Court of Criminal Appeal dismisses application for Supreme Court certificate regarding mandatory jury direction on partial self-defence.

THE COURT OF CRIMINAL APPEAL

[Record No. 2010/280]

Fennelly J.

Herbert J.

Birmingham J.

Between

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

-and-

BRENDAN O’SULLIVAN

Applicant

Judgment of the Court of Criminal Appeal delivered the 18th day of December 2013 by Mr Justice Fennelly

1. On 8th November 2010 the applicant was convicted of murder by a jury in the Central Criminal Court following a six-day trial before

McCarthy J. This Court on the 4th of June this year dismissed ([2013] IECCA 18) the applicant’s application for leave to appeal

against that conviction.

2. The applicant now applies for a certificate pursuant to s.29 of the Courts of Justice Act, 1924, as amended, to enable him to

appeal to the Supreme Court. The following is the question which he seeks to have certified:

“Whether it is mandatory for a trial judge, in all instances where the defence of partial self-defence is raised in a murder

case and is to be considered by a Jury, to charge the Jury in accordance with the statement set out in People (Attorney

General) v Dwyer [1972] I.R. 416 as set out in the headnote as follows:

“Where the defence made to a charge of murder is self-defence against a violent and felonious attack, the trial judge

should inform the jury that if they come to the conclusion that the accused, acting in self-defence, employed more force

than was reasonably necessary but no more than he honestly believed to be necessary, they should return a verdict of

guilty of manslaughter.”

3. Section 22 of the Criminal Justice Act, 2006 substituted an entirely new version of s.29 of the Courts of Justice Act, 1924 (the Act

of 1924). Its effect is summarised in the heading: “Decision of Court of Criminal Appeal final save on certificate of Court, Attorney

General or Director of Public Prosecutions.” That section has subsequently been amended in ways which do not affect the present

application.

4. Section 29(1), insofar as relevant, as it now stands provides:

“No appeal shall lie to the Supreme Court from a determination by the Court of Criminal Appeal of any appeal or other

matter except in accordance with this section.”

5. The effect of the section is that the applicant may further appeal his conviction to the Supreme Court only if this Court “certifies

that [its] decision involve[d] a point of law of exceptional public importance and that it is desirable in the public interest that the

person should take an appeal to the Supreme Court.” The applicant applies for such a certificate. that this Court’s decision involved a

point of law of public importance.

6. It is apposite to recall what this Court said in People (Attorney General) v Anthony McCarthy and others (Court of Criminal Appeal,

unreported 16th June 2010, per Fennelly J):

“The proposed point of law must have been involved in the decision of the court in the sense that the court’s ruling on

the point formed part of the reasoning leading to the rejection of the application. In other words, it must be possible to

identify a point of law upon which the Court relied and which it applied in making its decision. Implicitly also, the point of

law must have been contested. In a literal sense, every application for leave to appeal raises some point of law. Where

the law is not in dispute, but an unsuccessful applicant criticises the manner in which the court has applied it to the

facts, the section does not apply.”

7. The principal ground of appeal advanced by the applicant and the matter which the present application concerns was that the

learned trial judge had failed to direct the jury properly with regard to the partial defence of self-defence. In essence the complaint

was that the judge did not direct the jury that, if the accused, when killing the deceased, used excessive force in his own defence

but believed it to be necessary force, they should acquit.

8. This was considered in some detail in the judgment of this Court of 4th June 2013. The judgment referred to the leading case of

People (Attorney General) v Dwyer [1972] I.R. 416, a decision of the Supreme Court, and the subsequent decision of this Court in

People (DPP) v O’Carroll [2004] 3 I.R. 521. The Court expressed the view that the direction to the jury would have been better

expressed, if the judge had adhered to the statement fully quoted in the judgment from the headnote in People (Attorney General) v

Dwyer. It concluded that “when the charge of the learned trial judge [was] considered in its entirety, it [was] not deficient.”

9. The decision of the Court did not involve a conclusion on any point of law, still less a point of law of exceptional public importance.

The Court applied well-established principles of law with regard to the defence of self-defence to the facts of the particular case.

This is very like what was involved in People (Attorney General) v McCarthy, cited above, where the Court said:

“It is not sufficient for the applicant to show that the court incorrectly applied the law to the facts of the case. That

would be tantamount to permitting a repetition of the original hearing on the application for leave to appeal. It would

circumvent the statutory rule that there is, in the ordinary way, no appeal to the Supreme Court from a decision of the

Court of Criminal Appeal. Even where the law is not disputed and is clearly and correctly stated, there is often room for

disagreement as to whether it applies in a particular case. Section 29 does not permit an appeal, where the appellant

merely wishes to dispute the manner in which the Court of Criminal Appeal applied the law to the facts.”

10. The essence of the Court’s determination in the present case was that, although the judge’s directions to the jury could have

been better worded, the charge was not deficient. The Court’s conclusion was expressed as follows:

“The court is satisfied that, when the charge of the learned trial judge is considered in its entirety, it was not deficient.”

11. That conclusion flowed from, i.e., in the sense of s.29 “involved,” the Court’s own analysis of the judge’s actual charge in the

light of the principles laid down in People (Attorney General) v Dwyer. It did not involve any conclusion on a point of law, still less, in

the terms of s.29, “a point of law of exceptional public importance and [which] it is desirable in the public interest that the person

should take an appeal to the Supreme Court.” There is no point of law of exceptional public interest. There is no public interest in the

question of whether this Court was correct in its assessment of the judge’s charge.

12. In reaching this conclusion, the Court has regard to the statement of this Court in ruling on a similar application in People

(Attorney General) v Curran (Court of Criminal Appeal, unreported 19th of February, 2013, per O’Donnell J) :

“Occasionally, indeed exceptionally, a point of law of importance will arise, which transcends the individual facts of the

case, and can be said to present a clear issue which arises in the case and determines it and which is likely to arise in

further cases in the same or related areas, and in which, unusually, it is desirable that the issue be resolved conclusively

by an appeal to the Supreme Court. The very fact that this section requires not only that the point of law be of

exceptional importance, but also that it is desirable in the public interest that an appeal be taken to the Supreme Court,

reinforces the exceptional nature of the jurisdiction.”

13. The applicant seeks to circumvent the difficulty presented by these considerations by propounding a mandatory rule that the

exact words set out in the headnote in People (Attorney General) v Dwyer must be used in all cases where the defence of partial

self-defence is raised. The weakness of that argument is immediately apparent from a reading of the words of the proposed direction,

which proceed on the assumption that the case is one where there has been “a violent and felonious attack.” There was, of course,

no such evidence in the present case.

14. For these reasons, the Court would dismiss the application for a certificate pursuant to section 29.

15. It is also important to bear in mind that the Court determined in the instant case that, even if the point at issue “were to be

decided in favour of the applicant, it should affirm the conviction, because it is of the view that no miscarriage of justice occurred.” It

gave the following reasons for that conclusion. Firstly, this was a case of an unarmed man being shot four times with a shotgun in

circumstances which required an element of deliberation before shooting. Secondly, there was no evidence from any of the

eyewitnesses to suggest that the applicant had been acting in his own defence: the defence of self-defence depended entirely on

the statements made by the applicant in his garda interviews. Thirdly, the applicant had made a number of allegations to the effect

that the deceased had been chasing after and threatening his wife and children, which he later admitted to be entirely untrue.

Fourthly, there was no particular basis on the evidence to support the partial defence of self-defence, specifically no evidence to

suggest that, even though the applicant genuinely believed that he was acting in self-defence, he used excessive force believing it

was necessary. Finally, the Court was convinced that the overwhelming likelihood was that the jury, having considered all the

circumstances, simply did not accept that the applicant was acting in self-defence at all.