DPP v McNamara

• Jurisdiction: Ireland
• Judge: MR JUSTICE PETER CHARLETON
• Judgment Date: 26 June 2020
• Neutral Citation: [2020] IESC 34
• Date: 26 June 2020
• Court: Supreme Court
• Docket Number: [S.C. No. 150 of 2019],Supreme Court appeal number: S:AP:IE:2019:000150 Court of Appeal record number 2017/266 [2019] IECA 148 Central Criminal Court bill number: CCC 2019 no 0009

Between

The People (DPP)

Prosecutor/Respondent

- and -

Alan McNamara

Accused/Appellant

[2020] IESC 34

Clarke C.J.

MacMenamin J.

Dunne J.

Charleton J.

O'Malley J.

Supreme Court appeal number: S:AP:IE:2019:000150

[2020] IESC 000

Court of Appeal record number 2017/266

[2019] IECA 148

Central Criminal Court bill number: CCC 2019 no 0009

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Conviction – Murder – Provocation – Appellant seeking to appeal against conviction – Whether the defence of provocation requires that the provoking action or words come from the ultimate victim

Facts: The accused/appellant, Mr McNamara, on 31 July 2018 at the Central Criminal Court, was found guilty by a jury of the murder, on 20 June 2015, of Mr O’Donoghue at the Road Tramps Motorcycle Club premises near the village of Murroe in County Limerick. The presiding judge imposed the mandatory sentence of life imprisonment. Earlier, on the close of all the evidence, having heard legal argument, the judge declined to leave the defence of provocation open to the jury. The other defence raised was that of self-defence, which he ruled the jury could consider. That defence was rejected. The Court of Appeal upheld the trial judge’s decision to rule out provocation in a judgment of 28 May 2019. By determination of 19 November 2019, the Supreme Court allowed an appeal from the decision of the Court of Appeal under Article 34.5 of the Constitution and settled the following questions as ones of general public importance: (i) Does the defence of provocation require that the provoking action or words come from the ultimate victim? (ii) To what extent can background circumstances found or inform the defence of provocation? (iii) Should or does the proper construction of the defence of provocation contain any objective element either as to reaction or as to mode of response or as to time of response? (iv) What role, if any, does the trial judge have in excluding the defence of provocation from the jury?

Held by the Court that there was no foundation of fact on which a jury could ever find for the accused on the basis of provocation. The Court held that what happened the night before the killing of the victim might have been such that had the accused retaliated when he and his wife were assaulted outside the bar, supposing that the victim had taken part, which he did not, and supposing he had the means of lethal force spontaneously to hand, a jury might have considered the defence of provocation in that context. The Court held that whether the jury would have found provocation or not is a different matter. The Court held that where, as in this case, an accused has time to restrain emotion and to seek lawful means of redress, such as making a complaint of a criminal wrong to the authorities, there is no basis for leaving provocation as a defence to the jury. The Court held that it would also be contrary to any proper analysis of the level of provocation in this case to consider that any ordinary person in this context and of the same age, sex and without mental infirmity, being of general intelligence, could lose control to the degree of shooting someone in the face with a sawn-off shotgun. The Court noted that, in addition to the time factor, the attack occurring on the next day, the victim was disconnected from the attack and was merely a member of the same group as the original assailants.

The Court held that the decision of the Court of Appeal, affirming the ruling of the trial judge in withdrawing provocation from the consideration of the jury, should be affirmed on the basis of a lack of reality to the applicability of the defence of provocation in the circumstances of this case.

Appeal dismissed.

JUDGMENT OF MR JUSTICE PETER CHARLETON DELIVERED ON FRIDAY 26TH JUNE 2020

1 This judgment analyses provocation, the partial defence applicable only to a charge of murder which reduces an intentional homicide from murder to manslaughter in consequence of a person temporarily loosing self-control in response to provocative actions or words. The accused, Alan McNamara, a member of the Caballeros Motorcycle Club, on 31 July 2018 at the Central Criminal Court, was found guilty by a jury of the murder, on 20 June 2015, of Andrew O'Donoghue at the Road Tramps Motorcycle Club premises near the village of Murroe in County Limerick. McDermott J, the presiding judge, imposed the mandatory sentence of life imprisonment. Earlier, on the close of all the evidence, having heard legal argument, McDermott J declined to leave the defence of provocation open to the jury. The other defence raised was that of self-defence, which he ruled the jury could consider. That defence was rejected. The Court of Appeal upheld the trial judge's decision to rule out provocation in a judgment of 28 May 2019; Birmingham P, Edwards and Kennedy JJ, [2019] IECA 148. The principles underpinning a judicial refusal to allow a jury to consider the defence of provocation also requires the clarification of the elements making up that defence. Hence, the elements of provocation as a defence and when provocation should be withdrawn from the jury are the issues on the appeal.

2 By determination of 19 November 2019, this Court allowed an appeal from the decision of the Court of Appeal under Article 34.5 of the Constitution and settled the following questions as ones of general public importance:

(i) Does the defence of provocation require that the provoking action or words come from the ultimate victim?

(ii) To what extent can background circumstances found or inform the defence of provocation;

(iii) Should or does the proper construction of the defence of provocation contain any objective element either as to reaction or as to mode of response or as to time of response;

(iv) What role, if any, does the trial judge have in excluding the defence of provocation from the jury?

3 Here, the consideration is not just as to objective and subjective elements in the defence of provocation but the acceptability of assessing the liability of those who invoke the plea on the basis of their intoxicated or drugged selves and the social acceptability of warped notions of honour, criminal betrayal or unacceptable ideological norms as being capable of constituting a defence in criminal law.

The circumstances

4 On the day prior to this homicide, Friday 19 June 2015, the accused and his wife went out and had an evening drink at a public house in Doon, County Limerick. On leaving, they were accosted by three members of the Road Tramps Motorcycle Club, who ripped off and stole the accused's sleeveless jacket with its Caballeros insignia, or flag. His wife tried to prevent the assault but was violently restrained. The assailants, Seamus Duggan, Raymond Neilon and James McCormack, gave evidence at the trial. Shortly beforehand, they had pleaded guilty to robbery at Limerick Circuit Criminal Court. The evidence at the murder trial was to the effect that this attack on the accused and his wife was a deliberate act of provocation. In summing up the case to the jury, McDermott J stated that ‘“it clearly emerged that the taking of the jacket was an insult to the person and to its club, including its president.”

5 On returning to their home, according to the evidence of Mary McNamara, a car pulled up outside with others from the Road Tramps club in it, Kevin Ryan, Bob Mclnerney and Dermot McKenna. She testified that they were armed with various weapons including what was thought to be a firearm. Before the court of trial, evidence was centred on the threatening nature of this appearance and on the shouted threats: “we're going to kill ye and burn your house down.” Present in the house with the couple were a nine-year-old son, who had been in the front garden, a grown-up daughter and her boyfriend. From the evidence, it also emerged that there had been tension between the rival groups and their respective members; a turf dispute that Limerick city was Caballeros “territory” while Murroe and the surrounding villages of Doon, Cappawhite and Cappamore were somehow claimed by the Road Tramps as theirs. The Road Tramps clubhouse was located in Mountfune, two kilometres outside of Murroe and about one kilometre from the family home of the accused. It was therefore situated in, what this damaging thinking regarded as, disputed territory. According to the accused's statements to the gardaí, that same evening other members of the Caballeros club, including Robert Barrett, the president, and David O'Dea, an ordinary member, visited his home in order to discuss the incident at the pub and its aftermath.

6 On the following day, Saturday 20 June 2015, David O'Dea was driving through the village of Doon with two passengers, Robert Barrett and Robert Cusack. The latter is the accused's stepson and was a probationary member of the Caballeros club. On the outskirts of Doon, these three men encountered the car of Seamus Duggan, one of the Road Tramps assailants from the public house. They gave chase. His car was followed at high speed for 23 km and information about this pursuit was relayed by mobile phone to the accused. One such phone call from Robert Cusack to the accused at 14:41 lasted about five minutes. On his behalf, in submissions on this appeal, it is asserted that it is clear from what he said to gardaí, and the evidence of his wife, that he was in great fear following the assault on himself and his wife and the serious threats that were made at his home. He had, he claimed, slept very badly that night. He continued to be concerned the next day and on any reasonable assessment he remained agitated following the robbery of his club insignia and the threats made to him at his home. He only became aware of his stepson's involvement when he received a phone call from him that he and two other men were pursuing a member of the Road Tramp's Club.

7 Seamus Duggan, realising...