Court of Criminal Appeal upheld a seven-year sentence for threatening to kill, rejecting the applicant's appeal against conviction and sentence.

COURT OF CRIMINAL APPEAL

Record No. 104/05

Macken, J.

Murphy, J.

Herbert, J.

BETWEEN:

DIRECTOR OF PUBLIC PROSECUTIONS

-AND-

WAYNE DUNDON

APPLICANT

Judgment of the Court delivered by Macken, J on the 13th day of February 2008

The applicant was convicted on the 20th April 2005 at the Circuit Criminal Court sitting in Limerick for an offence contrary to S.5 of

the Non Fatal Offences Against the Person Act 1997. The charge was threatening to kill a man, Ryan Lee. The offence occurred on

the 19th December 2004 at a nightclub or bar premises known as Brannigans in the City of Limerick. The trial on this charge

commenced on the 20th April 2005. The applicant was arraigned on the 28th April 2005 in respect of two other offences. He pleaded

guilty to assault causing harm contrary to S.3 of the Non Fatal Offences Against the Person Act 1997 and a further assault pursuant

to the same Act, both assaults being on gardaí on the 22nd December 2004.

On the 11th May 2005 evidence was presented in relation to sentencing on all three counts, and the learned trial Judge reserved his

judgment. He was sentenced on the 13th May 2005 to a term of 10 years imprisonment in respect of the offence of making a threat

to kill or cause serious harm and to three years in respect of each of the assault charges, the latter to run concurrently with the 10

year sentence. The applicant lodged a Notice of Application for Leave to Appeal on the 17th May 2005, against the conviction and

against all the sentences. The Applications for Leave to Appeal against sentence on the two assault charges have since been

withdrawn. This application for leave to appeal concerns only the threatening to kill charge.

The particulars of the offence are described in the following terms:

“Wayne Dundon on the 19th December 2004 at Brannigan’s Bar in the City of Limerick without lawful excuse, made to one

Ryan Lee, a threat to kill the said Ryan Lee or cause him serious harm, intending the said Ryan Lee to believe that the

said threat would be carried out.”

A Notice of Grounds of appeal was lodged on behalf of the applicant on the 3rd August 2005 by the applicant’s then solicitor. Apart

from several specific grounds for leave to appeal against conviction, inter alia, on grounds of the trial judge’s charge and the

requisitions raised thereon, there were several non specific grounds, including the following ground, relevant to the one aspect of this

application:

“8. That the charge of the learned trial judge was in general unsatisfactory”.

Sometime before the hearing of the present application the applicant instructed a new legal team to represent him. Lengthy and

detailed written legal submissions were filed on behalf of the new legal team on 15th January 2007, in anticipation of the hearing fixed

for the 5th February 2007.

Preliminary:

During the course of the hearing on the 5th February 2007, it became clear that apart from argument on the several specific grounds

for leave to appeal as filed, counsel for the applicant sought to introduce what, according to the jurisprudence of this court, were

new grounds of appeal concerning the judge’s charge. They had not been referred to, even by way of argument, in the detailed

written submissions and had not been the subject of any requisitions following the charge, nor indeed were they raised at any point in

the trial. These, counsel argued, were simply arguments “expanding or particularising” the above non-specific plea at number 8, and

the applicant ought therefore be entitled to pursue the same. The court did not accept that the grounds then sought to be argued

could be heard on the basis put forward. After some debate, the court agreed, however, to adjourn the hearing so as to enable the

new legal advisers on behalf of the applicant to bring a motion in the usual way, seeking liberty to add new grounds of appeal.

By notice of motion dated the 26th March 2007 the applicant sought the following two reliefs:

(1) An Order granting liberty to … adduce supplemental legal submissions in order to give greater particularity to grounds

of Appeal numbers 4, 5 and 8 of the originating Notice of Appeal and grounds therein contained”.

(2) An Order, if necessary, pursuant to order 86 rule 4 of the Rules of the Superior Courts … granting the

Applicant/Appellant liberty to file and serve … an amended Notice of Application setting forth such additional Grounds of

Appeal as are sought to be advanced by the Applicant/Appellant at the hearing of the within application.”

No Amended Notice of Application was before the court at the commencement of the oral hearing of the resumed application on the

22nd October 2007, nor was one exhibited to the affidavit of Matthew F. Higgins, solicitor, of Higgins Hollywood Deazley, Solicitors,

grounding the motion. Prior to adjourning the application in February 2007, granted in circumstances where neither moving counsel for

the applicant, nor his instructing solicitor, although each entitled to represent a client in the State, appeared to be fully familiar with

the relevant procedural rules or practices in this jurisdiction relating to such applications, the court had pointed out that the applicant

was also represented by a very practised junior counsel, and had explained in clear terms the means and the procedures by which an

application for leave to add grounds of appeal comes before this court, particularly where, as here, the ground sought to be added

had not been raised, nor any rulings made thereon, in the course of the trial. The court also drew counsel’s attention to certain

relevant case law and in particular to the principles reaffirmed in DPP v Cronin (2006) 4 IR 273 referred to below.

Notwithstanding the court’s clear indication that a new ground of appeal cannot be presented to this court by “particularisation” of an

existing general non-specific ground (or by argument thereon), the applicant nevertheless persisted with ground 1 of the motion

seeking that very relief in respect of the general non specific ground at paragraph 8 of the original grounds of appeal (adding in a new

reference to grounds 4 and 5). The regrettable impression which the court gained from the foregoing, and the exchanges thereon, is

that there was some reluctance on the part of the applicant’s advisers to comply with relevant and established rules and/or practices

in this jurisdiction relating to such applications, there being no submission whatsoever made that these rules or practices were in any

way wrong in law. The exchanges arising from the above added considerably to the time necessary to deal with this application, not

only during the original hearing in February 2007, but also on the adjourned hearing date in October 2007.

The court refused the relief sought at ground 1 of the Notice of Motion, but accepted in the course of the resumed hearing, a

handwritten note as being indicative of the four additional grounds then sought to be admitted as new grounds. Counsel for the

applicant further reduced these to two, and a final form of Amended Grounds of Appeal was eventually filed on behalf of the

applicant, including the following new grounds:

“8(A) The charge of the learned trial judge failed to explain the critical distinction between words and gestures and their

combination and the consequence and the correct approach if they were sure about the words being said but not sure

about the gesture being made;

8(B) The judge unfairly led the jury to believe that Ryan Lee had no motive or reason to lie.”

Being unrelated grounds one to the other save that they both arise from the charge of the trial judge, the court treats them as

proposed grounds 8 and 9 in substitution for the original non specific ground 8, and the original grounds following thereafter are

renumbered accordingly.

Moreover, to avoid further delay, the court, with the consent of the respondent, agreed to hear, de bene esse, the argument on the

applicant’s motion to add the two proposed new grounds at the same time as the argument on all the original grounds, and to

determine the motion at the same time as its findings on the original grounds.

The Original Grounds:

The full list of grounds of appeal against conviction fall logically into natural groupings some of which were not pursued independently.

The first, and main, grounds seek leave respectively, as follows:

Ground 4:

“The learned trial judge erred in law … in failing to accede to an application by counsel for the applicant for a direction that the

accused had no case to answer at the conclusion of the Prosecution’s case;

Ground 5:

“The learned trial judge had erred in law … in failing to accede to an application made by counsel for the accused for a direction at

the conclusion of all the evidence.”

In the written submissions filed on behalf of the Applicant, it is stated as follows:

“As a preliminary observation which underpins many of the points of appeal to which we will hereinafter address, it is

submitted that the gravity of the threat as established by the evidence in chief of Mr. Ryan Lee was insufficient to satisfy

the definition of the evidence (sic) charged. It is submitted that the words used could not reasonably be construed as

being a threat to kill within the meaning of the definition of the offence as contained in Section 5 of the 1997 Act. Indeed

having regard to the cross examination of Mr. Lee by Mr McInerney to which reference shall now be made, it would appear

that the predominant emotion experienced by Mr. Lee in the wake of this alleged incident was a mixture of upset, fear and

relief, such relief which the witness said he experienced almost instantaneous upon the departure of Mr. Dundon, the

Appellant herein, in his motor vehicle on the night in question.”

The Court bears this in mind in dealing with the several grounds of appeal in this application.

Founded upon the reasoning contained in two English cases, R v Galbraith [1981] 1 WLR 1039 and R v Shippey [1988] CLR 767,

counsel for the applicant, Mr Lewis QC, also relies on Irish authorities, including Attorney General v Cunningham [1932] IR 28 and

several others cases not invoked on behalf of the applicant in the course of the trial. He also argues that, irrespective of the

application for a direction made at the conclusion of the prosecution’s case, the trial judge was incorrect in law not to grant a

direction on all the evidence adduced. The arguments put forward are dealt with more fully as part of the court’s conclusions.

Counsel on behalf of the Director of Public Prosecutions, Mr O’Sullivan B. L., submits that it was entirely a question for the jury to

decide whether the evidence of Ryan Lee was to be believed and whether the words and actions described by him came within the

definition of the offence. The question as to whether the evidence of Mr Lee, as tendered, was weakened by the matters relied upon

by the defence was also a matter for the jury, and he submitted that the trial judge’s rulings in respect of the same were perfectly

proper.

Having regard to the reasoning in the above authorities, the court rejects these grounds argued on behalf of the applicant. The

learned trial judge was correct in deciding that the evidence tendered was such upon which a jury, properly charged, could properly

come to the conclusion that the defendant was guilty, and that he should therefore allow the case to go to the jury. The criticism of

use of the word “irresponsible” by the judge is not well-founded. It may not have been the most appropriate or elegant word to have

used, but its meaning was clear in its context, namely that the learned trial judge considered that since the matters were ones which

ought properly to go to the jury, he would be incorrect in law (that is to say, “irresponsible”), in not proceeding in that manner.

As to counsel’s contention that the evidence adduced by the prosecution, which he correctly divides into four elements, was

substantially weakened, or that the weakening of some of the evidence tilted the balance in favour of the innocence of the applicant,

and in favour of a direction to acquit, this is not borne out by the manner in which the trial proceeded, nor indeed by the evidence

itself. In the view of this court the learned trial judge correctly applied the second leg of Lane LJ’s test in R. v Galbraith [1981] 1 WLR

1039.

Firstly, the strength or weakness of the prosecution case depended upon matters within the province of the jury and this court is

satisfied that, at the very least on one view, a jury, properly directed, could convict the accused. The matter was therefore properly

left to the jury. Even if it could be claimed to be a borderline case, the decision whether or not to leave it to the jury was, in such

circumstances, within the discretion of the learned trial judge. This court will interfere when the discretion is not exercised judicially,

but finds no reason for concluding that it should do so in this case.

Secondly, it was submitted that since part of the alleged threat consisted of a gesture by the accused, and as no such gesture was

discernible on the contemporary CCTV video recording, it would be perverse or impossible for a jury, properly directed, to conclude

beyond reasonable doubt that the gesture had been made. This too is not a persuasive argument. The case for the prosecution was

always based on the allegation that the gesture was made. Whether or not the gesture ought inevitably to have been clearly visible

on the video was a matter of fact for the jury, taking into account the location, the angle and the field of vision of the camera, the

ambient and the provided lighting, the quality of the recording and the relative positions of the men. In the opinion of this court it was

open to the jury, having viewed the CCTV video recording, to conclude that even if the gesture was not clearly discernible, the video

recording was not conclusive, but rather was neutral, as to whether the gesture had or had not been made. If the gesture was not

clearly discernible, that was a matter which went to the weight of the evidence given by Ryan Lee on that issue. A finding by them

that the gesture had not been made was evidence to be considered in deciding whether Ryan Lee was a credible witness. But even if

the jury decided that the prosecution had not established beyond reasonable doubt that the gesture had been made, it was still open

to the jury to consider, on the facts, whether or not the words, “fuck you, you are dead”, had been uttered by the applicant, and

constituted a threat within the definition of the offence.

Thirdly, the point is made on behalf of the applicant that although it is the intention of the accused which is to be proved, one of the

most telling ways in which this can be assessed is to see the effect of the threat on the alleged victim. As a required element of the

offence charged this effect is irrelevant, as it is the intent of the perpetrator and not the reaction of the victim which the Section

requires must be established by the prosecution, the words of Section 5(1) of the Non-Fatal Offences Against the Person Act, 1997

being unambiguous:-

“… makes to another a threat, by any means intending the other to believe it will be carried out to kill or cause serious

harm to that other … … shall be guilty of an offence”. (emphasis added)

Even if, however, the reaction of the recipient of the threat is a matter which may aid in establishing the intention of the accused,

then if the alleged victim gives evidence of being unperturbed by the events, this is a factor for the jury to consider in the overall

context of the case. If the jury considered, by reference to the video recording, that Ryan Lee showed no signs of being perturbed

despite the alleged threat, this too was evidence to which the jury could and should have regard in deciding whether the alleged

words were spoken and/or the alleged gesture made or the intention established. The evidence – if the jury accepted it - that the

incident lasted for only about fifteen seconds, is another strand of evidence to be considered and weighed by the jury, together with

all the other admissible evidence. The contention by the applicant that Ryan Lee’s demeanour or predominant emotion after the

events in question was a mixture of fear, relief and upset, even if true, does not in the opinion of this court, undermine the existence

of the threat, or the accused’s intention, or Ryan Lee’s belief that it would be carried out.

This court also rejects the final argument advanced on behalf of the Applicant, that even with the gesture, but a fortiori, without the

gesture, there was not enough evidence to support either the necessary intent or that it amounted to a threat to kill in all the

circumstances. In support of this argument counsel refers to a passage from the judgment in the case of R. v Williams, 84 Cr App Rep

299, [1987] Crim. LR, 198, where the Court of Appeal in England, in considering the provisions of similar legislation in England and

Wales, (save that the words, “would fear” are used rather than, “to believe” in Section 5(1)), - said:-

“The somewhat unusual mental element required for the commission of the this offence is clearly an acknowledgement by

the legislature of the fact that words which, on their plain meaning, amount to a threat to kill, are frequently made in jest

or temper in contexts where they are not intended to be taken seriously.”

This court has no difficulty in accepting that statement. However, apart from the fact that this case was not opened in the course of

trial, it is not a relevant authority in the present case, where the defence, in reliance on evidence given by Ann Casey, wife of the

applicant, and by Annabel Dundon, a sister of the applicant, was an entirely different one, namely, that the applicant had not spoken

the alleged words at all, or made the alleged gesture at all, a situation inconsistent with a threat being made but only in jest or

temper.

This court is satisfied that there was no error in principle on the part of the learned trial judge in declining to accede to the

application by the counsel for the applicant for a direction that the applicant had no case to answer, either at the conclusion of the

case for the prosecution or at the conclusion of all the evidence.

Ground 2:

“The learned trial failed to properly or adequately explain to the jury in the course of his charge the concept of intention.”

Ground 3:-

“The learned trial judge erred in law or in fact or in a mixed question of law and fact in failing to accede to a requisition by

Counsel for the accused to recharge the jury with regard to the definition of intention.”

Ground 6:

“The learned trial judge erred in law or in fact or in a mixed question of law and fact in failing to re-charge the jury in

accordance with requisitions made to him by Counsel for the accused.”

In respect of the last ground, the applicant invokes arguments set out in relation to grounds 2 and 3 in the submissions filed on his

behalf, and it is appropriate therefore to deal with all three together.

It was submitted on behalf of the applicant that while the learned trial judge began his direction to the Jury as to the meaning of

“intent” well, he concluded by effectively telling the jury, erroneously, that the necessary intent was that the Applicant intended to

make the threat, whereas the intent necessary to constitute the offence was that the applicant intended that Ryan Lee should

believe that the threat would be carried out.

The court is not persuaded by this argument. The transcript of the trial records the learned trial judge as telling the jury:-

“The second ingredient is that the section says that the accused must have intended the other to believe it would be

carried out. The second ingredient is intention … The Prosecution has to prove that the accused intended Mr Lee to

believe that the threat would be carried out … because we can’t look into a person’s mind we can look at the surrounding

circumstances … to make an inference, as to what he intended or what he believed …” (emphasis added)

This is a sufficient explanation by the learned trial judge of the concept and the definition of “intent” as required by this offence.

A phrase in the charge is however highlighted by counsel for the applicant where the learned trial judge said:-

“…if on the other hand you believe the accused meant to do what he is alleged to have done, then intent has been

constituted and you convict him.” (emphasis added)

It is argued that this could have been taken by the jury as indicating that they only had to be sure that the applicant had intended

to say the words and make the gesture and not, as the section requires, that they must be satisfied beyond reasonable doubt that

the applicant intended that the threat would be believed by Ryan Lee. However, in the context of the whole of the previous

explanation given by the learned trial judge as set out above, it is manifestly clear that the words, “meant to do what he is alleged to

have done”, were referring to and could only be understood by the jury as referring to making a threat, intending Ryan Lee to believe

it would be carried out.

In the circumstances set out, these three grounds are rejected.

Ground 1:

“The learned trial judge in the course of his charge to the jury misdirected the jury with regard to the definition of

recklessness.”

The learned trial judge told the jury that it was not sufficient for the prosecution to establish that the applicant acted carelessly,

negligently or recklessly in making the alleged gesture or speaking the alleged words, and that if they concluded that the evidence

adduced by the prosecution went no further than this, that they must acquit the accused. He defined “recklessly”, as, “somebody

acting without caring what the results of what he was doing would be, being indifferent to the consequences of what he was doing,

being reckless as to the outcome of the acts he was doing”.

This explanation of the meaning of “reckless” was entirely satisfactory in the circumstances of the present case. There is no

obligation upon a trial judge to cite or to make reference(s) to a definition(s) contained in some other reported case save where such

instruction is found in case law which binds him. Nor is there an obligation to adopt extracts from academic books, nor to quote them

in full unless the absence of part of a full quotation would lead to the jury being misled as to the true meaning of the quotation. A

complaint is made in the present case that, although the learned trial judge quoted from a passage in a particular book, he did not

adopt the entire of the quotation. When requisitioned on this, he explained precisely how he came to the view he took, and that he

had used his own words to explain the meaning of “reckless”, which words themselves were not challenged on behalf of the appellant,

rather than those of the academic. This explanation and the actual words used by him were wholly acceptable.

This court has repeatedly held that the charge of a trial judge to a jury must be considered in its entirety, and this form of sectional

disassembly of the text and minute scrutinising of individual words and phrases used in the course of a charge but divorced from their

context, as in this application, is to be entirely deprecated.

Grounds 10 – 13 (old grounds 9 – 12)

No independent argument was made at the hearing on any of these grounds by counsel for the applicant. As to each of these,

drafted in the most general terms, and giving no indication as to specific content or context, the court rejects them on the ground

that they are no different to the above specific grounds, and as disclosing no basis, on their own, for leave to appeal.

New Grounds sought to be added pursuant to Motion dated 26 March 2007

Ground 8:

“The learned trial judge failed to explain the critical distinction between words and gestures and their combination and the

consequence and the correct approach if they were sure about the words being said not but sure about the gesture

being made;”

The specific requirement of s.5(1) of the 1997 Act is already set out above. It was the prosecution case at all times that the

applicant made the alleged gesture and spoke the alleged words. Either however is sufficient to establish the offence.

The court notes that no issue was raised in the course of the trial, or as part of any submission, or by way of requisitions on the

judge’s charge on this ground, notwithstanding the accused being represented by very skilled counsel. It must also be borne in mind

that in this case counsel applied for a direction at the end of the prosecution case, as well as at the end of the entire evidence, and

raised requisitions on the judge’s charge. The transcript discloses that counsel for the applicant must have been more than alert to

every possible legal point which he ought to make or might wish to make on behalf of the accused, at every stage of the trial.

The jurisprudence of this court, stretching back over decades, at least to 1977 and even before, and reaffirmed by the Supreme

Court in DPP v Cronin supra., is to decline to consider such grounds, save in the limited and exceptional circumstances indicated in

that very clear jurisprudence, with which counsel for the applicant has told the court he is familiar. Even if circumstances exist in

which this court might be prepared to consider the admission of a new ground of appeal such as the present one, the ground must

also be in some way central to the trial, and in addition there must also be some explanation tendered to this court as to why it was

not raised by the defence in the course of the trial, including the possibility that it was not raised due to oversight, it being long

established in law that all appeals to this court are based on the transcript of the trial including all applications made, and all rulings of

the trial judge.

The applicant’s legal advisors on this appeal notified the earlier legal team of the intention to bring a motion in respect of this new

ground (and the next one following) and invited the former legal advisers to be represented in court, if they thought fit to do so in

respect of the matters now being raised. Contrary to the usual practice, they did not invite the former legal advisers to file any

affidavit, if they wished, and none was in fact filed. It is submitted by counsel for the applicant that the absence of such an affidavit

could and should be taken by this court as indicative of the fact that the ground now sought to be admitted was not raised or argued

at trial by reason of an oversight on the part of the former legal team at the trial. In the view of this court, there is no reason to

assume an oversight on the part of counsel handling the defence at trial based merely on the fact that no affidavit has been filed

(and none having been invited), or on a mere assertion, especially having regard to the arguments, the applications, and the

requisitions actually made or raised during the course of the trial. The court, without embarking upon an enquiry into the handling of a

defence, cannot speculate upon the myriad of reasons why, on good legal and/or legitimate tactical grounds, a particular legal team

did or did not adopt a particular approach to raising or not raising, any particular objection in the course of trial. The present

submissions appears to be based on what another legal team, coming to consider the position later, on foot of a minute examination

of the transcript and totally removed from the reality of the trial, considers it might or even would have done, had it been charged

with the defence of the accused in the first place.

On the other hand, it is possible in certain exceptional cases, based upon the transcript or record of the proceedings, to come to a

view that the failure of a legal team to make a particular objection or raise a particular ground central to the defence, must have

been due to an oversight. That may be more readily considered possible when the ground sought to be agued is central or critical to a

trial, would be recognised as such by all practised counsel and there is no apparent other reason why it was not raised. This court is

satisfied that no such circumstances have been established in the instant case.

Even if the applicant had been able to point to a possible oversight, it seems to the court that the ground is, in any event, without

merit. The learned trial judge fully and carefully put the evidence presented by the prosecution and by the defence to the jury in the

course of his charge. He specifically told the jury that “it is the case for the defence that the video footage itself does not show any

threatening gesture or any gesture of the kind alleged by the prosecution”. Nor did the prosecution proceed on the basis that the

video definitively showed the gesture, but on the basis that the gesture was, in fact, made.

The charge to the jury by the learned trial judge was neither insufficient nor misleading by reason of his not telling them as submitted

on behalf of the applicant that he should have, that “the best evidence available to them, the video recording, did not support the

prosecution’s case that Mr. Dundon made a malicious gesture with his fingers to Mr. Lee’s head”. Indeed it would have been

inappropriate to do so. He told the jury that:-

“Both sides, the Prosecution and the Defence say that the video is consistent with their case. Suffice it for me to say,

members of the jury, that is a matter for you. It is essentially a factual matter and being a factual matter is a matter for

you. They both say that the matters shown on the video and the inferences to be drawn from watching the video is

consistent with their case. They say that. I being in a neutral position, I am not going to comment one way or the other

whether it is consistent with one side or the other. That is a matter for you.”

The learned trial judge emphasised to the jury, as did counsel for the prosecution and for the defence, that the burden of proof in the

case was beyond reasonable doubt and that the prosecution must prove each element of the offence. In the opinion of this court

there was no necessity for the learned trial judge to remind the jury, that if they could not be satisfied on the prosecution case that

the alleged gesture was made, but that the words were used, this was one of the matters they could and should take into

consideration in deciding whether they were satisfied beyond reasonable doubt on the prosecution case.

As has already been stated this present ground was not made to the learned trial judge during requisitions following his charge to the

jury at the trial of this case. If the Cronin case is to have any meaning and effect, this would seem to be clearly a case where the

application should be refused. Additionally and without prejudice to the foregoing that ground could quite obviously have been

included in the original notice of application if it was thought there was any validity to it. The unacceptable alternative that it was in

retrospect overlooked is not supported by any of the arguments put forward on behalf of the applicant. The motion seeking leave to

add this additional ground is refused.

Ground 9:

The comments of this court concerning the effect and the applicability of the decision in Cronin, supra., and similar jurisprudence,

apply equally to this ground sought to be added, which was also not the subject of any requisition on the part of counsel for the

applicant.

It will be recalled that this ground was that:-

“The learned trial judge unfairly led the jury to believe that Ryan Lee had no motive or reason to lie.”

A “motive” has been defined (Phipson, “Evidence” 13th Edition), as “the reason which prompts the intention, which is the act of will

which directs an act”. In R v Bali [1911] A.C.(HL) 68, it was held by Lord Atkinson that, “in criminal cases motive is relevant to guilt

as making it more likely the accused committed the offence charged”. Though hardly a rule of universal application, a strong motive is

more likely to induce actions than a weak one.

Counsel for the prosecution told the jury during the course of his closing address that no motive had been suggested as to why Ryan

Lee would wrongfully accuse somebody he did not know of making the alleged threat. Counsel for the applicant now says that while it

was strictly correct, this remark was both unfair and misleading because there was a motive and counsel for the prosecution knew

that there was a motive. Further he knew this was a matter which could not be raised by defence counsel because of the danger

that if it were raised, it would seriously prejudice the defence. The learned trial judge in his charge to the jury said:-

“The Prosecution says it is a black and white situation. It is either Mr Lee is telling lies, that he couldn’t be mistaken or

the persons contradicting him are telling lies. He says there is no basis upon which you the jury, could find him to be

either untruthful or unreliable. No motive has been suggested for him wrongfully accusing somebody whom he didn’t know.

He didn’t know the accused man before this incident.”

He was not asked to rule on the propriety of this reference to a motive, which was by way of reported speech, in requisitions

following the charge by the learned trial judge to the jury. Any such objections would have been canvassed in the absence of the

jurors so that the question of any unfairness or of any misleading of the jury could have been fully ventilated before the learned trial

judge, but was not. There is no basis for suggesting that it was not raised through an oversight on the part of counsel, other than,

as in the case of Ground 8, the absence of an affidavit.

However, strictly without prejudice to the foregoing this court is also satisfied on the merits that no injustice is done to the applicant.

This reference to the failure by the defence to suggest any motive why Ryan Lee would accuse the applicant of making the alleged

threat is said to render the jury decision, and therefore the trial, unsafe. This court is satisfied that it did not. The jury was told by

the learned trial judge in his charge and by counsel for the prosecution and counsel for the defence in their respective speeches, that

they must decide the case solely on the evidence adduced in court and that they must not indulge in surmise or speculation.

This court has repeatedly pointed out that juries must be trusted to comply with and abide by the directions given to them by the

trial judge. The learned trial judge told the jury that:-

“…The accused has the right to silence in court. An accused is not obliged to give evidence and this right has been given

to an accused person only since 1924. Up to that point an accused person was not allowed to give evidence in his own

case and, furthermore his spouse was not allowed to give evidence in his defence either. This is an important right and

what I am saying to you now is the law, members of the jury. You may not draw an adverse inference from the fact that,

in this particular case, Mr Wayne Dundon has not given evidence. We don’t know why he didn’t give evidence and we

can’t speculate about it. I will mention in a minute that you can only decide the case on the evidence and you can’t

speculate about matters which you haven’t heard.”(emphasis added)

While it is undesirable that the impugned words were repeated, although as reported speech, in the view of this court there is no

proper basis upon which to conclude, that the jury would, in consequence, disregard the instructions and solemn warnings given to

them by the learned trial judge (and in counsels speeches), but would instead permit themselves to be seriously influenced, to the

detriment of the evidence actually given, by the remark made. The court is satisfied that neither the ground nor the arguments

propounded in support thereof are such as to suggest that the words used rendered the verdict of the jury in any manner unsafe.

The application to add this new ground is also refused.

Leave to appeal against conviction is rejected in full, on all grounds.

Sentence

The court now turns to the issue of the sentence imposed, the applicant seeking to appeal against the severity of the sentence,

which was ten years imprisonment.

The applicant appeals on several grounds, including the following.

(a) The learned sentencing judge erred in law in permitting counsel for the prosecution to produce in the course of the

sentencing hearing evidence of alleged offences in respect of which the applicant had not been convicted by a jury nor to

which he had pleaded guilty;

(b) The learned sentencing judge erred in law by having regard to other offences which were not proven or admitted in

addition to the offence of which the applicant had been convicted by the jury and the offences to which he pleaded

guilty.

(c) The learned sentencing judge failed to protect and vindicate the applicant's right to liberty and security conferred

pursuant to Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms

(d) The learned sentencing judge erred in law in failing to have adequate regard for the impact of a lengthy sentence on

the applicant his wife and immediate family.

(e) The learned sentencing judge erred in law in taking into consideration and in particular as treating as an aggravating

factor the opinion expressed by a member of the gardaí that the applicant was one of the most violent criminals he had

come across in Limerick city.

(f) The learned sentencing judge erred in law in failing to give any or any adequate credit for the manner in which the

defence case was conducted in particular having regard to the concessions and admissions made on behalf of the

applicant in the course of trial.

(g) The Learned sentencing judge erred in law by the imposing a sentence which was in all the circumstances excessive

having regard to the gravity of the offence and the personal circumstances of the applicant.

Counsel for the applicant cites in support of his contention that the learned sentencing judge erred in law in taking into account

matters in respect of which the applicant had neither been charged, nor pleaded guilty, the cases of Gilligan [2004] 3 IR 87 and the

case R v Kidd, [1998] 1 WLR 604 as well as R v Anderson [1978] A.C. 964. The matters claimed to have been taken into account

include in particular evidence concerning the shooting of Ryan Lee on the evening in question, about a half and hour after the events

in respect of which the applicant was convicted, as well as the description of the applicant by one of the gardaí as “a violent

criminal” or “one of the most violent criminals”.

Counsel for the respondent argues that previous convictions as well as his conviction on the current charge, warranted the applicant

being so described, and that the events as to Ryan Lee being shot very shortly afterwards were part of the surrounding

circumstances of the crime, legitimately taken into account. He also draws the court’s attention to the learned sentencing judge’s

finding, on the evidence, that the threat was a continuing one and was perceived to be continuing.

Counsel for the applicant also argued that, since there had been an error in principle on the part of the learned sentencing judge in

the construction of a lawful sentence, it was now for this court to consider what an appropriate sentence might be. In that regard he

referred in particular to the sentence imposed by the sentencing judge, on the same day, on a Gary Campion, who had been accused

of threatening to kill or harm a prison officer, to which offence he had pleaded guilty on the 28th April 2005, and upon whom a

sentence of three years was imposed, the learned sentencing judge having indicated that the appropriate sentence, absent his guilty

plea, would have been five years imprisonment.

Further counsel for the applicant indicated to the court that at the end of any sentencing period which this court might impose, it

was the intention of the applicant to leave the country and return to the United Kingdom where he was raised, and submitted this as

a matter which the court ought to take into account as well the existence of a partner and a child, and the effect of a lengthy

sentence on them.

Conclusion

For the purposes of this part of the application, it is not necessary to detail all of the case law which applies to the grounds set out

above, since several of the grounds can be dealt with together, and which cases concern the admission into evidence or the taking

into account of matters which, on the applicant’s argument, should not have been taken into account.

As to these issues, the jurisprudence of this court is clear. The decision of the Court of Appeal in England in the case of R v Kidd ,

supra., considered in this jurisdiction in at least two cases. In the first of these, DPP v Gilligan, supra., this Court (McCracken, J.)

stated as follows:

“6 Curiously, there seems to be very little authority in relation to that issue in this country however, the matter was

considered by the Court of Appeal in England in the case of Reg. v. Kidd [1998] 1 W.L.R. 604. In that case, the issue was

posed as follows at p. 606:-

‘The issue may be expressed as follows: if a defendant is indicted and convicted on a count charging him with

criminal conduct of a specified kind on a single specified occasion or on a single occasion within a specified period,

and such conduct is said by the prosecution to be representative of other criminal conduct of the same kind on

other occasions not the subject of any other count in the indictment, may the court take account of such other

conduct so as to increase the sentence it imposes if the defendant does not admit the commission of other

offences and does not ask the court to take them into consideration when passing sentence?’

7 This was decisively answered by Lord Bingham of Cornhill at p. 607 in the following terms:-

‘A defendant is not to be convicted of any offence with which he is charged unless and until his guilt is proved.

Such guilt may be proved by his own admission or (on indictment) by the verdict of a jury. He may be sentenced

only for an offence proved against him (by admission or verdict) or which he has admitted and asked the court to

take into consideration when passing sentence: see Reg. v. Anderson (Keith) [1978] A.C. 964. If, as we think,

these are basic principles underlying the administration of the criminal law, it is not easy to see how a defendant

can lawfully be punished for offences for which he has not been indicted and which he has denied or declined to

admit.

It is said that the trial judge, in the light of the jury’s verdict, can form his own judgment of the evidence he has

heard on the extent of the offending conduct beyond the incidents specified in individual counts. But this, as it was

put in Reg. v. Huchinson [1972] 1 W.L.R. 398 at p. 400 is to ‘deprive the appellant of his right to trial by jury in

respect of the other alleged offences’. Unless such other offences are admitted, such deprivation cannot in our

view be consistent with principle.’

8 That seems to this court to be a clear and unambiguous statement of principle with which the court entirely agrees.

Indeed, counsel on behalf of the respondent does not really challenge it. He does seek to argue, however, that the

sentencing court is entitled to have regard to the overall evidence of the activities of an accused in determining the

gravity of the individual charges in respect of which he has being convicted. In the present case, he points to the fact

that the offences took place over a period of some 28 months, that there was clear evidence that these offences were

part of organised crime, and that indeed the applicant was closely involved in the organisation, and that he would appear

to have been motivated purely by greed.

9 While this court accepts the reasoning in Reg. v. Kidd [1998] 1 W.L.R. 604, quite clearly a sentencing court cannot act

in blinkers. While the sentence must relate to the convictions on the individual counts, and clearly the applicant must not

be sentenced in respect of offences with which he was not either charged or convicted and which he has not asked to be

taken into account, nevertheless the court in looking at each individual conviction is entitled to, and indeed possibly

bound to, take into consideration the facts and circumstances surrounding that conviction. Indeed, if that were not so,

and these were treated as isolated incidents occurring at six month intervals, it might well be that the proper course for

the court to adopt would be to impose consecutive sentences. The court does, therefore, accept the basic principle

behind the argument of counsel for the respondent. However, the court does think it important to emphasise that in many

cases there may be a very narrow dividing line between sentencing for offences for which there has been no conviction

and taking into account surrounding circumstances, which may include evidence of other offences, in determining the

proper sentence for offences of which there has been a conviction. It is important that courts should scrupulously

respect this dividing line. (emphasis added)

This jurisprudence was also adopted by this court in the case of DPP v Wayne O’Donoghue unrept’d., Court of Criminal Appeal 18

October 2006, in which the Director of Public Prosecutions had sought to set aside the sentence imposed on the accused on the

grounds that it was unduly lenient within the meaning of Section 2 of The Criminal Justice Act 1993, and in which this court (in

considering R v Kidd, supra.,) stated:

“While the facts and the possible “other” charges in the latter case were quite different to those which might have arisen

in the present case, the difficulties which a sentencing judge faces in balancing the overall context of the crime against

the undesirability of sentencing for matters which could have been the subject of a charge but were not – as must often

arise in the case of trials for murder or manslaughter – cannot be overstated. The above considered approach of the

Court of Criminal Appeal is the definitive approach proposed, and it has been followed by this court in at least one

subsequent decision. While a sentencing judge may validly take into account appropriate surrounding circumstances, even

those of a cover up, nevertheless, if, as the above jurisprudence recommends, a sentencing judge must scrupulously

respect the appropriate dividing line, he cannot be criticised for doing so in the present case, especially when, on the

face of the judgment he has not been blinkered as to the surrounding facts, and the cover up has in any event been

taken into account as part of the impact of the death on the boy’s family.”

Each of the cases cited recognises, in quite different contexts, the difficulties which arise for a sentencing judge when seeking to

delineate between such surrounding circumstances as he may properly have regard to in constructing an appropriate sentence, and

those actions or matters in respect of which the accused was not charged or which he had not admitted or asked to have taken into

account, as arose for example in the particular circumstances of the Gilligan case supra. It is, and ought to be clearly recognised as

being, an extremely narrow dividing line. Moreover, in both the Gilligan and O’Donoghue cases there was evidence connecting them to

the other offending matters being considered.

In the present case the question which really arises for consideration is whether or not the learned sentencing judge, who recognised

the difficulties facing him, scrupulously respected the dividing line which this court referred to in the above cases. It is the view of

this court that the learned sentencing judge was entitled to have regard to the evidence of the gardaí that the applicant was a

violent criminal, since his convictions, including the present one or his guilty pleas, were such that they could properly be accepted

by the sentencing judge as representing a person who could be so described. So also could the learned judge properly take into

account, once the applicant had been found guilty of the threat to kill, the fact that that threat was a continuing one which required

the applicant to have garda protection and which was perceived as being a continuing threat.

As to whether it was permissible to take into account as part of the surrounding circumstances the fact that Ryan Lee was shot at

the same premises a very short time later, perhaps just half an hour, but in respect of which no charges were laid against the

applicant and nor did he admit the same nor was any evidence tendered that he was or even might have been involved in such

“offending conduct” referred to in the above case law, the court is not satisfied that this was a factor which could properly be taken

into account as part of the circumstances of the threat. Although the learned sentencing judge stated he was not convicting the

applicant for anything for which he had not been convicted, he nevertheless took into account the shooting of Ryan Lee on the basis

that it was (a) part of the context in which the threat was made; (b) it was indicative of the significance to be attached to the

threat and the manner in which it was to be interpreted by Ryan Lee, and (c) it was to be taken into account regardless of who, in

fact, carried out the subsequent shooting. All of these may be true, but none of these was established as attaching to the applicant,

even if they constituted the context or events surrounding the threat.

Having regard to the foregoing jurisprudence, the court is satisfied that the learned sentencing judge erred in law and therefore in

principle, in imposing the maximum sentence, against the above background circumstances. It is not necessary to consider the

remaining grounds since, on this ground alone the court will set aside the sentence actually imposed.

As to the appropriate sentence to be imposed, firstly the court is not satisfied that there is any true or valid comparison between the

case of DPP v Campion and that of the applicant, invoked by Mr. Lewis on behalf of the applicant, on the grounds that he was

convicted on the same day as the applicant, by the same judge, and in respect of the offence of threatening to kill. While at first

glance it is an attractive proposition, the respective circumstances of each crime are quite different. In the case of Campion, he was

on remand and got involved in a scuffle in which he was restrained by prison officers and in the course of that he threatened to kill

one of them, indicating that he knew something about the prison officers’ routine and that he had a family. Apart from the fact that

he pleaded guilty, he also apologised to the prison officer - who sometimes find themselves in very heated situations in prisons or

similar places - and had apologised in writing making what the learned sentencing judge called “a fulsome apology”. The apology and

the plea made it clear that there could be no suggestion of any continuing threat, nor, it would appear, did the prison officer have to

have police protection over a protracted period of time. Even if the learned sentencing judge indicated that he considered, if found

guilty by a jury, a five year sentence would be appropriate for that particular offence, it does not follow that that is the maximum

period of time to be imposed in respect of any threatening to kill charge, such as the one under consideration. Counsel for the

applicant also stated, but without adducing any material in support thereof that his legal team’s research had shown that in a very

large number of cases no sentence in excess of three years had been found to be imposed for this offence. Having regard to the

gravity of the charge, the nature of the charge, which arose when Ryan Lee was lawfully carrying out his job by refusing entry into a

night club of the 14 year old sister of the applicant (on valid grounds) the effect which the threat had on the victim, the necessity

for him to have continuing protection, and the finding that the threat was a continuing one and was perceived to be so, the court is

of the view that this threat to kill, was a very serious crime indeed, one which falls at the upper end of the scale for that crime,

certainly meriting a sentence in the region of eight years. The applicant did tender some admissions to the prosecution which

assisted, in some relatively small way, the trial and its management, but on the other hand persisted at all times in denying that the

events occurred at all. He was of course entitled to do so, and suffers no disadvantage by doing so, in terms of any aggravation of

sentence, but neither can he seek to have the type of benefit which is granted in the case of a guilty plea, or in the case of genuine

and early remorse, such as occurred in the Campion case. The court is also entitled to have regard to the earlier convictions of the

applicant for similar or analogous offences as an aggravating factor.

It is true that counsel for the applicant has stated that the applicant intends to return to the United Kingdom after serving any

sentence which might be imposed. That may well be, but in the present case, this is not a factor which this court considers ought to

be of significance or importance in fixing the sentence which the court considers appropriate, having regard to the seriousness of the

crime, and the personal circumstances of the applicant. The very minor assistance of the admissions made, and the personal

circumstances invoked merit some small reduction in the sentence.

Overall, having regard to all of the foregoing, the court imposes a sentence of seven years.