DPP v Padraig Nally

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 12 October 2006
• Neutral Citation: [2006] IECCA 128
• Court: Court of Criminal Appeal
• Docket Number: [CCA No. 244 of 2005]
• Date: 12 October 2006

[2006] IECCA 128

THE COURT OF CRIMINAL APPEAL

Kearns J.

O'Donovan J.

de Valera J.

[CCA244/05]

DPP v NALLY

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

PADRAIG NALLY

APPLICANT

AG, PEOPLE v DWYER 1972 IR 416

DPP v DAVIS 1993 2 IR 1 1993 ILRM 407 1992/11/3499

R v WANG 2005 1 WLR 661 2005 1 AER 782

WOOLMINGTON v DPP 1935 AC 462

CHANDLER & ORS v DPP 1964 AC 763 1962 3 WLR 694 1962 3 AER 142

DPP v STONEHOUSE 1978 AC 55 1977 3 WLR 143 1977 2 AER 909

CRIMINAL LAW

Murder

Defence - Self defence - Manslaughter - Direction to jury - Whether trial judge prohibited from directing jury to enter verdict of guilty - Whether issue of self defence to be left to jury - Whether limited form of self defence could be put to jury - Whether trial judge could direct jury to consider force used by applicant to be objectively reasonable - Whether amount of force objectively reasonable matter of fact for jury to determine - People (AG) v Dwyer [1972] 1 IR 416, People (DPP) v Davis [1993] 2 IR 1, People (DPP) v O'Shea [1982] IR 384, R v Wang [2005] 1 WLR 661, Woolmington v DPP [1935] AC 462, Joshua v The Queen [1955] AC 121, Chandler v DPP [1964] AC 763 and DPP v Stonehouse [1978] AC 55 followed - Appeal allowed, retrial order (244/2005 - CCA - 12/10/2006) [2006] IECCA 128

People (DPP) v Nally

the accused had been charged with murder of a traveller who had tried to break into his property and assaulted him. At his trial, he pleaded that the amount of force used by him in self defence was objectively reasonable and was entitled to an acquittal on that basis. At the request of the prosecution, the trial judge directed the jury that the full defence of self defence was not open to the accused and he only allowed a truncated version of the defence to go to the jury. That is, he directed them that if they were satisfied that the accused had acted in self defence, that finding could only reduce the charge of murder to manslaughter and not to a complete acquittal.

Held by the Court of Criminal Appeal in quashing the conviction and directing a retrial that whilst there was a right vested in a trial judge to direct a jury to acquit an accused, there was no right to direct a verdict of guilt. The question whether the amount of force used by an accused in self defence was objectively reasonable was a matter of fact for a jury to determine.

Reporter: P.C.

1 JUDGMENT of the Court delivered by Mr. Justice Kearns on the 12th day of October, 2006

2 The applicant herein was charged that on the 14th October, 2004 at Funshinaugh Cross, Claremorris, Co. Mayo, he did murder one John Ward, a member of the travelling community who, on the date in question, had come unsolicited with his son Tom Ward to the applicant's house. The trial took place in July, 2005 before Carney J sitting in the Central Criminal Court in Castlebar Courthouse. At the conclusion of the trial on the 20th July, 2005, the jury returned a verdict of manslaughter, the applicant having pleaded not guilty to the single count on the indictment.

3 The applicant is a bachelor aged 60 who at the time lived alone on a 65 acre farm at Funshinaugh. He has a sister who works in Ballina but who at the time of these events used to stay at weekends with her brother in the house on the farm in which both had grown up. This was largely to reassure the applicant who had developed major anxieties that his house would be burgled and that he himself might be harmed or killed by intruders. There was a basis for these fears. Considerable evidence was given during the course of the trial that there had been a spate of thefts and burglaries in the area in 2004, which, in the mind of the applicant at least, were sufficient to put him in constant fear and apprehension that he could at any time be a victim of such crime.

4 Around lunchtime on the 14th October, 2004, the applicant was alone in the house on the farm. While listening to the radio he heard the sound of a vehicle in the driveway. He went out and found Mr. Tom Ward sitting alone in the driver's seat of a car and revving the engine in a loud manner. The applicant asked Tom Ward what he was doing on his property. Mr. Ward indicated he was enquiring as to whether or not a white car on the applicant's property was for sale. The applicant was suspicious that Mr Ward was not alone and asked where "his mate was". Mr Ward told him that his father, John Ward, had gone around the back of the house "to take a look". The applicant passed a remark to the effect that, if so, "he would not be coming out". He went round the back and, on then seeing John Ward pushing open the back kitchen door of the house, retrieved a loaded single barrel shotgun from a nearby shed. The applicant gave evidence that as he approached John Ward, a shot was accidentally discharged from the gun which hit John Ward in the lower right loin area and right hand. According to the applicant, John Ward then threw himself at the applicant and a ferocious physical struggle ensued. At some point the applicant managed to pick up a length of wood with which he struck John Ward repeatedly across the head and upper body. Mr Ward suffered a fractured arm in his efforts to defend himself. Mr. Ward had called out to his son for assistance but at this point, Mr. Ward junior left the scene in the vehicle. It was the applicant's case that he was extremely concerned that Mr. Ward junior was gone for reinforcements or that he might return with some weapon. Mr. Ward senior appears to have been a man of considerable strength who had much experience of fighting He was also a man with a number of previous convictions, including convictions for burglary, and evidence was given at trial that he was a man of violent disposition. John Ward remained conscious at all stages of the assault and began to limp or run from the property. As he did so, the applicant returned to the shed and retrieved more cartridges and reloaded the shotgun. He followed Mr. Ward out onto the public roadway and there fired a further shot at him from a few yards distance and it was this second shot which proved fatal. Realising that Mr. Ward was dead, the applicant picked up his body and threw it into an adjoining field. The applicant gave evidence that he feared the consequences if others returned and found the body. He then went to a neighbour's house from where the gardaí were called and the applicant met them at the farm and indicated exactly what had taken place.

5 There was evidence from the applicant's sister that on the Sunday before the incident the applicant was extremely upset by incidents of burglaries and attacks on people in their homes in the area. Property had been removed from both the home of the applicant and his immediate neighbours in prior incidents. In particular a chainsaw had been stolen from the applicant's property in February, 2004 and his gun had been moved from one position to another in the house. Both the applicant and some neighbours were so concerned with these incidents that they had started noting the registration numbers of unfamiliar cars that entered their properties. The applicant gave evidence that the Wards had entered his property some weeks previously in a car, ostensibly for the purpose of seeking directions to the nearby lake, a reason the applicant did not believe or accept was genuine. He was also obsessed with other incidents of local crime and notably by the circumstances of two brothers, the Gilmore brothers, who had lived in the next town of Ballinrobe, who had been tied up and left to die in their own homes, albeit that that incident had occurred many years previously. The applicant gave evidence that on the days leading up to the incident he had considerable difficulty sleeping and was on edge. He also gave evidence that he would splash water on the ground near the entrance gate so that on any occasion when he left the house he could on returning check to see if intruders had entered the property by checking for footprints or tyre marks in the mud.

6 The applicant's defence at trial was one of self-defence. At the conclusion of all the evidence in the case there was a rather unusual development when Mr. O'Higgins, senior counsel for the respondent, invited the trial judge in the absence of the jury to rule and direct that the defence of self-defence raised by the applicant be allowed go to the jury in a truncated form, shorn of any possibility that the jury might acquit altogether, on the basis that the amount of force used by the applicant was so excessive as to destroy any notion that it was objectively reasonable and that in such circumstances it should only be open to the jury to convict of either murder or manslaughter. Mr. O'Higgins submitted that to rule otherwise would be to open the door to some form of prophylactic killing as part of the legal regime of self-defence. He submitted that, on the facts established in evidence, Mr Ward senior had retreated from the scene but was nonetheless shot in circumstances where he no longer posed a threat to the applicant. The shot fired on the roadway outside the applicant's farm was clearly the fatal shot and was fired at a time when the applicant could have removed himself from the scene either on foot or in his car. Further, the applicant had told the Gardaí in the immediate aftermath of the event that he intended to kill Mr. Ward because of all the aggravations to which he had been subjected, that he could take no more and had, in fact, considered killing himself also following this incident. The trial judge should not, he urged, leave open the possibility that the jury might bring in a verdict which, if it was a complete acquittal, would be plainly perverse.

7 In ruling upon the matter the...