Court of Criminal Appeal refused leave to appeal manslaughter conviction where assault was a substantial cause of death.

COURT OF CRIMINAL APPEAL

128 of 2008

Finnegan J.

Dunne J.

McCarthy J.

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

.v.

EDWARD DALY

APPLICANT

Judgment of the Court delivered on the 29th day of July 2009 by Finnegan J.

The applicant was charged with two offences as follows:-

Count 1 – manslaughter, the particulars of the offence being that he did on the 24th day of July 2005 unlawfully kill Patrick Ryan.

Count 2 – assault causing harm contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997, the particulars being that the did on the 24th

day of July 2005 assault Patrick Ryan thereby causing him harm.

The applicant’s trial commenced on the 23rd October 2007 but on the third day thereof the jury were discharged owing to the non-availability of a

prosecution witness Dr. Odeh-Odeh. The second trial commenced on the 1st April 2008 and, on being arraigned, the applicant pleaded not guilty to

manslaughter but guilty to assault. On the 4th April 2008 the jury returned a verdict of guilty on the count of manslaughter. The applicant seeks leave to

appeal against his conviction on the count of manslaughter.

The Factual Background

On the 24th July 2005 the applicant assaulted Patrick Ryan in the men’s toilet of licensed premises in Waterford. There was no evidence as to the nature of

the assault but the applicant admitted that he had head-butted Mr Ryan on two occasions. The evidence was that Mr Ryan sustained a fracture injury to his

nose, a possible dislocation injury to one finger, a cut lip and bruising to his chest and abdominal areas. On emerging from the men’s toilet Mr Ryan was

bleeding profusely. He was taken to Waterford Regional Hospital where he was treated approximately two hours after the assault. At 11.00 p.m. he came

under the care of Dr Odeh-Odeh who noted that he was in moderate distress but orientated in time, place and person. Having attended to Mr Ryan’s injuries

Dr. Odeh-Odeh administered Augmentin, a broad spectrum antibiotic, to guard against the risk of infection. At 2.20 a.m. Mr Ryan collapsed having suffered

an apparent cardio-respiratory arrest. He was resuscitated, intubated and ventilated and transferred to the Intensive Care Unit. He never regained

consciousness and remained comatose until the 10th September 2005 when he suffered a further cardio-respiratory arrest and died.

Grounds of Application

The grounds of application relied upon are as follows:-

(a) Permitting the prosecution to adduce evidence in chief in relation to Augmentin.

(b) Failing to accede to an application for a direction at the close of the prosecution case.

(c) Failing to accede to an application to withdraw the case from the jury at the close of the entirety of the evidence.

(d) Directing the jury incorrectly as to causation.

It is proposed to deal with each of the grounds in sequence:

Permitting the prosecution to adduce evidence in chief in relation to Augmentim.

The applicant’s first trial commenced on the 24th October 2007 but the jury were discharged on the 25th October 2007 due to the unavailability of a

prosecution witness, Dr. Odeh-Odeh. Mr John Hegarty, Consultant Surgeon at Waterford Regional Hospital, gave evidence for the prosecution and was

cross-examined on behalf of the applicant to the effect that the incidents of cardio-respiratory arrest and the death of Mr Ryan had been caused by the

administration of penicillin or penicillin based medication to which Mr Ryan was allergic. Shortly before the commencement of the second trial the applicant

was served with notice of additional evidence containing an additional statement of evidence from Mr Hegarty and an additional statement from Dr. Moore,

Mr Ryan’s General Practitioner. In short the effect of Mr Hegarty’s report was that the nose bleed and consequent loss of blood suffered by Mr Ryan was a

factor in his cardio-respiratory arrest on the 25th July 2005. Dr. Moore’s statement was to the effect that Mr Ryan had previously received Augmentim and

had not suffered any adverse reaction.

The applicant’s submission in short is this. At the first trial in cross-examining Mr Hegarty the applicant had “shown his hand”. That trial being aborted it

was in breach of basic fairness for the respondent to mend its hand. Reliance is placed on The State (O’Callaghan) v Ó hUadhaigh [1977] I.R. 42. The

prosecutor there was charged with ten counts and, when arraigned, entered a plea in bar. Following legal argument the trial judge indicated that in his view

only one count could proceed. Upon that indication counsel for the Director of Public Prosecutions entered a nolle prosequi on all counts. The prosecutor

was discharged but re-arrested and charged in respect of the same ten counts with which he had originally been charged. Finlay P. categorised the

respondent’s contention as follows:-

“If the contention of the respondent in this case is correct, then it means that in any criminal trial the Director, on meeting a situation

in which a ruling or proposed ruling by the trial judge on a matter within his discretion at the trial is unsatisfactory, from the point of

view of the prosecution, can deal with that problem by entering a nolle prosequi and so avoid the consequences of technical matters

that may have arisen in the course of the proceedings up to that time by instituting an entirely fresh prosecution freed from, or cured

of, the difficulties which have arisen and which are likely to favour the accused.

In the course of his judgment in The State (Healy) v Donoghue [1976] I.R. 325 the Chief Justice said at p.348 of the report:-

‘In the first place the concept of justice, which is specifically referred to in the preamble in relation to the freedom and

dignity of the individual, appears again in the provisions of Article 34 which deal with the Courts. It is justice which is to

be administered in the Courts and this concept of justice must import not only fairness, and fair procedures but also

regard to the dignity of the individual. No Court under the Constitution has jurisdiction to act contrary to justice.’

Mr Justice Gannon in his judgment in this matter in the High Court said:

‘Before dealing with the submissions on the grounds on which the conditional orders were made, I think I

should say at the outset that it appears to me that the determination of the question of whether or not a

court of local and limited jurisdiction is acting within its jurisdiction is not confined to an examination of the

statutory limits of jurisdiction imposed on the court. It appears to me that this question involves also an

examination of whether or not the court is performing the basic function for which it is established – the

administration of justice. Even if all the formalities of the statutory limitation of the court be complied with

and if the court procedures are formally satisfied, it is my opinion that the court in such instances is not

acting within its jurisdiction if, at the same time, the person accused is deprived of any of his basic rights

of justice at a criminal trial.’

I agree with these views.

If this statement of principle (which of course, I unreservedly accept) applies to the proceedings of a court in trying a

criminal case, it appears to me that the same analogous principles must apply, a fortiori, to the exercise by the Director

of Public Prosecutions of his statutory powers, and to the interpretation by me of those statutory powers in any particular

circumstance.”

Finlay P. concluded that the contention of the Director involved a basic unfairness if during a trial difficulties were being encountered the Director could enter

a nolle prosequi and commence again: no such facility was available to an

accused. On the facts of the case there was a basic unfairness of procedures and in consequence the conditional order of prohibition was made absolute.

However the facts of the particular case relied upon by Finlay P. are quite different from the present. The prosecutor had been in custody for more than six

months, had been through the entire procedure of a preliminary examination and returned for trial. He had been subjected to a number of adjournments in

the Circuit Court. His trial had been transferred to the Central Criminal Court. By the time the trial was due to commence solely by reason of the procedures

adopted by the Director a situation had arisen in which he could be tried on one count only. The prosecutor having undergone the criminal process to that

extent and having succeeded in having the issues to be tried confined, by entering a nolle prosequi the Director could set all that at nought and start afresh.

In the present case the non-availability of Dr. Odeh-Odeh only came to light after the commencement of the first trial. There is no suggestion that the

collapse of the first trial was caused by any deliberate act of the Director. It was not a stratagem to enable the Director to mend his hand. What occurred in

The State (O’Callaghan) v Ó h Uadhaigh was correctly regarded as an abuse of the statutory power to enter a nolle prosequi to avoid the consequences

of the decision which the learned trial judge had indicated he had arrived at. It is, of course, the case that every retrial creates a situation in which the

parties, both prosecution and defence, may mend their hands in the light of what transpired at an earlier trial but this has never been a ground upon which a

retrial should be prohibited: McNulty v The Director of Public Prosecutions & Anor, unreported, Supreme Court 18th February 2009.

The applicant fails on this ground.

Failing to accede to an application for direction at the close of the prosecution case

At the close of the prosecution case counsel on behalf of the applicant applied for a direction on the basis that to succeed on the prosecution it is

necessary for the Director to show that Mr Ryan’s death was contributed to in a meaningful and significant way. The evidence adduced by the prosecution

at its highest, it was submitted, showed that the assault was a contributory factor but not that it contributed in a meaningful and significant way.

The court has reviewed the evidence and in particular the medical evidence led by the prosecution. The test to be applied to that evidence is that set out in

R. v Galbraith [1981] 1 W.L.R. 1039 approved in D.P.P. v M., unreported, Court of Criminal Appeal 15th February 2001. The court is satisfied that there

was evidence and on one view of the same the jury could properly come to the conclusion that the applicant was guilty. The learned trial judge accordingly

was correct to refuse the application at that stage.

Failing to accede to an application to withdraw the case from the jury at the close of the entirety of the evidence

For the applicant Dr. Garry Fitzgerald a Consultant Physician, and Dr. Derek Carson gave evidence on behalf of the applicant. Counsel on behalf of the

applicant then applied to have the case withdrawn from the jury, on the basis that the evidence was in such a state that it would be unsafe to allow the case

to go to the jury in particular having regard to the medical evidence which it was submitted, was conflicting and complicated. The jury were being asked to

determine which version of medical experts evidence they preferred.

Again the law on this application is the same as on an application at the conclusion of the prosecution case. The case should be withdrawn from the jury if

the trial judge is satisfied that no jury properly directed could convict: it is a power however to be very sparingly exercised indeed and only in the clearest

cases.

At the conclusion of the defence case there was conflicting expert evidence. However it is nonetheless the function of the jury to make findings on that

evidence. Once the trial judge is satisfied that there is evidence upon which a jury can properly come to a conclusion that the defendant is guilty, he should

allow the matter to be tried by the jury. Having reviewed the evidence in this case this court is satisfied that there was evidence upon which a jury could

conclude that the assault committed by the applicant on Mr Ryan contributed to Mr Ryan’s death in more than a minimal way, or as phrased, in a

meaningful and significant way. Likewise the learned trial judge having considered the matter overnight was satisfied that there was evidence which could

properly be left to the jury.

The applicant fails on this ground also.

Directing the jury incorrectly as to causation

In The People (Director of Public Prosecutions) v Davis [2001] 1 I.R. 146 the evidence showed that the deceased had been assaulted by the applicant. A

number of alternative causes of injury were canvassed. The cause of death was heart failure secondary to severe shock which was the cumulative result of

injuries described in evidence. In the course of the judgment the court said:-

“It seems overwhelming probable that the applicant’s attack was the sole cause of all significant injuries. In point of law, however, it is unnecessary to go

so far: it is sufficient if the injuries caused by the applicant were related to the death in more than a minimal way.

The learned trial judge, in the present case, directed the jury in the following terms:-

“In a case like this, assault/manslaughter, the injury sustained has to be the substantial cause of death. The injuries don’t have to be the sole cause of

death or even the immediate cause of death. In fact in this case we know the cause of death was pneumonia, brought on by the fact that Mr Ryan had

been in a coma for six weeks and six days. The issue you have to try and decide upon is, did the assault causing harm, to which the accused pleaded

guilty, contribute in a substantial or significant or meaningful way to Mr Ryan’s death.”

The charge given by the learned trial judge is in accordance with the approach suggested in The People (Attorney General) v Gallagher [1972] 1 I.R. 365.

This court is satisfied that the addition of the words “significant” or “meaningful” to substantial do not detract from the meaning of substantial. In R. v

Cheshire [1991] 3 All E.R. 670 the Court of Appeal considered that the word “significant” conveys the necessary substance of a contribution to be made

which is more than negligible. This court would agree.

A requisition was raised by the prosecution in relation to the first sentence – that the correct test required the injuries sustained to be a substantial cause

of death and not the substantial cause of death. A requisition was raised on behalf of the applicant that it would have been sufficient if the learned trial judge

had confined the test to “substantial” without extending it to significant and meaningful. The learned trial judge did not accede to either requisition.

In The People (The Attorney General) v Gallagher [1972] 1 I.R. 365 Kenny J. dealt with causation as follows:-

“Problems of causation have been the subject of argument in universities and in law courts for centuries and it is important that the jury should not be

confused by refined distinctions between material, effective, substantial and predominant cause. If they are told that they must be satisfied beyond

reasonable doubt that the dangerous driving was one of the causes which contributed in a real way to the death or serious bodily harm and that they must

decide this by applying principles of common sense, they will understand the issue which they have to try. This is, in our view, the correct construction of

the section. It is not a matter which can be reduced to a formula because questions of causation will always be complex.”

The court is satisfied that the learned trial judge has charged the jury correctly and clearly stated the law as set out in The People (Director of Public

Prosecutions) v Davis and The People (Attorney General) v Gallagher. Accordingly leave to appeal on this ground is refused.

Disposition

The applicant is refused leave to appeal.