DPP v Ross Outram

• Jurisdiction: Ireland
• Judge: Ms. Justice Isobel Kennedy
• Judgment Date: 16 July 2021
• Neutral Citation: [2021] IECA 199
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 63/19

Between/

The People at the Suit of the Director of Public Prosecutions

Respondent

and

Ross Outram

Appellant

[2021] IECA 199

Edwards J.

McCarthy J.

Kennedy J.

Record Number: 63/19

THE COURT OF APPEAL

Conviction – Murder – Directions – Appellant seeking to appeal against conviction – Whether the trial judge erred in law and in fact in refusing the application for a directed verdict of not guilty on a stated basis

Facts: The appellant, Mr Outram, on the 8th March 2019, was found guilty of the murder of Mr Lyons. The appellant appealed to the Court of Appeal against conviction. Although the appellant initially put forward nine grounds of appeal, he sought to rely on the following seven grounds only: (1) the trial judge erred in law and in fact in refusing the application for a directed verdict of not guilty on a stated basis; (3) the trial judge erred in law and in fact in directing the jury that they were entitled to consider whether the age and health of the deceased person contributed to his fall; (4) the trial judge erred in law and in fact in inviting the jury to speculate on matters that contributed to the fall of the deceased person; (5) the trial judge erred in law and in fact in relation to directing the jury on the evidence in relation to the drug use and withdrawal symptoms; (7) the trial judge erred in principle and in law in failing to direct that an exhibit be forensically examined when the application was made on behalf of the appellant; (8) the trial judge erred in principle and in law in failing to direct the jury that there could have been blood on an exhibit even if it was not, or was no longer, visible to the jurors on their examination of it; and (9) the trial judge erred in law in failing to discharge the jury when requested to do so.

Held by the Court that: (1) it agreed with the judge’s analyses and ultimate decision to refuse the application on the conclusion of the respondent’s case; (3) and (4) the judge was fully entitled and arguably mandated to reference those factors, and even if he did not do so, in advising the jury to exercise their common sense, one would expect a jury to consider those factors in any event; (5) it was readily apparent on reading the totality of the judge’s charge that it was one of impeccable fairness; (7) AG v O’Brien [1963] IR 65 is confined to the recalling of a witness at the jury’s request, which does not include either party seeking fresh evidence after deliberation has commenced; (8) the judge’s direction to the jury was a proper one in the circumstances and in terms of the evidence adduced at trial; and (9) the trial judge’s charge was a model of fairness and clarity.

The Court held that the appeal would be dismissed.

Appeal dismissed.

UNAPPROVED

JUDGMENT of the Court delivered on the 16th day of July 2021 by Ms. Justice Isobel Kennedy.

1 . This is an appeal against conviction. On the 8th March 2019 the appellant was found guilty of the murder of Patrick Lyons.

Background

2 . At the time of his death Patrick Lyons was a 90-year-old man who lived alone. On the night of the 24th February 2017 the appellant went to the home of Patrick Lyons. An argument ensued between the men. An altercation followed. Ross Outram beat the deceased with a stick and left the house. The body of the deceased was discovered the following afternoon and a garda investigation commenced.

3 . This led to the appellant being interviewed. He initially denied knowing anything about Mr Lyons or his killing but he subsequently admitted that in fact he had been in Mr Lyons' house on the night of the 24th and he had asked Mr Lyons for money. Mr Lyons refused to give him money. He said that Mr Lyons attacked him with some kind of stick and he acted in self-defence. The appellant stated that he struck Mr Lyons repeatedly but that when he left Mr Lyons was still alive.

4 . The State Pathologist, Dr Margaret Bolster, stated that the cause of death was a combination of several factors as follows: blunt-force trauma to the body, with traumatic brain injury, with haemorrhage and shock due to comminuted fracture of the hip joint, with the fracture of ribs and mandible and ischemic cardiomyopathy due to coronary atherosclerosis, emphysema and osteoporosis. It seems that the deceased suffered the head injury and subsequently the comminuted hip fracture.

5 . The trial of the appellant commenced on the 18th February 2019 and on the 8th March 2019 the appellant was found guilty of murder.

Grounds of appeal

6 . Although the appellant initially put forward nine grounds of appeal, he is seeking to rely on the following seven grounds only:-

• (1) Ground 1: the learned trial judge erred in law and in fact in refusing the application for a directed verdict of not guilty on a stated basis.

• (2) Ground 3: the learned trial judge erred in law and in fact in directing the jury that they are entitled to consider whether the age and health of the deceased person contributed to his fall.

• (3) Ground 4: the learned trial judge erred in law and in fact in inviting the jury to speculate on matters that contributed to the fall of the deceased person.

• (4) Ground 5: the learned trial judge erred in law and in fact in relation to directing the jury on the evidence in relation to the drug use and withdrawal symptoms.

• (5) Ground 7: the learned trial judge erred in principle and in law in failing to direct that an exhibit be forensically examined when the application was made on behalf of the appellant.

• (6) Ground 8: the learned trial judge erred in principle and in law in failing to direct the jury that there could have been blood on an exhibit even if it is not, or is no longer, visible to the jurors on their examination of it.

• (7) Ground 9: the learned trial judge erred in law in failing to discharge the jury when requested to do so.

Ground One

7 . At the close of the prosecution case the defence sought a directed acquittal on the basis that the evidence established that there were two reasonably possible explanations as to how the deceased's hip fracture occurred but there was nothing in the evidence that could favour one version over the other. The defence contended that since the cause of death was a combination of the brain injury and the hip fracture, and, in circumstances where the defence contended that the hip fracture occurred after the appellant had left the house, this led to a break in causation; a novus actus interveniens. It is said that there was no evidence a jury could rely upon that would allow it to safely conclude beyond reasonable doubt that the deceased fell during the assault or that he experienced a fall as a side effect of head trauma, rather than by tripping. On appeal the photographs of the scene were relied upon to demonstrate inter alia, blood staining and the condition of the house, with objects on the floor.

8 . In refusing the application the trial judge applied the test relating to causation and novus actus interveniens as stated in The People (DPP) v. Davis [2001] 1 IR 146 and approved by O'Malley J. in Dunne v. DPP [2017] 3 IR 1. Taking the prosecution case at its highest, the trial judge summarised the evidence of Dr Bolster as follows:-

“Dr Bolster did not accept that the fracture to the right hip was the sole cause of death. Her evidence was to the effect that death was the cumulative effect of both natural and unnatural causes. Specifically she stated that the fracture to the hip was part of the cause of death and a significant link in the chain of causation. In addition to haemorrhage and shock due to a comminuted fracture of the hip joint, the cause of death given by Dr Bolster included blunt force to the body with traumatic brain injury, but also haemorrhage and shock due to fracture of the ribs and the mandible. She explicitly rejected the suggestion put to her that all of the injuries to the deceased's right side could have been caused by one single fall. It was not suggested to her that the fracture to the left ribs were caused by a fall or at least the same fall that resulted in a fracture to the right hip. Her evidence was that bilateral fractures to the ribs would have resulted in considerable compromise of respiratory function. This is the context in which Dr Bolster did say that traumatic brain injury was not of itself sufficient to cause death, albeit that the deceased probably would have died had he not received prompt medical attention for his lacerations.

What is clear from the foregoing is that Dr Bolster did not resile from her opinion that the blunt force to the body, together with traumatic brain injury, together with shock and haemorrhage due to the fracture to the ribs and the mandible, were part of the cause of death. Although she accepted that the fracture to the right hip was a significant cause of death, she never accepted that it was so significant a cause as to overwhelm the other contributing factors. Dr Bolster characterised the degree of injury to the brain as being mild to moderate. Her evidence was that the brain injury was caused by traumatic localised subarachnoid haemorrhages, that is, bleeding into the membrane over the brain, with linear traumatic axonal injury, that is, damage to the nerve fibres in the brain caused by the multiplicity of blows causing the brain to swing around the skull, thereby shearing or tearing the nerve fibres and the underlying white matter. She said that these injuries, together with the lacerations, afforded evidence of the transmission of force to the brain itself. Her opinion was that such was the degree of trauma and associated loss of blood in the deceased, who was an elderly man, that there would have been some alteration or effect on brain function. She could not say what the symptoms of the resulting alteration or effect would have been, but she did note that there was no evidence that the deceased had attempted...