Court of Criminal Appeal dismisses appeal where jury found stabbing for escape, ruling self-defence impossible.

THE COURT OF CRIMINAL APPEAL

CCA No. 271/11

O’Donnell J.

Moriarty J.

Herbert J.

Between/

The People at the Suit of the Director of Public Prosecutions

Respondent

And

Anthony Farrell

Appellant

Judgment of the Court delivered on the 24th of November 2014, by O’Donnell J.

1 On the 25th of November 2009, at about 8pm in the evening, a young man, Anthony Farrell, the appellant in this case, and a person

who had no previous history of criminal behaviour, put on a balaclava, took a knife and went out to rob a small shop in Arklow, County

Wicklow. He entered the shop, put the knife to the throat of the lady serving in the shop and demanded that she open the till. The

owner Mr John Deasy, who lived above the shop, was alerted by shouting from the shop: he, came down, went out into the street

and entered the shop through the front door. He is reported to have said “this is the second fucking time, but I have a knife this

time”. There was a scuffle, and Mr Deasy was stabbed in the chest with some force by Anthony Farrell and died from his wounds.

2 Anthony Farrell did not give evidence at the trial. He was arrested two days after the incident and made a number of statements to

the gardaí. Initially he denied involvement, but ultimately he admitted his involvement and the account he gave was the following:

“I was carrying the knife in the photograph in my right hand. As I was taking the money out of the till, I heard the front

door of the shop squeak open. It was John Deasy. He had a knife in his left hand. I panicked, and went to go out. I raised

my right hand with the knife in the hand. I went to run at the door. John Deasy held the door with both hands. He leaned

his body outwards, put his foot up to kick me back in. I then went to scare him off by putting the knife into the air and

running towards him. He then kicked me back in again. That happened may be two, three, four times. Then the last time I

went at him, I stabbed him to get him out of the way. I thought the guards were coming. I stuck him with the knife when

he was standing in the doorway. To get out. I stuck him with the knife. I had my right hand up over my head with the

blade of the knife to the opposite side of my hand. I am not sure if I hit him, I know I hit him now.”

3 Among the other evidence given at the trial was that of a father of a friend of the accused. He gave evidence of an account given

by Anthony Farrell of the robbery of the shop. He was asked what Anthony Farrell said about what happened at the shop and replied:

“He went into the shop with a balaclava and a knife and then the girl starts screaming and he heard – he heard a noise

coming down the stairs and then John Deasy comes through the door and he stabbed him.” (Day3 page7)

The evidence was elaborated on in the following exchange:

“Q. Did he say why he stabbed him?

A. He was in his way.

Q. He was in his way?

A. Blocking the door.

Q. Blocking the door did he say which door?

A. There’s only one.

Q. I see.

A. -shop door.

Q. I see. Did he say anything about what John Deasy did himself?

A. He was kicking back at him kicking him back in through the door.

Q. And when you say he was kicking at him –

A. John Deasy was kicking back at him to kick him back in the door.

Q. I see. Did he say anything else about John Deasy’s actions or appearance?

A. Yes I think he thought he had a knife in his hand.

Q. Ok did he say anything about anything he had himself?

A. No just a knife.

Q. Right. And did he say anything about where he put that afterwards or where it went?

A. In his shed under the pool table or something…

Q. Right and what was his appearance or his demeanour when he was saying that?

A. Normal.

Q. Did he say anything about the amount of cash that he got?

A. I think he got €80 or something and he dropped 30 or something.

Q. Eighty and he may have dropped 30?

A. He dropped €30 or something.

Q. Okay. And did he elaborate in anyway about what his state of mind was at the time he stabbed?

A. No.

Q. When he was describing himself as being in the shop and John Deasy blocking in the door did he make reference

to any other persons apart from John Deasy?

A. No he just said that the girl was screaming and that’s why John Deasy came down.

Q. Did he explain why he wanted to get out of the shop?

A. Before the cops came.”

4 Anthony Farrell was tried in the Central Criminal Court. He pleaded not guilty to murder but guilty to two counts of robbery. On the

13th of April 2011, he was convicted or murder by a unanimous verdict of the jury. This appeal concerns the manner in which the

question of self-defence was dealt with by the trial court. In his initial charge to the jury the trial judge said the following:

“You’ve heard the question of self-defence raised, ladies and gentlemen, and I have to say that, if you find that if Mr

Farrell, in order to protect himself from unlawful attack, used no more force than was reasonably necessary, that is lawful

and no crime has been committed, even if he commits - even if he kills. If more force than may objectively be considered

necessary was used, that is unlawful, and if he kills the killing is unlawful. If you believe that the amount of force was

necessary, then it’s manslaughter. If you did not believe it was necessary then it’s murder.”

5 The prosecution did not raise any requisitions but reserved the right to reply to the defence’s requisitions. Counsel for the accused

sought to requisition the judge to instruct the jury that “if the accused honestly believed that in the course of attempting to escape

he was at risk of being stabbed or … caused serious injury… his action is capable of being self-defence”. This prompted a debate

between counsel for the prosecution and the judge, who initially appeared to accept the requisition. However, after argument the

judge said to the jury:

“Yes I was dealing with self-defence, and in the course of it, I was dealing with the justification for the use of force by

the accused. But the purpose of the force is important. He can use force, it must be to defend himself or someone else

but that doesn’t arise in this case. The force must be to defend himself, not to escape, in other words, if you find he

stabbed in order to escape that’s …. self-defence doesn’t in any way arise in such a case.”

6 In this appeal the appellant argued that this element of the judge’s charge “did not allow for the possibility that the appellant was

forced to escape in self-defence when the act of fleeing the scene could be caught up in the act of defending himself”.

7 No issue arose here as to the standard of proof or to the burden of proof. Thus when the judge spoke to the jury of finding that

Anthony Farrell stabbed Mr Deasy in order to escape, it is in the context of the jury having been instructed that it must be satisfied

of each matter beyond any reasonable doubt.

8 In this appeal there was much argument on how precisely to characterise the position of an accused caught while carrying out a

burglary or robbery, and who kills the occupier of the premises, and seeks to plead self-defence. In particular, reference was made to

the decision of this court in The People (Director of Public Prosecutions) v. Anthony Barnes [2007] 3 I.R. 130. That case had been

referred to the trial judge who did not give any direction to the jury in relation to it. Accordingly it is not necessary to consider it

here.

9 Counsel for the appellant accepted that the defence of the accused was a thin one since, notably, the accused had never stated

at any stage that he considered his life or person to be in danger. Indeed, the defence of this difficult case was advanced with

considerable skill and seemed to involve arguments which sought to emphasise the youth of the accused, his previous blameless

record, the fact that the incident occurred in a very short timescale, and in circumstances of great commotion, chaos and adrenalin.

These were all matters put to the jury. However as already outlined the accused was convicted of murder. The legal argument

advanced on this appeal was that the effect of the trial judge’s recharge of the jury was to remove a defence of self-defence which

had previously been left to the jury.

10 This Court cannot agree that the statement of the trial judge had the effect of removing the defence of self-defence from the

jury. The trial judge did not direct any verdict or seek to influence the jury’s conclusion on a matter of fact within the jury’s province.

What the trial judge did do was state, as a matter of law or perhaps logic, , that if the jury’s conclusion of fact was that the stabbing

occurred to effect escape then self-defence could not arise.

11 This statement was in the context of the case, perfectly correct. It is very difficult to see how self-defence, either as a complete

defence or, as it was more realistically advanced, in the sense of reducing murder to manslaughter, truly arose on the facts of this

case. Much of the difficulty for all the parties, was addressing the jury on the basis on which self-defence could properly arise. It is

perhaps conceptually possible for a burglar or robber to wish to escape and also and at the same time apprehend the risk of serious

injury or death. It is not necessary here to try to hypothesise the circumstances in which such circumstances would arise. On the

facts of this case there was absolutely no evidence that Mr Deasy sought to injure Mr Farrell with the knife or did anything to make

Mr Farrell apprehend that he was about to be injured so as to give rise to the possibility of self-defence. The concept advanced by

the appellant of “being forced to escape” does not appear to have any basis in law, and similarly the idea that “ the act of fleeing the

scene could be caught up in the act of defending himself” seems to blur the distinction between two very different things in law and

in fact . The Court does not seek to lay down any hard and fast rule, or make any general statements in absolute terms. While it may

be possible to conceive of circumstances giving rise to a defence of self-defence in the course of escape, on the facts of this case

we consider that if the jury did conclude beyond a reasonable doubt that the stabbing of the deceased was for the purpose of

effecting escape, then that, again on the facts of the case, ruled out the possibility of such stabbing being for the purpose of self-

defence. In truth, much of the difficulty in this case was created by the necessarily flimsy nature of the defence of self-defence in

the case rather than the manner in which it was addressed by the trial judge.

12 The second ground of appeal was that the jury were not sufficiently charged in relation to the subjective element of the defence

of self-defence. In this regard the trial judge had said “it was explained to you very well if I may say so by [counsel for the accused]

in closing … in this jurisdiction the test is always a subjective one, not an objective one. In other words what was the accused

thinking at the particular time, and in other words, it might be unreasonable, so it might, but the test is what he was thinking at the

time ”. It is true that this statement could have been expanded upon, and would be inadequate if it stood alone but it must also be

remembered that the judge’s charge occurred in the context of the case, and the submissions made by the respective parties to

which the judge expressly referred. This Court is satisfied that the jury was sufficiently aware of the subjective nature of the

defence, and accordingly, the court will dismiss the appeal.