DPP v Kelly

JurisdictionIreland
CourtCourt of Criminal Appeal
Judgment Date25 February 2011
Neutral Citation[2011] IECCA 25
Date25 February 2011

[2011] IECCA 25

THE COURT OF CRIMINAL APPEAL

Hardiman J.

de Valera J.

Peart J.

245/2004
DPP v Kelly

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS
Prosecutor

and

MARY KELLY
Applicant

CRIMINAL DAMAGE ACT 1991 S2(1)

CONSTITUTION ART 38.1

CRIMINAL DAMAGE ACT 1991 S2

CRIMINAL DAMAGE ACT 1991 S6

CRIMINAL DAMAGE ACT 1991 S6(2)

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S21

HAY v O'GRADY 1992 1 IR 210

BENNION STATUTORY INTERPRETATION 5ED 2008

COONAN & FOLEY THE JUDGES' CHARGE IN CRIMINAL CHARGE 2008 PARA 3-41

DPP v CAGNEY & MCGRATH 2008 2 IR 111 2008 1 ILRM 293 2007/8/1515 2007 IESC 46

AG v CUNNINGHAM 1932 IR 28

KING v AG 1981 IR 223

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S18

CRIMINAL LAW

Criminal damage

Statutory defence - Lawful excuse - Lay defendant - Whether immediacy in protection of person or property required to rely on defence - Whether amendment to legislation changed substance of defence - Whether requirement for immediacy could be implied - Onus of proof - Whether interpretation of statutory defence of lawful excuse without ambiguity - Whether judge's charge on defence of lawful excuse satisfactory - Whether trial or verdict safe or satisfactory - People (DPP) v Cagney [2008] 2 IR 111 considered - Criminal Damage Act 1991 (No 31), ss 2 and 6 - Non Fatal Offences Against the Person Act 1997 (No 26), s 21 - Appeal allowed; conviction quashed (25/2011 - CCA - 25/2/2011) [2011] IECCA 25

People (DPP) v Kelly

Facts: The applicant had forcibly entered Shannon Airport and caused considerable damage to a US Naval aircraft with the intention of preventing the plane going to Iraq. She claimed that she was entitled to the statutory defence of "lawful excuse". The applicant was charged with the offences of trespass and causing criminal damage pursuant to s. 2(1) Criminal Damage Act 1991, as amended. The question arose as to temporary immediacy and the defence and whether the trial had been conducted in a satisfactory fashion, in particular as to the charge of the Judge.

Held by the Court of Criminal Appeal per Hardiman J. (deValera, Peart JJ. concurring), that the Court would not find that the trial and verdict was safe or satisfactory based upon the transcript. The trial judge had not directed the jury appropriately on the question of "lawful excuse" and the application of law and fact. The appeal would be allowed and the conviction quashed. During the trial, it had taken several days before it was realised that the Act of 1991 had been amended. The trial judge had made an error as to the wording of the statute considered. The Court had not found it necessary to reach a conclusion on the questions raised as to statutory defences. The statutory provisions were in a state of confusion and needed to be looked at by the proper authorities.

Reporter: E.F.

1

JUDGMENT of the Court delivered this 25th day of February, 2011.

2

This is an unusual case both in terms of its own facts and in terms of the difficulties which arose in the trial.

Facts.
3

The facts can briefly be stated. On the 29 th January, 2003, about two months before the United States' invasion of Iraq, the applicant, Mary Kelly, forcibly entered upon an area of Shannon Airport, County Clare, where there was a United States Naval aircraft. She caused considerable and expensive damage to the aircraft. It had landed at Shannon for the purpose of refuelling on its journey to Sicily in connection with logistical preparations for proposed United States military actions.

4

A considerable number of potential issues at the trial arising from the above facts were removed by what the applicant said to the gardai immediately after she was apprehended on the day on which the events took place. She said:

"I am here to damage the plane, to prevent it from going to Iraq to prevent the killing of innocent Iraqi people".

5

She never resiled from that position.

6

It follows from the foregoing that the basic facts of this case are not in dispute. What was in dispute both at the trial of the applicant and on the hearing of this appeal was the more technical question of whether she was entitled to avail of a statutory defence of "lawful excuse". This will be set out in some detail below.

History of the prosecution.
7

Arising from the incident described above, the applicant was charged with two offences. These were as follows:

8

(1) An offence of trespass.

9

(2) An offence of causing criminal damage without lawful excuse, contrary to s.2(1) of the Criminal Damage Act, 1991. This is the offence which is the subject of the present judgment.

10

The applicant was first tried in Kilrush Circuit Criminal Court in July, 2003. On that occasion, she was convicted of the offence of trespass for which she received a one year suspended sentence. The jury failed to agree on a verdict in respect of the criminal damage charge and a retrial was directed.

11

The second trial took place at Ennis Circuit Criminal Court on the 28 th October, 2004. There, the applicant was convicted of the offence of criminal damage and she received a sentence of two years imprisonment which was suspended for a period of four years. She represented herself at this trial, by choice. When, after conviction, the matter was remanded to the 1 st December, 2004, for sentencing, the applicant was represented by a solicitor, instructing Senior and Junior counsel on her behalf.

12

The applicant now applies for leave to appeal against that conviction. In the circumstances, and for reasons which will appear later in this judgment, it seems possible to deal with the application on the basis of grounds two and four of the grounds of appeal filed with the applicant's notice of application for leave to appeal, dated 3 rd June, 2005. These are:

13

2 "(1)-

14

(2) The learned trial judge misdirected the jury on the issue of the defence of justification [sic] and on the ingredients of the offence and in the indictment [sic].

15

3 (3)-

16

(4) In all of the circumstances taken together the trial was unsatisfactory particularly where the applicant was appearing in person without the benefit of counsel and thereby the trial was in breach of Article 38.1 of the Constitution.

17

4 (5)-"

18

When the statutory provisions are examined, it will become clear that the "defence of justification" referred to at para.2 above should properly be a reference to the defence of "lawful excuse".

The Offence of Criminal Damage.
19

Section 2 of the Criminal Damage Act, 1991 provides as follows:

20

2 "2(1) A person who, without lawful excuse, damages any property belonging to another intending to damage any such property or being reckless as to whether such property would be damaged, shall be guilty of an offence". (Emphasis added)

21

The words "without lawful excuse" which are at the centre of the present appeal, were further addressed in s.6 of the Act. Section 6(2) provides as follows;

22

2 "6(2) A person charged with an offence to which this Section applies shall, whether or not he would be treated for the purpose of this Act as having lawful excuse apart from this subsection, be treated for those purposes as having lawful excuse:

23

(a) [irrelevant]

24

(b) [irrelevant]

25

(c) If he damaged… the property in question… in order to protect himself or another or property belonging to himself or another… and, at the time of the act or acts alleged to constitute the offence he believed -

26

(i) that he or that other … was in immediate need of protection and

27

(ii) that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances.

28

3 6(3) For the purposes of this Section it is immaterial whether a belief is justified or not if it is honestly held."

29

The foregoing sets out the relevant Section dealing the defence of lawful excuse as it was when originally passed in 1991. The Section is set out in the briefest possible form and with material which is not directly relevant to this trial deleted.

30

Nevertheless, like other statutes passed with the intention of reforming the criminal law in the 1990s, it is a difficult Section to construe and apply. Without crystal clear guidance from a judge it must be considerably more difficult for a jury to consider and apply.

31

Most unfortunately, as will be seen, considerable difficulty and confusion arose at the applicant's second trial in the explanation of the law to the defendant and the jury. This must be set out in some detail for the purpose of this judgment.

Points not immediately relevant.
32

In addition to the legal difficulties which arose at the trial, and which are about to be discussed, there were a number of serious issues arising as to the admissibility of evidence sought to be called by the defence as well as another statutory issue. These will be considered, to the extent necessary, after the issues already indicated have been dealt with because, if the applicant is successful on these legal issues, the other issues will not arise.

The amendment of the Statute.
33

The Criminal Damage Act, 1991, s.6, was amended by the provisions of the Non-Fatal Offences against the Person Act, 1997. This amendment occurred prior to the acts of damage to the American airplane which the applicant admitted and therefore prior to either trial. Accordingly, it is s.6 as amended, and not s.6 in the original form, which is relevant to the trial.

34

The amendment was effected by s.21 of the Act of 1997 which provides as follows:

35

2 "21 - Section 6(2) of the Criminal Damage Act, 1991, is hereby amended by the substitution for paragraph (c) of the following paragraph:

36

a '(c)...

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