DPP v Noonan

JudgeMr. Justice Geoghegan
Judgment Date01 January 1998
Neutral Citation1998 WJSC-CCA 5937
Docket NumberNo. 124 1996,[C.C.A. No. 124 of 1996]
CourtCourt of Criminal Appeal
Date01 January 1998



1998 WJSC-CCA 5937

O'Flaherty J.

Geoghegan J.

McGuinness J.

No. 124 1996



[1998] 2 IR 439 - [ 1998] 1 ILRM 154



DPP, PEOPLE V MULLANE UNREP CCA 11.3.1997 1998/16/5885


BEDDER V DPP 1954 2 AER 801


Judgement of the Court delivered on the 7th day of October, 1997 by Mr. Justice Geoghegan


This is an application for leave to appeal against conviction brought on behalf of Paul Noonan who was found guilty of the murder of Edward Greene on the 8th November, 1995. The Applicant was convicted by majority verdict on the 24th July, 1996.


The grounds of appeal were threefold but in essence there was one ground of appeal only namely that the learned trial Judge misdirected the jury in respect of the law on the defence of provocation.


Senior Counsel for the Applicant on the appeal was not the same Senior Counsel who appeared for the Applicant at the trial. The objections to the learned trial Judge's charge put forward both in written submissions and orally at the hearing of the appeal were not raised as requisitions at the trial itself. This Court, therefore, has to consider not only the question of whether the objections are well founded but also whether, having regard to the absence of any requisition in relation to them at the trial, the Applicant should now be entitled to rely on them for the purposes of having the conviction quashed. The second question only arises if this Court takes the view that there was a serious misdirection of the jury which could warrant the quashing of the conviction and the ordering of a new trial. It is this question, therefore, which the Court must first address.


As is well known the leading Irish case on the law of provocation is The People -v- MacEoin 1978 I.R. 27. In that case the trial Judge's charge was objected to on the appeal both on the grounds that he had indicated to the jury that if the accused intended to kill or cause serious bodily harm, the defence of provocation could not arise and on the ground that the trial Judge had explained the defence of provocation by reference to the objective test traditionally adopted in the English Courts rather than a subjective test based on the type of person which the accused was. The Court of Criminal Appeal agreed with both objections to the charge but for the purposes of this case it is the second of them only which is relevant. Kenny J. delivering the judgment of the Court observed as follows at p. 34:-"In the opinion of this Court the objective test in cases of provocation should be declared to be no longer part of our law. If the Accused raises the defence that he was provoked and establishes that and nothing more, we do not mean that the prosecution must prove beyond reasonable doubt that he was not provoked. The nature of the provocation may not justify the force used judged by the Accused's state of mind. But the inquiry to be made by the Judge first and then by the jury must centre not on the reasonable man but on the Accused and his reaction to the conduct or words which are said to be provocative.


When the defence of provocation is raised, we think that the trial Judge at the close of the evidence should rule on whether there is any evidence of provocation which, having regard to the Accused's temperament, character and circumstances, might have caused him to loose control of himself at the time of the wrongful act and whether the provocation bears a reasonable relation to the amount of force used by the Accused."


The last part of that passage caused some confusion in that on one view it might appear that the Court was intending to discern two separate aspects to the defence of provocation, one the actual alleged act of provocation itself and secondly the reaction to it and that in the case of the latter some kind of objective test was being retained. If there was an ambiguity there it has been clarified by this Court in the recent case of The People -v- Mullane, unreported judgment of the Court delivered on the 11th March, 1997 by O'Flaherty J. The Court pointed out that the impugned sentence in MacEoin related to credibility of testimony rather than to any suggestion that an objective standard was to be applied to oneparticular aspect of the defence. The trial from which this appeal arises took place before the judgment in Mullane's case but this may not be of much importance in view of the fact that Counsel for the Applicant, Mr. Charleton is alleging that the trial Judge's charge was not in accordance with MacEoin's case no matter what interpretation was put on that case and therefore independently altogether of the point that arose in Mullane's case. Broadly speaking, the main thrust of his criticism is that the learned trial Judge in addressing the jury made use of English case law in such a way that it might confuse the jury into thinking that an objective test was relevant. It is therefore...

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