The Director of Public Prosecutions v Greene

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr Justice McCarthy
• Judgment Date: 11 November 2022
• Neutral Citation: [2022] IECA 305
• Docket Number: Court of Appeal Record No. 152/2020

Between/

The People (At the Suit of the Director of Public Prosecutions)

Respondent

and

Kieran Greene

Appellant

[2022] IECA 305

President

McCarthy J

Kennedy J

Court of Appeal Record No. 152/2020

THE COURT OF APPEAL

Conviction – Murder – Provocation – Appellant appealing against conviction – Whether the trial judge erred in refusing to allow the defence of provocation to go to the jury

Facts: The appellant, Mr Greene, appealed to the Court of Appeal against his conviction on 25 February 2020 for the murder of Ms P O’Connor on 29 May 2017. The grounds of appeal were as follows: (i) the trial judge, or presiding judge of the Central Criminal Court, failed to grant the appellant's application for separate trials, where the prosecution unnecessarily made the conviction of the appellant a condition precedent for the conviction of the other accused and where the particulars of offence in the counts laid against the co-accused clearly indicated a view or conclusion by the respondent, the Director of Public Prosecutions, as to the appellant's guilt of the charge preferred against him; (ii) the trial judge erred in permitting the trial to proceed in circumstances where there was excessive specificity in respect of the charges laid against the appellant's co-accused, in that counts were laid against such co-accused alleging offences of aiding and abetting where the principal offender was unnecessarily stated to be the appellant such as to undermine the independence and impartiality of the jury's consideration of the charge against the appellant; (iii) the trial judge erred in refusing to allow the defence of provocation to go to the jury; (iv) the trial judge erred in refusing to allow the substance of the admissions by the appellant's co-accused, Ms A O'Connor, and certain content in his interviews by An Garda Síochána, to be led in evidence; (v) the trial judge erred in refusing to allow an alternative count under s. 7(2) of the Criminal Law Act 1997 to be considered by the jury in their deliberations; and (vi) the trial judge erred in refusing to allow the defence to lead the evidence of Mr Glanville, forensic psychologist, in respect of Mr Greene's intelligence quota.

Held by the Court that: (i) and (ii) the judge was right to reject the contention that separate trials were appropriate; (iii) there was no basis for leaving the defence of provocation in this case to the jury on the evidence; (iv) the evidence was collateral and irrelevant - bad character, if it were so, of a party not before the court cannot be relevant whether the accused is guilty or not guilty - hence the evidence was rightly held inadmissible; (v) there was no “viable alternative” open to the jury on the evidence other than the verdicts of guilty of murder, not guilty of murder but guilty of manslaughter, or not guilty simpliciter; and (vi) the evidence went to reliability or credibility - it was simply not necessary for the jury to have such testimony when addressing the issue of reliability or credibility and hence it was not admissible on the facts.

The Court accordingly dismissed the appeal.

Appeal dismissed.

NO REDACTIONS NEEDED

JUDGMENT of the Court delivered on the 11th day of November 2022 by Mr Justice McCarthy

1 . This is an appeal by Mr Greene against his conviction on the 25th of February 2020 for the murder of Patricia O'Connor (his partner's mother) on the 29th of May 2017. The murder occurred at the home which the appellant shared with the deceased, her husband Augustine, Mr Greene's partner Louise (the deceased's daughter) and their three children. One Stephanie O'Connor was also a daughter of the deceased but did not reside in the same house. One Keith Johnston had been Louise O'Connor's partner and by him she had had two children. Neither Mr Johnston nor their children resided there either.

2 . Augustine O'Connor, Louise O'Connor, Keith Johnston and Stephanie O'Connor were charged and tried with the appellant for the offence of impeding Mr Greene's apprehension or prosecution for that murder contrary to sections 7(2) and (4) of the Criminal Law Act, 1997. Mr O'Connor pleaded guilty to the offence at the commencement of the trial and the others were convicted. The appellant's contention that he should be tried separately was rejected.

3 . The evidence against the appellant was based on his admissions to the Gardaí.

4 . On the 1st of June 2017 Augustine O'Connor and a Richard O'Connor reported to the Gardaí that the deceased was missing. This gave rise to a missing persons inquiry. Between the 10th of June 2017 and the 14th of June 2017 human body parts were discovered in the Dublin and Wicklow mountains in several locations (nine in all). The body parts were not initially thought to be those of the deceased but were in due course identified as such. Fifteen parts were found. In the course of the post mortem it was established that there were no defensive wounds to the body and that certain dismembered portions thereof exhibited cut bones and soft tissue to the point where it was conceived (on the expert evidence of the State Pathologist), that some portions the body had been dismembered with the aid of a power tool such as a power saw. Others were conceived to have been dismembered leaving a different residue and it was conceived that those portions were dismembered with the use of a handheld saw. Dr Curtis took the view that death resulted from blunt force trauma to the head, and in particular a minimum of three blows. He concluded that such blows had been struck to the head with a solid implement giving rise to a number of scalp lacerations and a fracture.

5 . The appellant attended at Rathfarnham Garda Station voluntarily on the 12th of June 2017 and made extensive admissions over a number of days. The core proposition in his interviews in June 2017 was that he was engaged in a struggle in the bathroom of the family home and was struck on more than one occasion by the deceased with a hurley. He in turn obtained the hurley and hit her on a number of occasions in the course of the struggle. Subsequently they both fell to the floor and continued the struggle – both were said by him to have banged their heads on the tiles. He contended that he had acted in self-defence (and indeed the alternative verdict of manslaughter was left to the jury on that ground); he took sole responsibility not merely for the homicide but for cleaning the house to hide the crime and, said that he had taken the body by car and buried it in a shallow grave. He returned there some days afterwards, recovering the body, dismembering it and scattering parts in various locations.

6 . After he had been arrested and charged with murder and whilst he was in prison on remand on the 9th of December 2017 the appellant made a request to speak to the Gardaí again. In the course of the interviews then conducted, as a consequence of that request, he said, contrary to his earlier admissions, that, in fact, the fatal blows were inflicted upon the deceased by Augustine O'Connor, who arrived at the scene during the struggle and that he bore no responsibility for her death but that he had agreed to take such responsibility. He further stated that he was assisted in the disposition of the body and in particular dismemberment by Mr Johnston. Ultimately, it was on this basis that he sought to defend the case and there is a sense accordingly in which he relied on a so-called “ cut-throat” defence.

7 . He said that Augustine O'Connor had intervened and hit the deceased twice with an iron bar in the nature of a crowbar; the deceased, he alleged, had sought to strike Mr O'Connor with the hurley. He alleged that the latter said to him at the scene that he had been defending the appellant and that the appellant “ could take the rap for this”. It was for that reason that he took responsibility for what had occurred. Needless to say the admissions made by him were evidence only against him and not the co-accused.

8 . Extensive evidence was of course given as to the immediate circumstances in which the co-accused had sought to cover up the homicide including the false assertion that the deceased had gone missing. Other steps were taken to give the impression that the latter was true with a view to excluding any engagement either in the murder itself or thereafter. There was no evidence of engagement in the homicide against any party other than the appellant.

9 . The sole count on the indictment against the appellant was one of murder. The particulars given in each count against the co-accused are clear in describing their involvement. In the case of Augustine O'Connor it was alleged that he made the false missing person report at Rathfarnham Garda Station on the 1st of June 2017. It was alleged against Louise O'Connor that on the 29th of May 2017 she agreed to, or acquiesced in, one Stephanie O'Connor disguising herself as the deceased in order to conceal the fact of death. In turn, it was alleged against Stephanie O'Connor that she so disguised herself on the 29th of May 2017 in order to conceal the fact the fact of Patricia O'Connor's death. In the case of Keith Johnston it was alleged that on the 9th of June 2017 he had purchased certain items for their deployment in the concealment of the remains.

10 . The narrative given by the appellant in his interview whilst in prison largely conformed with the core allegations in accordance with those particulars as to the involvement of the co-accused other than Augustine O'Connor but his primary engagement was with Mr Johnston. In his December statements the appellant said that he buried the deceased's body in what might be called a temporary (shallow) grave in County Wexford, and, in the company of Mr Johnston dug up the body with the aid of the items purchased by him, was jointly responsible for its dismemberment and scattering of the portions thereof.

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