DPP v Kierans

JurisdictionIreland
JudgeMr. Justice McCarthy
Judgment Date12 April 2019
Neutral Citation[2019] IECA 122
Docket Number[153/2015]
CourtCourt of Appeal (Ireland)
Date12 April 2019

[2019] IECA 122

THE COURT OF APPEAL

McCarthy J.

Birmingham P.

McCarthy J.

Kennedy J.

[153/2015]

BETWEEN
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENT
AND
OLIVER KIERANS
APPELLANT

Conviction – Sentencing – Manslaughter – Appellant seeking to appeal against conviction and sentence – Whether the trial judge erred in failing to properly direct the jury as to the law in relation to intention as it applied to the alleged offence and to the particular factual circumstances of the case

Facts: The appellant, Mr Kierans, on 27 February 2015, was convicted of manslaughter (having been charged with murder), possession of a firearm in suspicious circumstances contrary to s. 27A of the Firearms Act 1964 and possession of a firearm with intent to endanger life contrary to s. 15 of the Firearms Act 1925. He was sentenced to terms of imprisonment of nine years for manslaughter, eight years for that of possession in suspicious circumstances and twelve years for that of possession with intent to endanger life, the sentences to run concurrently. It was not in dispute but that the offence of manslaughter was committed by virtue of his gross negligence. He appealed to the Court of Appeal against the convictions and sentences. The appellant submitted that the trial judge erred: (i) in failing to properly direct the jury as to the law in relation to intention as it applied to the alleged offence and to the particular factual circumstances of the case; (ii) in not instructing the jury that, when considering the issue of whether the appellant was in possession of a firearm in circumstances giving rise to a reasonable inference that he did not have it in his possession for a lawful purpose, they ought to acquit even if they prefer the prosecution case, if the version advanced by the appellant was reasonably possible; and (iii) in how she charged the jury in respect of the allegation of possession of a firearm with intent to endanger life. The appellant submitted that the trial judge erred in imposing the particular sentences and that greater mitigation ought to have been afforded.

Held by the Court that the trial judge made it clear that three verdicts were open to the jury on the charge of murder, namely, guilty of murder, not guilty of murder but guilty of manslaughter and not guilty simpliciter, and, furthermore, that the prosecution were required to prove each matter beyond a reasonable doubt, and that if the jury entertained a reasonable doubt in respect of specific charges they must acquit. The Court held that there was no rational basis for any requisition on any of the issues raised by the appellant since there was no error and accordingly, the principles in DPP v Cronin [2006] IESC 9, had no relevance. The Court held that the appeal against conviction would accordingly be dismissed.

The Court held that the sentences imposed were well within the margin of discretion afforded to the trial judge. The Court could detect no error of principle. The Court held that the appeal against sentence would accordingly be dismissed.

Appeal dismissed.

JUDGMENT of The Court delivered on the 12th day April of 2019 by Mr. Justice McCarthy
1

On 27 February 2015 the appellant was convicted of manslaughter (having been charged with murder), possession of a firearm in suspicious circumstances contrary to section 27 A of the Firearms Act, 1964, as amended, and possession of a firearm with intent to endanger life contrary to section 15 of the Firearms Act, 1925, as amended. He was sentenced to terms of imprisonment of nine years for manslaughter, eight years for that of possession in suspicious circumstances and twelve years for that of possession with intent to endanger life, the sentences to run concurrently. It is not in dispute but that the offence of manslaughter was committed by virtue of his gross negligence. He appeals against the convictions and sentences.

2

The appellant was married to the deceased Patricia Kierans for 33 years and they had four children all of whom had grown up and were living in or were en route to Australia at the time of the homicide. Difficulties had arisen in the appellant's relationship with his wife in the spring or early summer of 2013 and she had left the family home as a consequence. The appellant had licences for a rifle and a shotgun but he had sawn off a length of the barrels and also the stock: obviously a sawn off shotgun is useful only to kill or cause serious injury and not for any legitimate purpose, and, indeed, the appellant said that he had adapted it so that he could use it to commit suicide. He said he had the firearm in his possession during the fatal incident, which occurred in a bedroom in the family home, so that he could threaten that he would take his own life if his wife did not believe his denial that he was not conducting an extramarital relationship which she apparently erroneously suspected. The appellant denied that he had intended the killing and that the gun had ‘discharged accidentally’ due to the unexpected movement of a bed consequent upon a sudden movement either by him or the deceased. The possession of a firearm (the sawn off shotgun) with intent to endanger life related to the fact that he sought to shoot a Garda Fay when he sought to arrest him.

3

Four grounds of appeal were pleaded in the notice of appeal but one abandoned and those now relied upon are that the learned trial judge erred: -

(i) in failing to properly direct the jury as to the law in relation to intention as it applied to the alleged offence and to the particular factual circumstances of the case;

(ii) in not instructing the jury that, when considering the issue of whether the appellant was in possession of a firearm in circumstances giving rise to a reasonable inference that he did not have it in his possession for a lawful purpose, the ought to acquit even if they prefer the prosecution case, if the version advanced by the appellant was reasonably possible;

(iii) in how she charged the jury in respect of the allegation of possession of a firearm with intent to endanger life.

4

Each of these grounds relate to supposed deficiencies in the judge's charge. The first thing to be said is that every charge must be considered as a whole and it is wholly illegitimate to attempt to isolate and take entirely out of context elements thereof either with respect to particular topics as has undoubtedly occurred here. We need hardly quote authority for this rudimentary proposition. We do not intend to repeat it when addressing each one individually although it applies equally to all of them. We cannot, needless to say, quote in this judgment the entirety of the charge but we think that the general observation will suffice.

Ground 1

The learned trial judge erred...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT