows struck by Mr. Cagney was described as not being a boxers' blow. This...