DPP v McNamara

• Jurisdiction: Ireland
• Judge: Birmingham P.
• Judgment Date: 28 May 2019
• Neutral Citation: [2019] IECA 148
• Docket Number: [266/17]
• Court: Court of Appeal (Ireland)
• Date: 28 May 2019

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

ALAN MCNAMARA

APPELLANT

[2019] IECA 148

[266/17]

THE COURT OF APPEAL

Conviction – Murder – Provocation – Appellant seeking to appeal against conviction – Whether the judge erred in refusing to allow the jury to consider the partial defence of provocation

Facts: The appellant, Mr McNamara, on 31st July 2018, was convicted by a unanimous jury in the Central Criminal Court of the offence of murder and subsequently received the mandatory life sentence. He appealed to the Court of Appeal against that conviction. He argued that the judge erred in refusing to allow the jury to consider the partial defence of provocation and in failing to discharge the jury when an issue arose about the appropriateness of an individual juror serving.

Held by the Court that the trial judge’s decision to excuse the juror in question was a reasonable one, but so, too, in the Court’s view, was the judge’s decision that it was not necessary to discharge the jury and that the trial could proceed with eleven jurors. In those circumstances, the Court was not prepared to uphold that ground of appeal. The Court held that permitting the jury to consider the partial defence of provocation would have represented a dramatic expansion of the traditional law on provocation and that such an expansion would be quite unjustified. The Court was in no doubt that the trial judge was correct in refusing to let the issue of provocation be considered. Accordingly, the Court was not prepared to uphold that ground of appeal either.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 28th day of May 2019 by Birmingham P.

1 On 31st July 2018, the appellant was convicted by a unanimous jury in the Central Criminal Court of the offence of murder and subsequently received the mandatory life sentence. Mr. McNamara now appeals that conviction.

2 Two issues are raised in the appeal. First, the appellant argues that the Judge erred in refusing to allow the jury to consider the partial defence of provocation. Second, it is said that the Judge erred in failing to discharge the jury when an issue arose about the appropriateness of an individual juror serving. To put these issues in context, it is necessary to say something about the background to the case.

The Facts

3 The appellant was convicted of the murder of one Andrew O'Donoghue on 20th June 2015. He lived in Murroe, County Limerick and was a member of a motorcycle club called “The Caballeros Motorcycle Club”. Another motorcycle club, “The Road Tramps Motorcycle Club”, was based in Murroe and had its clubhouse there. The appellant's home was situated approximately one kilometre from the motorcycle clubhouse. Indeed, the appellant had, in the past, been a member of the Road Tramps Club.

4 On the evening of Friday 19th June 2015, the appellant and his wife went for a drink in a public house in the village of Doon. As they exited the licensed premises, the appellant and his wife were set upon by three individuals who were members of the Road Tramps Motorcycle Club. During the incident, the appellant's jacket containing the badge of the Caballeros Motorcycle Club (referred to as his ‘colours’) was taken from him. It emerged during the trial that the taking of someone's jacket in this manner was considered a symbolic attack on their honour and that of the club they belong to. Following the events in Doon, the appellant drove back to his home and is said to have been in a state of shock. Present at the residence were the appellant's daughter and her boyfriend, as well as his young son, aged nine years old, who at one stage was playing outside the house. Not long after his return, a car pulled up outside his home. In it were a number of members of the Road Tramps Motorcycle Club and who were carrying had weapons, including a firearm. They issued threats to the appellant's family to the effect of ‘we're going to kill ye and burn your house down’. Counsel on behalf of the appellant placed emphasis on the group's choice of pronoun and suggested that this indicates the threat to have been one emanating from the Road Tramps Motorcycle Club and not merely a threat being issued by the individuals in the car.

5 The appellant had a stressful evening, he slept poorly and his wife provided him with Valium. On the following day, the appellant's stepson: Mr. Robert Cusack who was also a member of the Caballeros, and was driving with two others in a motorcar. They encountered another motorist; a member of the Road Tramps, and a high-speed pursuit ensured. The car being pursued headed in the direction of the Road Tramps” clubhouse. There was phone contact between the appellant and his stepson. Acting on the information he had received, the appellant then drove in the direction of the Road Tramps Club taking with him a loaded sawn-off shotgun. On arrival, he saw two men at the gate of the club premises, one holding a bar or pole, which, according to the appellant, he believed to be a firearm. The appellant stopped the Jeep that he was driving and discharged a round accidentally as he attempted to get out of his vehicle. It is suggested that this accidental discharge is indicative of his stressed state. Having exited the vehicle, the appellant ran towards the gate of the Road Tramps Motorcycle Club and fired two rounds, hitting the deceased, Mr. Andrew O'Donoghue, at close range. Having discharged the single shot which killed Mr. O'Donoghue, the appellant then attempted to reload the weapon. He is said to have had some difficulties in doing so which allowed members of the Road Tramps Motorcycle Club to close the gate and cut off the appellant's access to the clubhouse. The appellant subsequently fled the scene in his vehicle. Thereafter Mr. O'Donoghue was brought to Limerick's Regional Hospital and died later that day.

Failure to Discharge the Jury

6 While this appeal has seen greater focus placed on the issue relating to the partial defence of provocation, the question as to the juror arose first in time at trial, and for that reason it is convenient to deal with that at this point.

7 This issue arises in circumstances where the appellant was arraigned before the Central Criminal Court on 10th July 2017. The appellant's trial began on 13th July 2017. The jury selected a foreman and the appellant was given in charge to the jury. The prosecution opened the case, offering an outline of the facts, including reference to the Road Tramps Club. A number of witnesses gave evidence, including Mr. Seamus Duggan whose testimony was significant in the context of the case. Mr. Duggan was a member of the Road Tramps Motorcycle Club and was one of those involved in the incident outside the public house in Doon. Before he had concluded his...