DPP v Kelly (Keith)

• Jurisdiction: Ireland
• Judgment Date: 21 July 1999
• Date: 21 July 1999
• Docket Number: [C.C.A.
• Court: Court of Criminal Appeal

The People (Director of Public Prosecutions) v. Keith Kelly

The People (at the suit of the Director of Public Prosecutions) Respondent

and

Keith Kelly

Appellant

[C.C.A. No. 154 of 1998]

Court of Criminal Appeal

Criminal law - Murder - Defence - Provocation - Test applicable - Whether test is subjective - Whether test having objective elements.

The appellant was convicted in the Central Criminal Court on the charge of murder. The trial judge, who had allowed a plea of provocation to go to the jury, in his charge stressed that the test to be applied was a subjective one and read passages from earlier decisions on provocation.

Counsel for the appellant submitted that the passages quoted still retained traces of the objective test and tended to contradict the trial judge's statement that the test was subjective and that the impression could have arisen that the test to be applied was, at least in part, an objective one. It was submitted that this was likely to, and did in fact, confuse the jury.

The trial judge granted a certificate of leave to appeal.

Held by the Court of Criminal Appeal (Barrington, McCracken and Kearns JJ.), in quashing the conviction and ordering a new trial, that it was well-settled law in this jurisdiction that the test to be applied to a plea of provocation was entirely subjective.

The People (Director of Public Prosecutions) v. MacEoin [1978] I.R. 27;The People (Director of Public Prosecutions) v. Mullane (Unreported, Court of Criminal Appeal, 11th March, 1997) considered.

Cases mentioned in this report:-

Green v. R (1996-97) 193 C.L.R. 334.

Luc Thiet Thuan v. The Queen [1997] A.C. 131; [1996] 3 W.L.R. 45, [1996] 2 All E.R. 1033.

Masciantonio v. The Queen (1994-95) 183 C.L.R. 58; (1995) 69 A.L.J.R. 598.

The People (Attorney General) v. Berber and Levy [1944] I.R. 405.

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

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).

The People (Director of Public Prosecutions) v. Noonan [1998] 2 I.R. 439.

R v. Acott [1997] 1 W.L.R. 306; [1997] 1 All E.R. 706; [1997] 2 Cr. App. R. 94.

R v. Duffy [1949] 1 All E.R. 932.

R v. Humphreys [1995] 4 All E.R. 1008.

R v. Morhall [1996] A.C. 90; [1995] 3 W.L.R. 330; [1995] 3 All E.R. 659.

R v. Smith [1999] Q.B. 1079; [1999] 2 W.L.R. 610 ; [1998] 4 All E.R. 387.

Stingel v. The Queen (1990-91) 171 C.L.R. 312.

R v. Thornton (No. 2) [1996] 1 W.L.R. 1174; [1996] 2 All E.R. 1023.

Criminal appeal.

The facts are summarised in the headnote and are set out in full in the judgment of the Court of Criminal Appeal, infra.

On the 9th May, 1997, following a trial in the Central Criminal Court (Flood J. and a jury) the appellant was convicted on a charge of murder.

Pursuant to a certificate of the trial judge dated the 5th June, 1997, and notice of appeal dated the 9th October, 1998, the appeal was heard by the Court of Criminal Appeal (Barrington, McCracken and Kearns JJ.) on the 21st June, 1999.

Cur. adv. vult.

In accordance with the provisions of s. 28 of the Courts of Justice Act, 1924, the judgment of the Court was delivered by a single member.

Barrington J. 21st July, 1999

This is an appeal against conviction brought, pursuant to a certificate of the trial judge, by Keith Kelly who was on the 9th May, 1997, found guilty, before Flood J. and a jury in the Central Criminal Court, of the murder of Melanie Gleeson on the 31st October, 1995.

The appeal raises an important issue as to how a trial judge who has allowed a defence plea of provocation to go to a jury, should charge the jury on that subject. It is clear from the charge of the learned trial judge that he took meticulous care to charge the jury on the lines laid down by this Court in The People (Director of Public Prosecutions) v. MacEoin [1978] I.R. 27, and The People (Director of Public Prosecutions) v. Mullane (Unreported, Court of Criminal Appeal, 11th March, 1997), while at the same time stressing that the test to be applied to the question as to whether the accused had been so provoked as to lose his self-control and kill the deceased was a subjective one and not an objective one. Counsel for the appellant submitted that passages which the trial judge felt obliged to quote from the decisions in MacEoin and Mullane still retained traces of the objective test and tended to contradict the trial judge's statement that the test was a subjective one. The foreman of the jury twice asked the trial judge to redirect them on the issue of provocation. One of the matters on which he asked for specific assistance was "the use of excessive force in relation to provocation".The jury, after being out for four hours and twenty minutes, found the accused guilty of murder by a majority verdict of ten to two.

It was in this context that the trial judge granted the certificate of leave to appeal. He said (at book 4 of the transcript p. 60):-

"I want to make it quite clear that this court has followed the law as laid down by the Court of Criminal Appeal. I in no sense give myself the right to anyway abrogate the view or the decision of the Court of Criminal Appeal in either decision. But I do consider that it is appropriate to grant the certificate of leave to appeal in the circumstances of this case."

The defence did not go into evidence. But the trial judge ruled that there was sufficient evidence of provocation on the State's case to allow the plea of provocation to go to the jury. The problem then arose as to how the trial judge was to charge the jury on the issue of provocation. The trial judge charged the jury in accordance with the principles laid down by this court inThe People (Director of Public Prosecutions) v. MacEoin [1978] I.R. 27, and The People (Director of Public Prosecutions) v. Mullane (Unreported, Court of Criminal Appeal, 11th March, 1997), making clear his own view that the test to be applied by the jury on the issue of provocation was a subjective one. The defence however objected to the judge's charge on the basis that some of the passages which the trial judge felt obliged to quote from MacEoin and Mullanecould give the impression that the test to be applied was, at least in part, an objective one.

The law

Prior to the decision of the Court of Criminal Appeal inThe People (Director of Public Prosecutions) v. MacEoin [1978] I.R. 27, the question of whether a defence of provocation had been established was determined by "the objective test". This test was enunciated by Devlin J. and specifically approved by Lord Goddard delivering the judgment of the English Court of Appeal in R v. Duffy [1949] 1 All E.R. 932. The relevant passage reads as follows at p. 932:-

"Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind."

This formula was clearly the basis for s. 3 of the English Homicide Act, 1957, which reads as follows:-

"Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things...