DPP v Hourigan & O'Donovan

• Jurisdiction: Ireland
• Court: Court of Criminal Appeal
• Judge: McGuinness J.
• Judgment Date: 19 March 2004
• Neutral Citation: [2004] IECCA 7
• Date: 19 March 2004
• Docket Number: 128/02

DPP v. HOURIGAN & O'DONOVAN

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

JAMES HOURIGAN AND KEITH O'DONOVAN

APPLICANTS/APPELLANTS

[2004] IECCA 7

128/02

THE COURT OF CRIMINAL APPEAL

Abstract:

Criminal law - Appeal - Prejudicial remarks made by trial judge - Alleged endorsement of evidence by trial judge - Whether real danger that trial judge’s remarks could have influenced jury - Whether trial rendered unfair and unsatisfactory - Murder - Joint venture

Both applicants were convicted of murder. Insofar as the first applicant was concerned the prosecution relied upon the doctrine of joint venture. The deceased’s mother’s evidence was crucial to the conviction of both applicants and there were important inconsistencies between her actual evidence and her prior statement to the Gardaí. The applicants relied on a number of grounds including the trial judge’s description of the mother as “a victim”. The applicants submitted that this reference to the mother as “a victim” was prejudicial to the accused and could have had an adverse influence on the jury. They contended that given the importance of the mother’s evidence it was important that the jury should not be given the impression that her evidence was endorsed or approved by the trial judge.

Held by the Court of Criminal Appeal in treating the application for leave to appeal as the appeal, quashing the conviction and ordering a re-trial that while the Court rejected a number of the grounds of appeal, the Court was concerned that where the evidence of the mother was so crucial there was a real danger that the trial judge’s remarks could have influenced the jury and thus rendered the trial unfair and unsatisfactory.

Reporter: R.W.

Citations:

CRIMINAL JUSTICE ACT 1964 S4

R V GALBRAITH 1981 1WLR 1039

DPP V M UNREP DENHAM 15.2.2001 2001/8/1990

DPP V BARNWELL UNREP FLOOD 24.1.1997 1998/15/5319

DPP, PEOPLE V MORRISSEY UNREP BARRON 10.7.1998 1998/16/5863

DPP V DAVIS 2001 1 IR 146

DPP V O'SULLIVAN UNREP MCGUINNESS 26.11.2003 (EX TEMPORE)

COURTS OF JUSTICE ACT 1928 S5(1)(B)

McGuinness J.

1 The applicants in this case appeared before the Central Criminal Court on the 17^th June 2002. Each applicant was charged with one count of murder contrary to common law and as provided for by section 4 of the Criminal Justice Act1964. Both pleaded not guilty. Following a trial lasting ten days both applicants were convicted by a jury and were sentenced to life imprisonment.

2 The charges against the applicants arose from the stabbing by the second named applicant, Keith O'Donovan, of Noel McCarthy of No. 8 Spriggs Road, Cork, on 4^th May 2000. Mr McCarthy subsequently died of his injuries at the Mercy Hospital, Cork. The first named applicant, James Hourigan, was with the second named applicant at the time of the attack, which took place at Mr McCarthy's home at 8 Spriggs Road, Cork. Insofar as the first named applicant was concerned the prosecution relied upon the doctrine of joint venture. It was alleged that the first named applicant was in a common design with the second named applicant to cause death or serious harm to the deceased. The second named applicant admitted the fatal stabbing of Noel McCarthy and relied upon the defence of provocation.

3 There was a considerable amount of agreement between all witnesses, both for the prosecution and for the defence, on the events that led to the fatal stabbing of Mr McCarthy at about 3.30 a.m. on the morning of the 4^th May 2000.

4 It was agreed that the McCarthy family, who lived at 8 Spriggs Road in Cork City, had known the O'Donovan family, who lived at No. 3 Spriggs Road, for more than thirty years and that there had always been warm relations between the two families. It was agreed that the second named applicant, Keith O'Donovan, and Noel McCarthy had known each other from childhood and had kept up contact, though they may not have been particularly close friends.

5 It was accepted that there was a physical fight between the second named applicant and Mr McCarthy at about 9.30 p.m. or 10 p.m. on the evening prior to the fatal stabbing. There was some conflict of evidence as to the role played by the first named applicant in this incident. The description of the way in which this fight was broken up differs on the evidence of a number of witnesses but it was agreed that the deceased's mother, Mrs McCarthy, witnessed this first incident and played a role in bringing it to an end. It was accepted that at the time of this incident the deceased was drinking in his home with a number of friends including Sean Greene, Gerard O'Brien, Mark Lane, and Timothy Daly, all of whom were called as prosecution witnesses.

6 It was also established that a second violent incident occurred some few minutes after that fight. This second incident was precipitated by the deceased leaving his home in order to confront the second named applicant in the O'Donovan House at 8 Spriggs Road. It was accepted and admitted by both accused that the first named applicant, Mr Hourigan, assaulted the deceased on this occasion, causing an injury to the deceased's face. It appears that the deceased then went to the Accident and Emergency Department of the Mercy Hospital where his facial injury was bandaged. He then returned to his home.

7 There was a considerable conflict of evidence in regard to what happened next. The evidence of the two accused men and of Keith O'Donovan's mother Doreen O'Donovan was that after returning from the Mercy Hospital Noel McCarthy returned to the O'Donovan house where he used violent and abusive language and in particular frightened Keith O'Donovan's child. The fact that Noel McCarthy went back to the O'Donovan house was at least to some extent supported by two prosecution witnesses, Sean Greene and Mark Lane. However the mother of the deceased, Mrs McCarthy, firmly denied that her son had returned to the O'Donovan house and stated that he had remained in his own home until the time of the fatal stabbing. The establishment of this incident of Mr McCarthy's return to the O'Donovan house formed a crucial part of the second named applicant's defence of provocation.

8 It was accepted that in or about 3.30 a.m. the first and second named applicants entered the McCarthy home. Mrs McCarthy was standing beside her son in the sittingroom in the presence of a number of other prosecution witnesses. The second named applicant carried a knife with which he stabbed Mr McCarthy in the groin. Mr McCarthy died shortly thereafter. There was also a conflict of evidence as to the role played by the first named applicant at the scene and immediately after the fatal attack. Details of this will be referred to later in the context of the first named applicant's grounds of appeal.

Grounds of Appeal

9 The grounds of appeal put forward by the first named applicant were as follows:

10 1. That the learned trial judge erred in law and/or in fact in failing to accede to the first named applicant's application to withdraw the charge of murder from the jury at the close of the defence case.

11 2. That the charge of the learned trial judge to the jury was unsatisfactory in that the jury at the end of the charge did not understand the applicable law as evidenced by the question/questions raised by the jury.

12 3. In the context of the question asked by the jury following the judge's charge, the statement by the trial judge in relation to the question of common design to the effect or in the nature of"if you are not satisfied that there was a common design then you must acquit the first named accused and he walks" was inflammatory and prejudicial to the first named accused/applicant.

13 4. The learned trial judge's comments to the effect that the principal prosecution witness, Mrs Mary McCarthy, (the mother of the deceased) was a"victim" was prejudicial to the accused and could have had an adverse influence on the jury, particularly having regard to the fact that the evidence given by Mrs Mary McCarthy to the jury was inconsistent with a prior written statement by her with regard to her evidence against the first named accused/applicant.

14 5. That in all the circumstances of the case the conviction was unsatisfactory and/or unsafe.

15 At the hearing before this court a further ground of appeal was put forward by way of notice of motion. This was as follows:-

16 6. The learned trial judge erred in law in failing to charge the jury to exclude all aspects of the cross-examination by Mr Blaise O'Carroll S.C. counsel for Mr O'Donovan, of Mr Hourigan in elation to the alleged receipt and disposal by Mr Hourigan of the murder weapon. In view of the fact that Mr O'Donovan gave no direct evidence whatsoever in relation to this allegation, the jury ought to have been directed to ignore this line of cross-examination but no such direction was given.

17 The grounds of appeal put forward by the second named applicant were as follows:

18 1. That the learned trial judge's comments to the effect that the principal prosecution witnesses, Mrs Mary McCarthy (mother of the deceased) was a"victim", had a prejudicial influence on the jury in the weighing up of her evidence as against the evidence of the first and second named accused.

19 2. That the learned trial judge's comments at the commencement of his charge to the jury in relation to the closing address of counsel for the second named accused unnecessarily and unfairly undermined the effect on the jury of that closing address.

20 3. That in all the circumstances of the case the conviction was unsatisfactory and/or unsafe.

21 Again the permission of this court was sought to bring forward an additional ground of appeal as follows:

22 The learned trial judge erred in fact and in law in failing to discharge the jury after it was brought to its attention that the photograph of the second named...