Court of Appeal allows appeal where trial judge failed to instruct jury that provocation defense must be disproved beyond reasonable doubt.

THE COURT OF APPEAL

Sheehan J.

Mahon J.

Edwards J.

Record No. 156/2014

The People at the Suit of the Director of Public Prosecutions

Respondent

and

Darren Murphy

Appellant

Judgment of the Court delivered on the 15th day of December 2015 by Mr. Justice Mahon

1. The appellant was convicted of the murder of Olivia Dunlea on 29th May 2014 at the Central Criminal Court, following a six day trial.

He was sentenced on that date to life imprisonment. At the commencement of the trial the appellant pleaded not guilty to murder,

but guilty of manslaughter. This plea was not accepted by the Respondent.

The background facts

2. At the time of her death the deceased and the appellant had been in a relationship for four or five years. The deceased was

separated from her husband for some time and resided with her children at 26 Pembroke Crescent, Passage West, Co. Cork. In the

year prior to her death, the deceased had also had a brief sexual relationship with a Mr. Thomas Farrell.

3. On the night of 16th February 2013 the deceased and the appellant socialised in The Rochestown Inn Public House with a number

of friends. At about midnight they were driven to the deceased’s home by a taxi driver, Mr. Michael Ahearne. Mr. Ahearne noted that

there was some tension between the couple as he drove them home and he described the atmosphere as a little frosty. He noticed

that the deceased was in good spirits and that on one occasion she had turned to the appellant in the back seat and placed her hand

on his knee as if to re-assure him. In the course of the journey the deceased made a reference to Mr. Farrell. Mr. Farrell was also a

taxi driver and a colleague of Mr. Ahearne in the same taxi firm, and it was apparently the case that the deceased had earlier

contacted Mr. Farrell and requested that he would pick them up and drive them home. On arrival home, the deceased went up to her

bedroom, undressed and lay on her bed. She made a reference to Mr. Farrell, with whom she had had in the previous year a brief

intimate relationship, and suggested that she was expecting him to come to the house to see her. This, on the appellant’s account,

enraged him whereupon he inflicted severe stab wounds to the deceased’s neck. He maintained that he believed that she was dead,

and he proceeded to set fire to the bed coverings, before going downstairs and setting fire to some kitchen roll, and then leaving the

premises. The appellant maintained that, believing that she was dead, he set the fire to ensure that the deceased’s children would

not find her in the condition he had left her in inflicting the stab wounds.

4. The deceased’s house was severely damaged in the ensuing fire. The deceased’s partially burned body was found on the bed by

firemen tackling the blaze. At that time the appellant feigned innocence and indicated to people at the scene of the fire that he

hoped that the deceased was not in the house.

5. The appellant was subsequently arrested on suspicion of murder and interviewed at Togher garda station in five occasions in total.

He acknowledged his role in the killing of the deceased and setting fire to her house. He maintained that he stabbed her as a result of

provocation and that he had set fire to the house out of panic but in the belief that the stab wounds inflicted by him had already

caused her death.

Grounds of appeal

6. A number of grounds of appeal were argued on behalf of the appellant. On the basis of the submissions made to this court, those

grounds of appeal can be summarised as follows:-

(i) The trial judge erred in principle in deciding to admit into evidence the contents of the fifth and final interview with the

appellant on 19th February 2013.

(ii) The trial judge erred in principle in failing to refer to certain aspects of the state pathologist’s evidence in the context

of rebutting the presumption provided for under s. 4 of the Criminal Justice Act 1964, in the course of his charge to the

jury.

(iii) The trial judge erred in principle in failing to put certain aspects of the defence on provocation, in particular the failure

in summing up, to refer to evidence adduced on cross examination of Rebecca Coughlan Collins and Thomas Farrell;

(iv) The trial judge misdirected the jury in relation to the onus of proof concerning provocation

The complaint in relation to the fifth and final interview

7. It was contended by the plaintiff that his request to see a solicitor immediately prior to the commencement of that fifth Garda

interview was refused or ignored by the investigating gardaí and, furthermore, that improper suggestions had been made to him as to

how he might have killed the deceased by the investigating gardaí. This was denied by the gardaí. Specifically they denied that the

appellant had made any reference to, or request to, see a solicitor prior to the commencement of that interview, which was video

recorded in the garda station. The appellant had seen a solicitor at an earlier stage, and prior to his first video recorded interview

with the gardaí. At the conclusion of a voir dire on the issue of the admission of the fifth and final statement in the course of which

evidence was taken from the gardaí involved in the interview, and from the appellant himself, and in the course of which the early

minutes of the video recording of the interview were played in court, the trial judge ruled in brief terms, and without giving specific

reasons, as follows:-

“Very well. I have had regard to the evidence of the guards concerned and the evidence of the accused. I don’t derive

any particular assistance from the passage of video tape which I observed. But I am satisfied that having heard the

material witnesses on the issues which arise to the standard of beyond reasonable doubt to accept the garda evidence.

I don’t find any unfairness involved in the treatment of the accused or that he was entitled to any special treatment

over and above any other suspect in a similar situation. I admit the evidence contended for by the prosecution.”

8. The trial judge’s ruling is criticised by the appellant on the basis that it is given without reasons and, to some extent, appears to

be based on an issue that was never raised by the appellant, namely that he, the appellant, was entitled to special treatment over

and above any other suspect in a similar situation

The failure to refer to aspects of the State Pathologist’s evidence.

9. The evidence in controversy was that of Professor Cassidy to the effect that the deceased sustained a number of stab wounds to

the front and back of the neck, and that one in particular, behind the right ear had penetrated the spinal canal, and that in her

opinion this particular injury would have caused localised haemorrhage around the upper spinal cord and could have caused what she

described as “spinal shock”. Evidence was also given by Professor Cassidy that she had found some evidence of soot or carbon in the

large and more peripheral airways extending down into the lungs indicating that the deceased had been alive when the fire started,

and that she had actually “inhaled some of the fire fumes, not a huge amount”, and that in her opinion death was due to a stab

wound to the neck AND inhalation of fire fumes (emphasis added).

10. Section 4 of the Criminal Justice Act 1964 provides as follows:-

"4(1) Where a person kills another unlawfully the killing shall not be murder unless the accused person intended to kill, or

to cause serious injury to, some person, whether the person actually killed or not.

(2) The accused person shall be presumed to have intended the natural and probable consequences of his conduct; but

this presumption may be rebutted.”

11. It was contended on behalf of the appellant that in charging the jury on the question of intent that the trial judge referred to the

provisions of s. 4 of the 1964 Act and the presumption as to intention in respect of the natural and probable consequences of the

conduct of the accused. However, while the trial judge referred to rebutting that presumption and the fact that the onus was on the

prosecution to prove that it had not been rebutted, he failed to refer in this context to the important evidence of Professor Cassidy.

This, it was suggested, was crucial evidence which would have provided the jury with a concrete example, based upon the evidence

in the case itself, as to how this presumption might be rebutted. It was argued that this aspect of Professor Cassidy’s evidence had

been referred to by counsel for the appellant in his closing speech to the jury. The trial judge was requisitioned on this failure at the

conclusion of his charge, but he refused to re-address the jury on the matter. Counsel for the appellant criticised the trial judge for

not giving any reasons for his refusal. The trial judge responded:-

“First of all, you are not going to suck me into the arena. I am not going to get involved in the facts in any fashion

whatsoever because I take the view that for me to even state a fact is to take a position on it…so when the Court of

Criminal Appeal says I have to relate things to this, that and the other, I don’t do that no matter what they say”.

The complaints concerning the charge on provocation.

12. In the course of her evidence to the trial Ms. Coughlan Collins stated as follows:-

“Olivia used to wind up her ex-husband and even friends about been able to be with Thomas.”

It was argued on behalf of the appellant that he was provoked into attacking Ms. Dunlea, having become enraged with jealousy after

being told by her to leave her house because she expected her former lover, Mr. Farrell, to call. It was contended that in assessing

the credibility of the defence of provocation, the evidence as to previous relationships and dealings between the deceased and Mr.

Farrell were relevant.

13. In the course of his charge to the jury at the conclusion of the trial, the trial judge addressed the issue of provocation in the

following terms:-

“Now, provocation is a defence in a murder trial. It is capable of reducing a murder to manslaughter, but nothing less

than manslaughter. Now in this jurisdiction when you were considering the question of provocation, you would want to

look at how a reasonable person would have behaved in the circumstances pertaining. Now in the old days the

reasonable man was categorised as the man on the Clapham omnibus, and I am at this for so long that some of my text

books would have referred to that. Nowadays, I suppose, you could call the reasonable man the man or woman on the

Luas or the man or woman in the jury box, because I am sure you, in presenting yourselves for jury duty, all did so on

the basis that you were reasonable people. Well, we don’t look at it in relation to how a reasonable person would behave.

We look at it from the stand point of how the particular accused you are dealing with would behave, with all his baggage.

You look at it from his stand point. And provocation is words or conduct generally on the part of the deceased person,

which so affects the accused as to cause a sudden and complete loss of self control.

Now provocation has been a graveyard for judges including myself. And on that account I am going to, as I am entitled

to do, adopt the words of another in relation to dealing with the question of provocation, and I am going to give you a

rather long quotation from Mr. Justice Barrington giving justice in the Court of Criminal Appeal. And I warn you in

advance it is quite a long quotation.”

14. The trial judge proceeded to quote an extract from the judgment of Barrington J, giving judgment for the Court of Criminal Appeal

in The People (Director of Public Prosecutions) v Kelly [2000] 2 I.R. 1. It is not necessary to repeat the entire quotation in the course

of this judgment, but it is useful to refer to the closing paragraphs of the relevant extract, as quoted to the jury by the trial judge:

“..to justify the plea of provocation there must be a sudden unforeseen onset of passion which for the moment totally

deprives the accused of his self control. But in the final analysis the trial judge will tell the jury it is their job to decide

not whether a normal man or reasonable man would have lost his self control in these circumstances, but whether this

particular accused in his situation, with his peculiar history and personality, was provoked or may have been provoked to

such an extent as to totally, to use his self control. If they find that the accused was so provoked the jury is to bring in

a verdict of manslaughter rather than murder. If after their examination of the evidence relied on by the defence they

entertain a reasonable doubt as to whether the accused may have been so provoked then they examine the prosecution

case to see if the prosecution has satisfied them beyond a reasonable doubt that the alleged provocation could not or in

fact did not cause an accused to totally to lose his self control in the manner alleged, always remembering that the

onus on the prosecution is not only to prove its case beyond a reasonable doubt but also to negatise beyond reasonable

doubt any defence raised by the accused. If they find the prosecution has succeeded in convincing them beyond

reasonable doubt that the provocation alleged could not or in fact did not provoke the accused to the extent that he

totally lost his self control, then their duty is to bring in a verdict of murder rather than manslaughter. If on the other

hand at the end of the case they still entertain a reasonable doubt that the accused may have been sufficiently

provoked by the matters alleged as totally to lose his self control, then their duty is to bring in a verdict of

manslaughter rather than murder.”

15. At the conclusion of the quotation, the trial judge went on to address the jury in the following terms:-

“Now, Mr. Foreman, members of the jury, that has been a very long quotation and the business end of it is in the final

two paragraphs. So, accordingly, I am going to give you those again. “If they find that the prosecution has succeeded in

convincing them beyond reasonable doubt that the provocation alleged could not or in fact did not provoke the accused

to the extent that he totally lost his self control, then their duty is to bring in a verdict of murder rather than

manslaughter. If on the other hand at the end of the case they still entertain a reasonable doubt that the accused may

have been sufficiently provoked by the matters alleged as totally to lose his self control, then their duty is to bring in a

verdict of manslaughter rather than murder.”

16. This part of the trial judge’s charge to the jury, in which he dealt with the issue of provocation, is criticised on behalf of the

appellant on the basis that the trial judge failed to adequately assist the jury as to how they should properly apply the principles

contained within the passages he had quoted from the judgment of Barrington J (which correctly explained the defence of

provocation, albeit in a somewhat sterile way) and, in particular, that he had failed to contextualize those legal principles with

reference to the evidence in this particular case.

17. It is further contended that there was a clear mis-direction of the jury by the trial judge at the conclusion of his charge when he

stated as follows:-

“You will get a document now called the issue paper which has a box on the left hand side which has the count against

the accused “Darren Murphy on 17th February 2013 at 26 Pembroke Crescent, Pembroke Woods, Passage West in the

County of Cork did murder one Olivia Dunlea”. Now, Mr. Creed contemplated things been done slightly differently but this

is the way I want you to do them. There are two things capable on going into that box. First of all, the word “guilty”on

its own. Now, if you write that in you are finding that the accused killed Olivia Dunlea with the statutory intent for

murder in other words that he intended to kill or cause serious injury. And you will bear in mind that a person is

presumed to intend the natural and probable consequences of their actions, but that notion can be rebutted. Now the

second thing you could write into that box is “not guilty of murder but guilty of manslaughter” and if that is your finding,

it is very important that you get the formula right. The formula is “not guilty of murder but guilty of manslaughter”. And

that would be the appropriate verdict if you found provocation or were not satisfied that the statutory intent had been

proved. So I think you can now start considering your verdict.”

18. The criticism levelled by the appellant of this address in the final stages of the trial judge’s charge to the jury, is that it in effect

advised the jury to find the appellant guilty of murder if they were satisfied that the accused intended to kill or cause serious injury,

and that he ought to have made it clear that the existence of such intent did not exclude provocation, which if present could result

in a manslaughter verdict..

Decision

19. While the quotation from the judgment of Mr. Justice Barrington referred to by the trial judge and quoted by him verbatim to the

jury by way of an explanation as to the meaning of provocation accurately represents the legal principles that apply to provocation, it

cannot supplant the desirability of a comprehensive explanation of the provocation issue in the context of the facts of the case as

presented to the jury in the course of the trial (emphasis added). There is a risk that the opening of extracts from judgments and

legal text books which are couched in relatively formal, and on occasions, somewhat legalistic language, with little or no further

explanation as to how they might be applied to the facts of the case then being tried, could give rise to misunderstanding or cause

confusion in the minds of a jury unfamiliar with such formality of language or legal terminology. The trial judge’s reticence to go further

than he did, on the basis of a concern that he might have been perceived as having entered the arena in a partisan way, was

perhaps understandable. However, the charging of a jury is intended to be an exercise in instruction and effective communication and

it is part of the skill demanded of a judge that he should be in a position to explain complex legal concepts to a jury while at the same

time making plain his impartiality. It is not enough that complex legal principles are placed before a jury entirely in the abstract, albeit

accurately. There also needs to be effective instruction as to how those principles might apply in the case at trial, depending on the

jury’s view of the evidence, and potentially, relevant evidence should be drawn to the jury’s attention. For a judge to do so is not to

enter into the fact finding “arena”. Rather, it is to provide important assistance to the jury and it is something that a judge ought to

be well capable of undertaking while both maintaining, and being seen to maintain, his impartiality. The Court is satisfied that the trial

judge’s genuinely held concern was unfounded, and that by being perhaps over scrupulous on this issue, he unwittingly fell into error

elsewhere, namely in failing to adequately explain to the jury how the principles he was expounding in the abstract upon might find

practical application in the case at trial.

20. Some support for the views just expressed is to be found in the case of DPP v. Zhen Dong Zhao, [2015] IECA 189., where

Birmingham J., in the course of delivering the judgment of this court also stated the following:-

“The court would add one final observation and does so in a very tentative manner indeed. In a complex area of the law,

and undoubtedly provocation is such an area, it is understandable that judges would look to the possibility of reading

extracts from authoritative decisions of the superior courts. A number of very experienced trial judges follow this

practice over many years. However, this court would express some doubts as to whether that is necessarily the most

effective method of communicating to the jury what the real issues are in a particular case. It is entirely a matter

within the trial judge’s discretion, but there may be something to be said for judges, in cases of complexity, given an

outline in advance of what he or she intends to say in the charge, thus offering an opportunity for comment and

observations by counsel.”

21. Turning then to the complaint of alleged actual misdirection of the jury, this Court is troubled by that portion of the charge

wherein the trial judge, at the conclusion of his address to the jury, dealt with the issue paper and the verdicts that might be

recorded. Even if, as may well have been the case, the jury had understood the legal principles applicable to the defence of

provocation as a result of his extensive quotation earlier from the judgment of Barrington J. in The People (Director of Public

Prosecutions) v Kelly, the trial judge clearly and unequivocally (and undoubtedly unintentionally) misdirected the jury at this point in

his charge. To have implied, as he did, that murder was the only possible verdict in the event of the jury being satisfied that the

accused had an intention to kill or cause serious injury was incorrect.

22. The relationship between provocation and the mens rea for murder has been repeatedly emphasised in a series of cases. In The

People (Director of Public Prosecutions) v McEoin [1978] I.R. 27., Kenny J, giving judgment for the Court of Criminal Appeal, said (at

30):

“The trial judge thus told the jury that the provocation had to be such that it made the accused unable to form an

intention to kill or cause serious bodily harm. Indeed, the view which the judge expressed to the jury later was that if

there was an intention to kill despite the provocation they should find the accused guilty of murder, and that it was only

when the provocation removed the desire to kill or cause serious bodily injury that it could reduce the crime to

manslaughter. This was the law which was expressed by Viscount Simon in Holmes v. Director of Public Prosecutions 3 at

p. 598 of the report and which was stated in the 34th edition (1959) of Archbold's Criminal Pleading, Evidence and

Practice at para. 2503 in a passage which is based upon Viscount Simon's speech. However, in our view it is incorrect:

the provocation relied on usually is one, if not the sole, cause of the formation of the intention to kill or cause serious

injury to another. To speak of provocation negativing or depriving a man of the intention to kill or cause serious injury is

to confuse cause and result.”

23. Again in The People (Director of Public Prosecutions) v Bambrick the Court of Criminal Appeal quashed a murder conviction, noting

that although the trial judge had explained s. 4 of the Criminal Justice Act 1964 with “admirable clarity” he had erroneously gone on to

link provocation to rebutting intention. The Court of Criminal Appeal stated:

“The question of intention is of course something that must be dealt with in the learned trial judge's charge when

explaining to the jury the meaning and effect of s. 4 of the Criminal Justice Act 1964 including the presumption of

intention relating to the natural and probable consequences of conduct and the possibility of a rebuttal of that

presumption. The question of provocation is separate and distinct from the question of intention. If there was

provocation that may reduce the killing from murder to manslaughter notwithstanding that the accused person intended

to kill or cause serious injury. People (DPP) v. MacEoin [1978] IR 27 at pp. 30–31: People (DPP) v. Mullane Court of

Criminal Appeal 1996 No. 75, 11 March 1997.”

24. The same point was reiterated yet again by this Court in its judgment in the Zhen Dong Zhao case where Birmingham J stated:-

“This appeal really nets down to a complaint that the jury was not told expressly and explicitly that the defence of

provocation was still available even in a situation where there was an intention to kill or to cause serious harm. There is

no doubt that the defence is available even in situations where there is an intention to kill or cause serious injury and

indeed it is only in a situation where such an intention is present that the issue of provocation will fall to be considered

at all. This is because unless the prosecution has proved beyond reasonable doubt there was indeed an intention to

cause serious harm or to kill the offence will not have been murder. If, however, the prosecution have proved beyond

reasonable doubt that the accused intended to cause serious harm or to kill and the defence of provocation is being

relied upon, the offence committed may, but will not necessarily, have been one of murder. To convict of murder, the

jury would have to be further satisfied, to the standard of proof beyond reasonable doubt, that the accused was not

provoked to the extent that he totally lost his self control. If the jury is left with a reasonable doubt on the issue as to

whether the accused was, or might have been, so provoked, their obligation would have been to return a verdict of

manslaughter.”

25. The impugned remarks of the trial judge in the present case, because they were given at the very end of the charge, would likely

have been fresh in the jury’s mind as they commenced their deliberations. The concern of counsel was raised in the course of his

requisition to the judge, when he stated:-

“The court just at the very end, in dealing with the issue paper, said that there were only two ways in which the

particular box could be filled out. One was guilty and that was the appropriate way in which to complete the box if the

jury were satisfied that Mr. Murphy had killed the deceased and that the prosecution had proved the necessary

statutory intent…My one concern is that the court at that point then stopped and omitted to say that of course they

also had to be satisfied before they could put in that word guilty beyond reasonable doubt that the defence of

provocation had been disproved. And that was omitted and may perhaps have been apt to confuse the jury about the

importance of that defence been absolutely negatived by the prosecution.”

26. The trial judge declined to recall the jury and re-address them in relation to that issue. This court considers that he erred in so

refusing.

27. The court will therefore allow the appeal. It is unnecessary in the circumstances for the court to deal with the other grounds of

the appeal contended for on behalf of the appellant.

28. The Director of Public Prosecutions has suggested that this case might provide the court with a convenient vehicle for the

publication of definitive guidelines on the correct charging of a jury on the issue of provocation, and to perhaps promote a “model

charge” on provocation. While the legal principles relating to the defence of provocation are relatively complex, this court does not

believe that there is any vagueness or uncertainty as to the applicable principles in and of themselves, such that guidance of the

type suggested is called for. While it is true that, on occasion, some judges have failed to adequately instruct a jury either as to the

established principles, or as to as to how they might operate in a particular case, such failures have rarely been due to any

uncertainty as to the law. Rather they have typically been due to the non application of what are well established principles. The

development of our jurisprudence in relation to provocation can be readily traced through the line of cases comprising The People

(Director of Public Prosecutions) v. McEoin [1978] I.R. 27; The People (Director of Public Prosecutions) v Mullane, (unreported, Court

of Criminal Appeal,11th March 1997; The People (Director of Public Prosecutions) v Bambrick [1999] 2 I.L.R.M. 71 ; The People

(Director of Public Prosecutions) v Kelly [2000] 2 I.R. 1.; The People (Director of Public Prosecutions) v McDonagh [2001] 3 I.R. 201;

The People (Director of Public Prosecutions) v Davis [2001] I.R. 146; and, most recently, The People (Director of Public Prosecutions)

v Zhen Dong Zhao cited earlier. Judgments in the cases in this list, which is by no means exhaustive, well illustrate both the initial

development, and more recently the consistent application of our jurisprudence on provocation which is by now well settled.

29. The Court sees no reason to restrict the wide discretion which a trial judge currently enjoys as to how best to address a jury in

relation to provocation. Each judge will have his or her own way of seeking to explain and effectively communicating the necessary

concepts to a jury. The applicable principles are well capable of explanation in relatively simple and straightforward terms. However,

we would emphasise yet again the importance of contextualizing them with reference to the evidence to be considered by the jury in

the particular case being tried before them.