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

Facts The appellant, Mr Butler, sought to appeal against conviction. He was convicted of an offence contrary to s. 4 Non-Fatal Offences against the Person Act 1997. He sought to appeal against the severity of sentence of fifteen years that was imposed against him. A violent altercation occurred in the early hours of the morning on 25 July 2010 giving rise to the offence in question. It was a violent, bloody and vicious incident. Weapons were used including a Samurai sword, a large knife, a bar and brush handle. Evidence was given by a number of individuals who witnessed the incident including a taxi man, residents of the local area and officers on duty attending the scene. Interviews were conducted with Mr Butler later that morning. Headmitted hitting a man who had attacked him, hitting him on the ground a few times to protect himself and kicking a man on the ground in the face, once or twice. He admitted assaulting Mr Barry and kicking him in the face but stated that he was defending himself and his mother and his girlfriend. Medical evidence formed part of the prosecution case. Mr Barry had been admitted to hospital on the night in question and was found to have sustained a wound over the right eye, facial bruising and a severe wound to the left ear. A CT brain scan recorded a subdural haematoma; inter cerebral contusions and cerebral swelling. Conversely, the defence outlined Mr Butler was not the aggressor, that he was attacked by a number of masked men who were carrying dangerous weapons including swords, and that in the presence of both his mother and girlfriend, was attacked and injured. The defence case was that he was personally attacked by the injured party Mr Barry, who was in possession of a sword.

Held The trial judge intervened during cross-examination on a point of relevance. The judge held such intervention by the trial judge did not appear to impair the defence in any material way. The appellant sought to rely on the Criminal Law (Defence and the Dwelling) Act 2011; however,the Act had not been passed when the incident occurred. The trial judge did not in fact prohibit defence counsel from referring to the Act. Quite the contrary in that the judge brought the debate that had taken place to an end by saying “I tell you what, I say you take it up with the jury and drive it”. The appellant claimed the trial judge had referred to him in a derogatory manner by calling him “your man” and therefore undermined the credibility of his defence. Yet the judge said this was perhaps a colloquialism used by the trial judge and that reading the charges as a whole, there did not appear to be any attempt whatsoever to refer to the appellant in any derogatory terms or in terms that would undermine his defence.

- In the circumstances the court refused the appeal against conviction and subsequently turned to address the question of sentence.

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 with her son Stephen. Her evidence was that at around 3.00 am she looked out her window and saw a man waving a sword. She saw a taller man wearing a white jacket and the smaller man was waving a sword. The men started wrestling. The tall man put the other up against the wall of No. 35 and was hitting him, kicking him and eventually the small man fell over, but the tall man continued kicking. There was a woman and girl roaring and the small fellow was trying to get up, but the taller fellow was standing over him, hit him again and the smaller fellow went down again. The smaller man was then dragged down to a place between Nos. 34 and 35 and the taller man was kicking him in the ribs. Before the arrival of the gardaí the taller man decided to go back and this time he stamped on the face and head of the other man about three or four times. This witness thought that the smaller man would not survive the incident. She also saw a blonde woman complaining to gardaí about having been injured. Again, it is of note that Ms Anne Mooney was not challenged on her account of the incident.

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