DPP v Zhao

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 26 June 2015
• Neutral Citation: [2015] IECA 189
• Court: Court of Appeal (Ireland)
• Date: 26 June 2015

[2015] IECA 189

THE COURT OF APPEAL

Birmingham J.

Mahon J.

Edwards J.

339/12

DPP v Zhao

The People at the Suit of the Director of Public Prosecutions

V

Zhen Dong Zhao

Appellant

Conviction – Murder – Provocation – Appellant seeking to appeal against conviction – Whether the trial judge erred in law and fact in the manner in which he explained and charged the jury in respect of the issue of provocation

Facts: The appellant, Mr Zhao, was running an internet café and call shop on Wellington Quay in Dublin. In May, 2011, the deceased, Mr Fegan, entered the call centre and used a telephone. Having made his telephone call, the deceased went to leave the premises without paying for it. The appellant indicated to the customer that he would have to pay for the use of the telephone. An argument ensued and the deceased struck the appellant by slapping him in the face. The deceased left the premises and ended up on the ground outside. While the deceased was on the ground, he received a number of kicks from the appellant, including kicks to the head area. The appellant was arrested and brought to Pearse Street garda station where he was interviewed on four occasions. In December, 2012, the appellant was convicted by a jury of murdering the deceased. The appellant appealed to the Court of Appeal against his conviction. The ground of appeal was that the trial judge erred in law and fact in the manner in which he explained and charged the jury in respect of the issue of provocation. The appeal netted down to a complaint that the jury was not told expressly and explicitly that the defence of provocation was still available even in a situation where there was an intention to kill or to cause serious harm.

Held by Birmingham J that, distinguishing DPP v Cahoon [2015] IECA 45, there was no comparable clear misdirection in this case; significantly, neither prosecution counsel nor defence counsel raised any specific requisition on this point, which provided an indication that a point sought to be raised on appeal and said to be important did not strike those engaged in the trial as being of significance. Birmingham J held that there was no doubt the care with which the charge was approached by the judge. However, Birmingham J noted that the issue of the interaction of the requisite intent for murder and the defence of provocation was never spelled out for the jury; in particular it was never made clear to them that it was not necessary that the circumstances which had or might have provoked the defendant had done so in a manner which meant that he did not intend to kill or cause serious harm. Birmingham J held that it was never made clear to the jury that it is precisely in cases where there is indeed an intention to kill or cause serious harm that the issue of the defence of provocation arises for consideration. In the circumstances, when, after the trial, a charge is subjected to criticism on a particular aspect which had not been the subject of requisition, Birmingham J held that a court may well be disposed to conclude that the point being raised was not one of substance in the context of the run of the trial and that the court should decline to intervene. Birmingham J held that the present case was a particularly finely balanced one and that it was particularly important that the jury should have the assistance of a charge that was clear, comprehensive and easily understood. On this one aspect, Birmingham J held that the charge was not as clear as it might have been and reading the charge as a whole there was a concern that a jury might have been confused and might have believed that they had to consider whether the provocation to which the appellant was subjected prevented him from forming an intention to kill or cause serious injury.

Birmingham J held that, in the circumstances, the Court was of the view that the appropriate course of action was to quash the conviction and order a re-trial.

Appeal allowed.

1 1. On the 5 ^th December, 2012, Zhen Dong Zhao was convicted by a jury (a majority verdict of ten to two) of murdering Noel Fegan, at Wellington Quay, Dublin, on the 20 ^th May, 2011. The question of "provocation" occupied a central position at trial and now the only issue on this appeal relates to how the trial judge dealt with the question of provocation in his charge.

2 2. The ground of appeal as originally formulated was "that the learned trial judge erred in law and fact in the manner in which he explained and charged the jury in respect of the issue of provocation". On the 30 ^th April, 2015, the day before the appeal was heard, a notice of motion was brought on behalf of the appellant to expand upon the ground so that it would read "that the learned trial judge erred in law and fact in the manner in which he explained and charged the jury in respect of the issue of provocation and further, the learned trial judge's charge should have been carefully tailored to circumstances and facts of the instant case, furthermore the jury were inadvertently misdirected in relation to these matters". At the outset of the appeal, when the application to amend was moved, the Court indicated that in its view, the application was unnecessary since the ground of appeal as originally formulated provided adequate scope for advancing any and all criticisms which the appellant wished to make of the trial judge's charge.

3 3. In his oral submissions to this Court, counsel on behalf of the appellant referred to and sought to criticise certain remarks made by prosecution counsel during the course of her closing speech. In a situation where there had been no criticism of the prosecution closing speech at the trial, where the issue had not been raised in the notice of appeal or even in the notice of motion of the 30 ^th April, the Court refused to permit the argument to be advanced. The Court so refused, despite the fact that counsel for the appellant contended that the closing words of the amended ground of appeal "furthermore, the jury were inadvertently misdirected in relation to these matters" was sufficient to cover the issue. In the Court's view, anyone reading the notice of appeal and seeing the reference to misdirection would have believed that what was being sought to canvass was an alleged misdirection on the part of the trial judge.

4 4. Before turning to examine in detail what the trial judge had to say about provocation, it is appropriate to refer briefly to the background to the trial. The basic facts are that the appellant, who is a Chinese national who has made his home in Ireland, was running a small business, an internet cafe and call shop on Wellington Quay in Dublin. The centre provided computers and telephones for customers to use in order to make phone calls or access the internet. On the 20 ^th May, 2011, the deceased, Mr. Noel Fegan, along with a friend of his entered the call centre and the deceased proceeded to use a telephone as he was anxious to return a call which he had received from his daughter. Having made his telephone call, the deceased went to leave the premises without paying for it. The appellant indicated to the customer that he would have to pay for the use of the telephone. The deceased suggested, untruthfully it would appear, that he had been unable to connect to the number that he had dialled and that as a result there was no payment due. The appellant who was sitting behind a computer screen at the entrance to the shop showed the deceased on the computer screen that, contrary to what was being claimed, the call had in fact connected and as such that there was a requirement for payment. The deceased threw one or more coins on the counter, which did not cover the cost of the call.

5 5. There were a number of witnesses to the incident and their accounts do not tally in all respects. However, it is clear that an argument ensued and that in the course of that, the deceased man struck the appellant by slapping him in the face. There was some evidence that the first slap was, or certainly may have been, delivered by the appellant. The deceased left the premises. Again there was some disagreement as to whether he ran out of the premises or was pushed out. One way or another, he ended up on the ground outside and again there was a disagreement as to whether he tripped or fell or whether he was dragged or wrestled to the ground. While the deceased was on the ground, he received a number of kicks from the appellant, including kicks to the head area.

6 6. CCTV footage and telephone records make clear that the entire incident was a very brief one. CCTV footage shows the deceased entering the appellant's premises at 15,50.03 and then at 15.53.39, that is 3 minutes and 36 seconds later, the accused is seen kicking the deceased on the ground outside the premises. During the intervening period, the accused had made a phone call which lasted 89 seconds and terminated at 15.52.32. The argument between the deceased and the appellant took place over 1 minute and 7 seconds. The actual physical altercation outside the shop which resulted in the death of Mr. Fegan took place in a very short period indeed of perhaps 10 seconds or less.

7 7. At 4.55 pm on the 20 ^th May, 2011, the appellant was arrested and brought to Pearse Street garda station where he was interviewed (with the assistance of a Chinese interpreter) on four occasions.

8 8. The defence did not call evidence, but following the close of the prosecution case, counsel for the accused submitted that the jury should be permitted to consider the issue of provocation. Very properly and realistically, having regard to the low threshold that applies in such cases, the application was not opposed by the prosecution and accordingly, the question of the defence or partial defence, as it is...