The People (At the Suit of the DPP) v Adam O'Keeffe

• Jurisdiction: Ireland
• Judge: Ní Raifeartaigh J.
• Judgment Date: 28 July 2021
• Neutral Citation: [2021] IECA 220
• Court: Court of Appeal (Ireland)
• Docket Number: [Appeal Ref: CCAOT0238/2018]

Between

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

Respondent

and

Adam O'Keeffe

Appellant

[2021] IECA 220

Birmingham P.

McCarthy J.

Ní Raifeartaigh J.

[Appeal Ref: CCAOT0238/2018]

Bill No: CCDP5/2018

THE COURT OF APPEAL

Conviction – Murder – Provocation – Appellant seeking to appeal against conviction – Whether the trial judge erred in the manner in which she charged the jury on the issue of provocation

Facts: The appellant, Mr O’Keeffe, was convicted of the murder of one Ms McCarthy and sentenced to life imprisonment, to run from the 6th of December 2017. He appealed to the Court of Appeal on the ground that the trial judge erred in the manner in which she charged the jury on the issue of provocation.

Held by the Court that, having applied DPP v McNamara [2020] IESC 34 and DPP v Almasi [2020] IESC 35, they supported the position which had been adopted by the respondent, the Director of Public Prosecutions, namely that there was no error in the manner in which the trial judge dealt with provocation insofar as she failed to address the issue of intoxication in the course of her direction on provocation.

The Court held that the appeal would be dismissed.

Appeal dismissed.

Ex tempore judgment of the Court delivered by Ní Raifeartaigh J. on 28 ^th day of July, 2021 .

The Trial

1 The appellant was convicted of the murder of one Amy McCarthy and sentenced to life imprisonment, to run from the 6 ^th of December 2017.

2 The prosecution case was that throughout the day on the 29 ^th of April 2017, and going into the morning of the 30 ^th of April 2017, the appellant and the deceased, Ms. McCarthy, were together and also in the company of others in the city of Cork. CCTV footage showed that there was a heated argument between the appellant and Ms. McCarthy at one point. There was evidence from a witness who was with the pair at the time. Apparently the fight stemmed from the appellant's belief that Ms. McCarthy had cheated on him while he had been serving a sentence of imprisonment. A considerable amount of alcohol was consumed throughout the day by the various parties. The appellant and Ms. McCarthy ended up at premises in the City of Cork which served as a “squat” of some sort. Ms. McCarthy was last seen entering this property at approximately 7.10 pm on the 29 ^th of April 2017. She was found dead the next day.

3 The following morning the appellant along with others raised the alarm when Ms. McCarthy would not awaken. Paramedics attended the scene and were directed into the squat and found Ms. McCarthy lying on the floor with injuries. The Gardai were called and the scene was preserved. A post-mortem revealed multiple injuries to Ms. McCarthy and the cause of death was determined as a combination of blunt force trauma to the head due to multiple blows, with brain swelling associated with asphyxia due to manual strangulation, complicated by acute alcoholic intoxication.

4 The appellant pleaded not guilty to murder but guilty to manslaughter. At his trial for murder, he relied upon the defence of provocation as well as lack of intent as a result of intoxication.

5 The trial judge directed the jury on the offence of murder, the requirement of intent or the presumption as to natural and probable consequences. She then went on to direct the jury as follows on the issue of provocation:-

“Before finding the accused guilty of murder, the prosecution must establish beyond a reasonable doubt that the accused was not provoked to such an extent that, having regard to his temperament, character and circumstance, he lost control of himself at the time of the wrongful act. There must be evidence of a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him, for that moment, not master of his mind and there must some evidence that the loss of self-control was total and that the reaction came suddenly and before there was time for the passion to cool. I must emphasise that this burden is not discharged merely by pointing to evidence that the accused lost his temper or was easily provoked.

You should examine the evidence — the evidence that you should examine in considering this is the testimony of Dean Nugent and the memos of interview with the accused man himself. In considering whether the accused was provoked, you must consider the evidence carefully. You are not obliged to accept this evidence, any more than you are obliged to accept any other evidence in the case. You must, however, carefully consider it and decide whether it is credible and whether it amounts to provocation. The question you must decide is not whether a normal or reasonable man would have been provoked so as to totally lose self-control, but whether this particular accused, with his particular history and personality, was so provoked. Is there evidence of a sudden and temporary loss of self-control rendering the accused so subject to passion as to make him for the moment not master of mind and is there evidence that the loss of self-control was total and the reaction came suddenly and before there was time for the passion to cool? So, I must emphasise that it is a subjective test not an objective test. If you find that the accused was provoked, then the offence of murder is reduced to manslaughter. [Day 6 Page 15 Line 15]

6 Counsel for the DPP raised a requisition on provocation which was challenged as being unnecessary by counsel for the appellant. The latter in turn requisitioned the trial judge regarding her charge on provocation and in particular that she had given no direction on intoxication in the context of provocation and how that should be addressed to the jury. He did so in the following terms:-

“MR GREHAN: Yes. And there's only one other thing then: if you are going to do that, and the Court dealt with the subjective test in terms of the accused's circumstances, the only thing that you didn't mention in that regard, if it is to be revisited, that I'd ask the Court consider doing, is the fact that he was intoxicated, having consumed very considerable quantities of alcohol at...