Supreme Court dismisses appeal on murder conviction, holding trial judge not obliged to direct jury on unraised accident defence.

THE SUPREME COURT

117/04

Geoghegan J.

Fennelly J.

McCracken J.

Kearns J.

Macken J.

IN THE MATTER OF SECTION 29 OF THE COURTS OF JUSTICE ACT, 1924

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

and

MARK CRONIN

Appellant

JUDGMENT of Mr. Justice Geoghegan delivered the 3rd day of March 2006

1. This is an appeal brought under section 29 of the Courts of Justice Act, 1924 from the decision of the Court of Criminal Appeal

(Hardiman, O’Sullivan and Quirke JJ) refusing an application by the appellant for leave to appeal to that court from his conviction of

murder in the Central Criminal Court (Smith J. and a jury).

2. The certified point of law was the following:

“Having regard to the evidence given at the trial of the applicant, was the learned trial judge obliged more specifically to direct

the jury as to the possibility that due to accident or mistake the applicant may have caused the death without intending to do

so or cause serious injury?”

3. In accordance with the recognised jurisprudence relating to section 29 appeals, the appellant in addition to appealing the grounds

to which the certified point of law is relevant, has appealed to this court on other grounds also. I will refer to those additional grounds

and express my views on them later on in this judgment. I think it better to concentrate first on the certified question.

4. At the trial for murder, the prosecution case was that a woman died as a result of the appellant firing a gun in a Limerick nightclub

intending to kill or seriously injure not that woman but the appellant’s wife who was in her company and that due to the gun being

pushed away (according to one witness by his wife) the wife was not injured or killed but the other woman was killed.

5. There was abundant evidence from persons attending the disco in the nightclub implicating the appellant though as is often the

case not all of it was consistent in detail. Stripped to its essentials the story which emerged from the witnesses was this. Earlier in

the evening quite a noisy row had broken out between the appellant and his wife at the bar section of the disco. The appellant

departed from the disco leaving his wife behind. In the early hours of the morning the appellant returned to the disco and after

approaching his wife, the shooting incident referred to above occurred.

6. Mr. Gageby, S.C. acted for the appellant at the trial. From beginning to the end of the trial only one defence was put up both on

behalf of the appellant and by the appellant himself in evidence that at no stage did he ever have a gun and, therefore, still less fired

one. At no stage whether by way of evidence by or on behalf of the appellant, by way of submission by his counsel, by way of cross-

examination or in any other mode was an alternative defence of accidental firing of the gun raised. It is argued now, however, on

behalf of the appellant who has a new team of solicitor and barristers and on foot of an amended ground of appeal that the trial judge

was under an obligation to put that possible defence to the jury even though it was never raised or adumbrated. More particularly, it

is submitted on behalf of the appellant that the trial judge erred in his charge in the following respects.

“(a) Failed to convey to the jury the matters of fact to be determined and the law to be applied in making such determination.

(b) Failed to direct the jury that if it was reasonably possible that the firearm was discharged as a result of the firearm being

knocked to the side, then the appropriate verdict was not guilty of murder but guilty of manslaughter.

(c) Failed to direct the jury that the statutory presumption under s. 4(2) of the Criminal Justice Act, 1964 regarding intent as

to consequences

(i) is not relevant to the question of whether the firearm was discharged by a mistake,

(ii) may be rebutted and the prosecution must prove beyond reasonable doubt that it has not been rebutted.

(d) Erred in appearing to direct the jury that the said statutory presumption did not arise but in directing that ‘the law is that

every person is presumed to intend the natural and probable consequences of their conduct’.”

7. On this issue as to whether an alternative defence which has not been raised has to be placed before a jury by the trial judge, the

Court of Criminal Appeal in its judgment delivered by Hardiman J. cited two Irish cases which had not been referred to in argument

namely, D.P.P. v. Halligan (Court of Criminal Appeal unreported 13th July 1998) and D.P.P. v. McDonagh (Court of Criminal Appeal

unreported 31st May 2001). Both of these cases would seem to me to be of limited assistance in that the suggested alternative

defence in each case was provocation. The defence of provocation of its nature concerns a deliberate rather than an accidental act.

If it appeared to a trial judge to arise at a trial in which it had not been pursued it could only do so by way of inference in the

circumstances surrounding a deliberate act by the accused. In that respect it seems to me to be an issue fundamentally different

from an issue involving the defence of accident.

8. A second and even more important distinguishing feature between this case and those cases was that in each of those cases the

trial judge had been asked to leave the alternative defence of provocation to the jury. In this case no application was made in

relation to any alleged defence of accidental discharge of the gun.

9. The judgment of the Court of Criminal Appeal goes on to review various English authorities on the subject of an alternative defence

including the well-known case of Woolmington v. D.P.P [1935] A.C. 462. I will return to the English authorities in due course but I

think it important at this stage to quote a passage from the judgment of the Court of Criminal Appeal delivered by Hardiman J. as it

appears in the judgment immediately after the review of the English authorities. This passage reads as follows:

“In assessing the reality of the alternative defence it appears to us that a trial judge is entitled to rely on all the

circumstances of the case including the effect of the accused’s omission to rely on the other defence. The significance of this

will vary with the facts of a particular case. In certain cases a defendant who gives evidence inconsistent with a line of

defence of which, if there were any reality in it, he would have knowledge, may reduce the chances of its being effective

virtually to nil.”

10. The essence of the decision in the Court of Criminal Appeal seems to me to be contained in that passage and I am in full

agreement with it.

11. In this particular case, I have no doubt whatsoever that counsel for the appellant did not overlook the possible alternative

defence of accident but deliberately did not pursue it for the very good reason that in the eyes of a jury it might weaken the defence

which the appellant himself made in the witness-box. The Court of Criminal Appeal took the view that in such a situation any

requirement as suggested by the English authorities for the trial judge to put an alternative defence to the jury would be “difficult to

reconcile with the rights of an accused person as understood in this jurisdiction”. The court went on to make the following comment:

“This is because, on a literal reading, they trench on the right of an accused to conduct his own defence, or have it conducted

professionally on his instructions, without its being undermined even by the entirely benevolent introduction of a middle course

which neither he nor the prosecution have been minded to contend for.”

12. In my opinion, for the purposes of determining this appeal it is not necessary to consider whether there is any discrepancy

between cited English authorities and the constitutional principles applied in this jurisdiction in relation to the rights of a defendant to

a fair trial. I am not convinced that there is a conflict. It is the duty of a trial judge to ensure that the case ultimately presented to

the jury represents a fair trial as between prosecution and defence. In protecting the rights of a defendant the judge cannot be

exclusively dictated by the way a defendant chooses to run his own defence. On the other hand, the judge must pay heavy regard to

that factor. A judge must, at the same time, bear in mind factors which a jury in the jury room might themselves legitimately consider

relevant. Taking the example of the facts of this case, if counsel for the appellant had in fact run the alternative defence as well as

the main defence, I have little doubt that the learned trial judge would have had to specifically deal with the possibility of accident or

mistake when addressing the jury. It would not have been enough merely to enunciate general principles and leave to the jury the

possibility of a verdict of not guilty but guilty of manslaughter. However, in circumstances such as this, where the alternative defence

was not in fact raised, the learned trial judge, in my view, was engaging in a correct and proper balancing exercise by confining his

remarks to explaining the possible verdict of manslaughter. That verdict could have no conceivable relevance to the actual defence

which was pursued at the trial. Yet the jury was being permitted at least to consider whether the death could have happened

unlawfully but without the intention to kill or cause serious bodily harm which the trial judge had made clear were essential elements

of murder. To any juror with common sense the possibility that the gun fired unintentionally could only conceivably arise if he or she

considered that the gun might have fired accidentally because of being pushed. Otherwise the intention to fire the gun would clearly

constitute murder. I would quote with approval the following passage from the judgment of the Court of Criminal Appeal.

“The jury were also properly charged in relation to intent and were told that if they were not satisfied in this regard, but were

otherwise satisfied on the prosecution evidence, a verdict of manslaughter would be appropriate. The learned trial judge

clearly distinguished between the issues as to whether the accused man fired the shot at all, and those in relation to whether,

if he did, he intended to cause death or serious injury. The defence contention comes down to a submission that, on the latter

point, he should specifically have dealt with the possibility of mistaken or accidental discharge. We do not agree. Having regard

to the fact that the defendant gave evidence and the absolute absence in such evidence of any material suggestive of

accident or mistake, the learned trial judge could only deal with the question of intention in a general way. Had he attempted

to do more it is difficult to see how he would not have run the risk of undermining, in one degree or another, the defence

which the defendant elected to put forward.”

13. For the reasons which I have indicated, I am of opinion that the learned trial judge struck the correct balance in, on the one

hand, paying due regard to the defence actually put forward and on the other hand to his duties as a trial judge to ensure that in the

interests of the public and in the interests of the jurors when they would retire into their jury room, all relevant issues be identified.

The degree of emphasis to be placed on an alternative defence when it has been expressly raised must usually be quite different from

the degree of emphasis to be placed on an alternative defence that has not been raised and particularly when it is obvious that it has

deliberately not been raised.

14. I would repeat that, in my view, there is no reason to consider for the purposes of this case whether there is any conflict

between Irish law and the English case law referred to in the judgment of the Court of Criminal Appeal. That case law has been

protective of defendants down through the years. It has never been regarded as anti-defendant and its application may be just and

relevant in many cases. I would be reluctant at this stage to throw any doubt on its applicability to this jurisdiction. I do not intend

to treat specifically of each of the English cases referred to other than the latest i.e. R. v. Cambridge [1994] 2 All E.R. 760. That was

a decision of the Criminal Division of the English Court of Appeal consisting of Lord Taylor of Gosforth C.J., Auld and Mitchell JJ. and

the single judgment of the court was delivered by Lord Taylor. The case concerned a stabbing incident in a bar giving rise to a charge

of murder. At the trial there was no evidence that anyone had seen the knife or an actual stabbing movement but the prosecution

relied on the evidence of two witnesses that they saw the appellant on top of the deceased. The defence was that the killing had

not been done by the appellant but by persons unknown. There was no suggestion of provocation. Nevertheless on foot of section 3

of the English Homicide Act, 1957 which provided that “where on a charge of murder there is evidence in which the jury can find

that the person charged was provoked … to lose his self-control, the question of whether the provocation was enough to make a

reasonable man do as he did shall be left to be determined by the jury”. It was held that the trial judge was required to leave the

defence of provocation to the jury if it was material and capable of amounting to provocation even though the defence did not rely

on provocation but maintained that the defendant was not at the scene of the crime and that he did not kill the deceased. The court

relying on earlier authorities which are all cited in the report and including the Mancini case referred to by the Court of Criminal

Appeal, took the view that even though the defence might prefer provocation not to be raised in the fear that it might be a

distraction offering a jury a possible compromise verdict, the judge must nevertheless leave it to the jury if there is evidence. The key

word however seems to me to be “evidence”. In the next sentence Lord Taylor said the following:

“But what sort of evidence gives rise to the duty? Clearly, it is not for the judge to conjure up a speculative possibility of a

defence which is not relied on and is unrealistic.”

15. It would seem from that case that the duties of a trial judge in relation to the possible defence of provocation predated the

statute cited above but quite apart from the differences to which I have already adverted to between the defence of provocation

and the defence of accident there would have been a great danger in this case that if the trial judge had gone into any more detail

he would have been entering the area of speculation. The reality is that jurors on average would be quite likely to be more

knowledgeable about guns than trial judges. Just as a jury is never forbidden to acquit, so a jury may have its own theory as to why

it should have a reasonable doubt on the accident issue but it is difficult to see what more specific assistance could have been given

to them by the trial judge without his entering into the area of speculation. I believe that the charge of the learned trial judge in

relation to this matter cannot be criticised. I would, therefore, dismiss the appeal in so far as it is based on the certified question.

16. I now turn to the other grounds of appeal. It is submitted on behalf of the appellant that the learned trial judge was wrong in

conveying to the jury that the obligation to draw the inference more favourable to the accused only arises where the adverse and

favourable inferences are equal and that in failing to direct the jury that a reasonable inference favourable to the accused must

always be acted upon even though such inference is not as likely as an adverse inference. This ground of appeal directly arises out of

a requisition made to the judge by counsel for the defence. The actual requisition took the following form:

“Secondly, and distinctly, I’d ask Your Lordship would also charge the jury if they are looking at any piece of evidence from

which two or more inferences can equally be drawn, one pointing towards guilt and one pointing towards innocence, that they

must by reason of a presumption of innocence favour the one which points towards innocence.”

17. The learned trial judge complied with the requisition by giving the following direction to the jury.

“Now, I have also been asked to mention to you that in cases like this where there are two inferences that you can draw from

any part of the evidence and the two inferences are equal, you must draw the inference that is most favourable to the

accused person. If there are two inferences, the one more favourable to him where they are equal is the inference you must

draw. And in relation to your verdict on count 1, you can bring in a verdict of guilty of murder or not guilty of murder, or a

verdict of guilty of manslaughter or not guilty of manslaughter. If he is not guilty of murder, then you must go on to consider

the manslaughter verdict and it is either guilty or not guilty.”

18. The learned trial judge gave the direction that he was asked to give. Ideally, it should have been in the form of the relevant

passage in the judgment in The People (A.G.) v. Byrne [1974] I.R. 1 at 9

“The correct charge to a jury is that they must be satisfied beyond reasonable doubt of the guilt of the accused, and it is

helpful if that degree of proof is contrasted with that in a civil case. It is also essential, however, that the jury should be told

that the accused is entitled to the benefit of the doubt and that when two views on any part of the case are possible on the

evidence, they should adopt that which is favourable to the accused unless the State has established the other beyond

reasonable doubt.”

19. It is pointed out in the appellant’s submission that in The People (D.P.P.) v. Wallace (unreported judgment of Court of Criminal

Appeal 30th April 2001 delivered by Keane C.J.) a conviction was quashed inter alia on the grounds that the trial judge had used in

the expression “two or more conclusions of equal weight” in directing the jury as to reliance of inferences favourable to the accused.

Keane C.J. referred to the above passage from Byrne’s case and then stated as follows:

“That is what the jury should have been told in this case but unfortunately was not told because the reference to two or more

conclusions of equal weight adds further gloss to what was said by this court in Byrne’s case which in the view of this court

could have had the consequence of confusing the jury and leaving them to think that on some aspects of the case at least

they were entitled to decide matters on the balance of probabilities, which is clearly not the law.”

20. I am satisfied that the appellant cannot now be heard to complain in the light of the requisition which was made and the

compliance with that requisition, but at any rate, it must be assumed that counsel for the defence was quite happy that a jury would

have understood all aspects of the “reasonable doubt” principle from the impeccable general directions given to the jury in the charge

of Smith J. I would dismiss this ground of appeal.

21. The judgment of the Court of Criminal Appeal does not seem to indicate that the identification ground of appeal was pursued at

the hearing before that court. In those circumstances it may be doubtful whether this court should entertain it now. However, I am

satisfied that this is a case in which the key issue was credibility not identification. It was made abundantly clear by the trial judge in

his charge to the jury that the jury had to be satisfied at all relevant times that Mark Cronin was the man referred to by the relevant

witnesses. It is true that according to the appellant the gun was fired by somebody else but that does not give rise to an

identification problem of the kind that the court was concerned with in The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33.

What the jury was essentially concerned with was whether they had any reasonable doubt as to whether the appellant fired the gun.

If a doubt had arisen it would have been based on the account given by the appellant but that does not raise an identification issue

giving rise to the particular warnings suggested in Casey (No. 2). The charge of the trial judge in so far as it referred to identification

was perfectly adequate and I would dismiss the appeal in so far as it is based on this ground also.

22. The only other relevant point that was argued on the appeal related to the learned trial judge’s remarks concerning subsection 2

of section 4 of the Criminal Justice Act, 1964. The judge said the following:

“Now, subsection 2 of that section provides that an accused person shall be presumed to have intended the natural probable

consequences of his conduct, that this presumption has been rebutted. So the presumption doesn’t arise in this case but the

law is that every person is presumed to intend the natural and probable consequences of their conduct.”

23. It is not entirely clear what the judge was intending to say at this point in his charge but this would seem to be largely because

of erroneous transcription. It is suggested that the judge was holding that the statutory presumption did not apply but that an

identical common law presumption came into play. Whatever was in the mind of the trial judge, I do not think that anything turns on

it. Nor was there any requisition made in relation to it. There was no hint of it in the original grounds of appeal put forward in the

Court of Criminal Appeal and lodged on the 10th April, 2000. Nor was there any hint of this ground in amended grounds put forward

30th April, 2001. All these new grounds appeared when a new firm of solicitors came in and a whole set of amended grounds were

prepared. The Court of Criminal Appeal has in several cases including this case deplored the practice of trawling through a transcript

and finding new grounds of appeal especially when there is a change of lawyers who understandably have no feel for how the case

was run on the ground.

24. I agree with the view of the Court of Criminal Appeal that the appellant was defended with skill and competence at the trial. It

would be wrong now to set aside the conviction on foot of matters which were deliberately never raised in requisitions unless this

court were of the view that a fundamental injustice had been caused. I do not hold any such view.

25. Where it can be done it is desirable that the certified question should be in an abstract form because it is intended to be a

question of public importance and of wider application than the particular case in hand. However, the question is not always certified

in that way and in my view, the Court of Criminal Appeal in this case quite rightly did not put the question in a general form but

referred to how the trial judge charged in this particular case. This in turn did give rise to arguments of wide public importance but

what emerges is that it depends on the particular circumstances as to how a trial judge should direct a jury in relation to an

alternative defence which has not been raised. The key words in the question posed in this case are “obliged more specifically”. If

the judge had engaged in what really would have been speculation regarding accident instead of just explaining to the jury the

difference between manslaughter and murder and also explaining to them the intention that was required for murder the real defence

of the defendant would have become distorted. I would, therefore, answer the certified question in the negative and I would dismiss

the appeal on all grounds.