DPP v Shahzad Hussain

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 28 July 2014
• Neutral Citation: [2014] IECCA 26
• Court: Court of Criminal Appeal
• Docket Number: [Appeal No: 247/2012]
• Date: 28 July 2014

Between/

The People at the suit of the Director of Public Prosecutions

Prosecutor/Respondent

and

Shahzad Hussain

Accused/Appellant

[2014] IECCA 26

[Appeal No: 247/2012]

THE COURT OF CRIMINAL APPEAL

Criminal appeal - Directions by trial judge - Provocation - Murder of Mr Arif - Assault causing harm contrary to s.3 Non-Fatal Offences against the Person Act 1997 - Assault causing serious harm contrary to s.4 of that Act - s.3 and s.4 injuries inflicted upon estranged wife - Alleged affair between his estranged wife and the deceased, Mr Arif - Question of provocation - Partial defence - Loss of self-control

Facts Mr. Hussain was charged with the murder of Muhammad Arif at 48 Fitzwilliam Court, Drogheda in January, 2011. He was also charged with the assault of his estranged wife contrary to s.3 and s.4 of the Non-Fatal Offences against the Person Act 1997. Mr. Hussain did not deny that he inflicted the injuries which caused the death of Mr. Arif. He gave a less clear account concerning the injuries suffered by his estranged wife. He suggested the pair were having an affair. He sought to argue at the trial that, as a result of such provocation, he lost his self-control to such an extent it met the test for a potential finding of provocation such as would in turn have justified a jury in finding him guilty of manslaughter rather than murder. The law as it stands permits a plea of provocation to be put before a jury where evidence exists to suggest that the accused was actually provoked so as to suffer a temporary loss of control, and that his or her actions were in fact induced by the provocative conduct. The initial charge of the trial judge regarding provocation was found to be incorrect. His statement implied the jury should assess objectively whether the response to any provocation established was reasonable. This was an incorrect statement of the law in this jurisdiction. As a result, the question arose as to whether this misstatement of law had been adequately redressed, by either or both or a combination of the subsequent statements made by the trial judge to the jury, so that no real risk of the trial having been unfair remained.

Held The initial charge given by the trial judge mis-stated the law on provocation insofar as the charge told the jury that the test was what a reasonable man would do in response to the provocation in question. The Court was not persuaded that the recharge remedied the problem. It left a real risk that the jury would not have properly understood the true legal position. Such uncertainty was emphasised by the foreman returning to the issue seeking clarification. The Court was therefore left with a very real concern that the initial misdirection to the jury was not adequately corrected by either or both of the recharge and the answer to the foreman's question. Provocation was the principal issue to which the jury would have been required to direct their minds in considering whether to find the accused guilty or not guilty. A failure to correctly charge the jury on that central issue created a much greater risk of injustice.

- The Court was not convinced the ground of appeal based on the admission of photographic evidence or the ground of appeal based on the judge's charge or recharge concerning recklessness gave rise to any proper basis for upsetting the conviction.

-However, the Court was concerned the jury may have been under a significant misapprehension as to the proper legal basis on which they were to consider the defence of provocation and found there was a real risk of injustice.

-Consequently, the Court was of the view that the appeal should be allowed and a retrial directed.

Mr. Justice Clarke

Judgment of the Court delivered on the 28th July, 2014 by Mr. Justice Clarke.

1 1. Introduction

1.1 The main issue which arises on this appeal is concerned with the directions or charge given by the trial judge on a question of provocation. The tragic events which gave rise to the accused/appellant ("Mr. Hussain") being before the Central Criminal Court occurred at about 2.00 pm on the 6th January, 2011. Arising from those events Mr. Hussain was charged with the murder of Muhammad Arif at 48 Fitzwilliam Court in Drogheda. In addition, Mr. Hussain was charged with assault causing harm (contrary to s.3 of the Non-Fatal Offences Against the Person Act, 1997), and, a separate charge of assault causing serious harm contrary to s.4 of that Act. Both of those later charges were in relation to his estranged wife Rashida Bibi Haidir. The s.3 allegation involved cutting wounds to the throat of Ms. Haidir. The s.4 charge related to a stab wound to her abdomen. Mr. Hussain did not deny that he inflicted the injuries which caused the death of Mr. Arif. He gave a less clear account concerning the injuries suffered by Ms. Haidir. In substance, the case which he made was that he had come across his estranged wife and Mr. Arif in circumstances suggesting that they were having an affair. He sought to argue at the trial that, as a result of such provocation, he lost his self control to such an extent as, it was argued, met the test for a potential finding of provocation such as would in turn have justified a jury in finding him guilty of manslaughter rather than murder.

1.2 The central issue in this appeal concerns the way in which the trial judge addressed the jury on the question of provocation. It will be necessary to deal with the precise terms of the judge's charge in due course. However, the question of provocation was addressed on three occasions. First, in the course of the judge's original charge to the jury. Second, in a recharge to the jury in circumstances where the trial judge, on being requisitioned by both prosecution and defence to recharge the jury on the question of provocation, had returned to the issue. Third, when the jury asked a question on the issue of provocation. It is common case that the trial judge's initial charge on the issue of provocation was incorrect. The real issue between counsel on this appeal was as to whether or not this misdirection in law was cured by either or both of the subsequent statements made by the trial judge to the jury.

1.3 A second, and subsidiary, issue was argued on the appeal concerning certain photographic evidence which the trial judge permitted to be adduced but which, it was argued, ought have been excluded on the basis that it was more prejudicial than probative.

1.4 Further, it should be noted that counsel on behalf of Mr. Hussain brought a motion before the Court, on the occasion of the appeal, in which it was sought to argue a further ground of appeal which had not been included in the notice of appeal as had originally been filed. The ground sought to be argued was that the trial judge erred in his charge to the jury in that he directed them to assess recklessness in objective terms. Having considered the matter the Court decided that it would allow that ground to be advanced on the appeal. It follows that, in addition to the central ground of appeal concerning the judge's charge on provocation, two further issues potentially arise being the admission of the photographic evidence and the judge’s charge on the issue of recklessness.

1.5 The Court proposes to turn first to the central issue of provocation and in that regard it is necessary to start by briefly outlining the law in this jurisdiction on provocation.

2 2. Provocation

2.1 Provocation operates as a partial defence which can reduce a charge of murder to manslaughter in situations where the accused suffers a sudden and temporary total loss of self control in response to provocation and commits the wrongful act in those circumstances. The position in this jurisdiction in respect of the defence of provocation is different from that which applies in England and Wales. At common law in the United Kingdom the test was an objective one (see R. v. Duffy [1949] 1 All E.R. 932). However, the defence is now the subject of statutory definition which has no counterpart in this jurisdiction. In that context it is necessary to turn to the Irish case law. In the judgment of this Court, delivered by Kenny J., People (DPP) v. MacEoin [1978] 1 I.R. 27, it was held that the consideration for the trial judge, before a plea can go to the jury, is whether there is:-

"any evidence of provocation which, having regard to the accused's temperament, character and circumstances, might have caused him to lose 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." (p.34)

2.2 To succeed in the defence of provocation, a burden rests on the accused to establish the presence of the various elements of the defence (DPP v Davis [2001] 1 I.R. 146).

2.3 However, in MacEoin it was also held that:-

"the jury should be told that they must consider whether the acts or words, or both, of provocation found by them to have occurred, when related to the accused, bear a reasonable relation to the amount of force he used. If the prosecution prove beyond reasonable doubt that the force used was unreasonable and excessive having regard to the provocation, the defence of provocation fails".

2.4 In People (DPP) v. Kelly [2000] 2 I.R. 1, Barrington J., delivering the judgment of this Court, noted that the court in MacEoin did not intend the last sentence from the passage cited to stand alone and imply a purely objective test. The question of whether there is a proportionality between the response to the provocation and the provocation itself can, however, be a factor which a jury can legitimately take into account but only in assessing the credibility of a case made to the effect that the accused had actually lost total control. InKelly, Barrington...