IECCA 165
THE COURT OF CRIMINAL APPEAL
THE DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT of the Court delivered the 21st day of December, 2006, by Mr. Justice Hardiman.
1. Mr. Richard (Dick) Forrestal aged 69 years was stabbed to death in his house at Carrigavantry, Tramore, Co. Waterford, on the afternoon of the 21st July 2005. He was killed by Anthony Barnes, the applicant for leave to appeal in these proceedings. Barnes, together with another man called Andrew Halligan had come to the house on that day to burgle it having first checked it out sometime previously. They knew that a man lived alone there, that he was an old man and they assumed from the fact that he was engaged in the equine business that he had money. They apparently entered the house in the belief that there was no one there, which was true. But just after four minutes past two on the afternoon of the 21st July Mr. Forrestal returned to his house. He was dropped off there by a friend, Mr. Louis Murphy, a very active octogenarian, precisely at that time. Mr. Murphy then went off to get diesel for his car and to collect another person: the two of them together with Mr. Forrestal were going to have lunch in the latter’s house. Mr. Forrestal had been dropped off so that he could start preparing the lunch, he having bought some fish for that purpose.
2. When Mr. Forrestal and the other person, Mr. Kent, returned to the house at twenty five past two they found an appalling situation. The outer door “was driven off the hinges” and when the inner door was opened its travel was stopped by the dead body of Mr. Forrestal, lying with the feet against the door.
3. There was no account of what had happened in the house other than that of the applicant, Anthony Barnes. His fellow burglar, Halligan, a young man with more than thirty convictions for burglary alone, claimed to have left the house before the stabbing. Barnes account will be discussed in detail below. It is, however, common case than Barnes and Halligan were in the house to commit burglary. Barnes defence was one of self defence: he claimed in statement to the Gardai that he and Halligan had been disturbed by Mr. Forrestal who had (his accounts vary) either come at him with a knife or had come at him and then left the room in which he was confronting Barnes and got a knife, or come at him, dragged him from a window through which he was trying to escape, threw him onto a bed and left the room to get a knife. Barnes claims to have disarmed Mr. Forrestal and stabbed him to death in self defence. The principles of law bearing on this situation – an admitted burglar who slays the householder in purported self defence – compose the substance of this appeal.
4. Mr. Forrestal was a bachelor who had lived in Carrigavantry all his life. He had some rental property and a herd of cattle but his principal interest and occupation was the breeding of horses. “He was a horse man through and through”, according to his friend Mr. Murphy. He was a successful breeder and had horses in training who apparently raced with some success. But he was a man of remarkably simple life living in a small house with only basic equipment. He was a religious man, a teetotaller, devoted to his animals and one who rose at 5.30 each morning. He was a kindly and popular figure if a little eccentric. Horses apart, his standard of living was far below what he could easily have afforded. For the most part he lived alone but for some months Mr Murphy had been living with him. Shortly before the events which are the subject of the case Mr. Murphy had moved to another house belonging to Mr. Forrestal because a family member was expected to move in with Mr. Forrestal. Though eccentric in the way described above, there is no doubt that he was more than competent in business, as a farmer and above all as a horse breeder. In Mr. Murphy’s evidence he summed up Mr. Forrestal’s lifestyle with understated eloquence “Dick lived in his own world – and it was excellent”. He was a strong, healthy and active man for his years.
5. On the day of the killing Mr. Forrestal rose at his usual hour and later had breakfast with Mr. Murphy in the house. It may be of some significance, in view of what later happened, that he followed his invariable custom of clearing and washing the knives and other items used for breakfast and put them back on the table. He then travelled, with Mr Murphy, some distance to a yard where he had horses in training. It should be noted that they travelled in Mr. Murphy’s car leaving Mr. Forrestal’s 1999 Mondeo outside his house.
6. They remained at the trainers’ until 12 o’clock. At that time they left to attend a funeral of a local girl who had been tragically killed in a bomb explosion in Turkey. They left the funeral at about a quarter to two and returned to the house after a small detour. Mr Murphy put the time of their arrival back at the house precisely four mines past two o’clock in the afternoon. Mr Murphy did not then enter the house but simply let Mr. Forrestal out of the car and after a little badinage drove off to collect Mr. Kent as already explained.
7. The foregoing details of Mr. Forrestal’s personality and way of life, and his activities on the day of his death, may have some relevance in considering the account of events later offered by Mr. Barnes. It may also be noted that, according to Mr. Murphy whom there is no reason to doubt, Mr. Forrestal had suffered some four or five burglaries in the past. He did not keep any substantial amount of money around the house but used cheques for his transactions apart from ordinary shopping. He would keep the money for that sort of purpose on him. The knife with which he was killed was one of two identical knives which he and Mr. Forrestal used when eating, and which were kept on the kitchen table when out of use.
8. Mr. Murphy described the condition of the house, as he saw after finding the body, as being “like the war effort passed through. It was in – it was tossed, hopelessly tossed”. He said “the house was in a – was ransacked. Dick’s bed was upside down. Presses were knocked over. Tables were turned upside down. My bedroom across the way that had nothing to do with Dick’s house was ransacked. My bed was turned over. My table was turned over. There was a beautiful mahogany wardrobe. Three four doors were tore off it, for whatever they were searching for.”
9. The television was upside down on the floor. The door to Mr. Forrestal’s room was off its hinges. All this suggests a violent and frenzied search.
10. It appears that the first witnesses to come on the scene – Mr. Murphy, some gardaí and perhaps others, were of the opinion that Mr. Forrestal had been shot because of the size of the wounds apparent. The State Pathologist, Dr. Marie Cassidy, who examined the body later in the evening of the 21st, was of the opinion that he had been stabbed, and this turned out to be accurate.
11. The circumstances in which these wounds were inflicted are the factual nub of the case. They only eye witness is the burglar who inflicted them, Anthony Barnes. He did not give evidence but made various statements to the gardaí.
The wounds of the deceased.
12. This topic requires some attention having regard to the contentions subsequently made by Mr. Barnes.
13. The main injuries were to the trunk. There were four stab wounds and a puncture wound. Two of the injuries were deeply penetrating and between them injured both lungs, the aorta, the main blood vessels and the oesophagus or gullet and the windpipe. There were also minor incised wounds or cuts to the left forearm and the hand, consistent with being defensive wounds.
14. The main wounds were as follows:-
(a) A stab wound to the right of the chest three centimetres below the right nipple. It was diagonal, measuring 2.3 centimetres. It tracked downwards and backwards. It had penetrated the rib cage between the fifth and sixth ribs slicing into the upper body of the sixth rib. It continued to the right lung where it ended. The anatomical depth of this wound was seventeen centimetres.
The other wounds, being three stab wounds and a puncture wound were over the front of the left shoulder. They were clustered together in a small area about three by two inches. Only one of these penetrated deeply. This was:
(b) A horizontal wound of 3.5 centimetres just below the collar bone. The direction of the wound was downwards and backwards. This wound penetrated the rib cage between the first and second ribs and detached a thin sliver of bone from the upper border of the second rib. From there on there were two separate tracks, one continuing down and across the top of the upper lobe of the left lung, going on into the aorta. The second track continued across the body through the left hand side of the wind pipe and into the oesophagus. The unchallenged evidence in relation to this wound was that the knife had been partly withdrawn and then plunged back in again, thereby creating the second track. The maximum anatomical depth of this wound was fifteen centimetres.
(c) The next wound was also on the left hand side of the chest four centimetres below the one described at (b) above. This was a vertical wound, running up and down, and measuring two and a half centimetres. It went from the deceased’s right towards the left arm pit. It did not touch any major structures or organs. Its anatomical depth was ten centimetres.
(d) The next wound was just below the left collar bone, one centimetre above the previous wound. This was a shallow wound 1.2 centimetres wide which did not injure any major structure or organ. Behind this wound was a shallow puncture wound.
15. Apart from these wounds to the chest, there was a 3.5 centimetre incised wound on the back of the left forearm, twelve centimetres above the wrist. There was also an injury to the base of the left index finger 1.5 centimetres long.
16. Internal examination of the body showed mainly the damage from the two deeply penetrating wounds, (a) and (b) above. The first was on the right hand side of the chest and the second on the left. The right sixth and left second ribs were damaged. The left chest cavity was awash with fluid, with a lesser quantity on the right chest cavity. The trachea or wind pipe showed a 1.2 centimetres stab wound through its left side with abundant blood in the airways. The pathologist said “in other words blood had tracked in and he was choking on that blood”.
17. The pathologist concluded that the deceased had died after a knife assault. The cuts on the left forearm and hand were consistent with defence injuries. She explained that term as follows:
18. Dr. Cassidy said that the most relevant wound had penetrated the rib cage and sliced across and through the left lung to injure the aorta or main blood vessel. “There was a large gaping hole in the aorta which had poured blood into the chest cavity. He had lost a considerable quantity of blood from the injuries. There was a substantial quantity of blood just under one litre, inside his chest. His clothing was soaked in blood and there had been a pool of blood on the floor beside his head when he was found. There were also wounds in his wind pipe and gullet and blood had leaked into both causing him to choke on blood”.
“When someone is being attacked, if they try and make attempts to defend themselves from that attack, the natural thing to do is to bring your arms up in front of your body to shield your face or the vital parts of your body. Usually the forearm can be brought up or hand can be brought up. If the attackers strike the arm or the forearm of a hand then we wills see injuries in certain areas. So it is not uncommon in an assault to find injuries along the outside of the forearm or the back of the forearm or the back of the hand and sometimes on the palm of the hand. And particularly in knife assaults, it is not unusual for the person who is being attacked to try the grab the wrist or the knife and as they do so sustain some cuts to the hand. So the injuries that are found on the forearm and in the hand can sometimes be classified as being defence injuries, caused when the person was trying to defend himself”.
19. From certain aspects of the blood staining, the pathologist concluded that the deceased had been upright, at least temporarily, while he was bleeding. She said “the injury to the left forearm may have been caused as the knife was being plunged down towards his chest over the obstructing forearm if his arm was held in front of his body in a defensive manner. The injuries to his left hand suggest that at some time during the assault he had grasped the knife blade. There were no injuries, no knife injuries, on the right hand”.
20. The doctor then drew attention to an area of fresh bruising on the inside of the right upper arm. This, she said “could have been caused by the arm being gripped and held firmly. It is possible that during the knife assault he had been grabbed or held by his right arm with such force that he was unable to use his right arm to defend himself”.
21. Dr. Cassidy described this area of bruising as “blotchy bruising, pale blue bruising on the inside of his arm, just below the armpit”.
22. She said that that area of the arm “is an area which we would classify as being a protected area, because it’s not the place where would find injuries if you bump into something of if someone bumps you or strikes you. This part is protected by the inside of your chest. So to find an injury on the inside of the upper arm means it has been deliberately inflicted usually. Therefore, the most common way in which this type of injury is caused is by someone grabbing you by the arm”.
23. Dr. Cassidy said that this suggested to her the possibility of more than one assailant.
24. In cross-examination Dr. Cassidy agreed that the knife produced to her, of which more will be said later, was consistent with causing the wounds she found on Mr. Forrestal.
25. Speaking of the vital organs injured, she said that the damage to them wouldn’t necessarily cause the deceased to have collapsed immediately. “He would be capable of movement for a short period of time. He had a very large wound in his aorta. That’s going to lose a loss of blood very rapidly. It is very likely he is going to collapse because he has lost such a large quantity of blood. He could be capable of some movement immediately afterwards,” before, that is, he choked on the blood.
26. Dr. Cassidy confirmed to defence counsel that the deceased “might have even been capable of continuing to struggle with his attacker for a short time before he collapsed”. In relation to the bruising to the arm, she confirmed that it could have been caused in the course of the struggle. The wounds to the left forearm and hand were consistent with being caused during a struggle for or with the knife. The more serious of these wounds might reflect the parties moving in the course of the struggle. The pattern of bleeding onto the clothing suggested that the deceased had been upright at some point before he collapsed. The bruising was mostly fresh and all would have occurred within 24 hours of death. The bruises had the appearance of having occurred at around the same time. The bruising to the left inner arm, specifically, consisted of two areas, one measuring 5 by 8 centimetres and just below that an area measuring 4 by 3 centimetres. She said “It’s an indication that that there’s been pressure applied to the inside of the upper arm and most likely that’s by the fingers”.
The defendant’s versions of events.
27. The defendant did not give evidence at his trial. However he made a number of statements, and had a number of questions and answer sessions with the gardaí. All of these, the inculpatory and exculpatory parts, were before the jury and it was conceded that the jury could accept or reject the statements or any part of them. However, for reasons elaborated below, the defence submitted on the hearing of this appeal that this Court, unlike the jury, is bound to approach the legal issues in the case on the basis that the defendant’s account of the facts was true. Apart from the legal issues discussed below this has the elementary difficulty that the defendant at different times gave different accounts on various matters, some of them centrally important.
28. The defendant went to a garda station in Waterford, accompanied by his father, on the afternoon of the 22nd June, the day after the killing. Very shortly afterwards he made a statement in which he described going by himself to rob Mr. Forrestal’s house. On this occasion he said:
29. Later on the same afternoon the defendant was questioned by two detectives. To these, he continued to insist that he was by himself at the time. He gave them further details of the robbery. He said that he had kicked in the outer door of the house and broken in the second door with a hammer which he brought from the yard. He said he was in the kitchen when the man came in, standing near the table. This may be significant in that the knives were on the kitchen table. He said that the man grabbed him by the shoulders. He, Barnes, ran into the box room:
“I was about to leave the house when somebody came in and grabbed me. He started swinging me around. I ran into the bedroom and tried to break out the window. He pulled me back from the window and I landed on the bed. He went down to the kitchen and got a kitchen knife. I tried to barricade the door and he pushed it in. He came into me with the knife and tried to stab me. I caught his hand. I stuck the knife into him. I think it was just once. I ran out the door. It was a complete accident. I did not mean to kill him.”
30. He said that he had put his foot through the window and tried to get through the window “but he pulled me back.” He then said:
“He had me trapped there”.
31. He there demonstrated how he stabbed the man with the knife.
“I was on the bed. He ran to the kitchen and he came back with a knife. I tried to barricade the room but he pushed it in. The knife had a black handle. He busted the door in on top of me. He came at me with a knife. He had it in his right hand. I caught his hand with my right hand as I am right handed. I tried to get past him to get out. I was trying to get the knife off him. I got the knife off him. It was a matter of seconds. I just did that.”
32. In this interview, beginning about 4 o’clock in the afternoon of the 22nd, he conceded that he had stabbed the man “two or three times”. He said that he had dropped the knife in the house. He said that he had later heard on the news that the man had died. He then burnt his clothes in a fireplace at home. He told his mother the next morning what had happened. Asked to describe how he tried to stop the man pushing in the door of the box room he said “I had the palms of my hands against the door”. When he was asked “Did he say anything to you?” he said:
33. He said that after he had told his mother she had telephoned his father who had told him to give himself up and accompanied him to the garda station.
“No. He was in a rage. He shouted ‘I am going to kill you’.”
34. The defendant gave a further interview to gardaí at about 6.30pm on the same day. He denied going to the Waterford dole office to sign on on the previous day. He described driving to the house. He said he had stolen £20 from the Mondeo car. He described searching the house “I searched around for a good while”. Asked specifically whether there was anybody else in the house with him he said “No there was nobody with me. Fuck it anyway I’ll only get ten years.”
35. A major change was the account of where the knife came from. He said he had run into the box room and “Yer man got a knife and came in after me”. Asked where the man got the knife he said “He picked it up off the table”. He said the table was in front of the door of the box room. He protested that he only went to rob the house “There was no attempt to kill the man”. Speaking of the door to the box room he said “I pulled it in when I saw him with the knife. He said that the door closed into him. He said “He hit the door by the hinges with his shoulders and came in on top of me”. Asked to describe what happened next he said:
36. He said he didn’t know how many times he’d stabbed him but it was more than once. He couldn’t say if they were deep stabs because “I was blank”. He did not see the man fall. He dropped the knife in the room where he stabbed him. He left the house by the front door. He did not put a coat over his (Mr. Forrestal’s) head. He then alleged that he had driven away by back roads, come out onto the Cork road “turned left into the industrial estate and got out of the car and ran across a glass factory” and thus home. Asked why he burnt his clothes he said:
“I killed him then, he came in with a knife to stab me, I got the knife off him and I stabbed him”.
37. The defendant gave a further interview beginning at about a quarter to eleven on the night of the 22nd July.
“I watched the news and I saw your man was dead so I burnt the clothes”.
38. On this occasion he told the guards that he had never seen Mr. Forrestal before the previous day. It was put to him that Andrew Halligan had been with him on the burglary to which he said “I want to see his statement first”. He next admitted that Andrew Halligan had driven him to the Forrestal house, and admitted that it was Halligan who had kicked in the window of the box room and not himself as he had previously said. He admitted that he had told his mother what he had done the previous night, and not that morning. He said that Halligan had called on him that night and said that the man was “after dying” and that they should hand themselves in. He had told Halligan that he had bitten Mr. Forrestal on the hand, but that wasn’t true. Asked why he had said it he said “I don’t know, because I’m a dope”. He said that a cut which was on his right middle finger was caused by his running through bushes the previous day.
39. There was a further interview with gardaí the following morning. On that occasion he said that he had gone out to Mr. Forrestal’s house on the previous Tuesday “just having a look”. He said he had met Mr. Forrestal and asked him were there rabbits in the field. Mr. Forrestal had warned not to let any greyhounds out around his land “or I’ll shoot them”. Asked again to explain what had happened he said:
Aspects of Barnes’s account.
40. It will be seen that these accounts vary in a number of ways. The first is whether he was alone or with another person, later identified as Halligan. While he was denying that anyone else had been present, he claimed that it was he who had kicked out the window, (actually kicked out by Halligan, and was in the act of trying to get through it when Mr. Forrestal grabbed him. He later changed this account, when the presence of Halligan was admitted. He said that he was in the kitchen (where the knives were) when the man came in. He first said that the man had left him on the bed in the box room and gone to get the knife, later that the man had taken up the knife after they had struggled in the kitchen. He said that he had dropped the knife in the room, but later agreed that he had taken with him and dropped it in a field. He said that the man, obviously Mr. Forrestal had said “I’ll kill you”, but he said this only in answer to a question as to whether he had said anything. He said that he had tried to stop the door being pushed in with his (Barnes) palms against the door but no marks of this were found by the gardaí. The door was found off its hinges, but so were other doors in the house. This damage had not been present when Mr. Forrestal and Mr. Murphy left the house. Evidence (to which objection was taken on other grounds), established that Barnes had in fact signed on at the dole office though he denied this. Finally, he said he had gone home after escaping from the area but there was evidence (excluded by the learned trial judge and discussed below) suggesting that he and Halligan had gone to rob a collection box from other premises on their way home.
“Andrew Halligan was inside the box room/bedroom. A man comes in the front door. He grabs me where I have shown you on the map. I broke free and got into the bedroom/box room. Andrew helped me hold the door for a while, then the man bursts open the door and goes back to the table. He pushed open the door a bit and then he went back for a knife on the table. As he was doing this Andrew kicked out the window and got out of the house. The man then burst open the door off its hinges. The door came down on top of me. I came out from behind the door, then he came at me with the knife, the door is laid on the bed behind me. He tries to stab me with the knife”.
41. In falsely claiming that he had kicked out the window and tried to escape through it, Barnes was setting up a story, subsequently admitted to be false, which placed him in physical retreat from the premises at the time Mr. Forrestal laid hands on him. On this account, his lawyers were to claim, even if originally an aggressor he had ceased to be one. If this was so, his lawyers would later claim, it was impossible to justify the use of any force at all on him whether for arrest purposes or otherwise. But this account was not true, as he subsequently admitted, and it remains a matter for speculation why he told not merely a lie (he was, after all, already lying about their being no other person present) but one specifically calculated to support his eventual plea of self defence.
42. It is of course beyond dispute that Barnes held the knife which was produced in the trial court and killed Mr. Forrestal with it. There is no forensic evidence that Mr. Forrestal ever had the knife at all during his struggle with Barnes. Barnes was in the kitchen, where the knife was on the table, when Mr. Forrestal came in the door of the house: he thus had every opportunity to arm himself with the knife. In his first and last accounts to the gardaí, unlike the others, he claims that it was Mr. Forrestal who left him while he was in the box room to go and get the knife. He gives no account of what he was doing when this was going on and it is plainly an account that a jury might have thought improbable or impossible.
43. Another factual aspect which plainly had significance for the jury was the evidence of the bruising to the inside of Mr. Forrestal’s right arm. What the pathologist said about this has already been set out. In the course of their deliberations, at 4.36pm on the 8th March, 2006, the jury asked to be reminded of Dr. Cassidy’s evidence in relation to “the struggle, where the man was being held… it’s where he is being held by the arm. The bruise on his arm”. It will be noted that the accused in his statement gave no account of any event which could account for this bruise. Finally, it will be recalled, Barnes claimed that during the stabbing “I was blank”. If this is so (and it might explain his varying accounts) his statements are virtually worthless.
The legal issues.
44. The learned trial judge charged the jury on the central issue in the case, Barne’s defence of self defence, wholly along the lines of the judgments in this Court in the classic case on the topic, People A.G. v. Christopher Dwyer  IR 416. In the course of doing so he made what he himself described as “a very, very serious error” as to the burden of proof in self defence cases. This error, and the attempt made to correct it, will be discussed below. But the salient feature of the charge is that it treated self defence in substantially the same way as it would be treated in the case of an attack on the street, or in a public house or in any other place and gave only incidental significance to the fact that this particular confrontation took place in the deceased gentleman’s house and while the applicant was in the act of burgling it. The prosecution say that this was a serious error: a charge correct in law would have been much less favourable to the accused. Accordingly, they say “ the only conceivable error in the direction of the trial judge on the issue of self defence enured in favour of the defence”. The defence say that Mr. Barnes, though a burglar, was not an aggressive one and that the mere act of burglary is not in itself an act of aggression. Accordingly, they say that it would have been unlawful of Mr. Forrestal to respond with any force or threat of force at all to Mr. Barne’s intrusion into his dwellinghouse. Accordingly, if he did respond with any force, Barnes was entitled to defend himself. The prosecution, on the other hand, and in the words of prosecuting counsel at the trial, said:
Burglary and permissible responses to it.
45. This conflict between the parties makes it necessary to analyse the nature of burglary in a dwellinghouse and the permissible responses to it. It will then be necessary to compare with the result of this exercise with the legal instructions given by the learned trial judge to the jury in this case.
“One is getting into very very dangerous waters when one tells the jury that Anthony Barnes was entitled to inflict injuries of the kind he did, apprehending that Mr. Forrestal would do something less than inflict fatal force on him because Mr. Forrestal was entitled to inflict substantial force on Anthony Barnes and to do so perfectly lawfully. And this is an unusual feature of this case. And in my respectful submission, that makes it very dangerous to indicate that Anthony Barnes was in some way in the same position as a person attacked by the average person in the street. He wasn’t”.
46. Counsel on both sides have spared no diligence or ingenuity in researching their respective positions and cases ancient and modern, and from various far flung countries have been urged upon us. This expenditure of labour was necessary because, curiously enough, there is no modern Irish authority on this topic: counsel for both sides were agreed upon that proposition. This makes it necessary for the Court to examine, in the contemporary Irish context, a problem which has troubled courts of law since time immemorial: the nature of the offence of burglary and the permitted response of a victim of that offence.
47. Burglary is presently constituted by s.12(1)(a) of the Criminal Justice (Theft and Fraud Offences) Act, 2001:
48. Barnes and Halligan were charged as follows, in count 2 of the indictment of the present case:
“12. - (1) A person is guilty of burglary if he or she -
(a) enters any building or part of a building as a trespasser and with intent to commit an arrestable offence, or
(b) having entered any building or part of a building as a trespasser, commits or attempts to commit any such offence therein.
(2) Reference in subsection (1) to a building shall apply also to an inhabited vehicle or vessel and to any other inhabited temporary or movable structure, and shall apply to any such vehicle, vessel or structure at times when the person having a habitation in it is not there as well as at times when the person is there.
(3) A person guilty of burglary is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 14 years or both.
(4) In this section ‘arrestable offence’ means an offence for which a person of full age and not previously convicted may be punished by imprisonment for a term of five years or by a more severe penalty.”
49. Each defendant pleaded guilty to this offence. It is clear from the information given by Barnes to the gardaí that he knew that the premises were a dwellinghouse, that they were the home of Mr. Forrestal, who was an elderly man, and that he travelled to the dwellinghouse that morning with the intention, formed some days earlier, of breaking into it and stealing from it. It may be important to note that this constituted him not merely a trespasser but a trespasser in a dwellinghouse which he had entered forcibly with intent to steal from it.
“Anthony Barnes and Andrew Halligan, on the 21st day of July, 2005, in the county of Waterford, entered as trespassers a building, being the dwellinghouse of Richard Forrestal, with intent to commit the arrestable offence of theft therein”.
50. In acting in this way, Barnes was not merely committing a crime but was invading Mr. Forrestal’s constitutional rights. Article 40.5 of the Constitution, under the heading “Inviobility of the dwelling” provides as follows:
51. This is a modern Irish formulation of a principle deeply felt throughout historical time and in every area to which the Common Law has penetrated. This is that a person’s dwellinghouse is far more than bricks and mortar; it is the home of a person and his or her family, dependents or guests (if any) and is entitled to a very high degree of protection at law for this reason. Most of the cases on the topic relate to the restrictions which this puts on the State itself (most obviously the police force) in entering a person’s home. But the home is, of course, also entitled to protection from criminals. This form of protection, indeed, was to the forefront of the concern of law makers in the early days of the Common Law.
“The dwelling of every citizen is invioble and shall not be forcibly entered save in accordance with law”.
52. Before going further, it is necessary to note an anomaly in our law. There is a recent statutory codification of the law relating, amongst other things, to self defence and defence of property in the Non-Fatal Offences against the Person Act, 1997, and in particular Sections 18 to 20 thereof. But this applies only, as the title suggests, to the use of non-lethal force. Where homicide has occurred (whether of the burglar, or the proprietor in a case like this) one must still resort to the Common Law. But useful analogies can, on certain aspects of the topic, be drawn from the Statute. Section 18 provides:
53. Each side of the present litigation has put before the Court many statements of the original Common Law position of burglars and householders. The latter term, of course, embraces the owner or lawful occupier of every sort of premises from a palace to a shack and regardless of whether he is the full owner, a tenant or a licensee or other form of permissive occupant. In a very ancient case the following was said:
“18.- (1) The use of force by a person for any of the following purposes, if only such as is reasonable in the circumstances as he or she believes them to be, does not constitute an offence -
(a) to protect himself or herself or a member of the family of that person or another from injury, assault or detention caused by a criminal act; or
(b) to protect himself or herself or (with the authority of that other) another from trespass to the person; or
(c) to protect his or her property form appropriation, destruction or damage caused by a criminal act or from trespass or infringement; or
(d) to protect property belonging to another from appropriation, destruction or damage caused by a criminal act or (with the authority of that other) from trespass or infringement; or
(e) to prevent crime or a breach of the peace.
(2) ‘use of force’ in subsection (1) is defined and extended by section 20.”
54. In the first edition of Halsburys Laws of England (1909), the following appears at p.587:
“It was presented that a man killed another in his own house se defendendo. It was asked whether the deceased came to have robbed him; for in such a case may kill another though it be not in self defence and the twelve said not. Wherefore they were charged to tell the way how it happened, whereby he should receive the King’s pardon”. (1329) F Coron. 305.
55. Statements to similar effect were to be found in various criminal law books of which the 26th edition of Archbold at p.887 may be cited:
“The owner of a dwellinghouse, or any of his servants or lodgers, or any other person within the house, is justified in using force towards a person who is manifestly attempting to commit a burglary there, or to invade and enter it by violence; if the owner in the use of such force kills such person he does not commit any crime.
A person lawfully defending himself or his habitation is not bound to retreat or to give way to the aggressor before killing him; he is even entitled to follow him and to endeavour to capture him; but if the aggressor is captured or is retreating without offering resistance and is then killed, the person killing him is guilty of murder”.
56. This passage was quoted with approval in R. v. Hussey  18 Criminal Appeal Reports 160. There, a man was convicted of an assault offence. He was in a room which was the habitation of himself and his family when the landlady, who had served an invalid notice to quit, attempted with two companions forcibly to eject him. They broke the panel of the door whereupon he discharged a firearm through it, injuring two of the persons outside. The conviction was quashed by the English Court of Criminal Appeal on the basis that the trial judge had been wrong simply to regard the defence as one of simply self defence. Hewitt C.J. held that the law relating to the defence of the dwelling was different to that of the ordinary law of self defence and insofar as the judge’s charge to the jury “proceeded on the foundation that the defence was the ordinary of self defence” they had been mischarged and the verdict might have been different had the law been correctly stated.
“In defence of a man’s house, the owner or his family may kill a trespasser who would forcibly dispossess him of it, in the same manner as he might, by law, kill in self defence a man who attacks him personally; with this distinction, however, that in defending his home he did not retreat, as in other cases of self defence, for that would be giving up his house to his adversary.”
57. This Court wishes to make it clear, in the absence of other express Irish authority to this effect, that to the extent that the Common Law permitted the killing of a burglar by a householder simply for being a burglar, and no matter what the other circumstances, it no longer does so in this jurisdiction. It has not done so for at least 70 years. Many social and historical reasons could be cited to support this conclusion but in reality it is unnecessary to cite more than one: the Constitution of Ireland. This provides at Article 40.3.1:
58. By the next sub-Article it is provided that:
“The State guarantees by its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.”
59. It seems an elementary proposition, in the light of such provisions, that a person cannot lawfully lose his life simply because he trespasses in the dwellinghouse of another with intent to steal. In as much as the State itself will not exact the forfeiture of his life for doing so, it is ridiculous to suggest that a private citizen, however outraged, may deliberately kill him simply for being a burglar.
“The State shall, in particular, by its laws to protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen”.
60. But this is by no means the end of the matter.
61. This Court cannot accept the contention made on behalf of Anthony Barnes that a burglary is a serious offence but not, in and of itself, an act of aggression. In argument Mr. Jeremy Maher S.C. for the applicant heavily emphasised the fact that Barnes had spied out the land in advance, had approached the premises carefully and generally taken precautions to ensure, as far as he could, that the premises were unoccupied when he entered them.
62. It seems clear to us that a burglar would prefer, in his own interests, to enter empty premises rather than an occupied house. But that cannot take from the fact that every burglar runs the risk that the householder may be present even though the burglar thinks he is not, or that the occupant, though at first absent, may return to his own house as he is manifestly entitled to do.
63. An occupier in the presence of a burglar (whether the burglar knows that he is there or not), is in a position of very acute difficulty. Firstly, his dwellinghouse has been violated and this is not merely a crime at law but an invasion of his personal rights. Such a thing, especially if repeated, may in itself gravely undermine the wellbeing even of a strong and healthy occupant, and still more that of an older or feeble one. The offence of burglary committed in a dwellinghouse is in every instance an act of aggression, an attack on the personal rights of the citizen as well as a public crime and is a violation of him or her.
64. Furthermore, particular circumstances may gravely worsen the position of the householder. He or she may have the care of and responsibility for children or old and sick people in the house or likely to come there. He may himself be aging or elderly, apprehensive or even terrified out of his wits. He has no idea what the burglar will do or whether he is violently disposed or not. Common knowledge will have told him that certain burglaries are committed by drug addicts whose behaviour may be randomly vicious or wholly unpredictable. The circumstances may be such as render it difficult or impossible to summon assistance: he may have no telephone or be afraid to attract the attention of the burglar, or provoke his rage, by using one.