DPP v McBride

• Jurisdiction: Ireland
• Judge: Blayney J.
• Judgment Date: 01 January 1997
• Neutral Citation: 1996 WJSC-CCA 720
• Docket Number: [C.C.A. No.36 of 1995]
• Court: Court of Criminal Appeal
• Date: 01 January 1997

1996 WJSC-CCA 720

THE COURT OF CRIMINAL APPEAL

Blayney J.

Carroll J.

McCracken J.

36/95

DPP v. MCBRIDE

THE PEOPLE (DIRECTOR OF PUBLIC PROSECUTIONS)

v.

RAYMOND McBRIDE

Applicant

Citations:

OFFENCES AGAINST THE PERSON ACT 1861 S18

OFFENCES AGAINST THE PERSON ACT 1861 S20

OFFENCES AGAINST THE PERSON ACT 1861 S47

SMITH & HOGAN ON CRIMINAL LAW 7ED 405

Synopsis:

CRIMINAL LAW

Offence

Bodily harm - Intent - Jury - Charge - Sufficiency - Distinction between intent and ~mens rea~ - Significance of alternative counts not explained to jury - (36/95 - Court of Criminal Appeal - 29/1/96) - [1996] 1 I.R. 312 - [1997] 1 ILRM 233

|The People v. McBride|

1 29th day of January 1996 by Blayney J.

Blayney J.

2 This is an application for leave to appeal against conviction and sentence but this judgment deals solely with the conviction aspect as it was agreed with counsel that the application for leave to appeal against sentence would be left over until the issue in regard to the conviction had been determined.

3 The applicant was convicted in the Dublin Circuit Court on the 31st day of March 1995 on three separate counts, all arising out of the same incident:

4 1. Causing grievous bodily harm with intent, contrary to s. 18 of the Offences Against the Person Act, 1861.

5 2. Unlawfully and maliciously inflicting grievous bodily harm contrary to s. 20 of the Offences Against the Person Act, 1861.

6 3. Assault occasioning actual bodily harm, contrary to s. 47 of the Offences Against the Person Act, 1861.

7 The applicant was sentenced to life imprisonment on the first count and to five years imprisonment on each of the other counts, all sentences to run concurrently.

8 The incident in respect of which the applicant was convicted occurred on the morning of the 6th February 1994 at Lindisfarne Avenue, Clondalkin. The applicant had driven from his house to the house in Lindisfarne Avenue where lived his brother and his wife and some of their children. As he drove up to the house, he saw one of his nieces, Stephanie MacBride, getting out of a car with a view to going into the house. When getting out of his car, the applicant took with him a pickaxe handle. Stephanie MacBride was standing at the door of the house. She had been unable to get in. According to her evidence, the applicant started shouting and hitting her with what she called "the stick". She denied having any conversation with the applicant, but it was put to her in cross-examination that the applicant had asked her about insurance, and that she had told him to go off with himself and that he was an "old badger of a bastard" and she agreed that she had used some words like these. She said that the applicant hit her three times. The medical evidence was that she sustained a large laceration to her scalp and fractures to the right forearm and the left tibia.

9 The applicant did not deny the assault. He made a statement to Detective Garda Robert Cooper which was put in evidence. This is how he described the incident:-

" As we drove from the shop down to Olivia's house, I saw Terry Cooney's car pulling up outside Olivia's house and Stephanie getting out. As I pulled up outside Olivia's house, Terry Cooney's car was pulling off. When I got out of my car, I took a pickaxe handle with me and walked into the garden of No. 14 Lindisfarne Avenue after Stephanie. I asked her was she going to fill in the accident form for crashing my car before the Christmas. You see cause she took my car before the Christmas and crashed into the back of a woman's car. I went to see this woman to see if I could fix her up, but when I saw her she was talking in thousands and I hadn't got that kind of money so I decided that it would have to go through the insurance. When the insurance forms came out, I asked her, that's Stephanie, to fill them out and she told me to stick them up my arse. I just wanted her to fill in the form cause I wasn't driving the car at the time of the accident. I had the pickaxe handle with me today only to frighten her but when she told me to fuck off this morning, my mind just went blank and I started hitting her with the handle. I don't know how many times I hit her. I don't even remember driving home, the only thing I can remember is the door bell ringing at my house in Woodford and when I opened it the guards were there. I don't know how many. I am sorry about what happened. I didn't mean it it's an awful thing to do to anybody."

10 Earlier in his statement he had said that on the previous night he had been drinking with his brother and the latter's wife at the Swallow's pub in Bawnogue. After closing time they went to a place called the Blue Banana where he and his brother had some more drinks. And then they went to his brother's house where they had a few bottles of Guinness. Before leaving there he was involved in some kind of a row and in the morning he discovered his face was all cut. He said he could not remember leaving his brother's house.

11 The grounds of appeal relied upon by Mr. Charlton were set out very fully in the written legal submissions prepared by himself and his junior Mr. O'Connell, and were developed by him in the course of the hearing. They all relate to alleged errors or omissions in the learned trial judge's charge and were concerned principally with the manner in which the learned trial judge dealt with the question of intention in regard to each of the counts. Having carefully considered the submissions, the Court is satisfied that in general they are well-founded.

12 It is necessary to consider the submission in respect of each count separately.

13 1. Mr. Charlton's submission on the first count was that the judge's charge on the issue of intention was contrary to law. The Court is not satisfied that a submission in such strong terms is justified but it takes the view that part of the manner in which the learned trial judge dealt with the question of intention was erroneous. In explaining to the jury the legal principles relevant to the first count, the learned trial judge initially dealt correctly and exhaustively with all the matters which he was obliged to put before the jury....