People (Attorney General) v Dwyer

CourtSupreme Court
Judgment Date01 January 1974
Docket Number(S.C. No. 130 of 1970)
Date01 January 1974
The People (Attorney General) v. Dwyer
(S.C. No. 130 of 1970)

Supreme Court

Criminal Law - Homicide - Defence - Self-defence - Whether unreasonable degree of force employed by accused - Test of reasonableness - Whether objective opinion of jury or subjective view of accused - Murder or manslaughter - Criminal Justice Act, 1964 (No. 5), s. 4.

Where the defence made to a charge of murder is self-defence against a violent and felonious attack, the trial judge should inform the jury that if they come to the conclusion that the accused, acting in self-defence, employed more force than was reasonably necessary but no more than he honestly believed to be necessary, they should return a verdict of guilty of manslaughter.

So held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Walsh, Budd, FitzGerald and Butler JJ.).

R. v. Howe (1958) 100 C.L.R. 448 applied.

R. v. McInnes [1971] 1 W.L.R. 1600 considered.

Criminal Appeal.

On the 4th November, 1969, the defendant was arraigned on indictment and pleaded not guilty to a count charging him with having murdered Philip Ney on the 3rd or 4th January, 1969, in the City of Dublin. The trial took place in the Central Criminal Court before Pringle J. and a jury on the 4th-7th and the 10th November, on which day the defendant was found by the jury to be guilty and he was sentenced to penal servitude for life in accordance with s. 2 of the Criminal Justice Act, 1964. The trial judge refused an application by the defendant for leave to appeal against his conviction, and he applied to the Court of Criminal Appeal for such leave. The application was heard by the Court of Criminal Appeal (McLoughlin, Murnaghan and Henchy JJ.) on the 5th and 6th March, 1970. On the 13th April, 1970, that court delivered judgment in which it granted the application, treating the hearing of the application as the hearing of the appeal, and stated that, although one of the points raised in the appeal (not relevant to this report) might be decided in favour of the appellant, the court considered that no miscarriage of justice had occurred; accordingly the court dismissed the appeal pursuant to s. 5, sub-s. 1, of the Courts of Justice Act, 1928. The Court of Criminal Appeal refused to certify that their decision involved a point of law of exceptional public importance: see s. 29 of the Courts of Justice Act, 1924. However, on the 9th November, 1970, the Attorney General issued his certificate to that effect pursuant to s. 29 of the Act of 1924 and the appellant was thus enabled to appeal to the Supreme Court from the judgment and order of the Court of Criminal Appeal. The facts appear in the judgment of Butler J., infra.

Cur. adv. vult.

ÓDalaigh ó dalaigh C.J.:—

I have read the judgment which Mr. Justice Butler will deliver and I agree with it Mr. Justice Budd, who is unable to be present, has authorised me to say that he concurs in the judgment of Mr. Justice Walsh.

Walsh J.:—

The facts of this case are so fully set out in the judgment of Mr. Justice Butler, which I have had the advantage of reading, that it is unnecessary for me to refer to them.

Following the dismissal by the Court of Criminal Appeal of the appellant's appeal against his conviction for murder, the Attorney General granted a certificate to the appellant enabling him to take this appeal to the Supreme Court. The point of law stated in the certificate is as follows:—"Where a person, subjected to a violent and felonious attack, endeavours, by way of self-defence, to prevent the consummation of that attack by force, but, in doing so, exercises more force than is necessary but no more than he honestly believes to be necessary in the circumstances, whether such person is guilty of manslaughter and not murder."

Section 4, sub-s. 1, of the Criminal Justice Act, 1964, provides that:— "Where a person kills another unlawfully the killing shall not be murder unless the accused person intended to kill, or cause serious injury to, some person, whether the person actually killed or not." Sub-section 2 of the same section provides:— "The accused person shall be presumed to have intended the natural and probable consequences of his conduct; but this presumption may be rebutted."

It is important to note that the effect of the provision is that unlawful homicide shall not be murder unless the necessary intent is established. The onus of establishing this beyond reasonable doubt remains at all times upon the prosecution, and so also does the onus of proving beyond reasonable doubt that the presumption that the accused person intended a natural and probable consequence of his conduct has not been rebutted.

A homicide is not unlawful if it is committed in the execution or advancement of justice, or in reasonable self-defence of person or property, or in order to prevent the commission of an atrocious crime, or by misadventure. In the case of such self-defence, the homicide is justifiable and is therefore not unlawful. In such a case, where the evidence in the trial discloses a possible defence of self-defence, the onus remains throughout upon the prosecution to establish that the accused is guilty of the offence charged: see the decision of this Court in The People (Attorney General) v. Quinn.28 If the prosecution has not satisfied the jury beyond reasonable doubt that the accused had not believed on reasonable grounds that his life was in danger and that the force used by him was reasonably necessary for his protection, the accused must be acquitted of any charge of unlawful homicide. To put it another way, but without suggesting that there is any reduction in the burden of proof on the prosecution, the homicide is not unlawful if the accused believed on reasonable grounds that his life was in danger and that the force used by him was reasonably necessary for his protection. In such a case he is entitled to a complete acquittal. At one time it was thought that the person attacked was required to retreat so far as he could before resorting to force; this point is considered in R. v. McInnes29 where Lord Justice Edmund Davies, delivering the judgment of the Criminal Division of the English Court of Appeal, said at p. 1607 of the report that this was too inflexible "and might, in certain circumstances, be regarded as significantly misleading." He preferred the view expressed by the High Court of Australia in R. v. Howe30 that a failure to retreat is only an element in the considerations on which

the reasonableness of an accused's conduct is to be judged, and he quoted with approval the statement of the position put in Smith and Hogan's Criminal Law (2nd ed. at p. 231) that it was "simply a factor to be taken into account in deciding whether it was necessary to use force, and whether the force used was reasonable."

In the present case the learned trial judge left it to the jury to consider whether the homicide with which the appellant had been charged might be lawful on the grounds that he was acting in self-defence, and the judge directed the jury on the basis I have set out above so that it was left to the jury to decide whether the appellant should be acquitted altogether or should be convicted of murder. In the event the verdict was one of murder.

On the appeal to the Court of Criminal Appeal against this conviction, the point of law which is set out in the certificate of the Attorney General was one of the grounds of appeal; it is based upon the decision in R. v. Howe.31 In that case the High Court of Australia decided that, where self defence fails as a ground for acquittal because the force used by the accused went beyond that which was reasonable in the light of the circumstances but was no more than the accused honestly believed to be necessary in the circumstances, he is guilty of manslaughter and not of murder. Therefore, according to the Australian authority, what I might call the full defence of self-defence entitles the prisoner to an acquittal, but when one of the ingredients is lacking he may be convicted of manslaughter rather than of murder. The missing ingredient is that the force used was no more than was reasonably necessary. Instead, the Australian High Court has introduced what one might term a more subjective approach, so that the accused might be found guilty of manslaughter if the evidence disclosed that the accused, while being subjected to a violent and felonious attack, used more force than a reasonable man would consider necessary in the circumstances; in other words, that he should be convicted of manslaughter only unless the prosecution could establish beyond reasonable doubt that he used more than he honestly believed to be necessary in the circumstances.

The learned trial judge in the present case did not direct the jury along these lines, nor indeed was he asked to, but the matter was considered by the Court of Criminal Appeal and that court declined to follow the Australian decision on this point.

In England the Privy Council in Palmer v. The Queen32and the Criminal Division of the Court of Appeal in R. v.McInnes33 have both declined to follow the Australian judgment. In both cases, however, the view was offered that in such circumstances the verdict might very often be simply one of manslaughter, on the grounds that it might be shown that the accused had acted under provocation and that...

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