Court of Criminal Appeal dismisses appeal where jury was properly directed to acquit unless guilt was proven beyond reasonable doubt.

THE COURT OF CRIMINAL APPEAL

Macken, J.

Budd, J.

O’Keeffe, J.

[282/2008]

BETWEEN:

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

-v-

MANTAS PAULIUKONIS

Applicant

Judgment of the court delivered on the 2nd day of December 2009 by Macken, J.

The applicant was convicted of the murder of a man, Alexandra Filusins, outside a nightclub in Swords in County Dublin, arising out of

events which occurred on the 2nd and 3rd June, 2007. His trial took place over a week, commencing on the 7th October, 2008 at the

Central Criminal Court in Dublin, and he was found guilty on Count No. 1 of murder. On conviction, he was given the mandatory life

sentence.

He appeals from the conviction on several grounds, which the court will deal with in due course.

Background Facts

The applicant, his uncle and two others, who were brothers, arrived at the nightclub in Swords before midnight on Saturday the 2nd

June, 2007. They arrived by car, an Audi with a soft top and a Lithuanian registration. This car was owned by the applicant. He was

known to the head of security at the nightclub and to other staff members.

The deceased had also attended the nightclub as well. At sometime before 3a.m. on the morning of the 3rd June, 2007 there was an

altercation outside the nightclub. This did not initially involve the deceased, but a different man who, on the evidence, had got into

the applicant’s car to get a lift home, when a row developed. He got out, or was put out, of the car and was beaten by some or

other of its occupants. The deceased intervened to the extent that he was alleged to have struck one of the other men involved, the

uncle of the applicant. The deceased was dressed distinctively, as he was wearing a denim jacket and a red baseball cap at the time.

A little later a further event occurred in the rear garden of a house, at Oaklands Avenue in Swords, referred to above. The owner saw

three men leaving by a gap in the hedge at the end of the garden, and asked his girlfriend to call the Gardai. He then went downstairs

and discovered the deceased lying outside the back door of his house. Upon the arrival of an ambulance he was found to be

unconscious and covered in blood, with a wound to his leg. The deceased was brought to Beaumont Hospital, where stab wounds

were diagnosed and he was then transferred to the Mater Hospital. He was pronounced dead at 9.48 p.m. on the 3rd June, 2007. The

cause of death upon post mortem examination was given as multiple stab wounds, including a severed artery in the thigh.

The applicant was arrested two days later, on the 5th June, 2007 and was charged with murder. In the course of interview, he denied

he had been at the nightclub on the date in question or that he had even been in Swords. However, during the trial, in the course of

the evidence of a particular witness, a formal admission was made on behalf of the accused that he was in fact present in the

nightclub in Swords on the night in question.

The Trial

The prosecution case was that after the applicant’s uncle had been punched, the applicant set out with the others mentioned above,

to locate the deceased. Witnesses described the applicant enquiring from his uncle as to who had injured him, and being told it was

the man in the red hat. . The applicant and the others went looking for the man described. The applicant was also seen with a

[butterfly] folding knife in his hand. The man with the red hat was located in the back garden of the house mentioned above. A

witness had seen two or three men entering that garden. The man with the red hat was stabbed repeatedly while in the garden. The

occupant of the house saw three men walking away. Shortly after this, the applicant, his uncle and one of the other two men arrived

back at the disco, on foot. The applicant spoke to the Head of Security, a Mr. Kuliavas. His evidence on one particular issue is of

considerable importance, and the court sets it out. In his examination in chief the following exchange took place with counsel for the

prosecution:

Q. “Did you look at the injury to the older guy?

A. I did, yes.

Q. What did you notice?

A. Two teeth were missing, the lip was burst open, it was bleeding. Basically, that is it.

Q. Now, did you ask these three men anything, and if so, tell us what you asked them please.

A. I asked them what happened, you know, like, in the meantime, and the defendant himself, he was basically upset

about the car being stopped and them having to walk at that time already and, I don’t know, as a comforting kind of

thing to himself, he told me that “Well, at least we caught him”, so I asked him, “Who did you catch?”. And he goes,

“The guy that did it.” He answered that –

Judge: Just wait for one moment. Is there any difficulty here?

Mr. Sweetman: Well two things seem to have run together. I will let it go for the moment.

Mr. Clarke: When he said they caught the guy that did it, what did you understand it to mean? Did what?

A. I asked him what happened and in Lithuanian slang language, they said that they stabbed him up.

Q. What did you understand – who did you understand them to mean that they stabbed up?

A. The deceased. The guy that wore denim and a red baseball hat.”

After a few other questions, not relevant to this issue, the examination in chief continued:

Q. “When the accused said what you have said about stabbing up the man in the red hat, how was he? How did he seem

to you? Did you form any impression of him?

A. He was just cool with it.”

Later in the course of cross examination, the same security guard was asked the following questions:

Q. “Now, you see you have said these men said in Lithuanian slang that they stabbed him up. Now, I am only concerned

with Mr. Pauliukonis, and I have to suggest to you that what he said was that he had seen him being stabbed?

A. No.

Q. You don’t agree with that?

A. No.”

An application was made at the end of the prosecution evidence for the case to be withdrawn from the jury on the basis that there

was insufficient evidence to go further. Counsel argued that, even taking the prosecution case at its highest point, there was not

sufficient evidence to ground a safe conviction. Firstly, although a witness gave evidence of the applicant having a knife, his

identification evidence of the applicant was poor. Secondly, as to the conversation with Mr. Kuliavas, he emphasised that what was

said in Lithuanian slang was that “they said, we stabbed him up”. He said no one identified who “they” were. As an alleged admission

by the applicant to implicate him, it was argued that this was very vague and uncertain. Counsel also based his application on the

absence of any intention to kill or even cause serious injury, and on there being evidence to explain why the applicant had lied to the

gardai during the course of the interviews.

The prosecution resisted the application, on the basis, inter alia, of the extent of the wounds to the deceased, Counsel said the

evidence was that even apart from the stab wound to the artery, the combination of bleeding from the other 8 or 9 wounds alone

could result in the blood loss, and came within the definition of serious injury. Further, there was a presumption that an accused

intended the natural and probable consequences of his acts, which in this case was the serious injury of the victim. Counsel for the

prosecution also said that while it was the prosecution case that the applicant had killed the deceased, it was clear there was a

common design in that three or four of the men set off in pursuit of the victim, and he referred also to other evidence in support of

this, including what was said to Mr. Kuliavas. It was argued that a question put to the latter witness in cross examination on behalf of

the defence suggested that while the applicant might have been at the scene, what he had said to this witness, Mr. Kuliavas, was “I

saw him being stabbed”.

The learned trial judge rejected the application for a direction. He drew attention to the fact that the real question at issue was

whether a jury properly directed could, but not necessarily would, return a safe conviction on the evidence. He considered that the

prosecution was not precluded from advancing arguments that arise from the facts that have been established or that he contends

have been established and considered that the evidence adduced to date was sufficient for the case to go to the jury.

The closing speeches were thereafter made in the usual way, and the judge charged the jury, who returned the guilty verdict

mentioned above.

Grounds for leave to Appeal

From the conviction the applicant sought leave to appeal on six grounds. They may be briefly stated as follows:

(1) The learned trial judge failed to withdraw the case from the jury at the close of the prosecution case. In particular, he

wrongly found that the jury would be entitled to find that a conversation between the applicant and the head of security

constituted an admission by the accused of his involvement as a participant in the stabbing;

(2) The learned trial judged erred in law in holding that the prosecution was entitled to rely on joint enterprise or common

design, even though the accused was the only person on trial and the case for the prosecution had been opened to the

jury on the basis that the applicant was the person solely responsible for the death of the deceased;

(3) The learned trial judge erred in instructing the jury as to the consequences of a finding by the jury that the

prosecution had proved the case beyond reasonable doubt, the jury was obliged to convict the applicant, which the

applicants claims deprived the jury of the power to return a verdict of “not guilty”;

(4) The learned trial judge’s charge was deficient in that it did not give an adequate direction on the law concerning the

concept of joint enterprise/common design;

(5) The learned trial judge erred in his charge in referring to “three together” deciding to attack the deceased, such

reference being based on a presumption/finding of fact that three persons had participated in the attack on the

deceased, and thereby discounting the possibility of a finding by the jury that a greater or lesser number of persons had

been involved;

(6) The trial was, in the circumstances, it is alleged, unsatisfactory and the verdict unsafe.

Grounds One and Two

It became clear during the oral hearing that only grounds one, two and three were being pursued, Mr. Sweetman, senior counsel for

the applicant, indicating that in his view ground four was sufficiently encapsulated in ground two. The above two grounds are dealt

with together by the applicant in his submissions and the court does so also. It is alleged that the case ought to have been

withdrawn from the jury at the end of the evidence of the prosecution and that the learned trial judge erred in law in failing to do so.

This is based on the matters arising in evidence mentioned briefly above. The first is that, as a result of a statement by the senior

security guard of what was said to him by the applicant, the prosecution contended the applicant had admitted his involvement in the

murder. Senior counsel for the applicant argues that because of the use of the language by the senior security guard, it could not be

said that there was any admission by the applicant of any part in the murder, the argument being based on his statement:

“I asked him what happened and, in Lithuanian slang language, they said that they stabbed him up.”

Clearly, it is submitted, this could not be read by a jury properly instructed, as being an admission of any kind of the applicant’s part.

The so called admission referred to “they said” and was so wholly ambiguous that it would be wrong, in law, to allow it go to the jury.

As to the second basis for the application on these grounds, it is argued by counsel that a trial based on common design is something

which the prosecution should have relied upon in their opening, but had not done so. The decision had been made to proceed against

the applicant solely and no one else was charged with the so called common design murder. The prosecution should not be permitted

to rely on this at a later stage in the proceedings since this was not the basis on which the trial commenced and the accused was

entitled to know the case being asserted, the prosecution not being permitted, in effect, to change tack during the trial. It was a

question of a fair trial, and the Director was obliged, according to the case law, to ensure this.

Counsel for the Director argues that there was ample evidence upon which the learned trial judge could permit the matter to proceed,

and there was no error in law in doing so on either ground.

Conclusion

It seems to the court that the learned trial judge’s decision on these grounds was well founded and entirely based on a correct

approach to the issues raised. He rightly considered that it was an issue for the jury to decide whether the words were spoken, and if

so, what they meant. It seems to the court that if one translated what the security guard said, in direct terms, (and he was

answering a question concerning the accused’s response): he said, "they told me they etc.". The "they" could well mean the accused

alone, or it could mean all three were speaking together, or it could mean all three spoke one after the other. It does not follow that

the jury could only understand the particular response as being indicative of the fact that one of the other two actually did the

stabbing. The learned trial judge found, properly, that a jury would be entitled, but not obliged, to take that conversation with the

security guard into account, in determining whether the applicant admitted the murder or not.

The learned trial judge also found correctly in the view of this court, that as to common design, the prosecution should not be

precluded in advancing arguments that arise from facts as established. The issue of common design was not the prosecution’s

approach to the case. The prosecution was asserting that it was the applicant, and he alone, who committed the murder although he

with two others, at least, went searching for the deceased. In the course of the trial, and more importantly in the course of cross

examination, however, the defence put forward the case that the applicant had only said he had “seen” the stabbing, raising the

possibility that it was one of the others who stabbed the deceased. The court can find no basis in law why, in such circumstances,

the prosecution would not be entitled to argue the same for the purposes of defeating the applicant’s submission that the case be

withdrawn from the jury. It might even be said that, once this issue was raised by the defence, the prosecution was obliged to retain

it in the picture, so to speak, for the benefit of the defence. The applicant has, not surprisingly, been unable to cite any authority to

support the contention that the prosecution may not invoke in its favour the issue of common design arising, as it did in this case, in

the evidence as tendered.

The learned trial judge found, putting the matter in its correct context that the direction sought should not be acceded to. The court

finds there was ample evidence upon which the trial judge could, acting properly and judicially, reject the application, and allow the

matter to proceed, on either of the first two grounds of appeal. These grounds are rejected.

Ground 3: The allegation that the learned trial judge charged the jury that it was obliged to convict the applicant

if satisfied that the prosecution had proved its case beyond reasonable doubt:

This ground arises out of part of the learned trial judge’s charge. It is important in the context of this ground to set out what he said:

“… unless you reach a degree of confidence that you don’t feel that somebody is going to disconcert you by presenting

to you an argument that you haven’t taken fully into account, then you can’t be satisfied beyond reasonable doubt. I

suppose in practical terms what that means is this, that obviously if you think that the accused is innocent then quite

obviously you acquit him. Almost as obvious as if you are not sure one way or the other and you don’t know whether he

is guilty or not guilty then you acquit him. If you think he is probably guilty but you are not sure, you are not sure

beyond reasonable doubt, then your solemn obligation as jurors is to acquit him. It is only if the prosecution has gone

that extra mile and only if the prosecution has satisfied you beyond reasonable doubt that you would convict and of

course if they have gone that extra mile and if you are, in fact, satisfied beyond a reasonable doubt that the accused is

guilty of one or both of the offences with which he is charged then in that situation and only that situation would be your

obligation to convict”.

Counsel for the applicant argues that in charging the jury as he did, the trial judge deprived the jury of its entitlement to return a

verdict of “not guilty”, even if such a verdict might fly in the face of the evidence. Counsel relies on the decision of this court in

People (DPP) v Nally, unreported, CCA.,12 October 2006, in that regard. He submits that in the latter case, the principles enunciated

by Henchy, J., in DPP v O’Shea [1982] I.R.384 were reiterated and applied. While the court was furnished with an O’Shea case in the

book of authorities, this was a 1983 decision and on a different point also found in the written submission. The 1982 decision was not,

however, furnished and the court decided to adjourn delivery of this judgment for a short period of time until it had an opportunity to

consider the judgment of Henchy, J, and its appropriate impact on the present application.

There was, not surprisingly, no requisition raised in relation to this aspect of the charge, or indeed on anything in relation to the

charge. The rules deriving from, inter alia, DPP v Cronin apply here. But even if they did not so apply, as Mr. Sweetman suggests they

should not, the court is nevertheless satisfied that the ground is, for the reasons set out below, not a sustainable one.

In the case of DPP v O’Shea, supra., this concerned an entirely different matter, and was dealt with on the basis of a preliminary

issue. The accused had been found not guilty by direction of the learned trial judge in the High Court, and the respondent had

appealed directly to the Supreme Court on that issue. That court decided that an important preliminary issue, that is to say, whether

or not the State could mount an appeal against an acquittal, was to be determined. The majority of the court determined that there

was a right of appeal from the decision in question. It was in the context of his dissent from that majority decision that Henchy, J.

obiter, dealt, inter alia, with the position under the Constitution, with foreign jurisdictional law, and in the latter context, he posited

the basis for the distinction between an appeal against conviction and that against acquittal, in which he made the statement

adopted by Kearns, J. in the case of DPP v Nally, supra.

It seems to this court that the O’Shea case did not decide anything in relation to the charge of a judge to a jury, or what its content

might be. As to the case of DPP v Nally, supra., that was a case in which the learned trial judge had, in the only part of his charge

dealing with the question of the choices available to the jury, limited and circumscribed the ambit of the possible verdicts which the

jury could consider to murder or manslaughter . It was clear that the learned trial judge had not been given any guidance by counsel

as to how he might approach the matter, where the defence of self defence was an issue for the jury. In the extract applied by

Kearns, J. in that case, in which the learned trial judge had withdrawn altogether the possibility of a verdict of not guilty, Kearns J.

stated:

“On the hearing of the appeal, counsel for the applicant argued that once the issue of self defence has been raised,

either by way of evidence directly provided by the defence or based on evidence adduced as part of the prosecution

case, it then became an issue solely and exclusively for determination by the jury and that the trial judge was not

entitled to truncate the defence in the manner which he did. Counsel argued that while the judge was entitled to express

a view in relation to the facts, he was precluded from directing that the evidence adduced was sufficient to require a

particular verdict one way or the other. That being so, the trial judge in this case was not entitled to deprive the jury of

the option of considering whether the force used by the applicant was objectively reasonable, nor was he entitled,

where no unlawful killing had been admitted, to direct the jury that they must find the applicant guilty of either murder

or manslaughter, or indeed of any offence.

….

Having cited the above passage from the judgment of Butler J. in The People (A.G.) v Christopher Dwyer, the learned

trial judge continued:-

“So that is your battle ground in respect of the question of self-defence. I have ruled that the amount of force here

cannot objectively be justified, but if you find that the accused man in a situation was using no more force than he

considered reasonably necessary in the circumstances prevailing, murder would not be made out and the unlawful killing

would be manslaughter.”

It will be apparent that two questions arise as a result of the ruling and direction given by the learned trial judge in this

case. They are:-

(a) May the trial judge allow a limited form of self-defence only to be considered by the jury, notwithstanding that

the defence wish that the entire issue of self-defence be considered by the jury?

(b) Is the trial judge entitled, on facts such as those established in the present case, to direct the jury effectively

to bring in a verdict of guilty of either murder or manslaughter, shorn of any possibility of a verdict of not guilty?”

(emphasis added)

It will be seen that what had occurred was that the trial judge had, wrongly, directed the jury effectively to bring in a verdict of

guilty of either murder or manslaughter, short of any possibility of a verdict of not guilty.

The position is not altered either by the decision of Finlay, C.J., in DPP v Mark Davis [1993] 2 I.R. 1, where he adopted the comment

of Henchy, J. mentioned earlier. He correctly stated at p.13:

“It is the actual direction to the jury, leaving to them no discretion or function in the matter to enter a verdict of guilty

which I am satisfied is clearly unconstitutional. It is open to a judge in an appropriate case to express an opinion that a

particular verdict of guilty is the only one which would be reasonable or proper on the evidence, but that must of

necessity fall short of the right to direct a verdict of guilty.”

That was a case in which the learned trial judge had directed the jury that they must return a verdict of murder. The headnote reads,

in its relevant portions, as follows:

“In his charge to the jury, the trial judge directed them that the prosecution had established beyond a reasonable doubt

that alcohol had not prevented the accused from forming the intention to cause serious injury, and that they must

therefore return a verdict of murder. The trial judge concluded his charge by asking the foreman to sign the order paper

there and then, but following intervention from counsel, the jury were permitted to retire.

The jury returned to ask if the verdict had to be unanimous, and the trial judge told them that they must all agree to

follow his direction to find the accused guilty of murder. The jury then returned that verdict.”

It is scarcely surprising to find the above comment of Finlay, C.J., against that factual background. The jury had been directed to find

a particular verdict of murder, without any proper charge as to acquittal or otherwise.

Here the position is quite different, as is clear from the above extract from the charge of the learned trial judge. A full reading of the

charge, in this regard, shows that the learned trial judge carefully set about ensuring that the jury would understand full well the

importance of not convicting unless they were satisfied beyond reasonable doubt of the guilt of the applicant. Having directed the

jury extensively as to the various stages they might reach in their decisional process, it was only when they were satisfied that the

prosecution had established guilt beyond reasonable doubt, could they then convict him. The learned trial judge carefully and clearly

put before the jury the several possibilities open to them, emphasising that they must acquit in certain circumstances, or that where

they have a genuine, actual doubt still, then they were obliged to acquit, and that it was only after they had disposed of all possible

grounds upon which they could acquit, “and only then” should they turn to conviction. The law is well established that the charge

must be read as a whole, is not required to be formulaic in terms, and must be tailored to the evidence in the case. It was so in the

present case. The court is fully satisfied that this was an acceptable charge to the jury, and did not wrongly circumscribe its role in

any way. That it was so is supported by the fact that neither the precise tenor of the charge nor its wording was such as to suggest

to experienced counsel that it was in the least deficient.

Ground 4

Although this ground was dealt with in the written submissions, Mr. Sweetman, correctly in the court’s view, did not press the issue,

leaving it as part of his overall submission under Ground 2. That ground has been rejected by this Court.

The remaining grounds were not canvassed in the written submissions. The application for leave to appeal, in light of the foregoing, is

rejected.