People (Attorney General) v Commane


1965 WJSC-CCA 388


The People (Attorney General)
Judgment of Walsh, Murnaghan & Gannon JJ.17/2/75
Walsh, Murnaghan & Gannon JJ.

Evidence - Admissibility - Statement of accused - Statement reduced to writing; and acknowledged by accused to be correct - Statement not signed by accused - Statement admitted in evidence - Murder - Defence of self-defence not supported by the evidence.

Walsh J.

On the 10th July, 1974, the applicant, Patrick Commane, was convicted at the Central Criminal Court of murdering Patrick Morrissey on a date unknown between the 19th December, 1973, and the 27th December, 1973, in the County of Clare. The presiding judge, Mr. Justice Butler, passed the statutory sentence of penal servitude for life. He refused an application made by counsel on behalf of the applicant for leave to appeal against the conviction. The applicant has now appealed to this Court for leave to appeal against the conviction.


The grounds of the application for leave to appeal to this Court deal with the alleged failure on the part of the trial judge adequately to direct the jury upon the grounds upon which they could find the accused guilty of manslaughter rather than murder. There was, and there is, no question that the applicant ought to have been acquitted.


The deceased Patrick Morrissey was killed by strangulation and all the evidence indicates that a considerable amount of force had been used to effect the strangulation. The evidence also established that before the strangulation was attempted the deceased had already been rendered immobile by a blow on the side of the head delivered with considerable force and that some type of blunt object was used for the purpose of inflicting the blow.


The blow to the head resulted in a fracture of the skull of the deceased, described by the medical evidence as being a shattering fracture of the skull 4 inches in length and 2 inches in width. It ran from a point behind the right ear to just above the ear. The underlying brain was bruised from the force of the violence applied to the skull which resulted in the brain being compressed. The neck muscles showed marks of braising and the surface of the thyroid cartilage and the hyoid bone were fractured. The injuries were indicative of strangling pressure being applied to both sides of the neck such as the grip of a compressing hand and was described as typical manual strangulation inflicted by one hand. The effect of such strangulation was to prevent air entering the lungs and asphyxia would develop very quickly and death would follow. The cause of death was asphyxia due to the manual strangulation. The medical examination disclosed that the injury to the head had been inflicted before the strangulation. The body of the deceased was found at about 10.30 on the morning on Monday, December 26th.


It was established that the accused and the deceased had been drinking together in a public house at about 9 o'clock on the evening of Thursday, December 20th, and during the course of the drinking some quarrel arose between them during which the accused pushed the deceased off his chair and caused him to fall. However, they appeared to have made it up afterwards and they shook hands before they left the public house. The deceased remained in a public house until closing time when he left with the other customers and was last seen some distance out the road towards his own home endeavouring to get a lift from passing motor cars. He then appeared to be alone.


On the following day the accused met a witness named Muxlow in a bar in Ennis at about 9 o'clock and had a conversation with him. In the course of the conversation he informed him that on the previous night he and the deceased had been walking up the Kilrush road and that the deceased had had a bottle of Scotch. He told him that when he got to the factory he asked the deceased for a drink from the bottle and that the deceased gave him the bottle and at the same time hit him with the bottle. He also said that the deceased kicked him on the leg and punched him. He also indicated a mark on his left check where he said the deceased had hit him and when asked what he himself had done he replied "I choked him to death". At that point the witness had not heard anything of the death of Morrissey. He repeated the story to the witness again who thought the accused must be joking but was assured by the accused that he was serious. The same witness had seen the deceased and the accused together the night before when the incident leading to the quarrel in the public house had taken place and had seen them shake hands. He described the accused as having been "very merry" but that he was not drunk but that his condition of being "very merry" or in "good form" resulted from drink. From various subsequent conversations with various Civic Guards it is abundantly clear that the accused did kill the deceased and on the facts, and it is not contested, it is abundantly clear that the killing was, to put it at its lowest, an unlawful killing. Therefore, the only question at the trial was whether the killing amounted to murder or whether it would justify a verdict of manslaughter.


The actual description of the killing or of what activity led to the killing comes solely from statements made by the accused. The statements were admitted in evidence and have been clearly established to have been voluntary statements, In the first of these, made on the 26th December, the accused describes having met Morrissey on the Thursday evening and he describes the quarrel in the public house and states that the last time he saw Morrissey was that night when Morrissey was trying to get a lift home from passing motor cars. He stated that he did not see Morrissey on the following nights. The statement, which was signed by the accused, was clearly exculpatory.


In a further written statement made on the 29th December, 1973, the accused describes leaving the bar on the Thursday night with the deceased who he said was trying "to pick a row all the time". He stated that the deceased had said he wanted a fight so they went to the back of the factory. He went on to state "He had a bottle of whisky; I think he had some kind of a knife as well. He told me he might not be able to fight me. He went to hit me with the bottle of whisky, and I caught him by the hand. I took the bottle of whisky off of him, and hit him across the head with it. I...

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