DPP v James McDonagh

• Jurisdiction: Ireland
• Judgment Date: 31 May 2001
• Date: 31 May 2001
• Docket Number: [C.C.A. No. 155 of 1998]
• Court: Court of Criminal Appeal

The People (Director of Public Prosecutions) v. James McDonagh

People (Director of Public Prosecutions)

Prosecutor

and

James McDonagh

Accused

[C.C.A. No. 155 of 1998]

Court of Criminal Appeal

Criminal law - Offences against the person - Murder - Defence - Provocation - Whether trial judge erred in failing to leave issue of provocation to jury notwithstanding that accused did not put forward that defence - Whether any evidence from which provocation could be inferred.

Criminal law - Offences against the person - Murder - Mens rea - Intention - Rebuttal of presumption - Whether trial judge failed to direct jury to have regard to accused's remorse after stabbing as constituting evidence to rebut presumption natural and probable consequences of his conduct - Criminal Justice Act (No. 5), 1964, s.4.

Section 4 of the Criminal Justice Act, 1964, provides as follows: -

"4. (1) Where a person kills another unlawfully, the killing shall not be murder unless the accused person intended to kill, or cause serious injury to, some person, whether the person actually killed or not.

• (2) The accused person shall be presumed to have intended the natural and probable consequences of his conduct; but this presumption may be rebutted."

The accused was convicted of the murder of his wife. The evidence was that a serious fight took place between the accused's deceased wife and his sister-in-law.

The prosecution evidence was that the accused arrived, grabbed his wife by the hair, pulled her towards a low wall on the boundary with the adjacent house and stabbed her in the back once and that he pulled out the knife and walked towards the house with the deceased staggering after him. She collapsed in the house and the accused lay beside her, took her into his arms, said he was sorry and attempted to stop the bleeding. The gardaí and an ambulance were called. The accused was arrested and his wife removed to hospital by ambulance where she later died. The accused was brought to the garda station where he gave several conflicting accounts as to what had happened.

The accused's evidence was that he separated the two fighting women and got his wife over the wall. She had a knife in her hand. He took the knife off her. He let her loose at that stage. He had the knife in his right hand. She came back in an upright position and came back into the knife which entered her back. He took the knife out of her and threw it on the grass and put his hand up against the wound. He did not and had no intention to kill or seriously injure his wife. The accused gave evidence that he had consumed a significant amount of drink earlier in the course of that day.

Counsel for the accused then applied to allow the jury to consider a verdict of manslaughter on the grounds of provocation. The trial judge refused to allow the question of manslaughter on the basis of provocation to go to the jury on the ground that there was no evidence, including that of the accused, on which the jury could bring in such a verdict.

The accused argued firstly that trial judge erred in law in failing to leave the issue of provocation to the jury, once there was any evidence of provocation to be considered, notwithstanding that the accused did not put forward the defence. It was argued that such evidence existed in that, inter alia, the accused was an uneducated person, that he had a good deal of drink taken, that he was remorseful after the incident, that he seemed shocked or dazed when the gardaí arrived and that the act of stabbing was over very quickly, that the deceased had clicked her fingers at the accused. Secondly it was argued that the trial judge failed to direct the jury to have regard to the accused's attitude after the stabbing, in particular that the fact that the accused had expressed remorse subsequent to the stabbing at the scene, could constitute evidence to rebut the presumption under s. 4 of the Criminal Justice Act, 1964.

Held by the Court of Criminal Appeal (Murray, Johnson and Kelly JJ.) in refusing leave to appeal, 1, that, when considering whether the defence of provocation should go to the jury, the question was whether the state of the evidence was such that it would be open to a jury to conclude that it was reasonably possible that the accused had been the subject of provocation which triggered off a total loss of self control having regard to the particular accused, given his state of mind, his personality and all the circumstances. Some evidence from which provocation leading to total loss of control could be inferred was required.

The People (Director of Public Prosecutions) v. Bambrick [1999] 2 I.L.R.M. 71 considered.

2. That it was for the trial judge in the first instance to decide whether there was any evidence on which such a defence could properly be allowed to be considered by the jury.

The People (Director of Public Prosecutions) v. Mullane (Unreported, Court of Criminal Appeal, 11th March, 1997) and The People (Director of Public Prosecutions) v. Kelly[2000] 2 I.R. 1 applied.

3. That there was no evidence that any act of the deceased provoked the accused and even if there had been evidence of acts which were capable of constituting provocation there was no evidence that the accused may have lost control or even that he was not "not master of his mind" at the time of the stabbing. Provocation was never an issue in the trial.

4. That the defence of the accused was based entirely on his account that the stabbing was an accident. A trial judge when directing a jury as to s. 4 of the Act of 1964, was required to do so in the light of the actual evidence and circumstances of the case which is being tried. The evidence that the accused had expressed remorse subsequent to the stabbing at the scene was not something from which a jury could properly be directed to rely on as evidence of rebuttal of the presumption within the meaning of s. 4(2) of the Act of 1964.

Quaere: Whether a trial judge could permit the defence of provocation to be considered by the jury even where the defence had not been raised by or on behalf or the accused during the course of the hearing before the jury and in particular when he had relied on a defence which is in contradiction to the defence of provocation.

The People (Director of Public Prosecutions) v. Halligan (Unreported, Court of Criminal Appeal, 13th July, 1998) considered.

Cases mentioned in this report:-

The People (Attorney General) v. Dwyer [1972] I.R. 416; (1974) 108 I.L.T.R. 17.

The People (Attorney General) v. Keane (Unreported, Court of Criminal Appeal, 3rd February 1975).

The People (Director of Public Prosecutions) v. Bambrick [1999] 2 I.L.R.M. 71.

The People (Director of Public Prosecutions) v. Halligan (Unreported, Court of Criminal Appeal, 13th July, 1998).

The People (Director of Public Prosecutions) v. Kelly [2000] 2 I.R. 1; [2000] 2 I.L.R.M. 426.

The People (Director of Public Prosecutions) v. MacEoin [1978] I.R. 27; (1978) 112 I.L.T.R. 53.

The People (Director of Public Prosecutions) v. Mullane (Unreported, Court of Criminal Appeal, 11th March, 1997).

Application for leave to appeal.

The facts have been summarised in the headnote and are fully set out in the judgment of the court, infra.

The accused was tried by the Central Criminal Court (O'Donovan J. and a jury) on the 6th, 7th, 8th, and 9th October, 1998, and was convicted and sentenced to life imprisonment on the 9th October, 1998.

By notice dated the 15th October, 1998, the accused sought leave to appeal the conviction. Grounds of appeal were lodged on the 19th April, 1999. The prosecutor lodged replies to the grounds of appeal on the 24th March, 2000.

The matter was heard by the Court of Criminal Appeal (Murray, Johnson and Kelly JJ.) on the 11th April, 2000.

Cur. adv. vult.

Pursuant to the provisions of s. 28 of the Courts of Justice Act, 1924, the judgment of the court was delivered by a single member.

Murray J. 31st May, 2001

This is application for leave to appeal against the accused's conviction at the Central Criminal Court on the 9th October, 1998, for murder contrary to common law.

At the hearing of the application for leave to appeal, the accused presented his application on two grounds of which the first was stated to be the principal ground. This was that the learned trial judge erred in law in refusing to allow the jury to consider a verdict of manslaughter on the grounds of provocation notwithstanding that the accused in his defence had not relied on provocation. The second ground relied upon was that the learned trial judge erred in law in failing to direct the jury as regards the proper test to be applied when considering whether the accused acted with an intent to kill or cause serious injury and in particular that he failed to redirect the jury on the issue of a rebuttal of the presumption that a person shall be presumed to intend...