DPP v Lynch

• Jurisdiction: Ireland
• Judge: O'Donnell J.
• Judgment Date: 29 July 2015
• Neutral Citation: [2015] IECCA 6
• Date: 29 July 2015
• Docket Number: 85/07
• Court: Court of Appeal (Ireland)

Between/

The People at the Suit of the Director of Public Prosecutions

Respondent

and

Kieran Lynch

Appellant

[2015] IECCA 6

O'Donnell J.

Moriarty J.

White J.

85/07

COURT OF CRIMINAL APPEAL

Criminal law – Murder – Manslaughter – Provocation – History of alcohol/ drug abuse – Charge to the jury – Direction to jury in relation to the law on the defence of provocation – Whether misdirection

Facts At the time of the events the appellant Kieran Lynch was forty years old. He had lived with his partner Catherine McEnery for almost ten years. They had a son who suffered from spina bifida and was in foster care. They both abused alcohol and prescription drugs regularly. On the 12th July 2005 they had both consumed a large quantity of alcohol and tranquilisers. Kieran fell into the river and nearly drowned. He was rescued and admitted to hospital. He was unconscious, scored 3/15 on the Glasgow Coma Scale, had a very low temperature and was suffering from mild hypothermia. Upon regaining consciousness he became very aggressive and had to be transferred to a separate hospital unit with accompanying security. On the morning of the 15th July 2005 he discharged himself from hospital against medical advice which stated he was "not of sound mind and was at risk of further injury". On his return home he began drinking heavily with Catherine. The next day was spent in a similar fashion. On the morning of 17th July 2005 Gardaí received an emergency phone call from Kieran Lynch. They arrived at the dwelling to find Catherine dead in her bed. Initially Kieran denied any involvement yet in further statements to the Gardaí he admitted that he had beaten Catherine and caused her death. The question to be considered was whether he was guilty of manslaughter or murder. The accused submitted a defence of provocation. The jury returned a verdict of guilty on count of murder by a majority of 11 to 1. The appellant sought to appeal the decision relying on two principal grounds – that the trial judge erred in giving the appropriate direction on the law in relation to the defence of provocation and that his response to the jury"s question was a misdirection. He also sought to submit an application to adduce fresh evidence.

Held The court was not satisfied that the jury was clear as to the manner in which it should address the defence of provocation before returning a verdict of guilt. Accordingly the court sought to quash the conviction on that ground, allow the appeal and direct a retrial. In relation to ground two, the judge stated the fact that a more elaborate jury instruction could have been given did not mean that the instruction ultimately given, to which no objection was raised, was inadequate, or could now be challenged on appeal.

-Conviction quashed and retrial ordered

Judgment of the Court delivered on the 29th of July 2015, by O'Donnell J.

Introduction

1 Kieran Lynch was, in 2005 and at the time of the events described herein nearly 40 years of age. He was living with his partner of nearly 10 years, Catherine McEnery in a cottage in Craughwell, County Galway. They had a son who suffered from spina bifida and was in care. A criminal trial focuses with meticulous detail on the events the subject matter of the trial, but is not designed to give a sympathetic or rounded picture of the participants. This can add to the distress of families of victims and other participants in a trial, particularly when aspects of the trial are highlighted and sometimes sensationalised. In order to understand this case, it is necessary to say that both Kieran Lynch and Catherine McEnery struggled seriously with alcohol, and abused it regularly in conjunction with prescription drugs, principally popular tranquillisers known generally as benzodiazepines, which when used in conjunction with alcohol can increase the intoxicant effect. Catherine McEnery had previously had a successful business and was spoken of warmly by her family, and indeed by Kieran Lynch. However, for the purposes of this case, the complexities of her personality, and the difficulties of her life, are reduced to the simple and unavoidable fact that she was a victim. On the night of the 16th/17th of July 2005 Kieran Lynch beat her and killed her. It is not in doubt that he was guilty of a crime in doing so: the only question which was addressed at his trial was whether he was guilty of manslaughter or murder.

2 On the 12th of July 2005, Kieran Lynch and Catherine McEnery had been in Galway. Considerable quantities of alcohol and tranquillisers were consumed. Kieran Lynch fell into the Corrib River and nearly drowned. When he was rescued, he was admitted to hospital where it was established that he had a history of abuse of alcohol and tranquilisers. On admission he was found to have benzodiazepines in his system, and to have an alcohol level of 274mg% which is a very high level, considered to be consistent in many people with a stuporous state. He was unconscious, and scored 3/15 on the Glasgow Coma Scale, which is a scale which assesses basic functions such as a patient's ability to open eyes, speak and move, and obey commands. Three on a scale of fifteen was described as a 'very low coma scale ... suggestive of essentially marked depression in neurological function'. His temperature was low, and he was suffering from mild hypothermia.

3 From the point of admission to hospital and recovery of consciousness he was aggressive and difficult. He was transferred from the high dependency unit to the general medical ward with accompanying security. Staff in the medical ward were concerned for their own safety and that of other patients. He was recorded as being 'aggressive ++'. He was given two 200mg doses of chlorodiazepoxide, one on the evening of the 14th and again on the morning of the 15th. These were very large doses. Chlorodiazepoxide was an early benzodiazepine and is used, as in this case, in dealing with persons dependent upon other benzodiazepines, in this case, diazepam.

4 On the morning of the 15th of July 2005, Kieran Lynch discharged himself from hospital against medical advice. Hospital records noted he was 'not of sound mind to discharge and would be at risk of further injury'. On his return to Craughwell he did some chores and he and Catherine McEnery began drinking vodka, cider and cheap larger, and also took diazepam. They also each visited the village to obtain more alcohol. A neighbour, Fern Farraige, gave evidence that on the 15th of July she overheard the applicant on a mobile phone saying 'I've put up with this for 10 years. I've had enough of her. I'm going to sort this out'. She considered that this was said in relation to Catherine McEnery. She was not cross-examined however and little emphasis appears to have been placed on this evidence at the trial.

5 Saturday the 16th of July was spent in similar fashion. On the morning of Sunday the 17th of July gardaí received an emergency phone call from Kieran Lynch. As a result gardaí went to the cottage and found Catherine McEnery dead in her bed. There was a large quantity of blood on her clothing, on the bed, and throughout the house. Initially Kieran Lynch told them that she had been drinking for the past five weeks, had a tendency to go into Galway and drink with the street drinkers and generally fall in with a bad crowd. On this occasion she had been dropped back at the house and was bruised and bleeding. He had put her to bed and checked whether she wanted an ambulance. She refused and when he woke in the morning she was dead. He said that if they found the person who had beaten her he would kill him himself. He maintained this story initially, and made a formal statement to this effect, but later that day made further statements. In these he admitted that he had beaten Catherine McEnery and caused her death. He maintained that she had been very drunk and had become aggressive and abusive around midnight on the 16th of July. He continued:

'Katie was still abusing me. I was saying to her Katie can't you go to bed? She picked up a plank of timber from beside the fire it was about two feet long a piece of split log. It was old. She started calling me a bastard and a cunt. And she hit me on the legs and the elbows. She pulled me by the hair she was trying to drag me off the couch. I told her three times or maybe four or five times to leave me alone or I will hurt you. I asked her to go to bed. She hit me again. I got up and I grabbed the leg of a chair. This was the leg of a chair that Katie had fallen over earlier in the day and the leg was broke. The chair leg was in the corner. Katie was still coming at me with the plank. I warned her to leave me alone and to go to bed. She was coming at me. I lost my temper. How could I stand there and be walloped around the place? I swung the leg of the chair at her, hitting her on the lower jaw. She still came after me. She still had the plank of timber. I swung with the leg of the chair, I hit her in the same spot again. I hit her three or four times. I then pulled her stick off her. She went in and sat on the bed she was not bleeding. I told her this had to stop she was crying. I told her I was sorry but that she started it. I told her that she was getting another chance that this place was beautiful. She went into bed and I went out and lay on the couch. Before I lay on the couch I asked her if she wanted an ambulance? She said no she didn't want the Health Board to hear about it. During the night I checked on her seven or eight times. At one stage I woke her up and we had a fag. I put a pillow to her back, she was bleeding and crying, saying she was sorry. Every time I went in to her I asked her did she want an ambulance? She said no way. She went back to sleep. Another time I went into her I washed her face, this would...