DPP v Solowiow

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 14 February 2018
• Neutral Citation: [2018] IESC 9
• Court: Supreme Court
• Docket Number: [Appeal No. 58/2016],[S.C. No. 58 of 2016]
• Date: 14 February 2018

BETWEEN:

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR/RESPONDENT

V.

WALDEMAR SOLOWIOW

DEFENDANT/APPELLANT

[2018] IESC 9

[Appeal No. 58/2016]

THE SUPREME COURT

Conviction - Murder - Provocation - Appellant seeking to appeal against conviction - Whether charge to the jury was fundamentally flawed

Facts: The defendant/appellant, Mr Solowiow, was charged with murder. He relied on the defence of provocation. He told lies immediately afterwards about what happened. He was convicted of the murder after an eight day trial in the Central Criminal Court before McCarthy J. The defendant contended that the trial judge should have explicitly charged the jury to the effect that lies of this type may be as consistent with a defendant who has been provoked in the legal sense, as one who has been guilty of murder. It was said that the trial judge failed to draw this distinction in his charge to the jury, and that as a consequence the charge was fundamentally flawed. The appeal came before the Court of Appeal (Birmingham J, Sheehan J and Edwards J) and was dismissed. The defendant then appealed to the Supreme Court.

Held by the Court that, having considered R v Lucas[1981] QB 720, the judge's charge was not fundamentally flawed and that no injustice was done in this case. The Court held that one must assess the relationship of the lies both in time, and in their nature, to the circumstances of the offence; the jury might have paid regard to the lies, but this was not the central consideration when in the trial itself the vista had changed. The Court held that this case did not concern theoretical possibilities; it must be anchored in its own facts. The Court did not consider the omission to be fatal to the charge or the subsequent conclusion. The Court noted that The People (DPP) v Cronin (No. 2)[2006] 4 IR 329requires an explanation be given to a trial court for the failure to raise a point at the trial itself. The Court held that that the requirements ofCroninwere not satisfied in this appeal; no reason had been advanced as to why there was no requisition on the warning. The Court held that it was reasonable to conclude no requisition was made because the charge to the jury was fair, and the trial judge had furnished the jury with an extensive modified warning against impermissible reasoning, adverting, as he did, to the accused's explanation for his lies.

The Court held that it would dismiss the appeal and affirm the conviction for murder.

Appeal dismissed.

Judgment of Mr. Justice John MacMenamin dated the 14th day of February, 2018

1 The apparently straightforward issues in this appeal touch on questions which date back many centuries. As far back as the medieval period, courts had to consider how the law might mitigate the effect of a finding of homicide, when a conviction for murder would lead to the imposition of the death penalty. Judicial thinking evolved so that, under law, a 'subjective' element was introduced to the concept of intent when there was a finding of homicide. The law recognised the partial defence of provocation. But how should the law give recognition to this question? This remains a controversial issue. (See the recent observations of Charleton J. in DPP v. Heffernan [2017] 1 I.R. 82, at p.91, and the earlier remarks of O'Donnell J. in the Court of Criminal Appeal in The People (DPP) v. Curran [2011] 3 I.R. 785; also see Law Reform Commission, Consultation Paper on Homicide: The Plea of Provocation, LRC CP 27-2003; and particularly, Law Reform Commission, Report on Defences in Criminal Law, LRC 95-2009).

2 Some commentators, pointing to 'individual' issues, such as type of personality and gender, criticise the defence as lacking in certainty and objectivity. These considerations form the background to this appeal.

3 The appellant (hereinafter 'the defendant') was charged with murder. He relied on the defence of provocation. He told lies immediately afterwards about what happened. The question which arises directly here is as to how, on this charge of murder, when the defence raised was provocation, the judge at this trial should have dealt with the lies which the appellant told in the immediate aftermath.

4 Counsel for the defendant contends that the trial judge should have explicitly charged the jury to the effect that lies of this type may be as consistent with a defendant who has been 'provoked' in the legal sense, as one who has been guilty of murder. It is said that the trial judge failed to draw this distinction in his charge to the jury, and that as a consequence the charge was fundamentally flawed.

5 The general issue as to how a jury should be instructed in the case of lies out of court arose in the seminal decision of R v. Lucas [1981] QB 720, from which is derived the eponymous 'Lucas warning' as to how such lies should be dealt with in the charge to the jury.

6 Lucas itself, and subsequent application of the principles identified there, establish that, in an appropriate case, it will be necessary that the judge sufficiently instruct a jury that a defendant may have told lies for a number of different reasons, such as shame and embarrassment; and that the very fact of having told lies out of court is not to be equated with an admission of guilt.

7 But applying this precept in a trial for murder when provocation is raised is not always easy. The judge must gauge the context and the content of the warning. An over-elaborate charge to a jury, posing many questions and sub-questions, each based on contingent answers to prior questions, makes the jury's task significantly more difficult. The scales must be weighed fairly between prosecution and defence.

8 This is, too, an area where one must guard against the inapposite citation of precedent. This caveat arises for two reasons. The first is obvious, that each trial and charge is to be looked at in its own unique context. But, second, authorities cited to this Court from the courts of England and Wales must be carefully considered, arising as they do against a different statutory background regarding the partial defence of provocation in murder cases. In our law, the test remains predominantly a subjective one. (See DPP v. MacEoin [1978] I.R. 27). The situation in England and Wales governed by statute imposes a more nuanced 'reasonable person' test. (See U.K. Homicide Act, 1957; and later s.54 Coroners & Justice Act, 2009).

9 Where the defendant has told lies, a judge must consider the context of those lies. There is a range of possibilities as to why the lies were told. When there are lies, a warning will almost always be necessary. But the precept does not always lend itself to easily expressed bright line or 'one size fits all' jurisprudence. The nature, timing and the context of the lies is a consideration. The lies may be to the very forefront of the entire case; but this is not always so. A 'Lucas warning' is not some form of mantra, or formula of words in the same form, for all purposes. The warning is, rather, to be tailored according to the context in which it arises. Such lies may relate to the issue of whether a defendant actually committed the offence at all, or, alternatively, more directly relevant here, to the nature of the defence, when the fact of homicide is not in issue. The weight and content of the warning is to be measured against the proximity of the lies to the offence. Some lies, by their timing or their nature, will be less important or essential in the charge than others. Where the lies go to the core of the case, a judge may have to engage in a fuller form of Lucas warning. Where necessary, the judge may have to point out that the lies may be as consistent with provocation as with murder, and that the jury should be satisfied beyond reasonable doubt on this question. The question then is, what form of warning was necessary on the facts of this case?

10 Seen in isolation from its own particular factual context, Lucas recognises a simple but vital principle. It is that juries must be warned that lies told by a defendant out of court should not be equated with guilt of the offence with which the defendant is charged in court, and that defendants may tell lies for reasons other than simply trying to exculpate themselves. The fact of telling lies, therefore, should not, of itself, be taken by a jury as corroboration of guilt. To make this illogical deduction or leap is, in the words of one commentator, 'impermissible reasoning'.

11 The task of framing the terms of a warning is quintessentially one for the trial judge, although he or she may wish to hear submissions from counsel as to its format and content. But neither prosecution nor defence is entitled to words of their own choosing. In general, however, it is difficult to conceive of a situation where, nowadays, when defendant's lies out of court are part of the case, a judge would not give such a warning. A complete failure to do so would undoubtedly put the propriety of a trial at high risk. It is a matter of basic fairness.

12 In this case the judge did give a 'modified Lucas warning'. A simplistic analysis of this appeal could portray the main issue as being reducible to the absence of just one sentence in the judge's warning. The defence now says that, on the facts, the judge should have told the jury that a defendant who has been provoked may have as strong a reason for telling lies, as a person who has actually committed murder, and that the jury should be satisfied that the lies derived from a realisation of guilt of murder. In fact, the judge's modified warning was quite extensive, and took up to 30 lines in the transcript. The overall charge itself was detailed and fair. Counsel who acted for the defendant at the trial suggested there should be a warning. In fact, the judge said he was already minded to warn the jury about the...