Court of Criminal Appeal dismisses appeal regarding jury charge on self-defence and discharge of jury over target sheet mention.

THE COURT OF CRIMINAL APPEAL

Record No. 2010/280

Fennelly J.

Herbert J.

Birmingham J.

Between

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

-and-

BRENDAN O’SULLIVAN

Applicant

Judgment of the Court of Criminal Appeal delivered the 4th day of June 2013 by Mr Justice Fennelly

1. On 8th November 2010 the applicant was convicted of murder by a jury in the Central Criminal Court after a six-day trial before

McCarthy J.

2. It was not in dispute at any stage that the applicant had killed Leslie Kenny (hereinafter “the deceased”) by shooting him with four

shots from a double-barrelled shotgun. The fatal shooting took place at Pound Street (also known as O’Gorman Street), Kilrush,

County Clare during the morning of 29th July 2009. Both the applicant and the deceased lived there, some houses apart. The

deceased was admittedly a person of bad reputation with several previous convictions. He was believed to have stolen from and to

have assaulted and threatened members of the applicant’s family. He had a reputation for misuse of drugs and alcohol. On the

morning of his death, he had collected his medication from the pharmacist and seemed calm.

3. The evidence at trial fell into three broad parts:

i Eyewitness accounts of the course of the dispute between the applicant and the deceased leading up to the killing;

ii. Forensic evidence regarding the wounds of the deceased and the likely distance away the applicant had been when he

discharged each of the four shots;

iii The statements of the applicant made in a number of garda interviews.

4. The applicant accepted that he had shot the deceased. He maintained that he had been acting in self-defence. The defence also,

though at the suggestion of the learned judge, raised the alternative of partial self-defence, i.e., that, if the accused had used

excessive force in his own defence, he believed the force was justified, with the potential to reduce the verdict to one of

manslaughter. The applicant did not give evidence. The defence is based on his statements to the gardaí.

5. The central point made on the appeal is that the learned trial judge did not properly direct the jury in his charge regarding the

elements of the defence of self-defence.

6. The applicant also complains that the trial judge should have discharged the jury when they inquired about an item of evidence,

described as a “target sheet,” which had been inadvertently referred to by a garda witness in the course of his evidence but not

introduced into evidence.

The evidence

Eyewitnesses

7. On the 29th July, 2009, the deceased had attended, as he did daily, at a pharmacy for the purpose of collecting medication. He

returned to his home in O’Gorman St. at approximately 10:00 a.m. Within the next half hour there was a verbal altercation between

the applicant and the deceased, of which evidence was given by Thomas Casey, Joanne Carrig, Pat Brassil, John Gallery, Gerard

Tevlin and Maureen Tevlin.

8. The deceased was at his own house and the applicant was shouting at him from his own front garden. The deceased walked down

to the applicant’s house. A number of bangs were heard, and the Gardaí were called.

9. The deceased was found dead at the inside of the front of the applicant’s garden, lying face up and against the wall. He had

suffered four shotgun wounds: one to the upper right trunk; one to the right hip; one to the left knee; and one to the right knee.

Forensic evidence (see paragraph 24 below) indicated that the shots had been fired from progressively decreasing distances from the

deceased.

10. A double barrelled shot gun was recovered from the applicant’s house. Four discharged cartridges were found in a coal scuttle in

the applicant’s sitting room. Live cartridges were found at three locations in the house.

11. Mr. Thomas Casey said that shortly after 10 am he heard two men arguing and cursing, saying ‘We’ll sort out the mess.’ He looked

out his door, and saw the deceased at the door of his own house. He thought the argument had taken place in the street. He went

back into his house, and then heard a loud noise.

12. Joanne Carrig, the sister of the deceased’s partner, heard an argument, went out to see if she could see anything and, when she

could not, returned to her house. She heard a bang which, she thought, sounded like a shotgun. She went out again but came back

in. Then she heard two more shots: “it was bang-bang.” There was a pause of about forty to forty five seconds before the second

pair of shots. She rang the Gardaí. She went outside and saw the applicant pacing up and down in his garden speaking on his phone.

He did not appear agitated. The applicant’s family then arrived, as did the deceased’s partner.

13. Mr. Pat Brassil was outside his house, which is across the street from that of the applicant, and was talking to his neighbour. The

applicant came out of his house, stood on a garden bench near the front door and started shouting at the deceased, who was about

8 houses up the street. The applicant shouted: ‘Come down and we’ll talk about it,’ in an agitated manner. The deceased began to

make his way towards the applicant’s house, and was about two doors away, when the witness went inside his own house. He heard

nothing because he has a hearing problem.

14. Mr. John Gallery testified that he saw the deceased outside his own house and the applicant outside his. They were shouting at

each other; the applicant told the deceased to come down and they would talk about it. He thought that there might be a fight or an

argument about to develop, and he went inside.

15. Mr. Gerard Tevlin dropped his daughter off in the area about 10:20 am and saw one man shouting—he used the word “roaring”—

at another man who was walking up the street. The man who was shouting, who must have been the applicant, was standing on

something in his garden. He shouted: “Will you fucking come down and talk to me.” The man who was being shouted at was walking

away. He says the man who was shouting was “roaring” at the other man.

16. Ms. Maureen Tevlin took in Mr. Tevlin’s daughter. She saw the applicant standing on a garden bench, shouting. She didn’t see

whom he was shouting at. He was using strong language. She came inside and rang the Gardaí, because there appeared to be a

dispute in the neighbourhood and “they could do something.”

17. In spite of this number of eyewitnesses, it remains the fact that nobody saw the actual shooting.

18. The applicant’s father gave evidence that his son rang him between 10:30 and 10:40 am and said: ‘I’ve killed him in the garden,’

but without saying whom he had shot. He and his wife went over to his son’s house, arriving in about 5 minutes. The applicant was

sitting on a bench. He asked him whom he had shot. The applicant said: “turn around.” He saw the deceased at the front wall of the

garden, dead. He testified that he asked his son why he did it, saying that he was going to spend the rest of his life in jail.” His son

gave no explanation.

19. Garda Richard Bourke was the first Garda on the scene. He reported that the Applicant seemed calm. He found the deceased at

the front of the garden. The Applicant told him: “He chased my children into the house” He reported how Dr. Carr came to the scene

and pronounced death at 10:53 am.

Forensic evidence

20. Dr. Marie Cassidy, State Pathologist, gave evidence that she attended the scene of the crime and found the deceased face up

lying against the front wall of the garden. She found shotgun injuries. The body was removed and an autopsy performed. There were

four shotgun injuries to the body, one to the right side of the trunk, one to the right hip area, and one to each knee. Internally, there

were injuries to the right lung, the liver, the right femoral and both popliteal vessels. She concluded that the injury to his trunk;

wound number 1, was from a distance of about 15 feet. The injuries to the right hip and the knees were from closer range. Given the

wound path of the bullets, she concluded that the first injury most likely occurred while the deceased was standing, but the next

three injuries most likely occurred while the deceased was lying on the ground in the position in which he was found. The wounds

were of a nature that he would have required immediate medical attention (within minutes) to have avoided death.

21. D/Garda Louise O’Loughlan, attached to the Ballistics Section of the Technical Bureau, examined the scene of the crime and, in

particular, the shotgun and cartridges. She found the deceased partially leaning against the inside wall of the garden. After the body

was removed, she found three fragments of plastic wadding from discharged shotgun cartridges where the body had lain. She

attended the post-mortem and saw the four wounds suffered by the deceased. A number of pellets, and further plastic wadding, were

recovered from the body of the deceased.

22. At the crime scene, she found both live and discharged cartridges. Firstly, in an infant’s bedroom on the ground floor, she found a

live shotgun cartridge on top of a wooden cabinet. Secondly, in a coal scuttle in the sitting room she found 4 discharged cartridges.

Thirdly, in the kitchen area she found 3 more live cartridges on top of a press above the microwave. Fourthly, in a bedside locker in

the main bedroom, she found an ammunition box containing seven live cartridges. Thus, there were live cartridges at three locations

in the house. All were of 12 gauge suitable for use in the shotgun which she recovered at the top of the stairs.

23. The shotgun was double-barrelled, breach-loading of an under-over configuration (one barrel above the other). It had an

automatically engaged safety catch; that is, when one breaks the gun to reload and closes it again, the safety catch automatically

comes on and must be taken off again in order to fire. It is designed so that there cannot be an unintentional discharge. In addition,

there are two triggers, one for each barrel.

24. D/Garda Louise O’Loughlan carried out a number of range-determination tests, using the shotgun and 12-gauge ammunition of the

same type as was found at the house. She concluded as follows: the first wound, to the side of the deceased, was inflicted at a

distance of between 16 and 24 feet between the muzzle of the gun and the body of the deceased. The second wound was from 2 to

4 feet from the deceased: this is the wound to his right side hip. Wounds 3 and 4, which were to the left and right knee respectively,

resulted from shots fired from 1 to 2 feet away.

Gardaí interviews and statements

25. First, mention should be made of how the applicant came to have the shotgun in his possession. To explain that, the defence

called as witnesses the applicant’s cousin, Julie McKiernan, and her husband, Kevin McKiernan. The shotgun belonged to Kevin

McKiernan, who held a licence for it. Some time before 29th July 2009, unhappy differences had arisen between the McKiernans, who

separated. Mrs. McKiernan was concerned that her husband might use the shotgun, possibly even on himself. She thought it would be

safer if it was not in the house. They had asked the gardaí to take it into their custody, but they declined. It was in these

circumstances that she asked the applicant if “he would look after it temporarily, until I was right and our situation was right.” The

applicant took the shotgun and cartridges from her house. He did not suggest that he wanted to protect himself.

26. This was some weeks before 29th July. On that day at about 10:40 am, Mrs. McKiernan received a phone call from the applicant,

who “just said Leslie had been shot.” She went to his house at once. She found him shaking. He said twice: “I thought he was going

to kill them.” And: “He was going to kill them.” He did not give any account of what had happened.

27. A number of Gardaí arrived. The applicant told them that the deceased had chased his children into the house (which he later

accepted to be untrue). The Applicant confirmed the location of the shotgun to the Gardaí and voluntarily accompanied Garda Corkery

to Kilrush Garda Station, arriving there at about 11:28 a.m. After caution he confirmed that he had shot the deceased four times.

That meant that he had fired two shots, and reloaded the shotgun before firing two more. He was arrested and detained pursuant to

s. 30 of the Offences Against the State Act, 1939 at 12:44 p.m.

28. Garda Burke was the first garda on the scene around 10:35 am. He approached the applicant at a time when the body of the

deceased was still lying in the garden. The applicant said: “He chased my children into the house.” He called Superintendent Michael

Cummins who arrived within minutes, as did a number of other gardaí.

29. Garda Donal Corkery arrived at 11:10 am and entered the house where the applicant was in the company of his wife, Claire and

others. He spoke to the applicant, who said: “I was protecting my family. He was going after Claire. I heard her shouting and I saw

him.” The garda asked him: “Where was the gun?” He said: “Upstairs.” He brought the garda upstairs where he pointed to a gun which

was standing with the butt on the ground. He asked the applicant if he had a phone and he replied: “no.” It later transpired that this

was untrue. He had a mobile phone but threw it away. Garda Corkery invited the applicant to accompany him to the garda station

voluntarily which he did. He was questioned there after being cautioned. He said that he had shot the deceased four times. He was

arrested pursuant to s. 30 of the Offences Against the State Act 1939.

30. The applicant took part in five formal recorded interviews after caution in the presence of a number of members of the Garda

Síochána.

First garda interview

31. In the first interview he said;

“I was up in my bedroom. All of a sudden I could hear Claire screaming. I ran downstairs and Claire ran past me into the house. She

was hysterical. She had Olivia in her arms and she said: ‘he's going to kill us, he's going to kill us.’

So, I saw Leslie Kenny running up the path into her house--- into our house after her. I ran back upstairs and got the gun.”

32. He said that the gun which he had got from upstairs was unloaded but that he had taken some cartridges also. He was asked how

many cartridges he had taken and he said: "I just grabbed a handful of them." He said that he had "loaded the shot gun as I was

running down the stairs." He said that the deceased was coming in the front, that he pulled up the gun to shoot him, that he had

shot him and that he started to run. He said that he had shot him twice but that he was aiming for his legs. He had seen the

deceased fall after the first two shots but he then saw him getting up. He said that he had reloaded the gun with two more cartridges

and that he had shot him in the legs. He said that he had told his wife to phone for an ambulance and had left the gun upstairs on

the landing. The deceased was then lying in the end of the garden at the front of the house. He said he didn't mean to kill him at all.

Asked why, after he had discharged the shotgun the first time, he had reloaded it with two more cartridges and shot the deceased

again, he said: "I didn't think I hit him at all the first time because he got up and was coming towards me again.”

33. Asked why all this had happened he said:

“I have been getting non-stop threats off him against me and my family. He told me the other day that he was going to fire seven

shots in my back window….. he also said he was going to put petrol in my letterbox.”

34. He also said:

“Because he was running in after my wife and child, telling them he was going to kill them and slash them. He was only after coming

back from the shop and she was only after getting out of her car as Leslie Kenny was coming down towards her. She had to run from

him in fear for her life because she knew about the threats that Leslie Kenny was making to us."

35. He was asked if he had reported these threats to the gardaí but said: "no, I am not one for going to the guards.”

36. He explained that the shot gun had been left in his house for safekeeping by his cousin. She had given it to him to mind. She was

splitting up with her husband, who was talking about killing himself. He had had begun for about a week. His cousin had also given him

the cartridges. He did not think that he was going to do anything with the gun himself.

37. The applicant denied that he had any mobile phone, though it was pointed out that his father had told the gardaí that he had

rung him from his own phone. He also denied that he had been standing on the bench in the garden. He later admitted that both

these statements were untrue.

Second garda interview

38. In his second interview, the applicant repeated that the deceased had made multiple threats of violence: he would fire shots in

the door; he would throw petrol in the door; he was going to cut them up: “cut my wife up;” cut “my kids’ throat and everything;” he

had threatened to shoot him with a seven-shot repeater; he would burn the house down around his “kids.” These were general

threats apparently predating 29th July. He said that some of the threats had been conveyed by three other named people. He also

said: “My wife coming in the gate with her two-year-old child in her arms and a junkie running after her.” He said that he had seen his

wife arriving outside the house. He repeated the allegations from his first statement of the deceased running after his wife, who had a

child in her arms. She was screaming that he was going to kill her.

39. He went to the other side of the bed to get the gun; he got a handful of cartridges from the box inside the locker. He loaded the

shotgun. He closed it as he ran down the stairs. He then said that he heard the deceased shouting: “I’m going to cut your throat and

the child’s throat as well.” He came out the front door and put the gun out along the path with his right hand on the trigger. He fired

two shots with a couple of seconds between them when he was at the door. The deceased got up and was coming at him “with the

evil face.” He broke the gun open. The empty cartridges flew out of it. He put two new ones into it, closed the gun and "aimed for his

legs at this time." At that stage he said that the deceased was standing but was coming at him and facing him. He fired two shots at

his legs.

40. Asked whether the deceased had a weapon on him he answered: "No, I didn't see any weapon, he had his hand in his pocket."

41. He repeatedly said that he had not meant to kill the deceased. He said that he merely wanted to scare him away. He said that

the first two shots were merely warning and that he did not aim.

42. He was asked about how he had obtained the shotgun and box of cartridges. He said that he had put the cartridges in a locker

beside the bed. He did not know how many cartridges were in it. He had not opened it until that morning.

Third garda interview

43. The applicant gave a significantly different account in the third interview. He said that his wife had just come back from the

garage and that, as he was looking out, he could see the deceased crossing the road up a bit from his house. He said that he, the

applicant, had "confronted him about the threats he was making to put petrol in my front door and firing seven shots at my back

door.” He said that he had stood up on the front bench outside his house "because he had been making threats about cutting up my

wife and kids.” Asked if the deceased had confronted him or he had confronted the deceased, he said that he had done so because

of the threat to his wife and children. He said that it was "his Aunty Carmel that told Michael Chapman about the threats against my

kids." He went on to describe an exchange in which he had accused the deceased of making these threats and of the deceased

saying that he had seven shots waiting for him. At this stage the deceased was about six houses away. The applicant’s wife, at this

time was "nearly at the front door."

44. The applicant agreed that, when he had said in his statement of the previous day, that the deceased had followed his wife and

threatened her, that had not in fact happened. He said that, as the deceased came towards his house, his wife had started

screaming: “He’s going to kill us, he’s going to kill us.” He told her to get out the back door for her own safety. He then "ran upstairs

to get the gun.” He had seen the deceased coming up the path and was in fear of his life. He said: "I took the gun up; all I could

think of was my wife and my kids were going to be killed because of the threats that he was making to my family and my wife." He

said that the deceased was halfway up the garden when he let off the first shots. He described the shooting as follows:

“I didn't think; I hit him, he fell but he got up straight away so I reloaded the gun and he went mad; he was coming at me

like so I put one in each leg. I don't know it could have been two in one leg."

45. The applicant said that the deceased was about three or four steps away when he shot him the second time. The applicant

agreed that when he had said, the previous day, that he had been standing in his own doorway when he discharged all four shots,

this was untrue. His account now was that he had discharged the first two shots from his doorway when the deceased was halfway

up the driveway and the second two shots in the middle of his driveway when the deceased was three or four steps away.

Fourth garda interview

46. In his fourth statement, the applicant said that, in response to the deceased’s threat to shoot him with a seven-shot repeater,

he had said: “If you shoot me with your seven shot you will be getting shot back.” He also said that he had got the gun from upstairs

when he had seen the deceased coming in the gate and: “I had it inside the door loaded when he came into my property.”

47. There was a short fifth interview in which the applicant repeated that he was sorry for what he had done. He said that he had

been in fear of his life and in fear for the safety of his wife and children.

48. There was a good deal of general evidence about the bad character and behaviour of the deceased. Anna Carthy, the sister of

the applicant’s wife, gave evidence for the defence of an incident the day before the killing when the deceased had, uninvited, got

into a car she was in and started threatening to hurt the applicant’s children. He said that he “was going to slit their throats…..to get

a seven-shot repeater and blow in the back windows on top of the two girls and her [the witness’s] sister,” who was the applicant’s

wife. He threatened to “get a pitcher of rum and put it through the letter box where the kids were sleeping.” The applicant was

informed of these threats. Neither Ms. Carthy nor the applicant reported them to the gardaí.

49. From all these events, it is clear that the applicant did not dispute that he had shot the deceased. The defence, really the only

defence proffered by the applicant for having shot the deceased, was self-defence. The defence was placed before the jury. The

learned trial judge directed the jury that the burden was on the prosecution to prove beyond reasonable doubt that it was not true.

The jury patently did not accept that the applicant had been acting in self-defence. However, the applicant complains that the

learned trial judge failed to direct the jury adequately regarding the elements of this defence.

The judge’s charge

50. The essence of the defence of self-defence, where the charge is murder, is that the killing was justified: the accused was within

his rights in committing violence on the person of the deceased. A person is entitled to use reasonable force, which may be lethal

force, in his own defence. Walsh J. stated in People (Attorney General) v Dwyer [1972] I.R. 416 at page 423: “Full self-defence

permits such a degree of force, up to and including the infliction of death, as may be regarded as being reasonably necessary.”

51. A jury, confronted with a defence of self-defence has the option of bringing in one of three verdicts.

52. It is axiomatic that a defence of self-defence to a charge of murder implies that the killing has been justified. Thus, the first

possibility is that the accused was, in truth, acting in self-defence, that he genuinely feared for his life and that the force used was

objectively justified. In that event, the verdict will be to acquit the accused.

53. The second possibility is that the jury does not accept that the accused was acting in self-defence or, alternatively, that he was

so acting and used excessive force and knew that it was excessive. In that event, the jury should convict of murder.

54. The third possibility is intermediate. It arises where the accused, though acting in self-defence, uses excessive force, but wrongly

believes it to be reasonable and necessary. In this case, the jury should not convict of murder. However, the killing is still unlawful,

because excessive force was used. The jury should convict of manslaughter. Walsh J. summarised the legal position as follows in his

judgment in People (Attorney General) v Dwyer, already cited, at page 424:

“Our statutory provision makes it clear that the intention is personal and that it is not to be measured solely by objective

standards. In my opinion, therefore, when the evidence in a case discloses a question of self-defence and where it is

sought by the prosecution to show that the accused used excessive force, that is to say more than would be regarded as

objectively reasonable, the prosecution must establish that the accused knew that he was using more force than was

reasonably necessary. Therefore, it follows that if the accused honestly believed that the force he did use was

necessary, then he is not guilty of murder. The onus, of course, is upon the prosecution to prove beyond reasonable

doubt that he knew that the force was excessive or that he did not believe that it was necessary. If the prosecution

does not do so, it has failed to establish the necessary malice. If, however, at the same time it does establish that the

force used was more than was reasonably necessary it has established that the killing was unlawful as being without

justification and not having been by misadventure. In those circumstances the accused in such a case would be guilty of

manslaughter.”

55. It follows that it is incumbent on the trial judge in a case such as the present, where the defence of self-defence is raised, to

direct the jury that the burden on the prosecution is to prove that, if they are satisfied that self-defence was justified but that the

force used was more than was necessary in the circumstances of the case, the accused knew that it was excessive. The headnote

to People (Attorney General) v Dwyer puts it as follows:

“Where the defence made to a charge of murder is self-defence against a violent and felonious attack, the trial judge

should inform the jury that if they come to the conclusion that the accused, acting in self-defence, employed more force

than was reasonably necessary but no more than he honestly believed to be necessary, they should return a verdict of

guilty of manslaughter.”

56. This statement was followed and applied by this Court in People (DPP) v O’Carroll [2004] 3 I.R. 521. Hardiman J., delivering the

judgment of the Court, stated at page 532 that “the failure [by the trial judge] to draw attention to circumstances in which a verdict

of manslaughter, rather than either of murder or of acquittal, might be appropriate cannot be justified by reference to any of the

decisions in People (Attorney General) v Dwyer.” This was in response to an argument that there were differences between the

judgments delivered by the Supreme Court in that case. In People (DPP) v O’Carroll the Court was satisfied (see page 530) that the

trial judge had not left the option of a finding of manslaughter to the jury at all.

57. Counsel for the applicant submits that, in the present case, the learned trial judge failed to direct the jury properly with regard to

the partial defence of self-defence. Specifically, it is complained that he did not tell the jury that, if the accused used excessive

force in his own defence but believed it to be necessary force, they should acquit of murder but convict of manslaughter.

58. Consequently, it is necessary to consider in some detail how the partial defence of self-defence was presented and especially the

terms of the learned trial judge’s charge. When counsel for the defence had concluded his closing address to the jury, the learned

trial judge drew his attention to the fact that he had not addressed “the alternative verdict of manslaughter on the basis that the

accused, subjectively speaking, thought the force was reasonable.”

59. Thus prompted, counsel further addressed the jury as follows:

“However, if you come to a conclusion…….having regard to all the circumstances, that my client…. was reckless in his

behaviour, had total disregard for at the well being of [the deceased] despite what he might have had in the back of his

head, if he was in a situation whereby… the totality of the situation, bearing in mind what he knew about [the deceased],

what he believed about [the deceased] if you came to the conclusion that……….. he clearly went over the line in his

overreaction to the situation that confronted him, you are perfectly entitled…………. to find him not guilty of murder, but

you could always consider the question of whether he was guilty or not of manslaughter……”

60. The learned trial judge in his charge, prior to dealing expressly with the issue of self-defence, addressed the jury as follows:

“………the law makes a concession to human weakness, and that's in fact, the phrase used in one of the decisions of our

courts about it; a person who subjectively speaking does not intend to kill or cause serious injury in circumstances where,

objectively speaking, a person could be one would conclude that a person would in fact, have that intention isn't entitled

to a complete acquittal. The law, as a concession to human weakness, permits a reduction; indeed requires a reduction

by you of the charge of murder, down to the lesser charge of manslaughter. It doesn't give rise to a complete acquittal,

an exemption as it were from criminal responsibility be -- by that concession it reduces the charge or the appropriate

conviction from the more serious charge of manslaughter -- or murder to the less serious charge of manslaughter.”

61. He commenced his treatment of the issue of self-defence as follows:

“Now, in relation to the – there are a number of – a person may or may not – there may be – it is lawful to use force to

defend one’s self or other persons in particular circumstances, as you can appreciate. And that force must be

proportionate to the force threatened or applied to one, and it must be reasonable in all of the circumstances. ….

The force is proportionate if someone comes towards me threatening me with an axe, I would be entitled to – and it is my

life is, I’m in jeopardy in terms of death or serious injury, of course I’m entitled to response, even with lethal force….

The entitlement to use reasonable force isn’t limited to using reasonable force in one’s own defence. Now, in relation to if,

for example, a jury in considering the totality of the evidence were to consider that the force was reasonable in all of the

circumstances, and someone had been killed with the intention to kill or cause serious injury, they would have the duty to

acquit. Straightforward proposition. We’ve had examples; I think I’ve just given them to you, of the type of situation

where legal – lethal force might be necessary or appropriate. If on the other hand, lethal force is not appropriate in the

circumstances but the force is disproportionate in the circumstances, then the position would be that the actions in

applying unreasonable levels of force would of course still import criminal liability.”

62. At that point, the judge had identified the circumstances where the use of force in self-defence was justified, but excessive force

had been used. He had not completed the statement by saying that the answer depended on the subjective belief of the accused. At

that point, the court adjourned for lunch. There was an exchange with counsel. The judge accepted, in the absence of the jury, that

the charges would be reduced to manslaughter “if, notwithstanding its objective excess, the accused did not think it was excessive.”

61. In dealing with that matter, the judge told the jury after lunch that:

“…… to make the distinction between liability for murder and manslaughter or liability for murder and an acquittal, the

force in any given circumstance would be unlawful of course if it was excessive in all of the circumstances. But to render

somebody liable for murder, one may not prove just the person objectively one must prove that in his subjective state of

mind that the -- that he intended to use the force in question. Now, sorry, did I misstate that.”

62. Counsel for the prosecution intervened to confirm agreement with the judge’s statement. In a later passage, while addressing the

allegations of bad behaviour which had been made against the deceased, the judge said:

“But what it is relevant is to show the state of mind of the accused. …… all that matters is -- or is relevant, potentially

relevant to you; you decide that all that is potentially relevant is whether or not the accused, these factors if they were

present, if they existed, bore on the mind of the accused and that is how they are relevant.”

63. Having referred further to the allegations of bad character and criminal convictions made against the deceased he said:

“… but these factors are…… not evidence tending to show that, for example, he was… necessarily the aggressor on the

occasion in question, they merely bear, they're relevant to show the state of mind of the accused. You can see that I

might be afraid of somebody, but I reasonably or not, whether based on good, bad or indifferent evidence, whether or not

there was any reality or need to be afraid so all of the evidence pertains to that and not otherwise.”

64. Counsel for the defence made a requisition to the judge that he had not sufficiently informed the jury that if the killing was

“subjectively justified, it’s manslaughter.” The judge recalled the jury. On this point, he informed them:

“… to return to the burden of proof. I did tell you that if an issue of self-defence arises there is no shifting or transferral

of any burden to the accused for the purpose of showing that he acted in self-defence but, just to be absolutely clear

about it, in a case where the evidence might lend itself to that conclusion or view, then it is the prosecution's duty to

exclude the reasonable possibility that self-defence -- that the accused was acting in self-defence, and of course I have

said enough, I think, about the objective subjective distinction..”

Conclusion

65. In the view of the court, the nub of the issue is whether the learned trial judge directed the jury that, in the event that they

were satisfied that the accused was acting in self-defence, but used a degree of force which was excessive in all the circumstances,

the burden of proof lay on the prosecution to prove that the accused, to use the words of Walsh J. in People (Attorney General) v

Dwyer, at page 424, “knew that he was using more force than was reasonably necessary.” That means that, for the crime of murder,

it was necessary that the intention of the accused had been to use excessive force even though he knew that it was excessive.

66. Two things are clear about the learned judge’s charge. Firstly, he repeatedly emphasised that the burden of proof lay on the

prosecution. Secondly, he emphasised the subjective or individual nature of the intention required for the crime of murder to have

been committed. Specifically, he made both these points in response to the requisition of counsel.

67. The first passage in which he specifically dealt with the distinction between a verdict of murder and of manslaughter was:

“…to make the distinction between liability for murder and manslaughter or liability for murder and an acquittal, the force

in any given circumstance would be unlawful of course if it was excessive in all of the circumstances. But to render

somebody liable for murder, one may not prove just the person objectively one must prove that in his subjective state of

mind that the -- that he intended to use the force in question.”

68. This passage expressly adverts to the distinction and to the fact that the use of excessive force would be unlawful. The judge

adds crucially that, to make a person liable for murder, it would have to be proved that “in his subjective state of mind that he --

that he intended to use the force in question.” This passage refers to intention rather than belief: the intention referred to is an

intention to use excessive force. It does expressly not state that, in the event that the accused genuinely believed that the force he

was using was justified, .i.e., no more than was reasonably necessary, even though it was in fact excessive, the verdict should be

manslaughter. On the other hand, the statement, in the context of a reference to the use of excessive force, that “in his subjective

state of mind……he intended to use the force in question” necessarily means that he knew the force was excessive and, nonetheless,

intended to use it.

69. The court believes that the matter would have been better expressed, if the judge had adhered to the statement quoted above

from the headnote to People (Attorney General) v Dwyer:

“Where the defence made to a charge of murder is self-defence against a violent and felonious attack, the trial judge

should inform the jury that if they come to the conclusion that the accused, acting in self-defence, employed more force

than was reasonably necessary but no more than he honestly believed to be necessary, they should return a verdict of

guilty of manslaughter.”

70. The difference between that formulation and that used by the learned trial judge was that the latter spoke of intention together

with “subjective state of mind” of the accused. The court is satisfied that, when the charge of the learned trial judge is considered in

its entirety, it was not deficient.

71. The court would add that, even if this point were to be decided in favour of the applicant, it should affirm the conviction,

because it is of the view that no miscarriage of justice occurred. The jurisdiction of this Court is determined by s. 3 of the Criminal

Procedure Act 1993. Section 3(1)(a) provides that this Court, on the hearing of an appeal against conviction may “affirm the

conviction (and may do so, notwithstanding that it is of opinion that a point raised in the appeal might be decided in favour of the

appellant, if it considers that no miscarriage of justice has actually occurred)…”

72. The court is of the view that there was no miscarriage of justice for the following reasons. The outstanding fact is that this was a

case of an unarmed man being shot four times with a shotgun. The safety feature of the shotgun required an element of deliberation

before shooting. The act of reloading required additional deliberation.

73. There was nothing in the evidence of any of the eyewitnesses to suggest that the applicant was acting in his own defence on

29th July 2009. Several witnesses saw the commencement of the confrontation between the deceased and the applicant. To the

extent that there was any evidence of aggression or provocation, it came from the applicant, who was standing on a bench in his

own garden challenging the deceased to come to him and sort something out, rather than from the deceased. There was no evidence

except in the statements of the applicant of any threats from the deceased directed on the occasion to the applicant, his wife or his

children

74. The defence of self-defence depended entirely on the statements made by the applicant in his garda interviews together with

evidence of the general bad behaviour of the deceased on other occasions. The most specific evidence of threats was that of Ms.

Anna Carthy relating to an incident alleged to have occurred on the previous day. The applicant did not suggest to his own father

either when he telephoned him or when his father arrived at the house and saw the body of the deceased that he had been acting in

self-defence.

75. The first version of the defence was that the deceased had chased or followed the applicant’s wife into their house. She was

carrying a child and screaming: “he’s going to kill me.” This, he later accepted, was completely untrue. Thus the entire substratum of

the statements verbal and written of threats was effectively demolished.

76. The entire basis for the allegations of threats addressed by the deceased to the applicant had to be found in his own statements.

Ms. Anna Carthy gave evidence of specific threats made by the deceased, on the previous day, to harm the applicant’s children.

These were, she said, transmitted to the applicant. However, nobody reported the threats to the gardaí. There was no evidence that

the deceased acted on any of the threats or had the means of doing so.

77. The applicant’s earlier version of running upstairs to get the shotgun was abandoned. The truth was that he had the shotgun

loaded inside the house downstairs before the deceased arrived in his garden. The deceased was unarmed. The applicant never

suggested that he believed he was armed At most, he mentioned seeing him having his hand in a pocket. His earlier version of having

fired all the shots from the door of the house was also altered. He fired the first two shots from the door. The second pair of shots

was fired from very close range. The applicant accepted that he had moved from the doorway of the house down the garden before

firing the second pair of shots. Although the applicant claimed that the deceased was standing, the evidence of Dr Cassidy was that

the later shots were probably fired when the deceased was already on the ground.

78. There were many other inconsistencies in the statements of the applicant. These were all matters for the jury. There was, of

course, specific evidence from Ms. Carthy that the deceased had, on the day before, made threats to the children of the applicant.

The jury would have been entitled to acquit the applicant entirely, if they had accepted that the deceased was genuinely threatening

to carry out these threats and the applicant was acting in defence of his children, when he shot the deceased. However, it is clear

that the jury did not accept the primary defence of self-defence. Counsel does not criticise the judge’s charge in that respect.

Counsel for the appellant did not point to any particular basis on the evidence to suggest that, even though the applicant genuinely

believed that he was acting in self-defence, he used excessive force believing it was necessary. This aspect of the defence was put

at its highest by counsel in addressing the jury. This was done without pointing to any evidence that the applicant had used

excessive force in self-defence while believing it was reasonable. The overwhelming likelihood is that the jury, having considered all

the circumstances, simply did not accept that the applicant was acting in self-defence at all.

The jury question regarding “the target.”

79. This matter arose as follows. During the presentation of the evidence about the interviews, Garda Corkery confirmed that the

shotgun had been produced to the applicant during his interviews. This was referred to as exhibit LOL1 (the initials of D/Garda Louise

O’Loughlan). Garda Corkery also stated: “LOL2 was a large piece of paper, which was a target sheet.”

80. The prosecution had not intended to lead this evidence. Counsel for the prosecution simply said: “I don’t think that matters.” No

actual evidence was introduced at the Trial about a “target sheet,” which was not introduced as an exhibit, in spite of having been

assigned an exhibit number. That was the end of the matter at that point.

81. The jury retired at 11:10 am on 8th November 2010. At 12:43 am they returned. The foreman said: “There’s a bit of confusion

about exhibit LOL2; “I believe there was some kind of a target practice or sheet of paper that was recovered.” The learned trial judge

told the jury that, while there had been some brief reference to something of that type, it had not been put in evidence and was

completely irrelevant to the case. He added that experienced counsel would have put it before them if it had anything to do with the

case. The foreman said: “so, we ignore that?” The learned trial judge said: “You ignore that.”

82. The judge expressed the matter as follows:

“It was mentioned briefly in the case, but it wasn’t put in to evidence, and I can tell you from my experience, knowing

counsel involved, if it was of any relevance to the case, you’d have got it. So, you can proceed on; ignore that

completely. Dare I say it, forget about it, okay?”

83. Later, he said:

“…and frequently items are found by Gardai and so forth which have no

bearing on the matter, or, you know, and there could be all sorts of cases which items found and so on if a thorough

search is done. So, nothing of that kind is relevant; it would, I assure you, nothing is being hidden from you, it would

have been put before you, as would the target item, had it been relevant to the case….”

84. Counsel for the defence applied to the judge for the discharge the jury. Admittedly, at that point, counsel were not at all clear as

to how the jury came to be aware of that exhibit, as references to it had been expressly edited out of various statements. The

concern of the defence was that the applicant had said that this had been the first time he had ever discharged a shotgun. Thus

evidence that he had in his possession a “target sheet” might suggest otherwise. Although the reference to the matter in evidence

had been only fleeting, someone in the jury had picked it up and might be attaching significance to it. They might speculate that the

applicant had been engaged in target practice. Counsel though it would be dangerous to allow the case to proceed in those

circumstances.

85. The learned trial judge refused the application. He ruled that there was no danger of speculation. He was satisfied that the jury

would act in accordance with their directions and with their oath. He referred in particular to Z v Director of Public Prosecutions

[1994] 2 I.R. 476 as authority for the proposition that a jury should be discharged only in exceptional circumstances.

86. Counsel for the applicant repeats the arguments on this appeal. It is submitted that the learned trial judge erred in failing to

ensure that the Applicant herein received a fair trial where the Jury’s deliberations were contaminated by reference to an in-

admissible matter: the jury’s consideration of the case had suffered from actual contamination by the “target sheet” issue to such an

extent that they had asked to see it. The link between the “target sheet” and the shotgun was inherently prejudicial.

87. Counsel for the prosecution disagrees that there was any danger to the fairness of the trial or any prejudice created by the

mention of the “target sheet.” It is pointed out that it was not said whether the target sheet was used. It is also argued that the

suggestion of such gross prejudice appears to fly in the face of the admission that he had the gun already loaded and placed inside

the door when he was shouting at the deceased to come down to his house.

88. The Court is satisfied that the learned trial judge was correct in deciding not to discharge the jury. That is a judgment to be made

in the first instance by the presiding judge. He is in the best position to judge the significance of any particular piece of evidence in

the context of the trial as a whole. The discharge of a jury is an extreme step, to be taken only in exceptional circumstances, where

it is shown that there is a real and serious risk of prejudice from pre-trial publicity, the inadvertent admission of inadmissible evidence

or otherwise.

89. In the present case, there was at most a fleeting reference to the target sheet in the course of the evidence. Nobody, including

defence counsel, though it significant at the time. It was the inquiry of the foreman of the jury that gave rise to the request for

discharge. Counsel suggests that the jury must have been speculating about the significance of the target sheet. But there is no

reason to suggest that. The foreman referred to confusion about an exhibit number. They had not been given the exhibit with the

number in question. The inquiry was perfectly reasonable and in no way suggestive of speculation of the kind suggested.

90. Moreover, the learned trial judge gave a perfectly clear direction to the jury to ignore the target sheet because it was not in

evidence and was completely irrelevant. The Court must assume that the jury will respect their oath and the direction given to them.

In fact, the clear evidence is that the foreman accepted that the jury were to ignore the target sheet.

91. The Court does not accept this ground of appeal.

Decision

92. The court will, for these reasons, dismiss the application for leave to appeal.