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Judgment
Title:
Director of Public Prosecutions -v- Nally
Neutral Citation:
[2006] IECCA 128
Court of Criminal Appeal Record Number:
244/05
Date of Delivery:
10/12/2006
Court:
Court of Criminal Appeal
Composition of Court:
Kearns J., O'Donovan J., de Valera J.
Judgment by:
Kearns J.
Status:
Approved
Result:
Quash conviction, direct retrial grant bail
Judgments by
Link to Judgment
Kearns J.



14

THE COURT OF CRIMINAL APPEAL
Kearns J.
O’Donovan J.
de Valera J.
[CCA244/05]
BETWEEN
THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
AND
PADRAIG NALLY
APPLICANT
JUDGMENT of the Court delivered by Mr. Justice Kearns on the 12th day of October, 2006

The applicant herein was charged that on the 14th October, 2004 at Funshinaugh Cross, Claremorris, Co. Mayo, he did murder one John Ward, a member of the travelling community who, on the date in question, had come unsolicited with his son Tom Ward to the applicant’s house. The trial took place in July, 2005 before Carney J sitting in the Central Criminal Court in Castlebar Courthouse. At the conclusion of the trial on the 20th July, 2005, the jury returned a verdict of manslaughter, the applicant having pleaded not guilty to the single count on the indictment.

The applicant is a bachelor aged 60 who at the time lived alone on a 65 acre farm at Funshinaugh. He has a sister who works in Ballina but who at the time of these events used to stay at weekends with her brother in the house on the farm in which both had grown up. This was largely to reassure the applicant who had developed major anxieties that his house would be burgled and that he himself might be harmed or killed by intruders. There was a basis for these fears. Considerable evidence was given during the course of the trial that there had been a spate of thefts and burglaries in the area in 2004, which, in the mind of the applicant at least, were sufficient to put him in constant fear and apprehension that he could at any time be a victim of such crime.

Around lunchtime on the 14th October, 2004, the applicant was alone in the house on the farm. While listening to the radio he heard the sound of a vehicle in the driveway. He went out and found Mr. Tom Ward sitting alone in the driver’s seat of a car and revving the engine in a loud manner. The applicant asked Tom Ward what he was doing on his property. Mr. Ward indicated he was enquiring as to whether or not a white car on the applicant’s property was for sale. The applicant was suspicious that Mr Ward was not alone and asked where “his mate was”. Mr Ward told him that his father, John Ward, had gone around the back of the house “to take a look”. The applicant passed a remark to the effect that, if so, “he would not be coming out”. He went round the back and, on then seeing John Ward pushing open the back kitchen door of the house, retrieved a loaded single barrel shotgun from a nearby shed. The applicant gave evidence that as he approached John Ward, a shot was accidentally discharged from the gun which hit John Ward in the lower right loin area and right hand. According to the applicant, John Ward then threw himself at the applicant and a ferocious physical struggle ensued. At some point the applicant managed to pick up a length of wood with which he struck John Ward repeatedly across the head and upper body. Mr Ward suffered a fractured arm in his efforts to defend himself. Mr. Ward had called out to his son for assistance but at this point, Mr. Ward junior left the scene in the vehicle. It was the applicant’s case that he was extremely concerned that Mr. Ward junior was gone for reinforcements or that he might return with some weapon. Mr. Ward senior appears to have been a man of considerable strength who had much experience of fighting He was also a man with a number of previous convictions, including convictions for burglary, and evidence was given at trial that he was a man of violent disposition. John Ward remained conscious at all stages of the assault and began to limp or run from the property. As he did so, the applicant returned to the shed and retrieved more cartridges and reloaded the shotgun. He followed Mr. Ward out onto the public roadway and there fired a further shot at him from a few yards distance and it was this second shot which proved fatal. Realising that Mr. Ward was dead, the applicant picked up his body and threw it into an adjoining field. The applicant gave evidence that he feared the consequences if others returned and found the body. He then went to a neighbour’s house from where the gardaí were called and the applicant met them at the farm and indicated exactly what had taken place.

There was evidence from the applicant’s sister that on the Sunday before the incident the applicant was extremely upset by incidents of burglaries and attacks on people in their homes in the area. Property had been removed from both the home of the applicant and his immediate neighbours in prior incidents. In particular a chainsaw had been stolen from the applicant’s property in February, 2004 and his gun had been moved from one position to another in the house. Both the applicant and some neighbours were so concerned with these incidents that they had started noting the registration numbers of unfamiliar cars that entered their properties. The applicant gave evidence that the Wards had entered his property some weeks previously in a car, ostensibly for the purpose of seeking directions to the nearby lake, a reason the applicant did not believe or accept was genuine. He was also obsessed with other incidents of local crime and notably by the circumstances of two brothers, the Gilmore brothers, who had lived in the next town of Ballinrobe, who had been tied up and left to die in their own homes, albeit that that incident had occurred many years previously. The applicant gave evidence that on the days leading up to the incident he had considerable difficulty sleeping and was on edge. He also gave evidence that he would splash water on the ground near the entrance gate so that on any occasion when he left the house he could on returning check to see if intruders had entered the property by checking for footprints or tyre marks in the mud.

The applicant’s defence at trial was one of self-defence. At the conclusion of all the evidence in the case there was a rather unusual development when Mr. O’Higgins, senior counsel for the respondent, invited the trial judge in the absence of the jury to rule and direct that the defence of self-defence raised by the applicant be allowed go to the jury in a truncated form, shorn of any possibility that the jury might acquit altogether, on the basis that the amount of force used by the applicant was so excessive as to destroy any notion that it was objectively reasonable and that in such circumstances it should only be open to the jury to convict of either murder or manslaughter. Mr. O’Higgins submitted that to rule otherwise would be to open the door to some form of prophylactic killing as part of the legal regime of self-defence. He submitted that, on the facts established in evidence, Mr Ward senior had retreated from the scene but was nonetheless shot in circumstances where he no longer posed a threat to the applicant. The shot fired on the roadway outside the applicant’s farm was clearly the fatal shot and was fired at a time when the applicant could have removed himself from the scene either on foot or in his car. Further, the applicant had told the Gardaí in the immediate aftermath of the event that he intended to kill Mr. Ward because of all the aggravations to which he had been subjected, that he could take no more and had, in fact, considered killing himself also following this incident. The trial judge should not, he urged, leave open the possibility that the jury might bring in a verdict which, if it was a complete acquittal, would be plainly perverse.

In ruling upon the matter the learned trial judge stated:-

      “In my view if the jury, on the evidence which we have had in this case, found a full self-defence to be applicable, in other words that there was no crime, that would be perverse having regard to the evidence which has been given and I do not allow the full defence of self-defence. I do allow the partial defence of self-defence which is of course capable of reducing the admitted killing from murder to manslaughter and the case may proceed to the jury on that basis”
At this stage, and at the conclusion of the above ruling, counsel for the defence requested that provocation be also allowed go to the jury and this request was acceded to.

The jury retired to consider their verdict on the 20th July, 2005. Having deliberated, the jury returned a verdict of not guilty of murder but guilty of manslaughter on a unanimous basis. Thereafter the learned trial judge imposed a sentence of six years imprisonment to date from the 11th November, 2005.

On the hearing of the appeal, counsel for the applicant argued that once the issue of self defence has been raised, either by way of evidence directly provided by the defence or based on evidence adduced as part of the prosecution case, it then became an issue solely and exclusively for determination by the jury and that the trial judge was not entitled to truncate the defence in the manner which he did. Counsel argued that while the judge was entitled to express a view in relation to the facts, he was precluded from directing that the evidence adduced was sufficient to require a particular verdict one way or the other. That being so, the trial judge in this case was not entitled to deprive the jury of the option of considering whether the force used by the applicant was objectively reasonable, nor was he entitled, where no unlawful killing had been admitted, to direct the jury that they must find the applicant guilty of either murder or manslaughter, or indeed of any offence.

    On behalf of the prosecution it was submitted that the charge to the jury in relation to the defence of self-defence was correct on the facts and evidence in this case. It was not contended on behalf of the applicant that the killing was an accident. Nor were the circumstances of the killing in dispute. Indeed they were described by the applicant himself in statements made to the Gardaí. What was at issue was the subjective state of mind of the applicant at the time he shot dead the deceased. It was submitted on behalf of the prosecution that the trial judge could not have left the full defence of self-defence to the jury on the facts and evidence in the case – and thereby afford to the jury the option of acquitting the accused completely – as to do so would be misdirect the jury in relation to the law of self-defence.

    DECISION

    The law of self-defence in this jurisdiction is neatly encapsulated in the following passage from the judgment of Butler J. in The People [A.G.] v Christopher Dwyer [1972] I.R. 416 at p.429:-

    “A person is entitled to protect himself from unlawful attack. If in doing so, he uses no more force than is reasonably necessary, he is acting lawfully and commits no crime even though he kill his assailant. If he uses more force than may objectively be considered necessary, his act is unlawful and, if he kills, the killing is unlawful. His intention, however, falls to be tested subjectively and it would appear logical to conclude that, if his intention in doing the unlawful act was primarily to defend himself, he should not be held to have the necessary intention to kill or cause serious injury. The result of this view would be that the killing, though unlawful, would be manslaughter only.”

    In the course of his summing up to the jury, the learned trial judge directed the jury in relation to the issue of self defence in the following manner:-

    “Now self-defence permits of two different terms of defence. There is what is known as full self-defence, and where full self-defence operates, there is no crime at all. A person is entitled to use reasonable force to defend his life and to defend somebody else’s life, and if the force was reasonable having regard to all the circumstances, then even though there was a killing and even though there was a deliberate killing, there is no crime committed. Now I have ruled in your absence that, on the facts of this case, a finding that the force used to kill John Ward was reasonable and necessary to the degree that no crime at all was committed and that it was totally and entirely justified would be a perverse finding, and it is not open to me to allow matters to go to you which I rule as a matter of law are perverse….Now that ruling on my part is not the end of the matter because the law goes on to say that if the force used was excessive, but it was no more than the accused man considered necessary, then it is not murder, it is manslaughter. As I said, you apply the subjective test. In other words, you assess the state of belief that would operate having regard to his obsessions, to his lifestyle, to his baggage, to his history.”

    Having cited the above passage from the judgment of Butler J. in The People (A.G.) v Christopher Dwyer, the learned trial judge continued:-

    “So that is your battle ground in respect of the question of self-defence. I have ruled that the amount of force here cannot objectively be justified, but if you find that the accused man in a situation was using no more force than he considered reasonably necessary in the circumstances prevailing, murder would not be made out and the unlawful killing would be manslaughter.”

    It will be apparent that two questions arise as a result of the ruling and direction given by the learned trial judge in this case. They are:-
    (a) May the trial judge allow a limited form of self-defence only to be considered by the jury, notwithstanding that the defence wish that the entire issue of self-defence be considered by the jury?
    (b) Is the trial judge entitled, on facts such as those established in the present case, to direct the jury effectively to bring in a verdict of guilty of either murder or manslaughter, shorn of any possibility of a verdict of not guilty?

    The Court is satisfied that the answer to the second of these two questions is determinative of both.

    In The People (Director of Public Prosecutions) v Mark Davis [1993] 2 I.R.1 the Supreme Court held that the constitutional right to trial with a jury had, as a fundamental and absolutely essential characteristic, the right of the jury to deliver a verdict. The court further held that, while there was a right and duty vested in a trial judge, at any stage of a criminal case, to withdraw the case from the jury and direct them to enter a verdict of not guilty, there was no corresponding right or duty on the part of a trial judge to direct a jury to enter a verdict of guilty.

    In the course of his judgment, Finlay C.J. stated at pp. 14-15:-

        “It is the actual direction to the jury, leaving to them no discretion or function in the matter to enter a verdict of guilty which I am satisfied is clearly unconstitutional. It is open to a judge in an appropriate case to express an opinion that a particular verdict of guilty is the only one which would be reasonable or proper on the evidence, but that must of necessity fall short of the right to direct a verdict of guilty.

        In expressing his view in The People (Director of Public Prosecutions) v O’Shea [1982] I.R. 384 that the prosecution had no right to appeal from an acquittal entered by a jury, Henchy J. at p.438 stated as follows:-

        ‘The lack of reciprocity, residing in the fact that the accused is allowed to appeal a conviction while the prosecution is debarred from appealing an acquittal, is accepted and justified on the ground that it is part of the price that has to be paid for the independent verdicts of lay people sitting as jurors and applying community standards. Both judges and legislators have accepted that while a jury properly instructed by the trial judge have no right to bring in a verdict for the accused which is against the evidence, yet they have a power to do so; and that the risks inherent in any efforts at controlling the exercise of that power would not be warranted. The use of the power to err in favour of the accused is left to the consciences of the jurors. In any event, what may seem to judges to be a perverse verdict of acquittal may represent the layman’s rejection of a particular law as being unacceptable. So it is that such verdicts have often led to reform of the criminal law.’

        Though this statement was part of the dissent of Henchy J. in that case, I adopt it in its application to the apparent inconsistency or anomaly arising from what I believe to be the true position that a judge can and must direct a jury to enter a verdict of not guilty in a case where he believes that it is justified, and may not direct a jury to enter a verdict of guilty in a case in which he feels that to be the only proper verdict.

        I am satisfied that the mischief which could flow from any invasion, no matter how carefully circumscribed on the basis of being available only in exceptional cases, of the right of a jury itself to consider and finally to decide on the guilt or innocence of the accused, in the manner in which I have outlined in this judgment, is much greater than any conceivable harm that can arise from the inability of a judge to direct the entry of a verdict of guilty in certain cases.”

    A similar view was recently taken by the House of Lords in R. v Wang [2005] 1 W.L.R. 661, where it was decided that the decision of all factual questions, including the application of law as expanded by the trial judge, was a matter for the jury.

    In that case, Lord Bingham delivered a judgment in the course of which he reviewed a number of authorities, including Woolmington v Director of Public Prosecutions [1935] A.C. 462, in respect of which he stated (at 666):-

        “Woolmington v Director of Public Prosecutions is of course remembered above all for the affirmation by Viscount Sankey L.C. of the onus lying on the prosecution to prove the defendant’s guilt where issues of accident or provocation arise. But on reaching that conclusion he held, at p.480, in terms with which the other members of the House agreed:

        ‘If at any period of a trial it was permissible for the judge to rule that the prosecution had established its case and that the onus was shifted on the prisoner to prove that he was not guilty and that unless he discharged that onus the prosecution was entitled to succeed, it would be enabling the judge in such a case to say that the jury must in law find the prisoner guilty and so make the judge decide the case and not the jury, which is not the common law.’

        Lord Oaksey, giving the judgment of the Privy Council, in Joshua v The Queen [1955] A.C. 121, 129-130, spoke to similar effect..

        ‘On the second question the Lordships are of opinion that it was for the judge to direct the jury as to the elements of the crime of effecting a public mischief (assuming that such a crime exists) and to direct them on the facts if he thought that there was evidence to go to the jury, and it was for the jury to find whether the appellant was guilty upon those facts. It was a misdirection to tell the jury as a matter of law that they must convict the appellant if they found that he had spoken the words alleged. To do so, was, in their Lordships’ opinion, to usurp the function of the jury... It is a general principle of British law that on a trial by jury it is for the judge to direct the jury on the law and insofar as he thinks necessary on the facts, but the jury, whilst they must take the law from the judge, are the sole judges on the facts..’”

    Lord Bingham also cited with approval the following passage from the speech of Lord Devlin in Chandler v Director of Public Prosecutions [1964] A.C. 763 (at pp 803-04) where he stated:-
        “It is the conscience of the jury and not the power of the judge that provides the constitutional safeguard against perverse acquittal…A judge may, of course, give his opinion to the jury on a question of fact and express it as strongly as the circumstances permit, so long as he gives it as advice and not as direction.”
    Long Bingham finally considered the extended treatment of this topic by the House in Director of Public Prosecutions v Stonehouse [1978] A.C. 55. For present purposes, the Court does not propose to go further than to note Lord Bingham’s approbation for the views expressed in that case by Lord Salmon when he stated (at pp. 79-80):-
        “Whilst there is no doubt that if a judge is satisfied that there is no evidence before the jury which could justify them in convicting the accused and that it would be perverse for them to do so, it is the judge’s duty to direct them to acquit. This rule, which has long been established, is to protect the accused against being wrongly convicted. But there is no converse rule – although there may be some who think that there should be. If the judge is satisfied that, on the evidence, the jury would not be justified in acquitting the accused and indeed that it would be perverse of them to do so, he has no power to pre-empt the jury’s verdict by directing them to convict. The jury alone have the right to decide that the accused is guilty. In any appropriate case (and this was certainly such a case) the judge may sum up in such a way as to make it plain that he considers that the accused is guilty and should be convicted. I doubt however whether the most effective way of doing so would be for the judge to tell the jury that it would be perverse for them to acquit. Such a course might well be counter-productive.”
    The House thus concluded in R. v Wang [2005] 1 W.L.R. 661 that there were no circumstances in which a judge was or is entitled to direct a jury to return a verdict of guilty.

    Unfortunately, neither the decision of the Supreme Court in Davis or any of the English authorities referred to above were opened to the learned trial judge. Perhaps this was because the proceedings were heard procul ab urbe - far from the cityin circumstances where the marshalling of written legal authorities may have posed certain practical difficulties. Nonetheless, the prosecution should have anticipated that the nature of the ruling being sought was one which required support, if it was available, from decided authority. Quite clearly, the issue of self-defence was a central issue at every stage of this case.

    It is manifest from a perusal of the transcript of 5th December, 2005, when an application for leave to appeal was made in the aftermath of the trial, that the learned trial judge was considerably vexed because counsel had not referred him to the decision of the Supreme Court in The People (D.P.P.) v Mark Davis [1993] 2 I.R. 1 at the time when a ruling was sought from him that the jury must find the applicant guilty of either murder or manslaughter. In referring to Davis, Carney J. stated:-

        “The judgment of Chief Justice Finlay establishes clearly that the direction given to the jury by the trial judge usurps the function of the jury and a result the trial was procedurally unfair and not in accordance with the law. It is explicit from the judgment that although a trial judge can direct an acquittal he cannot direct a conviction. There exists a right for a jury to be wrong.

        Now, that judgment obviously has caused me great difficulty in this case. It was a unanimous decision of the Supreme Court (and) was not opened to me, so I was not able to consider matters in the light of it. I don’t accept Mr Grehan’s suggestion that even an experienced trial judge at the end of such a fraught trial is going to have bubbling at the top of his mind everything that the superior court might have said a decade ago.

        This was quite an exceptional trial in which the people of Ireland divided themselves on social lines, to put it at its lowest. It was a highly emotional and fraught trial. It contained circumstances which I doubt were ever contemplated by judges who had anything to do with previous lines of authority, which exist in this area.”

    This Court has little doubt but that had the prosecution allowed this trial to proceed in the usual manner, the learned trial judge would have given appropriate directions to the jury in the usual form. That usual form would have enabled the trial judge express his opinion that the amount of force used could not in his view be objectively justified in the context of the defence of self-defence, but would have left the ultimate decision on that issue to the jury. As events transpired, the jury were denied the opportunity to return a verdict of not guilty, even if such a verdict may have flown in the face of the evidence and however inappropriate the learned trial judge might have considered such an outcome to be. The authorities, both in this and the neighbouring jurisdiction, make it abundantly clear however that the jurors, who swear an oath to deliver a verdict in accordance with the evidence, must retain the ultimate power to determine issues of guilt or innocence. That must, of necessity, include the power to return a verdict which conflicts with the opinion of the learned trial judge, however experienced that judge may be. The question whether the amount of force used is objectively reasonable is quintessentially a matter of fact for a jury.

    While the Court therefore feels compelled to accede to the application for leave to appeal and to quash the conviction herein, it would wish to emphasise the important responsibility resting with counsel to place all relevant authorities before the trial judge when seeking rulings or directions of such importance in the course of a criminal trial. In quashing the conviction the Court will also direct a retrial.











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