DPP v Gaizutis
| Jurisdiction | Ireland |
| Judge | Mr Justice Edwards |
| Judgment Date | 27 April 2020 |
| Neutral Citation | [2020] IECA 118 |
| Docket Number | Record No: 147/2015 |
| Court | Court of Appeal (Ireland) |
| Date | 27 April 2020 |
[2020] IECA 118
Edwards J.
McCarthy J.
Kennedy J.
Record No: 147/2015
THE COURT OF APPEAL
Conviction – Murder – Provocation – Appellant seeking to appeal against conviction – Whether the trial was unfair and unsatisfactory
Facts: The appellant, Mr Gaizutis, appealed to the Court of Appeal against his conviction for the offence of murder by a jury in the Central Criminal Court on the 1st of May 2015 following a five-day trial. The appeal against conviction was based upon what was in substance a single ground of appeal which was cast in terms that: “1. The trial judge ought to have directed the jury to reach a verdict of ‘guilty of manslaughter’ given that the only evidence of the incident was my own account of it as given to An Garda Síochána in interview and as accepted as true and accurate by them insofar as they were in a position to independently verify it. 2. In all the circumstances the trial was unfair and unsatisfactory.”
Held by the Court that there was in this case a prima facie case of murder and it was for the jury to determine whether or not the appropriate verdict was in fact murder; the appellant had raised the partial defence of provocation and it was required to be established by the relevant tribunal of fact, i.e. the jury, whether he was entitled to the benefit of that defence. The Court considered that if the trial judge had adopted the approach commended by the appellant on this appeal, she would, in effect, have concluded that no reasonable jury could possibly question what the appellant had said in his interviews with An Garda Siochána with respect to how the killing occurred, and with respect to his claim of having been provoked. The Court held that such an approach would have been manifestly incorrect, and it believed that if the trial judge had withdrawn the case from the jury she would have been completely unjustified in doing so. Accordingly, the Court found no error in the approach of the trial judge; she was right to allow the matter to go to the jury. The Court found no basis for believing that the trial was in any way unsatisfactory or that the verdict was in any way unsafe.
The Court held that the appeal would be dismissed.
Appeal dismissed.
This matter comes before the court by way of an appeal by the appellant against his conviction for the offence of murder by a jury in the Central Criminal Court on the 1st of May 2015 following a five-day trial.
The appeal against conviction is based upon what is in substance a single ground of appeal which is cast in terms that:
“1. The trial judge ought to have directed the jury to reach a verdict of ‘guilty of manslaughter’ given that the only evidence of the incident was my own account of it as given to An Garda Síochána in interview and as accepted as true and accurate by them insofar as they were in a position to independently verify it.
2. In all the circumstances the trial was unfair and unsatisfactory.”
On the 20th of May, 2015, was sentenced to life imprisonment, back-dated to the 2nd of October, 2013, being the date he entered custody. The appellant filed a motion on the 13th of June 2016 seeking leave to amend his notice of appeal to add the ground:
“The trial judge erred in imposing a sentence of life imprisonment on the assumption that same was mandatory.”
The appellant further sought liberty in the said motion to challenge the constitutionality of section 2 of the Criminal Justice Act 1964 together with liberty to join the Attorney General as a party to the appeal. The motion was adjourned to the hearing of the appeal.
At the commencement of the appeal hearing before this court on the 25th of February 2020 we were informed that the appellant no longer wish to proceed with this motion. Accordingly, the sole issue before this court is the appeal against conviction on the single ground that has been indicated.
On the 10th of September, 2013, emergency services were called to Mornington Beach, Co, Meath, where a half-naked body, later identified as being that of Mr Audrius Butkus, had been discovered by a fisherman. Immediately apparent were the severe head injuries on the body. Also discovered at the beach were drag marks which were consistent with having been made by if a pair of legs, and a bloodstained green plastic bag by the edge of the coastline. The scene was preserved and examined and in due course the body was removed to Our Lady of Lourdes Hospital in Drogheda for an autopsy.
The court heard evidence from State Pathologist Professor Marie Cassidy who conducted the post mortem as to what she had found upon examination of the body. She stated that the victim had suffered over 40 fresh injuries, including numerous abrasions, lacerations and bruising to his head and face, all inflicted within 24 hours of the death of the victim. The base of his skull was fractured, he presented bruising to the brain and his jaw was dislocated on the left side. Professor Cassidy was of the belief that the cause of many of the injuries, which were associated with rectangular or triangular marks on the body, were due to impact from an object with a rectangular projecting surface approximately 2.5 – 4 centimetres or 1 or 2 inches in size. Similar injuries with the same rectangular and triangular outlines were noted over the right shoulder area. The front of the trunk presented superficial scrape type injuries, some with possible drag marks, which were also present on the legs. Several abrasions, scratches and bruises covered the arms and legs, none of which Professor Cassidy regarded as defensive wounds, which were wholly absent.
Professor Cassidy indicated that the victim's breathing would have been adversely affected from blood pouring from the fractures of the base of the skull leaking into his airways. It was her belief that the head injuries were the cause of death, and that one blow in particular, resulting from a downward blow from a heavy object and dealt whilst the victim was upright, was likely to have been the first injury, and that it would have caused him to collapse to the ground. He would not have died immediately but could have been rendered unconscious by this initial strike. The examination suggested that the victim received 9 blows to the head and up to 9 blows to his back, and that these, with the exception of the initial blow, were probably sustained whilst he was face down on the ground.
There was a strong smell of alcohol from the deceased and an analysis of his blood alcohol and urine alcohol levels indicated that the victim was highly intoxicated at the time of death being at around ten times the level at which one could safely drive a car. Professor Cassidy indicated that such a degree of intoxication would have had an effect on the actions and reactions of the victim, including his ability to defend himself. His enlarged fatty liver was symptomatic of chronic alcohol use, but the victim was otherwise healthy prior to the incident. Although it was possible that the effects of such an amount of alcohol could cause death, Professor Cassidy concluded that in the circumstances of the case the cause of death was brain injury and inhalation of blood as a result of instrumental blunt force trauma to the head, which would have proven fatal regardless of the level of sobriety of the victim.
Professor Cassidy was shown a camp axe (exhibit 13). She agreed that the blunt end of such an object could have caused most of the injuries present. There were a few lacerations on the back of the victim which could have been caused by the sharp end of the axe. There was no evidence of any defensive injuries to the arm area caused by such an implement, but Professor Cassidy concluded that the injuries present were the result of a sustained, violent assault. Professor Cassidy further accepted that the drag marks visible on the body could have resulted from the body being dragged across the shingle on the strand of Mornington beach, and that the victim would have been facing his assailant when he received the initial blow to the front of the top of the head.
Enquires conducted in the course of the Garda investigation revealed that the victim was 44 years of age and originated from Latvia. He arrived in Ireland around 5 or 6 years before his death and had been homeless for some time.
The court heard evidence from Mr Lavidas Jockas, the cousin of the victim, who stated that the victim would “shout a bit if he was drunk, but he would never fight or hit anyone, he was not aggressive”.
The court also heard evidence from Garda Kevin O'Rourke and Garda David Rothwell, who, on the 9th of September 2019, had encountered the victim drinking with a group of men outside a Tesco store in Drogheda. The gardaí requested under section 8 of the Criminal Justice (Public Order) Act 1994 that the group leave the area so as to not intimidate passers-by. This was the last recorded instance of anyone other than the appellant encountering the victim. It was accepted that the victim was known to the gardaí because of his issues with alcohol.
The court heard evidence from a Mr Francis Caffrey, who stated that on the morning of the 10th of September 2019, he noticed pools of blood, approximately the size of golf balls, on the footpath outside 5 Marsh Road, Drogheda. Mr Caffrey also noticed blood on the double yellow lines on the road, which appeared to have been subjected to some attempt at cleaning. After hearing the news on the radio about the discovery of a body on Mornington beach, he reported the...
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