DPP v Mahon

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Clarke C.J.,MacMenamin,Charleton J.J.
• Judgment Date: 10 July 2018
• Neutral Citation: [2018] IESCDET 104
• Docket Number: 2016 178 [2017] IECA 320
• Date: 10 July 2018

[2018] IESCDET 104

An Chúirt Uachtarach

The Supreme Court

DETERMINATION

Clarke C.J.

MacMenamin

Charleton J.J.

2016 178 [2017] IECA 320

Between:

The People (Director of Public Prosecutions)

Prosecutor/Respondent

AND

David Mahon

Defendant/Appellant

APPLICATION REFERRED TO IN ARTICLE 34.5.3° OF THE CONSTITUTION

RESULT: The Court will make an order allowing an appeal to this Court under Article 34.5.3° of the Constitution from the judgment of the Court of Appeal delivered on the 7th December 2017.

REASONS:

ORDER SOUGHT TO BE APPEALED

COURT: Court of Appeal

DATE OF JUDGMENT OR RULING: 7th December, 2017

DATE OF ORDER: 7th December, 2017

DATE OF PERFECTION OF ORDER: 10th January, 2018

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 7th February, 2018 AND WAS IN TIME.

1 This determination concerns a decision of the Court of Appeal made on 7th December 2017 by Peart, Birmingham and Mahon JJ refusing a sentence appeal by David Mahon. He had been sentenced by Heneghan J on 13th June 2016 to a term of seven years' imprisonment for the manslaughter of Dean Fitzpatrick, his step-son on 26th May 2013; bill no CCDP0038/2014. This application seeks to engage in another appeal in relation to sentence and in relation to the proper basis of sentencing for manslaughter where, as in this case, the accused had been tried for murder but the jury had returned a verdict of manslaughter. The killing of the victim took place where the accused and the victim were alone but where the victim died in consequence of a deep knife wound by a large kitchen knife. The accused left the scene without seeking medical attention for the victim and drove away with a taxi driver friend.

2 The application can be best understood in the light of the facts as recited by Birmingham J in the Court of Appeal:

There was evidence in the trial that the relationship between the deceased and the appellant was not an easy one. In the days leading up to the incident, the appellant had asked for his step-son to be barred from the gym where they were both members for interfering with his bicycle and stealing a bottle of water from it. On the day of the offence, the appellant had been drinking and wanted to see his step-son. At about 9 p.m., the appellant rang the partner of [the deceased] … looking for him and he told her to tell him to come up to the apartment. Her evidence was that the appellant sounded drunk. When she informed him that she did not know where her partner was, the appellant became aggressive and said that if she did not tell her partner to ring him, he would get a knife and stick it in her head. At about 10 p.m. that evening, the appellant made contact with a friend of his, a taxi driver … and asked him to come to his apartment. [The taxi driver] said that the appellant told him that he had split up with his partner, the mother of the deceased. When he met the appellant, it seemed to him that the appellant was drunk and agitated. They initially went to [the taxi driver's] house before returning to the appellant's apartment. When they arrived back there, they were joined by another friend … [The taxi driver] said that the appellant rang the deceased asking where he was and asked him to come to the apartment. [The deceased] did so. [The taxi driver's] evidence was that when [the deceased] arrived, that the appellant confronted him over him taking his water bottle from the gym, and that they both became agitated. After they had calmed down [the two friends of the appellant went] out of the apartment and the appellant followed them out. [The taxi driver] did not see what happened outside the apartment, but after approximately a minute, the appellant returned into the apartment holding a large knife, saying ‘you have to get me out of here.’ This was the first point at which [the taxi driver] had seen the appellant with a knife. The appellant fled the scene with [the taxi driver], who had his taxi right outside the building. As they were driving, the appellant told [the taxi driver] that he thought [the deceased] was dead, and that the knife had gone right through him. They went for a drink in the Balrothery Inn …

3 After drinking for the evening and returning home, David Mahon presented himself at Coolock Garda Station the following morning. There he told the police, in the course of an interview, that the deceased had pulled a knife on him which came from the kitchen and was waving it around, that he had disarmed the deceased and put the knife in the back pocket of his jeans. When the deceased left the apartment, he claims to...