DPP v Higgins
| Jurisdiction | Ireland |
| Judge | Mr. Justice Sheehan |
| Judgment Date | 31 July 2015 |
| Neutral Citation | [2015] IECA 200 |
| Court | Court of Appeal (Ireland) |
| Date | 31 July 2015 |
[2015] IECA 200
THE COURT OF APPEAL
Ryan P.
Birmingham J.
Sheehan J.
Conviction – Murder – Error in law – Appellant seeking to appeal against conviction – Whether the conduct of the trial was unsatisfactory and the verdicts unsafe
Facts: The appellant, Mr Higgins, and the deceased, Mr Murphy, were neighbours who lived in adjoining houses in a small housing estate in Lattin, Co. Tipperary. There had been a certain amount of friction between the appellant and the deceased which had been ongoing for some months. On the 17th January, 2010 the deceased was in Tipperary Town having a drink in a public house. His partner collected him and brought him back to their home. As they were driving towards the entrance of the estate, the appellant was standing at the door to Aherne”s Bar adjacent to the estate having been drinking in that public house and was heard to make various inculpatory remarks. When the car turned into the estate, the appellant made threats to the deceased and then went to his own home where he got a knife. The deceased then armed himself with a plank of wood. A physical altercation ensued whereupon the appellant swung with the knife once in the direction of the deceased and caused a fatal stab wound. The appellant was convicted of murdering Mr Murphy and was sentenced to life imprisonment. The appellant was also convicted on two counts of making threats to kill contrary to s.5 of the Non-Fatal Offences Against the Person Act 1997 and sentenced at a later date to two years imprisonment in respect of each of those counts to run concurrently with the life sentence. The appellant appealed to the Court of Appeal against conviction on the following grounds: 1) The trial judge erred in law in admitting into evidence the incomplete audio recording of a conversation in the smoking area of Aherne”s Bar; 2) The trial judge erred in law in permitting the prosecution, when examining their witness Ms Quinn to question without proper basis her willingness to give evidence and/or the accuracy of her memory, to engage in a type of hybrid application which seemed to start as an application to have Ms Quinn declared hostile and ended up with her being required to refresh her memory overnight from her witness statement; 3) The trial judge erred in permitting witness Ms Butler to refresh her memory by referring to her witness statement following an application by the prosecution; 4) The trial judge erred in law in failing to accede to the defence application at the close of the prosecution case to direct the jury to acquit on counts 2, 3 and 4 on the indictment on the basis that the only evidence supporting those counts was that given by witness Ms Hassett which was materially inconsistent to the evidence given to the court by the Gardai who had a very different account of the events on the issues pertinent to the charges; 5) The trial judge erred in law in failing to set out and explain to the jury with sufficient clarity and structure the defence of self-defence and/or to integrate that defence with the onus and standard of proof which rests at all times with the prosecution; 6) The trial judge erred during the course of his charge in unfairly challenging the defence”s comment regarding the late addition of the five threats to kill contrary to s. 5 to the indictment for murder just prior to the commencement of the trial; 7) The accumulation of the matters set out in the grounds taken collectively operated to render the conduct of the trial unsatisfactory and the verdicts unsafe.
Held by Sheehan J that the audio recording evidence was relevant and of probative value in that it was a factor in establishing the hostility of the appellant to the deceased on the day in question. The Court held that the trial judge was correct in suggesting that Ms Quinn refresh her memory by reading through her statement. The Court was satisfied that the trial judge was correct to accede to the application made by the respondent, the DPP, to allow Ms Butler to refresh her memory by reviewing her statement of evidence. The Court held that there was sufficient evidence in the case on foot of which the jury could convict. The Court was satisfied that the trial judge”s charge in relation to self-defence was adequate. The Court was satisfied that the additional counts were properly introduced into the case. The Court did not consider the accumulation of grounds advanced in this appeal as being sufficient to render the verdict in this case either unsafe or unsatisfactory.
Sheehan J held that the appeal against conviction be dismissed.
Appeal dismissed.
Judgment of the Court delivered on the 31st day of July 2015, by Mr. Justice Sheehan
1. This is an appeal against conviction.
2. Following a twelve day jury trial in 2011, the appellant was convicted of murdering Sean Murphy at Lattin, Co. Tipperary, on the 17th January, 2010 and was sentenced to life imprisonment.
3. The appellant was also convicted by majority verdict on two counts of making threats to kill contrary to s.5 of the Non-Fatal Offences Against the Person Act 1997 and sentenced at a later date to two years imprisonment in respect of each of those counts to run concurrently with the life sentence.
4. The appellant challenges his conviction on the following grounds:-
(i) The trial judge erred in law in admitting into evidence the incomplete audio recording of a conversation in the smoking area of Aherne's Bar, Lattin, Co. Tipperary.
(ii) The trial judge erred in law in permitting the prosecution, when examining their own witness Katie Quinn to question without proper basis her willingness to give evidence and/or the accuracy of her memory, to engage in a type of hybrid application which seemed to start as an application to have Katie Quinn declared hostile and ended up with her being required to refresh her memory overnight from her witness statement.
(iii) The trial judge erred in permitting Emma Butler to refresh her memory by referring to her witness statement following an application by the prosecution.
(iv) The trial judge erred in law in failing to accede to the defence application at the close of the prosecution case to direct the jury to acquit on counts 2, 3 and 4 on the indictment on the basis that the only evidence supporting those counts was that given by Paula Hassett which was materially inconsistent to the evidence given to the Court by the Gardai who had a very different account of the events on the issues pertinent to the charges.
(v) The trial judge erred in law in failing to set out and explain to the jury with sufficient clarity and structure the defence of self-defence and/or to integrate that defence with the onus and standard of proof which rests at all times with the prosecution.
(vi) The trial judge erred during the course of his charge in unfairly challenging the defence's comment regarding the late addition of the five threats to kill contrary to s. 5 of the Non Fatal Offences against the Person Act 1997 to the indictment for murder just prior to the commencement of the trial.
(vii) The accumulation of the matters set out in the grounds taken collectively operated to render the conduct of the trial unsatisfactory and the verdicts unsafe.
5. In order to consider these grounds of appeal it is necessary to set out the background to these offences.
6. The appellant and the deceased were neighbours who lived in adjoining houses in a small housing estate in Lattin, Co. Tipperary. There had been a certain amount of friction between the appellant and his partner and the deceased and his partner which had been ongoing for some months. On the 17th January, 2010 the deceased man was in Tipperary Town having a drink in a public house. His partner, along with their small child, drove to Tipperary Town to collect the deceased man and bring him back to their home in Lattin at about 9.00 pm.
7. As the deceased man's partner was driving towards the entrance of the small housing estate where they lived, the appellant was standing at the door to Aherne's Pub which was adjacent to the estate. During the course of the afternoon, the appellant had been drinking in that public house and was heard to make various inculpatory remarks which were recorded on audiotape on the CCTV. This CCTV from that public house showed the car in which the deceased was being driven home by his partner arriving and turning into the estate. When this happened, the appellant immediately walked from his position outside the public house in the direction of the estate into which the car had driven. The appellant made threats to the deceased and then went to his own home where he got a knife. It appears that the deceased then armed himself with a plank of wood when the appellant had come out of his house with a knife. A physical altercation ensued whereupon the appellant swung with the knife once in the direction of the deceased and caused a fatal stab wound. There were three eyewitnesses: Paula Hassett (the partner of the deceased). Emma Butler (the partner of the appellant) and Katie Quinn, a neighbour in the said terrace.
8. The appellant submits that the evidence of the three eyewitnesses was not presented impartially or fairly by the prosecution and, in relation to grounds 1, 2 and 3, that the manner in which the State presented its case was not balanced.
9. As part of the investigation, the Gardai recovered CCTV footage from Aherne's Bar where the appellant and...
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Director of Public Prosecutions v Crawford
...in which self-defence in those contexts received some judicial consideration – The People (Director of Public Prosecutions) v. Higgins [2015] IECA 200; The People (Director of Public Prosecutions) v. Quinn [2015] IECA 308; The People (Director of Public Prosecutions) v. O'Brien [2016] IECA ......