DPP v Keith Kirwan
|28 October 2005
| IECCA 136
|Court of Criminal Appeal
|28 October 2005
 IECCA 136
COURT OF CRIMINAL APPEAL
Criminal law - Assault - Serious harm - Whether the evidence adduced established that the injured party had suffered serious harm - Whether the term serious harm required proof of a permanent injury - Non Fatal Offences Against the Person Act, 1997
Facts: The applicant sought to appeal his conviction of assault causing serious harm on the basis that the evidence tendered by the prosecution did not comply with the detailed requirements for establishing that the injured party suffered ‘serious harm’ as defined by section 1 of the Act of 1997 and further that the learned trial judge failed to properly or adequately direct the jury as to the meaning of ‘serious harm’ under s.1 of the Act. The injured party had given evidence of the injuries sustained by him and a consultant ophthalmologist provided details of the injured party’s “serious injury.”
Held by the Court of Criminal Appeal (Kearns, Lavan, O’Sullivan JJ) in dismissing the appeal: That there was ample evidence from which the jury could have formed the view that the injured party suffered a substantial impairment of the function of his left eye amounting to serious harm as defined by section 1 of the Act of 1997. The term serious harm did not per se require proof of an injury with protracted consequences and the consequences of the treatment administered to repair/improve the injury ought not to be excluded as part of the harm suffered by the injured party. The learned trial judge adequately and appropriately directed the jury in the circumstances of the case.
JUDGMENT of the court delivered on the 28th day of October, 2005, by Kearns J.
The appellant was on the 6th December, 2004, convicted at Dublin Circuit Criminal Court of two offences of assault under the Non-Fatal Offences against The Person Act, 1997 (hereinafter referred to as "the Act").
The first conviction was in respect of an assault causing harm, contrary to s.3 of the Act, which was perpetrated by the appellant on Derek White on the 20th July, 2002, in a nightclub attached to a public house known as "The Black Sheep" in the city of Dublin. The appellant was also convicted of the offence of assault causing serious harm to Derek White in the same incident, contrary to s.4 of the Act. Following conviction, sentences of 2 years imprisonment on each count were imposed on the 28th January, 2005, such sentences to run concurrently from the 28th January, 2005. The sum of €5,000 was also paid by way of compensation by Mr. Kirwan to Derek White and was taken into account by the trial judge when imposing sentence.
The appeal before this court is confined to two grounds, one of which has already been dealt with in ex tempore fashion by this court at the conclusion of the hearing on the 17th October, 2005. The court on that occasion rejected so much of the appellant's appeal which claimed that evidence given by an eye-witness, Karen Byrne, was so unsatisfactory and inconsistent that the trial judge should not have permitted the offences charged under the Act to go to the jury. The court further rejected submissions that the verdict of the jury was perverse or unsafe on that particular ground.
The court however reserved its judgment on the other ground of appeal which may be characterised as a contention that the evidence offered by the prosecution did not comply with the detailed requirements for establishing that there was “serious harm” as that term is defined at s.1 of the Act and that the learned trial judge did not properly or adequately direct the jury as to the meaning of "serious harm" under s.1 of the said Act.
The evidence given in the Circuit Court was that Derek White had gone with friends to the nightclub in question on the 20th July, 2002. In the course of the evening, three young men, of whom the appellant was one, came up to Derek White while he was dancing with Karen Byrne. According to the prosecution evidence, the appellant, without any prior provocation or warning, stuck a pint glass into the face of Derek White, causing lacerations to Mr. White's left eye, his nose and lip. Mr White bled extensively and was removed from the scene by ambulance to Beaumont Hospital. He remained there for several hours before being transferred to the Mater Hospital where surgery was performed on the 20th July, 2002. Mr. White told the court that he had 24 stitches inserted in his left eye and 13 stitches around his face, nose, lip and both cheeks. His evidence as to the number of stitches required was not challenged.
Detailed evidence about the eye injury was given by Mr. Tim Fulcher, consultant ophthalmologist. He described how Derek White, who was born on the 18th January, 1982, came under his care following surgery on the 20th July, 2002. He carried out an examination of Mr. White on that day and told the court that Mr. White had sustained a slit-like injury which perforated the cornea and part of the sclera of the left eye. The wound was about 4mm in length. On examining the eyeball itself, he stated that one could see that the wound had been repaired with a number of stitches. He noted that the iris, which he described as the coloured part of the eye, had prolapsed out through the wound and had been pushed back in. He also observed a number of stitches to Mr. White's face, and in particular to his eyelid, face and lip. At that stage the vision in Mr. White's eye was "fairly reduced". During his stay in hospital, Mr. Fulcher stated that Mr. White was treated with antibiotics to prevent an infection of the eye, an event which, if it had occurred, could have caused him to lose the sight completely of his eye. Having been started on intravenous antibiotics for 2 days, Mr. White was then changed over to oral antibiotics which were continued for a period of about a week after the injury. He was also given eye drops. Following his discharge he returned to the hospital for review one week later. At that stage his eye was healing up and his vision was starting to improve. Mr. Fulcher stated that his vision was down by about 50% in the left eye primarily because of the stitches in the eye. They distorted the shape of the eye and caused some stigmatism which Mr. Fulcher described as a refractive change within the eye which causes blurring of vision. As the eye heals and the stitches are removed, that blurring and stigmatism reduces. When seen again at the clinic on the 9th August, 2002 the eye had healed up and vision had improved to normal vision.
Mr. Fulcher described the eye injury as a "serious injury". He stated in evidence that perforating injuries to an eye can result in complete loss of vision or loss of the eye. Fortunately for Mr. White his injury was "quite neat" and was repaired "quite nicely". Mr. White had a good outcome from the operation and had not been back to the clinic since. There was a possibility however that problems might arise some years down the line.
On cross-examination by Mr O'Higgins, senior counsel for the appellant, Mr. Fulcher agreed that part of the reduction in vision in the eye was attributable to the stitching.
Mr. O'Higgins” contended in submissions that the evidence in the case failed to satisfy any one of the three limbs of the test as to what constitutes "serious harm" in the Act. He submitted that "serious harm" under the Act means an injury which must meet one of the following requirements, being one:-
(c) which causes substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ.
Mr O'Higgins submitted that the only medical or expert evidence led by the prosecution was of a laceration to the left eye which was followed by blurred vision which lasted for a number of days. The primary cause of this blurring was not due to the injury but to the treatment (i.e. stitching) which Mr White had received. There was no evidence of serious disfigurement or substantial impairment of the mobility or the function of any particular member or organ as required by the definition of "serious harm" in s.1 of the Act. No evidence had been adduced to establish disfigurement to any degree, either in photographic form or otherwise to show how the injured party's face presented at the time of the injury, or in its immediate or later aftermath. It was common case that there had been an excellent...
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