Dunne v DPP

• Jurisdiction: Ireland
• Judge: Ms. Justice O'Malley
• Judgment Date: 11 May 2016
• Neutral Citation: [2016] IESC 24
• Court: Supreme Court
• Docket Number: [S.C. No. 6 of 2015],[Record No. 06/2015]
• Date: 11 May 2016

[2016] IESC 24

THE SUPREME COURT

O'Malley J.

[Record No. 06/2015]

McKechnie J.

Dunne J.

Charleton J.

O'Malley J.

BETWEEN

JONATHAN DUNNE

APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Conviction – Murder – Causation – Appellant seeking to appeal against conviction – Whether the appellant can be convicted of murder where the date of death occurred at a point in time removed from the incident and actions alleged against the appellant and after the lawful intervention of a third party

Facts: The appellant, Mr Dunne, shot a Mr Kenny twice at close range?in the head and arm with a sawn–off shotgun on the 4th July, 2007, as they sat together in a car in the Stillorgan area of County Dublin. In so doing he intended to kill him. Although Mr Kenny survived the initial trauma, he was left in a vegetative state. Mr Dunne pleaded guilty to a charge of attempted murder and was sentenced for that offence. Mr Kenny died in hospital two years later on the 31st July, 2009. Mr Dunne was subsequently convicted of the murder?of Mr Kenny on the 19th January, 2012. The appellant argued that, having regard to certain decisions made in relation to the medical treatment of Mr Kenny, the prosecution had not proved beyond reasonable doubt that his actions on the 4th July, 2007, brought about the death on the 31st July, 2009. The appellant also claimed at all material times that he had carried out the shooting under duress, but pursuant to a ruling made in the trial he was not permitted to put that defence for consideration by the jury. In his appeal against conviction the Court of Criminal Appeal certified, pursuant to s. 29 of the Courts of Justice Act 1924, the following two questions for determination by the Supreme Court: (i) Where the date of death alleged in an indictment for murder occurs at a point in time removed from the incident and actions alleged against the accused and after the intervention (itself lawful) of a third party, may the accused be convicted of murder? (ii) May duress be raised as a defence (whether full or partial) to a charge of murder?

Held by O?Malley J that, having considered R v Jordan?(1956) 40 Cr. App. R. 152, R v Steel?[1981] 1 WLR 690 and R v Pagett?(1983) 76 Cr. App. R. 279, to hold, in the circumstances, that the act of the appellant caused the death does not involve visiting upon him the consequences of a decision made by others; it entails recognition of the fact that he was responsible for the condition that ultimately led to the death. O?Malley J held that whether one describes his action as being an operating and substantial factor, or as a more than minimal factor, the result would be the same. O?Malley J held that, having considered The People (DPP) v MacEoin?[1978] IR 27, The People (Attorney General) v Dwyer?[1972] 1 IR 416 and The People (DPP) v J.C.?[2015] IESC 31, the proposed alteration to the law relating to the exclusion of murder from the defence of duress came into a very different category; the Court was, in effect, being asked to change the common law. In O?Malley J?s view the proposed alteration was so fundamental that it could be introduced only by way of legislation.

O?Malley J held that, in the circumstances, she would answer the questions respectively ?Yes? and ?No?.

Appeal dismissed.

Judgment of Ms. Justice O'Malley delivered the 11th day of May, 2016

1 On the 19th January, 2012, the appellant was convicted of the murder of Ian Kenny. It is common case that Mr. Kenny was shot in the head and arm with a sawn-off shotgun on the 4th July, 2007; that, although he survived the initial trauma, he was left in a vegetative state; and that he died in hospital two years later on the 31st July, 2009.

2 The appellant has, since an early stage of the investigation, admitted that he shot Mr. Kenny twice at close range on the 4th July, 2007, as they sat together in a car in the Stillorgan area of County Dublin, and that in so doing he intended to kill him. He pleaded guilty to a charge of attempted murder and has been sentenced for that offence. However, he has contested the subsequent charge of murder.

3 The indictment, in its statement of the offence, charged the appellant with murder. The particulars of the offence alleged that he murdered Mr. Kenny at Lakelands Park, Stillorgan, County Dublin on the 31st July, 2009.

4 In brief, the appellant's case is that, having regard to certain decisions made in relation to the medical treatment of Mr. Kenny, the prosecution has not proved beyond reasonable doubt that his actions on the 4th July, 2007, brought about the death on the 31st July, 2009. The appellant had also claimed at all material times that he had carried out the shooting under duress, but pursuant to a ruling made in the trial he was not permitted to put that defence for consideration by the jury.

5 In his appeal against conviction the Court of Criminal Appeal has certified, pursuant to s.29 of the Courts of Justice Act 1924 as amended, the following two questions for determination by this Court:

i) Where the date of death alleged in an indictment for murder occurs at a point in time removed from the incident and actions alleged against the accused and after the intervention (itself lawful) of a third party, may the accused be convicted of murder?

ii) May duress be raised as a defence (whether full or partial) to a charge of murder?

The admissions made at the trial

6 At the opening of the trial the following admissions were formally made on behalf of the accused in the following terms:

?It is admitted on behalf of the accused who was born on the 17th of April 1985 that he was lawfully arrested on the 4th of July of 2007 and subsequently charged with the attempted murder of Ian Kenny on that date at Lakelands Road, Stillorgan, in the County of Dublin. It is further admitted that on the 7th April 2008 before this Court, the accused pleaded guilty to that charge of attempted murder of Ian Kenny and an associated charge of possession of a firearm on the same date. It is further admitted that, following a sentence hearing before Mr. Justice Carney on the 28th May 2008, a sentence of 12 years imprisonment was imposed on the attempted murder charge and a 10-years sentence on the firearms offence, both sentences to date from the 7th July 2007 when the accused was first charged and he has been serving those sentences since that date. It is further admitted that, subject to one issue that the Court will have to rule upon, the principal issue in the case will be one of causation of death.?

QUESTION 1 - CAUSATION

Evidence relating to medical treatment

7 The debate on the first certified question centres on the evidence as to the medical treatment of Mr. Kenny and in particular on the fact that, at a certain point, a decision was taken not to engage in aggressive or invasive treatment. The decision was made in consultation with Mr. Kenny's father. The appellant does not take issue with the lawfulness, ethics or propriety of what was decided. However, he says that the consequences which flowed from it cannot be attributed to him, in that the death of Mr. Kenny, at the time it occurred, cannot be said to have occurred as a result of the shooting.

8 Following the shooting, Mr. Kenny was brought to St. Vincent's Hospital. His pulse and blood pressure were normal but he was comatose. He was intubated and placed on a life support machine with artificial ventilation. The head wound was packed to control bleeding.

9 CT scans and X-ray images of his injuries at that stage showed widespread scattering of pellets throughout the brain, with penetration of both hemispheres. He had a fracture of his right humerus. Mr. Kenny had also suffered a stroke involving the right side of the brain. He went on to develop a pneumothorax, or collapse of his lung.

10 The view taken was that neurosurgical intervention to remove the pellets from the brain was not feasible, and would have caused more damage.

11 The evidence was that typically, an injury of the sort suffered by Mr. Kenny would affect the brainstem to the point where the person would be unable to breathe. However, because he was a young man, Mr. Kenny's condition was stabilised with aggressive life support in St. Vincent's. He began to breathe spontaneously with the aid of a tracheostomy and was taken off the ventilator. It became clear that he was not going to immediately succumb to his condition. The wound in the head, from which dead portions of tissue had been removed, then became the priority. The medical view was that the open wound was not ?compatible with life? and would have to be closed.

12 Follow-up scans on the 13th July, 2007, showed that Mr. Kenny had developed brain atrophy. This was described by Mr. Pidgeon, the neurosurgeon, as meaning that the ?the bits of brain that had died were replaced by holes?.

13 Mr. Kenny was transferred to Beaumont on the 16th July, 2007, for surgery and was operated upon on the 17th. According to the evidence of the neurosurgeons, the operation involved the removal of dead tissue and the investigation of the wound to ensure that there were no pockets of infection and to remove any easily accessible pellets. There were pellets in the skin, the muscle and the brain itself. The plastic surgeon closed the wound by rotating a flap of skin to cover it.

14 Asked about the purpose of the operation, Dr. Martin Murphy agreed that the initial view had been that there would be no point in surgical intervention given the seriousness of the head injury. However, the patient had survived for two weeks and it was considered that the operation would limit the chances of infection and prevent him from developing meningitis or an abscess. The prognosis after the operation was still to the effect that...