DPP v Michael Butler

 
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[2015] IECA 17

THE COURT OF APPEAL

Ryan P.

Birmingham J.

Edwards J.

64/12
DPP v Michael Butler
The People at the Suit of the Director of Public Prosecutions
V
Michael Butler
Appellant

Criminal law - Appeal against conviction - s.4 Non-Fatal Offences against the Person Act 1997 - Appeal against severity of sentence - Weight of evidence - Intervention by trial judge - Criminal Law (Defence and the Dwelling) Act 2011 - Act not in force at time of incident - Violent altercation - Question of self-defence - Assessment of evidence - Verdict open to the jury - Credibility of defence

Mr. Justice Birmingham
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1. In this case the appellant, Mr. Michael Butler, appeals against his conviction following a three day trial at Cork Circuit Criminal Court on the 2nd March 2012, in respect of an offence contrary to s. 4 of the Non Fatal Offences Against the Person Act 1997, and against the severity of the sentence of fifteen years imprisonment which was imposed on him.

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2. Four grounds of appeal are advanced. These are

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(i) That the verdict was against the weight of the evidence. However, in that regard it may be noted that there was no application for a direction following the conclusion of the prosecution case,

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(ii) That the learned trial judge did not permit questions regarding the efficacy of DNA evidence.

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(iii) That the learned trial judge did not consider submissions that were addressed to him in relation to the Criminal Law (Defence and the Dwelling) Act. However, in that regard it may be noted that the Criminal Law (Defence and the Dwelling) Act 2011, was passed on the 19th December, 2011 and was commenced on the 13th January, 2012, whereas the events that were in issue in the trial that resulted in Mr. Butler's conviction occurred on the 24th July, 2010.

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(iv) The trial judge referred to the appellant as "your man" in the course of his charge to the jury and it is said that this is derogatory of the appellant and created a perception in the minds of the jury that the defence case lacked merit.

The Facts
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3. At issue in the trial was a very serious and very violent incident that occurred at Roman Street, Cork during the early hours of the morning of the 25th July, 2010. In that regard the trial court heard from a taxi driver, Mr. Denis Daly, that he had picked up a fare and brought the lady in question, a Mrs. Conway, to No. 14 Roman Street, arriving there at about 3.10 am on the morning of the 25th July, 2010. A male came out with a television set from No. 14 Roman Street and was in the process of putting the television into the back seat of the taxi when Mr. Daly saw four or five people coming down Roman Street from the Eason Hill direction. They appeared to be armed and Mr. Daly could see a sword and brush handles.

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4. The person with the sword swung out with it at the individual who was handling the TV set, he did so twice hitting the car in the process. The evidence was that the people who had come from the Eason Hill direction had hoodies up and there was reference in the evidence to a sword, a large knife, a bar and brush handle. Evidence was given by a Lisa Byrne, who lived at 28 Roman Street. After 3.00 am on the morning of Sunday the 25th July, 2010, she heard a commotion and the sound of screaming on the street. She saw a tall man hit a smaller man who went down on one knee and got up. The taller man then punched the smaller one again and the smaller one went down on the ground. This was on the footpath outside No. 35 Roman Street. At that point Lisa Byrne rang An Garda Síochána. She described that the taller individual had walked away, but then walked back and pulled the smaller person to a particular house. There the taller man put his hands against the wall as if to steady himself and stood on the head of the smaller individual. He stood on the smaller man two or three times. She refers to the tall person wearing a white hoodie as has having tight hair. She also referred to the presence of two women, an older woman and a blonde woman. After the standing on the head incident, she describes one of the females dragging the injured party to a pole and dropping him and that she could hear his head bounce off the ground. In the course of cross examination, evidence was adduced that women were screaming about an assault and people coming into the house to assault them. She had seen no weapons and had heard something along the lines of "come to my mam's house and attack her". It is noteworthy that Lisa Byrne was not challenged on her account of the incident.

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5. The trial court also heard evidence from Anne Mooney of 26 Roman Street, where she resided...

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