Court of Criminal Appeal dismisses appeal regarding jury instruction on moral certainty standard of proof.

THE COURT OF CRIMINAL APPEAL

[CCA no.: 132/10]

O’Donnell J.

Moriarty J.

Hanna J.

Between:

Director of Public Prosecutions

PROSECUTOR/RESPONDENT

V

David Curran

ACCUSED/APPLICANT

Judgment of the Court delivered on the 14th day of December 2011 by O’Donnell J.

The Facts

1 On the evening of 23rd February 2008, David Curran (hereafter “the Applicant”) stabbed and killed two Polish men, Pawel Kalite and

Marius Szwajkos, with a screwdriver outside their home at 48 Benbulbin Road, Dublin 12.

2 In relation to the earlier part of the day there appears to be little controversy. The Applicant and four friends, Sean Keogh, Katy

Doherty, Catherine Dempsey, and Stephen McGuirk, spent the late morning and early afternoon hours at a nearby canal smoking

cannabis and consuming alcohol and benzodiazepines. When the group dispersed later that afternoon the Applicant along with his

cousins Stephen McGuirk and Sean Keogh, proceeded to steal a moped and set it on fire in the nearby park. The Applicant had taken

a screwdriver from the stolen vehicle and had left with the intention of breaking into and robbing nearby factories. By this time the

Applicant, who had a history of drug abuse, had consumed a considerable amount of alcohol and taken roughly 15-20

benzodiazepines.

3 Meanwhile at the Drimnagh Takeaway, located on Benbulbin Road, a scuffle had broken out between Stephen McGuirk and Pawel

Kalite. It appeared that Mr McGuirk had brushed against Mr Kalite outside the takeaway. Mr Kalite had taken offence, and a scuffle

ensued. Katy Doherty and Catherine Dempsey joined in the altercation. Mr Kalite had fallen to the ground, and all three young

individuals began to kick him while on the ground. The fight broke up when the Applicant’s father arrived at the scene and escorted

his nephew, Stephen McGuirk away from the takeaway. At that time, Mr Kalite got up and walked back up to his house at 48

Benbulbin Road.

4 Moments later, the Applicant was seen running to the takeaway with the screwdriver in his hand. In his interview at the garda

station a few days after the incident, the Applicant admitted that he had received a call from Katy Doherty telling him that his cousin

had been in a fight with a Polish man outside the Drimnagh Takeaway. Ms Doherty confirmed this account in her evidence at the trial.

However, when the Applicant came to give evidence at the trial he claimed that he had no recollection of any phone call from Ms

Doherty. Instead he said that he had received a phone call from Stephen McGuirk, telling him that his father had been stabbed. The

Applicant contended that it was this call and this news that brought him to the scene of the takeaway. The phone records from that

evening obtained from Ms Doherty’s phone indicated there were four phone calls placed from that phone to the Applicant’s phone

immediately prior to the Applicant’s arrival at the takeaway. The suggestion made on the Applicant’s behalf at the trial was that Mr

McGuirk might have used Ms Doherty’s phone but there was no positive evidence to that effect. Stephen McGuirk did not give

evidence at the trial.

5 Although there are conflicting accounts as to the source of the phone call and the information given, whatever was said by the

caller was enough to bring the Applicant to the scene of the takeaway. When he arrived at the takeaway there is uncontradicted

evidence that he was enraged and acting in an extremely aggressive manner. He began to attack an occupied car by kicking the

vehicle and attempted to damage it with the screwdriver. Independent witnesses described the Applicant as being “out of control”

and “hopping mad”. One of the occupants of the vehicle recalls the Applicant shouting “was it youse?” to which another individual

responded “it’s not them”. Catherine Dempsey, one of the accused’s companions, gave evidence that when the Applicant arrived at

the takeaway he had been shouting “he stabbed me da”. No other witness could confirm that the Applicant had said anything in

relation to his father being stabbed and it does not appear, even on his own account, that the Applicant took any steps to ascertain

his father’s condition.

6 Once the Applicant had been informed that the individuals in the car were not involved he took the screwdriver and proceeded to

run up Benbulbin Road to number 48. Stephen McGuirk, Sean Keogh, Katy Doherty and Catherine Dempsey followed the Applicant up

the road to the house. By the time the Applicant had reached number 48 three Polish individuals had emerged from the house. The

man who had been in the scuffle at the takeaway, Pawel Kalite, was at the front gate with a female occupant of the house Kamila

Szeremeta, while a second man Marius Szwajkos was further back. The Applicant gave evidence that the two men were shouting in

their own language and “moving towards” him. It was these actions by the two Polish men that the Applicant contends compelled him

to advance towards the Polish people. The Applicant swiped at Kamila Szeremeta and then plunged the screwdriver into the head of

the first victim, Pawel Kalite, who had been standing behind her. Seconds later the Applicant struck the second man Marius Szwajkos

in the head with the screwdriver after Mr Szwajkos had jumped the garden fence to come to the aid of the first victim. The two men

died as a result of the head wounds inflicted by the Applicant. After the two men were struck, the Applicant and his friends fled the

scene.

7 This sequence of events, starting from the moment the Applicant arrived at the Drimnagh Takeaway to the final blow to the second

victim, took place over a course of a 20 minute period starting just after 6.30 pm. There are varying accounts of the interactions

between the victims and the Applicant at the scene of 48 Benbulbin Road. Neighbours who had witnessed the stabbing from their

homes recalled that there had been shouting and confirmed the words or movements made by the victims towards the Applicant. Ms

Szeremeta gave evidence that there was “loud conversation” however she could not confirm that the first victim was moving towards

the Applicant. On the other hand, Ms Szeremeta’s brother Raddek Szeremeta testified that when Mr Kalite emerged from the house,

he did not shout or say anything to the teenagers who were coming up the street. There was evidence that Pawel Kalite changed his

shoes to heavier boots before going out of the house to confront the accused and his companions. That there was a confrontation

there is no doubt. During his evidence, the Applicant recounted that the Polish individuals had been screaming at him in their own

language and that he believed that the two men were moving towards him. When asked what had been going through his mind

immediately before he stabbed the first victim, the Applicant responded by saying “they were coming for me now and that made me

go mad”. In answer to the question “when you stabbed him were you in control of yourself or not?” the Applicant responded “no”.

After objection, the Applicant was asked what he meant when he said he went mad and replied that he had “lost control”. The

Applicant was tried along with Sean Keogh for the murder of Mr Kalite and Mr Szwajkos. He pleaded not guilty. After a 15 day trial in

the Central Criminal Court he was convicted of murder. He now appeals his conviction.

Provocation

8 The main, if not the sole, issue in this trial was whether the accused was entitled to the defence of provocation. It appears that

prior to the landmark decision in People (DPP) v. MacEoin [1978] 1 I.R. 27, provocation had not been the subject of any reported case

in this jurisdiction. Since that date however, the issue has given rise to a significant number of decisions of this Court. See, for

example, DPP v. Kehoe [1992] I.L.R.M. 481, DPP v. Mullane (Unreported, Court of Criminal Appeal, 11th March, 1997), DPP .v Noonan

[1998] 2 I.R. 439, DPP v. Bambrick [1999] 2 I.L.R.M. 71, DPP v. Kelly [2000] 2 I.R. 1, DPP v. McDonagh [2001] 3 I.R. 201, DPP v. Davis

[2001] 1 I.R. 146, DPP v. Doyle (Unreported, Court of Criminal Appeal, 22nd March, 2002) [2002] 3 J.I.C. 2204 and DPP v. Byrne

[2003] IECCA 47/00 (Unreported, Ex tempore, Court of Criminal Appeal, 24th February, 2003) [2003] 2 J.I.C. 2406. The issue has also

been discussed in textbooks including Charleton, Offences Against the Person (Dublin; 1992), Charleton, McDermott and Bolger,

Criminal Law (Dublin; 1999), and McAuley and McCutcheon’s Criminal Liability: A Grammar (Dublin; 2000). In addition, the defence has

been the subject of detailed consideration by the Law Reform Commission in its recent Report on Defences in Criminal Law, LRC95-

2009 (Dublin; 2009) following the Consultation Paper on Homicide: The Plea of Provocation, LRCCP27-2003 (Dublin; 2003). As was

observed by Keane, C.J. in DPP v. Byrne, “…the law [on provocation] has got into a state of affairs which, one can only say, is not

that easy for a lay person to follow: some lawyers have difficulty in following it too…”.

9 It is worth considering some of the sources of the current confusion. Until DPP v. MacEoin, it was accepted, that the Irish law on

provocation was essentially that summarised in the classic direction given by Devlin, J. recorded in R v. Duffy [1949] 1All E.R. 932

namely:

“Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any

reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the

accused so subject to passion as to make him or her for the moment not master of his mind.” (p.932)

The reference to “any reasonable person” makes it clear that this is an objective test.

10 Provocation is unusual in that it operates only to reduce murder to manslaughter. In any other offence matters alleged to amount

to provocation operate only as an element going to sentence. The roots of the defence lie therefore in the history of the mandatory

death penalty and as a consequence, a desire to distinguish between different homicides. One such homicide was where the victim

had in some sense provoked the fatal attack. The historical origins of the defence are important. As Lord Hoffmann put it in the UK

House of Lords decision in R v. Smith [2000] 4 All E.R. 289, the doctrine

“… comes from a world of Restoration gallantry in which gentlemen habitually carried lethal weapons, acted in

accordance with a code of honour which required insult to be personally avenged by instant angry retaliation … (t)o

show anger “in hot blood” for a proper reason … was not merely permissible but the badge of a man of honour.”

(pp.299 and 300)

11 Thus in R v. Mawgridge (1707) Kelyng 84 E.R. 1107-1115 Holt C.J. set out four categories of provocation which operated to

reduce murder to manslaughter; a grossly insulting assault, seeing a friend attacked, seeing an Englishman unlawfully deprived of

liberty, and catching another man in the act of adultery with one’s wife (pp.1114 and 1115). The continued, if controversial,

existence of a defence rooted in such concepts is, itself, perhaps an indicator of continuing belief that the existence of the

mandatory sentence of murder, and the significance of the public labelling of a crime as murder, has continued to create a demand for

a defence which distinguishes between culpable homicides. Even in the archaic examples given by Holt C.J. the modern eye can

detect some of the essential elements of the defence; an action on the part of the victim, often wrongful, which triggers an

immediate reaction in the accused causing that person to immediately lose complete control and during which brief period, and before

they can regain control of themselves, they kill the victim. While not fully excusable the offence is partially understandable, and the

victim’s actions are normally not beyond reproach. In such circumstances, the killer will escape the mandatory death sentence (or

now a mandatory life sentence), but since the wrongdoing involves the intentional taking of the life of another, that will be marked

and punished by a conviction for manslaughter.

12 As time went on the defence appeared increasingly anomalous. There is logical difficulty in contemplating the possibility, under the

pre MacEoin test, of a reasonable man who nevertheless could kill another person in a fit of passion. While a defence of provocation

seemed to show some sympathy with what was almost a caricature of the hot-blooded gentleman quick to take offence, and equally

quick to act decisively and lethally, modern society finds it hard to sympathise with or understand the concept of defending one’s

honour, or that of another, by the intentional killing of another person. In the words of modern commentators Neal and Bagaric in

“Provocation: The Ongoing Subservience of Principle to Tradition” (2003) 67(3) Journal of Criminal Law 237-256 at p.247: -

“… (t)he ‘concession to human frailty’ is misguided. We are not that frail after all. Angry impulses do not so

overwhelm us to the point that we become enslaved by them.”

13 At the same time however the wholly objective test, was itself under challenge. In MacEoin, the Court of Criminal Appeal referred

to the fact that the purely objective test had been subject to severe criticism in the dissenting judgment of Murphy J. in the

Australian case of Moffa v. The Queen (1977) H.C.A. 14 and in the then leading text books, such as Smith and Hogan Criminal Law

(2nd edition, pp.213-215) and Russell on Crime 12th edition (London; 1964) (Ch.29), and in an influential article in the 1954 Criminal

Law Review authored by Prof. Glanville Williams: “Provocation and the Reasonable Man”. The Court drew an analogy with the recent

changes in the law of self-defence, established in The People (Attorney General) v. Dwyer [1972] I.R. 416, and concluded that the

test for provocation ought to be wholly subjective. The test therefore was whether the accused had in fact been provoked to such

an extent that he or she was no longer the master of his or her own mind, and responded by killing the victim. Whether a reasonable

person would have been provoked, and/or considered that a violent response was necessary, was relevant, if at all, only to the

question of whether the accused’s account was to be believed. It is important to remember however that in a criminal trial the

prosecution must negative any defence beyond reasonable doubt, and thus the test which would apply in a trial is whether the

prosecution had proved beyond reasonable doubt that the accused had not suffered a sudden and temporary loss of self control

rendering him or her no longer the master of his or her mind. This involves the prosecution not only in proving the subjective state of

the mind of the accused, but doing so negatively i.e. to exclude any reasonable possibility that the accused was, subjectively

provoked.

14 This ostensibly enlightened approach, apparently in tune with the views of influential commentators, gave rise to a renewed

consideration of some of the traditional limitations on the availability of the defence, such as the requirement of immediacy, and the

fact that intoxication had hitherto been considered irrelevant to provocation. Some of the language in MacEoin however suggested

that if the violence used in response to the subjectively perceived provocation was “disproportionate” then the defence would not

apply. This too came under scrutiny. It was criticised as illogical by Charleton in Offences Against the Person. The point was

ultimately clarified by the decision in DPP v. Kelly where the Court rejected the proportionality qualification. The intersection (or more

correctly the lack of it) between the question of intent to kill, and the defence of provocation was also clarified in DPP v. Bambrick

which made it clear that these were two separate concepts. A person who successfully raised the defence of provocation had, ex

hypothesi, the requisite intent to commit murder. Where provocation applied, the killing was deemed partially excusable and therefore

was reduced to manslaughter. All of these subsequent developments led to a broadening of the defence as established in MacEoin.

15 However, the approach in MacEoin never found favour in other common law countries although all struggled with the defence of

provocation, and adjusted the law to some extent. The development of the law in MacEoin was subjected to a thoughtful and

compelling criticism by McAuley and McCutcheon in Criminal Liability. The authors argued that MacEoin was flawed, and was based on

an incorrect analogy with the law of self-defence. In The People (Attorney General) v. Dwyer it had been held that even a mistaken

belief in the appropriateness of the violence used could give rise to a partial defence of self-defence reducing murder to manslaughter

because it was said it negatived the intent necessary for murder. But in provocation there was no question of a lack of necessary

intent. It was therefore doubtful if the same reasoning could apply. The authors also pointed out that the adoption of a wholly

subjective test for provocation was problematic since it seemed to indulge qualities, which the law ought to deprecate: lack of self-

control; unusual pugnacity and hot headedness; and the holding of morally repugnant beliefs. Provocation essentially represents a

judgement by society that a person, who has otherwise intended to kill his or her victim, should in certain circumstances, neither be

treated nor labelled as a murderer, but rather should be guilty of manslaughter only. That was a societal judgement as to what was or

was not even partially excusable. It was difficult to see why society should include in these circumstances the consequences of

characteristics which a civilised society should more naturally condemn. As the subsequent judgment of this Court in DPP v. Davis

acknowledged, these academic criticisms of MacEoin had considerable force, although it might also be pointed out that if MacEoin had

been correct in rejecting the wholly objective test, but too swift in adopting a wholly subjective approach, it was following an

approach advocated with considerable enthusiasm in what were then the standard academic works.

16 The argument in McAuley and McCutcheon’s Criminal Liability text draws heavily on the development of the law in England and

Wales. A decision of the House of Lords in that jurisdiction, delivered shortly after the decision in MacEoin had reviewed the law of

provocation in that jurisdiction. In DPP v. Camplin [1978] A.C. 705 the House of Lords had addressed the criticism of the wholly

objective approach exemplified in Bedder v. DPP [1954] 1 W.L.R. 1119 and had held that the UK Homicide Act of 1957 had modified

the approach by requiring that the characteristics of the accused should be taken into account by the jury in considering the gravity

of the provocation but that the Court should still judge the accused’s conduct by the standard of self-control to be expected of an

ordinary person of the sex and age of the accused. This qualification of the objective test carries its own difficulties. It was criticised

in R v. Smith [2000] 4 All E.R. 289 which sought to adopt the same standard in relation to both the gravity of provocation and the

self-control exercised, but this view in turn was rejected soon after by a majority of the Privy Council (over the powerful dissents of

Lords Bingham, Hoffmann and Carswell) in Attorney General for Jersey v. Holley [2005] 2 A.C. 580. In the latter case the observation

of Lord Nicholls of Birkenhead at para.27 that; “[t]he widely held view is that the law relating to provocation is flawed to an extent

beyond reform by the courts…” and his plea for urgent comprehensive reform could be applied with even greater force to the law in

this jurisdiction where the law of provocation has until now escaped any statutory reform.

17 Some modern criticism of the law of provocation has suggested that it is an anachronism which cannot be justified in logic. This

type of reasoning has led to the abolition of the defence in the State of Victoria in Australia. There, any question of provocation only

arises in relation to sentence. However, on the other hand, the continued existence of a defence which could reduce murder to

manslaughter still has attractions in some jurisdictions and is arguably necessary where there is a single mandatory life sentence for

murder. Increasingly, it was asserted that the defence could be available in circumstances where it was alleged, for example, that a

battered spouse had killed an abusive husband. In one sense, this was a recognition of the continuing vitality of the underlying theme

in the defence of provocation: the concept that in certain circumstances a conviction and penalty for murder was inappropriate. As it

was put in the dissent in AG for Jersey v. Holley [2005] 2 A.C. 580 at para.44 by Lord Bingham of Cornhill and Lord Hoffmann: -

“It was a humane concession to human infirmity and imperfection, acknowledgement “that by reason of the frailty

of our nature we cannot always stand upright”….”

18 In legal terms, and in the absence of legislative attention, this resulted in pressure to relax the requirement of immediacy, since in

many cases the accused could not point to a single immediate act causing her to lose control. Accordingly, by the late 20th century

the defence of provocation occupied an uneasy intermediate world tied to sometimes anachronistic historical concepts, and yet

seeking to accommodate the demands of a modern society.

19 In that context, the move to a wholly subjective approach, as set out in the judgment in MacEoin, was initially seen as an

enlightened development in accordance with the best academic analyses. However, it has become increasingly clear that the

formulation of the defence in wholly subjective terms is, unless carefully defined and applied, particularly capable of creating a

dangerously loose formulation liable to extend the law’s indulgence to conduct that should deserve censure rather than excuse. The

application of a wholly subjective approach creates more difficulty in this area than the application of the familiar subjective test in

the ascertainment of mens rea. The jury’s inquiry takes place against the structure created by s.2 of the Criminal Justice Act 1964,

that a person is presumed to intend the natural probable consequences of his action. This creates a starting point, and indeed a tool

for analysis that allows the jury to address the assertions of the subjective belief of the accused, against the objective evidence of

his or her conduct, albeit by the standard of beyond reasonable doubt. However, since intent is not an issue in provocation, there is

no similar presumption, or analytical structure. A jury is left with the asserted evidence on behalf of the accused, and an instruction

that a prosecution must negative the existence of such alleged provocation, beyond any reasonable doubt. When it is recognised,

that in many cases (and in this respect the present case is somewhat unusual) there will be only two participants in the incident, one

of whom is by definition by the time of the trial, dead, the difficulties posed for a jury are real and obvious. The increased incidence of

a provocation defence being raised in murder trials, is suggestive more of an expansion of the scope of the defence, rather than a

surprising resurgence of the values and behaviour of “Restoration gallantry”. There is a clear and pressing need for a comprehensive

review of this area, and its interaction with other areas of the law of homicide, and at a minimum, a statutory regulation of the scope

of the defence of provocation.

20 In the meantime, the existing law must be applied. It is apparent from a consideration of the development of the defence that

what at first sight might appear to be antiquated phraseology and fine linguistic distinctions, are of the essence of the correct

approach to the defence, if it is to be maintained within proper bounds. As Lord Nicholls of Birkenhead observed in the UK Privy

Council case of Attorney General for Jersey v. Holley at para.22 it is important that the question for the jury is whether the

provocative acts or words alleged and the defendant’s response, met the standard prescribed in that jurisdiction by statute, and “…

not the altogether looser question of whether, having regard to all the circumstances, the jury consider the loss of self control was

sufficiently excusable.” That warning might apply with even greater force in the Irish context. Since the test in this jurisdiction is

wholly subjective, the jury is not entitled to consider whether the loss of self-control was sufficiently excusable (loose though that

test may be). In such circumstances, the jury would be driven to speculate upon, and perhaps partially excuse, murderous rages by

violent individuals. This would be entirely regrettable. It is the stock-in-trade of every bully from the school yard to the street corner,

to demonstrate a finely tuned sensitivity to imagined slights, and to respond with gross and excessive violence. A principle of law

which instructed a jury to give credence to such a person’s behaviour, and acquit of murder if reasonably possible that such an

account was true, would risk fundamentally divorcing the law from the jury’s, and the public’s, innate sense of justice. There is force

in Lord Hoffmann’s observation in R v. Smith [2000] 4 All E.R. 289 at p.308 that:

“A person who flies into a murderous rage when he is crossed, thwarted or disappointed in the vicissitudes of life

should not be able to rely upon his anti-social propensity as even a partial excuse for killing.”

21 The decision of this Court in People (DPP) v. Davis is very important therefore in providing guidance to courts in ensuring that the

structure for the defence is maintained. It emphasised that it is only those cases where provocation as properly defined as genuinely

being raised that should be permitted to go to the jury. The Court also laid emphasis on ensuring that all the elements of the defence,

and in particular those features which distinguish true provocation from mere uncontrolled rage, are maintained. As the judgment

pointed out, at p.158, provocation will involve focusing “…inter alia, on the distinction between vexation, temper, rage or cognate

emotions and provocation in its technical sense.” A condition of being “vexed” or even “in a rage” does not remotely approach

evidence suggesting the “…total loss of self-control which alone can palliate a fatal assault...” (p.157). On the contrary, it was

necessary that there should be some evidence whose credibility would fall to be assessed by the jury, that, as stated on p.158, “…

the particular accused was in fact provoked to the extent of total loss of self-control, that he killed the deceased while in this state,

in response to the provocation, without there having been time for his passion to cool.” This should also be understood in the

context, that there is a “…minimal degree of self-control which each member of society is entitled to expect from his or her fellow

members: without such a threshold, social life would be impossible.” (p.160). This is important and valuable guidance. In the words of

Hardiman J. at p.158:

“The defence of provocation does not operate in such a way as to allow any person who kills another in a fit of

temper to establish that much and no more, and then defy the prosecution to exclude the reasonable possibility of

provocation. He must show some, even weak or limited, evidence of all the elements of provocation as that phase is

understood in law, and usually this will involve focusing, inter alia, on the distinction between vexation, temper,

rage or cognate emotions and provocation in its technical sense.”

22 In DPP v. Kelly the Court also drew a useful distinction between self-defence and provocation at p.10: -

“Self-defence presupposes the existence in the accused of a calculating mind even if it is a mind operating under

stress. … A successful defence of provocation, on the other hand, presupposes at the critical time, the existence,

not of a calculating mind, but of a mind subject to “a sudden and temporary loss of self-control rendering the

accused so subject to passion as to make him or her for the moment not master of his mind”.”

Finally, as Fennelly J. pointed out in DPP v. Stephen Delaney [2010] I.E.C.C.A. 123, an approach used in the law of self-defence is

also useful in the field of provocation. While the question is subjective, a jury may test the credibility of the defence by asking itself

whether anyone would react in the particular fashion to the provocative acts or words alleged.

23 These distinctions, like those in Davis, are useful in seeking to identify the true nature and proper limits of the defence of

provocation. The present case illustrates however, that the modern emphasis on subjectivity can, without careful control, lead to the

defence being raised in almost any circumstances. The Applicant here, on all the evidence, was already engaged on a trail of

destructive activity long before he received any phone call. He had stolen a moped, set it on fire and appropriated the screwdriver

with a view to further criminality. In his interview he admitted that he had received a phone call from Katy Doherty telling him that his

cousin (and she) had been involved in a scuffle with a Polish man outside the chipper (an account which if given to the accused was

true). Katy Doherty for her part gave evidence in Court that she had made such a call. If all of this was true, then it was indicative of

aggression and revenge rather than provocation. However, when he came to give evidence the accused claimed to have no memory

of receiving any such call from Katy Doherty. Instead he said he had received a call from Stephen McGuirk telling him something which

was untrue: that his father had been stabbed. Whatever information the Applicant received, what he did was to go to the takeaway,

which was the scene of the scuffle of which, on her evidence, Katy Doherty had informed the Applicant. There is uncontradicted

evidence that when he arrived there he was acting in a manner which was extremely aggressive and violent. He attacked an occupied

car by kicking it and attempting to damage it with the screwdriver. He was in the words of one independent witness – words relied on

by the defence – “out of control”, a description which seems amply justified. He then proceeded to number 48, plainly intent on

further violence. At this stage it should be noted that nothing which could remotely constitute provocation emanating from the

victims, had occurred. When three Polish people emerged from the house (two men and a woman) David Curran made a swipe at the

woman with a screwdriver, and then plunged it into the head of the first defendant, Pawel Kalite and seconds later, drove the

screwdriver into the head of Marius Szwajkos.

24 So far, everything pointed to the accused being in a savage and violent rage, fuelled by drugs and alcohol. Nothing suggested that

the accused’s mood or mental state was brought on by anything done or said by the victims of the attack. Given the fact that the

case law shows that the distinction between rage and anger on the one hand, and the total loss of self-control involved in

provocation on the other, is a crucial question, it is more than regrettable that the critical evidence of the accused in this regard was

introduced in response to a plainly inappropriate and leading question. When asked what was going through his head Mr Curran had

said “that they were coming for me now and that made me go mad”. He was then asked “now when you stabbed them, were you in

control of yourself or not?”. Over the entirely proper objection of counsel for the prosecution, the accused answered “No”. The

objection was quite properly sustained by the trial judge. The accused was then asked what he meant when he said he went mad,

and he answered simply “lost control”.

25 This very limited passage of evidence was the entirety of the evidence on the question of loss of control, which nevertheless led

the Court to conclude, correctly, that there was now evidence, in the words of Mr Justice Hardiman, however weak or limited, which

required the jury to consider the defence of provocation. The case advanced on Mr Curran’s behalf however, also had to identify acts

of provocation on the part of the unfortunate victims. This provocation was said to amount to both words and actions. In this case

the words amounted to the evidence that the victims were shouting, in Polish it should be noted. There is no evidence that Mr

Curran, or anyone else other than the victims understood Polish. The alleged provocative actions of the two men were described in

this Court as a “moving towards” Mr Curran. Much effort was then expended on the question again described as “crucial” which was

whether the second victim, Marius Szwajkos, was himself “moving towards” Mr Curran before the first blow was struck. The

combination of the Polish words, and the alleged movement of both accused, was, it was said, what amounted to provocation, and

caused Mr Curran to lose control (something which necessarily implied that he was in control up to that point) and make an attempt

to kill or injure Kimila Szeremeta, and then to kill Pawel Kalite and Marius Szwajkos. Even viewed through the necessarily imperfect

lens of a transcript, such an account is deeply implausible. It is perhaps a perverse tribute to the energy and skill of the defence in

this case as well as to the frailties of the current law of provocation that the issue occupied a trial (admittedly involving more than

one accused) over a period of seventeen days, and a further three days in this Court. This is, however, the essential background of

fact and law, against which the Applicant’s contentions must be considered.

The Judge’s Direction on the Defence

26 On behalf of the accused it was sensibly and realistically accepted that a large part of the judge’s charge was impeccable. This

was inevitable since the judge had emphasised on multiple occasions that the test for the jury was whether the prosecution had

proved beyond reasonable doubt that David Curran had not been provoked by the words and movement of the victims. However, the

Applicant now contends that the judge’s charge was inaccurate and misleading in an important respect which it is said was then

reflected in a single question posed by the jury, and that far from clarifying the matter, the judge’s answer to the question on day 15

was itself defective.

27 The first part of the direction which is criticised occurred on day 14 where the judge said (p.50 of the transcript):

“The only issue therefore with regard to Mr Curran is whether or not he is guilty of murder. In his case there are

two ways in which murder may be reduced to manslaughter. One is if the DPP fails to prove the intent that I have

mentioned, the intent to murder or cause serious injury, and secondly, if the defence of provocation is acceptable

to you. In a murder trial the defence can rely on provocation to reduce the crime of murder to manslaughter. To do

so there must be evidence of words spoken or acts done or a combination of both by the deceased which causes in

the accused person a sudden and temporary loss of self control rendering him so subject to passion as to make him

for that moment not master of his own mind”. (Emphases added)

28 The judge continued (day 14 of the trial, p.51 of the transcript):

“The test is subjective and not objective. So you would ask yourself were the(re) words spoken or acts done by

the deceased person or persons which having regard not to what a reasonable man might have done because that

is an objective test and that’s not the test but having regard to what the accused did taking into account their

temperament, their character and circumstances. So, just to repeat that, you would ask yourself were the(re)

words or acts done by the deceased persons which, having regard to the accused’s temperament, character and

circumstances, might have caused him to lose self-control, that’s the subjective test. It is not an objective test …”

29 Counsel for the Applicant suggests that the reference to “acceptable” is misleading since it may be thought to imply a choice on

the part of the jury. Similarly, to use the word “must”, might suggest that there was an obligation on the part of the accused to

adduce this evidence. These submissions were elaborated on in respect of other aspects in the charge (day 14 of the trial, p.51 of

the transcript): -

“And as I have said, if the defence of provocation holds, then the verdict in the case of Mr Curran is one of

manslaughter and not murder. So why does the law recognise the possibility that this defence can hold good and

even in circumstances where the accused person intended to kill or cause serious injury? For provocation to apply

you must have a number of elements which I am about to mention. There must be acts or words done or both by

the accused persons. Those acts or words must have had an effect, must have had a cause and effect on the

accused person. When looking at the effect or the cause it might have had on the accused person, you must

consider his personality; that is, his character, temperament and his circumstances. Having done that, you must

ask yourself what type of effect must those words have had before the law allows a person even to kill and yet not

be guilty of murder.

So what type of effect must those words or acts have before the defence is availed of? The effect must have been

more than simply instilling anger or even great anger in the person in question and must be more than simply causing

rage or even great rage in the accused person. The words or actions must cause or must provoke a sudden

unforeseen unset of passion which, from that moment on, totally deprives the accused person of his self-control.

Partial deprivation of self-control is not enough. There must, as I have said, be a sudden, unforeseen onset of

passion which from that moment on, totally deprives the accused person of his self-control … If that occurs and if

that’s caused by the acts or words of the deceased person, then, in circumstances where the accused would

otherwise be guilty of murder, he is not. The defence of provocation holds good and he would be guilty of

manslaughter in those circumstances.

So, the law allows a person even to kill without being guilty of murder … – when in a condition, when he is in a

condition caused by the words or by the actions resulting in total deprivation of self-control, a total loss of self-

control, that he can do nothing with it. If the evidence falls short of that, and I’ll come in a moment as to how you

will address it by way of question, then provocation is not available. In this case the only acts or words relied on

which possibly could constitute provocation are the words i.e. the shouting, which it is alleged took place outside

no. 48, immediately prior to the killing of these two people, and the movement of the two deceased immediately

prior to killing. That’s the evidence relied upon as constituting provocation.”

30 Counsel for the Applicant fairly acknowledges that after the passage complained of the trial judge did correctly state the onus of

proof in relation to the ultimate issue of provocation as follows (day 14 of the trial, p.52 of the transcript): -

“So to kind of sum up in provocation you would ask yourself, is it reasonably possible that these acts and words of

shouting and movement could have triggered the sudden onset of passion in David Curran which for him resulted in

total loss of self-control? Is it reasonably possible the evidence sustains that? If it is, then he’s entitled to the

benefit of the doubt and consequently provocation would be availed of. You might ask it from the other side which

is whether the prosecution has proved beyond a reasonable doubt that David Curran was not provoked in the

manner that I have mentioned and decided in accordance with the above principles. Bearing in mind that at all

stages in relation to every important aspect and element of this case, the onus of proof is on the prosecution and

they must discharge that to the level which I have mentioned i.e. beyond a reasonable doubt.”

31 It is contended on this appeal, that this charge incorrectly blurred the distinction between the judge’s task in determining whether

there was evidence of provocation to go to a jury, and the jury’s task in deciding whether such evidence was credible. This Court

however, cannot accept that the charge taken as it must be, in its full context, was defective. It must be remembered that the

charge was delivered orally to the jury and heard by them over an extended period of two days. The question in any case is how the

jury may have understood the judge’s instructions on the law. It is important therefore to view the charge as a whole, and seek to

assess the impact it, and any passage contained in it, may have had on twelve individuals who are hearing it for the first time, albeit

assumed to be listening attentively. It is not desirable to select individual words or phrases and subject them to a detailed almost

semiotic analysis, if a jury would not have done so in the moments in which they heard the charge. In this case there was a repeated

instruction to the jury that the onus was at all times upon the prosecution to prove every element of the offence, and in particular to

disprove provocation, beyond any reasonable doubt. The jury were instructed as to the meaning of that concept. The test was also

inverted, so that it was put to the jury, that if there was a reasonable possibility that David Curran’s account was correct, then he

was entitled to the benefit of the doubt and should be acquitted of murder. It is only human experience that in an oral presentation,

that a repeated and consistent message is much more likely to have an impact than inferences and nuances which might

subsequently be sought to be drawn from a written text. There is no doubt that giving a clear instruction to a jury on the tangled law

of provocation is not an easy task since it involves instructing a jury on unfamiliar concepts, and on the task of considering whether a

prosecution had proved a negative beyond a reasonable doubt. In the passage complained of, the court is satisfied that the judge

was doing no more than outlining the elements necessary to establish a defence of provocation, and that he then went on to point

out that in respect of any such element, the prosecution had to disprove that element, or at least one of them, beyond any

reasonable doubt and if not the accused was entitled to be acquitted of murder and convicted only of manslaughter. The court

correctly identified the elements which must exist for the defence of provocation, and then correctly instructed the jury as to the

approach to be taken to the evidential standard in respect of such elements.

The Jury’s Question

32 The second and related complaint made by the Applicant related to the question raised by a jury on day 15 (p.29 of the

transcript). That was in the following terms:

“For the defence of provocation to be acceptable, we have been directed that there must be evidence of words

spoken or acts done to cause a sudden loss of control. Is it for the prosecution to prove that there (were) such

words or acts or it is for the defence to prove?”

33 The Applicant points to the use of the phrases “to be acceptable” and “there must be evidence” as evidence that the jury picked

up on the language of which the Applicant had already criticised. That is speculation, but if so, it only demonstrates that the jury

were paying close attention to the judge’s instructions. Counsel goes further and suggests that the second sentence of the question

should be understood as addressing the specific question as to the onus of proof of the truth of the existence of the words or acts

contended for. He argued that the jury ought to have been told that if there was a reasonable possibility that the words or acts

emanated from the victim the jury must “act on that” unless disproved by the prosecution. Counsel was however reluctant to explain

exactly what was meant by the phrase “act on that” but it appears that he was contending for an approach which atomised the

incident and sought to convert any aspect of it, which the jury could consider had not been proved beyond a reasonable doubt, into

positive proof of the contrary. The Court does not accept that this approach was correct, or indeed that the question by the jury

invited this level of analysis. Rather, the Court considers it was at a general level and was answered correctly by the judge. He told

the jury that it was not for the defence to prove anything. Furthermore, he told them that if there was any evidence from any

source, then the jury must consider whether the defence of provocation had been negatived by the prosecution beyond any

reasonable doubt. This was entirely correct.

Counsel’s Comment on a Failure to call a Witness

34 The next point raised by the Applicant was that the trial judge erred in failing to direct the jury to disregard a suggestion by

prosecuting counsel commenting on the failure of the defence to call Stephen McGuirk to give evidence of making any phone call. The

relevant portion of the prosecution’s closing is as follows (day 13 of the trial, p.37 of the transcript):

“David Curran says he’s no memory of any phone calls with Katy Doherty. But he does try and tell us he got a

phone call from Stephen Fogarty – Stephen McGuirk, which is entirely different, telling him that his father was

stabbed. Now, we don’t have any record of that call and the defence has not chosen to have Stephen McGuirk give

evidence of making any phone call. But there are other reasons for us to be very dubious about the truth of what

David Curran says about him believing his father was stabbed …”

35 In his closing speech, counsel on behalf of the Applicant referred to this comment and said that it was entirely inappropriate to

suggest (day 14 of the trial, p.2 of the transcript):-

“(t)hat in some way there’s some kind of onus on the defence or a responsibility on the defence to call a particular

witness, when there is not. And you know from the same garda in the case … that Stephen McGuirk did not say to

the guards that my client David Curran stabbed the two victims in this case. And it is for the prosecution to put

before you relevant, credible evidence and, in my respectful submission, if the prosecution didn’t put up Stephen

McGuirk to give evidence, you are entitled to infer nothing against David Curran, but rather to infer that the

prosecution has taken the view that he’s not a credible witness.”

36 The trial judge gave a general direction as follows (day 14 of the trial, pp.46-47 of the transcript):

“This presumption [of innocence] is a cornerstone rule of our criminal justice system. It means, in effect, that the

accused person has to prove nothing. There is no obligation on him to give evidence or call evidence on his behalf …

So no adverse inference can in any way be drawn from the fact that Mr Keogh [sic] didn’t give evidence, for

example, or that no evidence was called on behalf of any of the other two, of course, apart from Mr Curran himself.

There is no obligation at any stage of the trial upon the accused person to prove anything. … (t)he onus of proof is

at all stages on the DPP, and that onus of proof on the prosecution relates to each and every element constituting

the offences which are levelled against these accused persons. So these are fairly fundamental rules and they apply

to all criminal cases.”

37 Subsequently the trial judge revisited the issue and said (day 14 of the trial, p.48 of the transcript):

“(T)here is no obligation on an accused person to give evidence or to call evidence on his behalf.”

38 Counsel has referred us to a number of UK authorities on the circumstances in which a judge may comment on the failure of the

defence to call a witness. See for example R v. Wright [2000] Crim. L.R. 510, and Archbold: Criminal Pleading, Evidence and Practice

2011 (London; 2011), paras.4-400/1, and R v. Kahn (Shakeel) [2001] Crim. L.R. 673. In Khan the Court observed that having regard

to the dangers involved in such comments “much will depend on the judge’s sense of fairness, but the dangers of adverse comments,

and of failing to warn the jury not to speculate will usually be the paramount consideration”. No Irish authority was cited. The UK and

Canadian authorities which were cited to this Court all concern comments made by the judge on the failure to call a particular

witness, and an explicit invitation to the jury to draw adverse inference from the absence of such a witness. The present case is

much different. First, it can hardly have escaped the jury’s attention that there was a conflict of evidence about the phone calls

made to the Applicant alerting him to the events at the takeaway, and that Mr McGuirk, the Applicant’s cousin, and a key player on

the Applicant’s account, had not given evidence. Second, the comment here was made by counsel in the course of a closing speech.

It was not dwelt upon, and the jury were not asked explicitly to draw an adverse inference, in the manner in which that is formally

done when the trial judge in the UK cases is asked to address the matter. In the circumstances the Court does not consider that the

comment made by counsel brought the jury’s deliberations much further than they would have been in the absence of such a

comment. The comment was countered, by counsel for the Applicant, and while the trial judge made no specific reference to

counsel’s remark, his general and repeated instruction to the jury was that the accused was under no obligation to call any witness,

and he specifically mentioned Stephen McGuirk. There is no doubt that inviting the jury to draw an inference from the absence of a

witness is something which must be approached with considerable caution. Concentration on that issue runs the risk of inviting the

jury to speculate on evidence which was not given, rather than to determine the case on the evidence which was. If there was more

elaborate discussion of the absence of Mr McGuirk, and in particular if that had been dwelt upon by the trial judge, then the matter

might have to be scrutinised more carefully. In the circumstances of this case however, the Court is satisfied that the comment made

by counsel for the prosecution could not be said to have rendered the trial unfair or the jury’s verdict unsafe.

The Lucas Warning

39 The Applicant contends on this appeal that the trial judge erred in failing to direct the jury as to the manner in which the memos

of interviews of the Applicant should be considered and in particular by failing to direct the jury as to the implications of the finding

that particular assertions by the Applicant in those interviews could not reasonably be true or were lies. It was submitted that the

trial judge should have given a direction to the jury in the nature of the “Lucas” warning. In this regard, the Applicant relied on People

(DPP) v. Brady (Unreported, Court of Criminal Appeal, 5th May, 2005) and People (DPP) v. Cleary [2006] IECCA 25 (Unreported, Court

of Criminal Appeal, 3rd March, 2006) [2006] 3 J.I.C. 0301 and People (DPP) v. Tuohy & Wallace [2006] I.E.C.C.A. 153 (Unreported,

Court of Criminal Appeal, 5th December, 2006). In particular, the Applicant pointed to the need for such a warning in a provocation

case. See R v. Richens (1994) 98 Cr. App. R. 43, and R v. Taylor [1998] Crim. L.R. 822 and R v. Miah [2003] E.W.C.A. Crim. 3713.

40 It has not been definitively determined in this jurisdiction as to when precisely a Lucas warning, or a modified Lucas warning,

should be given to a jury. There is however no doubt, that there are cases in which it is appropriate to do so. Those are cases in

which, in particular, the Applicant admits or concedes at or before the trial, that an earlier account given, and normally to the gardaí

shortly after the event, is false and untruthful.

41 The admission, or proof, that an accused person has been telling lies can have a very potent impact upon a criminal trial. There is

a natural tendency to assume that if it has been established that the accused was lying on a previous occasion, then there is no

reason to believe that he or she is telling the truth when in Court. In such circumstances it is necessary to remind the members of

the jury that they should not necessarily make the leap from an acknowledgement of lying to a determination of guilt. Human

experience, and indeed the experience of courts, can show that while it may not be very creditable, persons who have been involved

in incidents, and particularly those in which another person has lost their life, may not always be forthcoming about their role in the

events, and in particular may seek to exculpate themselves by denying involvement or possibly asserting some other exculpation such

as self-defence. Here the prosecution understandably dwelt on the fact that the assertion of provocation had come late in the day,

and that the accused had initially denied any involvement in the crime. It is unnecessary however to consider whether a Lucas

warning was necessary in this case, and if so in what terms. That is because the trial judge was not invited to give any such warning,

and no requisition was raised on this issue. It is the settled jurisprudence of this Court that it does not normally permit a party to

raise an issue which was not argued at the trial. If this Court considered that there was a serious risk that an injustice had been done

on this issue, then notwithstanding the failure of counsel to raise the matter at trial, it might have to consider whether the absence

of a Lucas warning was critical. However, the Court is not so satisfied in this case and accordingly this ground must be dismissed.

Other Issues on the Judge’s Charge

42 The Applicant also raises a number of very specific issues in relation to the judge’s charge. Counsel fairly and frankly concedes

that the individual aspect of the judge’s charge may itself not be clearly wrong, but he contends that cumulatively they should lead

to a conclusion that the overall charge was inadequate, and that the application should be allowed. First, the Applicant contends that

the trial judge misdirected the jury by failing to direct it that having regard to the fact that the test of provocation was to be applied

by reference to the circumstances that the Applicant believed them to be, the jury should consider the matter on the basis of any

mistaken belief as to the facts which as a reasonable possibility applied to the Applicant. This, he contended, should include the fact

that he believed that his father had been stabbed by one of the victims and/or that both victims were moving towards him and/or

shouting. It is also suggested that the learned trial judge erred in failing to direct the jury that a series of acts and events over a

period of time could be taken into account in assessing whether the defence of provocation applied. Third, it is alleged that the trial

judge should have directed the jury that if there was a reasonable possibility that the Applicant had lost control as a result of the

combination of effects arising from the perceived conduct of the two victims or either of them acting together, then the defence of

provocation applied. Finally, it is said that the trial judge ought to have charged the jury that while it was the duty of the members of

the jury to act as a collective unit, nevertheless the individual members of the jury were bound by their oath not to come to a verdict

with which they did not truly agree in the exercise of their independent judgment. It is fair to point out that each of these points

were raised in requisitions on behalf of the Applicant.

43 The Court considers that these points can be taken together. While it is perhaps possible that if a charge in these terms had been

given to the jury, it would have been deemed beyond objection or at least beyond these specific objections, that is very far from

saying that the absence of such specific directions renders inadequate the charge that was actually delivered. Here the Applicant

seeks to present a wish list of propositions which the Applicant desired to see in the charge to the jury, and the absence of which it

is now contended renders the trial unsafe. There is, with respect, a fallacy in the Applicant’s reasoning in this regard. The process of

argument seems to follow a number of stages. The first, a statement of law is identified, itself unobjectionable. The judge is then

requisitioned upon it. If the judge does not then adopt the specific language suggested by counsel it is said that the charge is

inadequate. But the trial judge’s charge is not designed to be a receptacle for propositions desired by either party. The function of

the charge is to put the jury in a position to address the issues of fact arising in the particular case, in the correct legal framework,

and thus to be able to deliver their verdict. This Court is satisfied that the charge in this case was more than adequate to perform

this task, and conspicuously fair to the accused.

Moral Certainty

44 Finally, in relation to reasonable doubt, the trial judge said (day 14 of the trial, pp.48-49 of the transcript):

“So may, might, or probable is not sufficient; it must be higher than that. It must reach the standard being beyond

a reasonable doubt. It does not have to elevate itself to any level of certainty, either mathematically or morally,

but it is a substantial threshold that the DPP has to meet. … So ladies and gentlemen you must remember where the

onus of proof is right throughout this case, and the level to which the standard must be met before the DPP has

satisfied you with regard to his legal responsibilities in proving a case of this nature.”

45 Counsel submitted that it was certainly correct to direct a jury that there was no requirement to be mathematically certain but

that it was not correct to direct the jury that they were not required to be “morally certain”. It was submitted that a description of a

finding that the prosecution case has been proved beyond a reasonable doubt if a member of the jury is “morally certain” to the

extent that that phrase means something less than “mathematically” or “scientifically” certain could be appropriate, but a specific

direction that the jury need not be morally certain, amounted to a dangerous formulation that was liable to be interpreted as an

understatement of the burden of proof.

46 Counsel referred us to the decision of the United States Supreme Court in Victor v. Nebraska 511 U.S. 1 (1994) where the jury

had been directed that they were required to be “morally certain”. O’Connor J., speaking for the majority of the Supreme Court, held

that the reference to moral certainty was at least undesirable (p.13):

“We are somewhat more concerned with Sandoval’s argument that the phrase “moral certainty” has lost its

historical meaning, and that a modern jury would understand it to allow conviction on proof that does not meet the

beyond a reasonable doubt standard. Words and phrases can change meaning over time: A passage generally

understood in 1850 may be incomprehensible or confusing to a modern juror. And although some contemporary

dictionaries contain definitions of moral certainty similar to the 19th century understanding of the phrase … (“a

degree of probability so great as to admit of no reasonable doubt”), we are willing to accept Sandoval’s premise

that “moral certainty”, standing alone, might not be recognised by modern jurors as a synonym for “proof beyond a

reasonable doubt.” But it does not necessarily follow that California instruction is unconstitutional.”

47 However, a consideration of the reasoning of the US Supreme Court might lead to the opposite conclusion than that for which the

Applicant contends. It is surely a fallacy to start from the proposition that the phrase “moral certainty” has a fixed meaning

irrespective of the period in time, country, location or indeed specific linguistic context in which it was used. Words must be

interpreted in their context, both national, and specific. It might be possible for example that modern day US courts could be

concerned that a reference to “moral certainty” might suggest to a jury a form of reasoning other than the logical sifting of the

evidence in a case. Even in this jurisdiction, if the phrase was deliberately contrasted with a concept of scientific or mathematical

certainty, then it might indeed suggest some standard lower than or at least different to the beyond a reasonable doubt standard.

But here, in the specific content in which it was being used, it appears to the Courts that it was being used as meaning something

essentially similar to mathematical certainty. The alliterative phrase “mathematically or morally” sought to identify for the jury the

truth that the beyond a reasonable doubt standard, while exacting, is not a synonym for certainty. While this Court does not consider

that in this passage the jury were being invited to identify and consider some separate concept of moral certainty, if it was, then

that can only have been the meaning attributed to it in the Oxford English Dictionary 2nd edn. (Oxford; 1989) at p.1070, in the

extract from the judgment of O’Connor J. in Victor v. Nebraska just cited – namely, “a degree of probability so great as to admit of no

reasonable doubt”. In the context in which it was used, this Court has no doubt that it illustrated for the jury the standard of proof

required and could not be said to have misled them in any way.

48 In the circumstances this ground must be rejected. Accordingly, the application for leave to appeal will be dismissed.