Court allows murder appeal due to unremedied misdirection on provocation law despite subsequent jury recharges.

THE COURT OF CRIMINAL APPEAL

[Appeal No: 247/2012]

Clarke J.

Moriarty J.

Herbert J.

Between/

The People at the suit of the Director of Public Prosecutions

Prosecutor/Respondent

and

Shahzad Hussain

Accused/Appellant

Judgment of the Court delivered on the 28th July, 2014 by Mr. Justice Clarke.

1. Introduction

1.1 The main issue which arises on this appeal is concerned with the directions or charge given by the trial judge on a question of

provocation. The tragic events which gave rise to the accused/appellant ("Mr. Hussain") being before the Central Criminal Court

occurred at about 2.00 pm on the 6th January, 2011. Arising from those events Mr. Hussain was charged with the murder of

Muhammad Arif at 48 Fitzwilliam Court in Drogheda. In addition, Mr. Hussain was charged with assault causing harm (contrary to s.3 of

the Non-Fatal Offences Against the Person Act, 1997), and, a separate charge of assault causing serious harm contrary to s.4 of that

Act. Both of those later charges were in relation to his estranged wife Rashida Bibi Haidir. The s.3 allegation involved cutting wounds

to the throat of Ms. Haidir. The s.4 charge related to a stab wound to her abdomen. Mr. Hussain did not deny that he inflicted the

injuries which caused the death of Mr. Arif. He gave a less clear account concerning the injuries suffered by Ms. Haidir. In substance,

the case which he made was that he had come across his estranged wife and Mr. Arif in circumstances suggesting that they were

having an affair. He sought to argue at the trial that, as a result of such provocation, he lost his self control to such an extent as, it

was argued, met the test for a potential finding of provocation such as would in turn have justified a jury in finding him guilty of

manslaughter rather than murder.

1.2 The central issue in this appeal concerns the way in which the trial judge addressed the jury on the question of provocation. It

will be necessary to deal with the precise terms of the judge's charge in due course. However, the question of provocation was

addressed on three occasions. First, in the course of the judge's original charge to the jury. Second, in a recharge to the jury in

circumstances where the trial judge, on being requisitioned by both prosecution and defence to recharge the jury on the question of

provocation, had returned to the issue. Third, when the jury asked a question on the issue of provocation. It is common case that

the trial judge's initial charge on the issue of provocation was incorrect. The real issue between counsel on this appeal was as to

whether or not this misdirection in law was cured by either or both of the subsequent statements made by the trial judge to the jury.

1.3 A second, and subsidiary, issue was argued on the appeal concerning certain photographic evidence which the trial judge

permitted to be adduced but which, it was argued, ought have been excluded on the basis that it was more prejudicial than

probative.

1.4 Further, it should be noted that counsel on behalf of Mr. Hussain brought a motion before the Court, on the occasion of the

appeal, in which it was sought to argue a further ground of appeal which had not been included in the notice of appeal as had

originally been filed. The ground sought to be argued was that the trial judge erred in his charge to the jury in that he directed them

to assess recklessness in objective terms. Having considered the matter the Court decided that it would allow that ground to be

advanced on the appeal. It follows that, in addition to the central ground of appeal concerning the judge's charge on provocation,

two further issues potentially arise being the admission of the photographic evidence and the judge’s charge on the issue of

recklessness.

1.5 The Court proposes to turn first to the central issue of provocation and in that regard it is necessary to start by briefly outlining

the law in this jurisdiction on provocation.

2. Provocation

2.1 Provocation operates as a partial defence which can reduce a charge of murder to manslaughter in situations where the accused

suffers a sudden and temporary total loss of self control in response to provocation and commits the wrongful act in those

circumstances. The position in this jurisdiction in respect of the defence of provocation is different from that which applies in England

and Wales. At common law in the United Kingdom the test was an objective one (see R. v. Duffy [1949] 1 All E.R. 932). However, the

defence is now the subject of statutory definition which has no counterpart in this jurisdiction. In that context it is necessary to turn

to the Irish case law. In the judgment of this Court, delivered by Kenny J., People (DPP) v. MacEoin [1978] 1 I.R. 27, it was held that

the consideration for the trial judge, before a plea can go to the jury, is whether there is:-

"any evidence of provocation which, having regard to the accused's temperament, character and circumstances, might

have caused him to lose control of himself at the time of the wrongful act and whether the provocation bears a

reasonable relation to the amount of force used by the accused." (p.34)

2.2 To succeed in the defence of provocation, a burden rests on the accused to establish the presence of the various elements of

the defence (DPP v Davis [2001] 1 I.R. 146).

2.3 However, in MacEoin it was also held that:-

"the jury should be told that they must consider whether the acts or words, or both, of provocation found by them to

have occurred, when related to the accused, bear a reasonable relation to the amount of force he used. If the

prosecution prove beyond reasonable doubt that the force used was unreasonable and excessive having regard to the

provocation, the defence of provocation fails".

2.4 In People (DPP) v. Kelly [2000] 2 I.R. 1, Barrington J., delivering the judgment of this Court, noted that the court in MacEoin did

not intend the last sentence from the passage cited to stand alone and imply a purely objective test. The question of whether there

is a proportionality between the response to the provocation and the provocation itself can, however, be a factor which a jury can

legitimately take into account but only in assessing the credibility of a case made to the effect that the accused had actually lost

total control. In Kelly, Barrington J. said that:-

"The question they have to decide is not whether a normal or reasonable man would have been so provoked by the

matters complained of as totally to lose his self-control but whether this particular accused with his peculiar history and

personality was so provoked. At the same time they are entitled to rely upon their common sense and experience of life

in deciding this as in deciding all other matters. If the reaction of the accused in totally losing his self-control in response

to the provocation appears to them to have been strange, odd, or disproportionate that is a matter which they are

entitled to take into consideration in deciding whether the evidence on which the plea of provocation rests is credible. "

(p.11)

2.5 Thus, the law as it stands permits a plea of provocation to be put before a jury where evidence exists to suggest that the

accused was actually provoked so as to suffer a temporary loss of control, and that his or her actions were in fact induced by the

provocative conduct. Further, in assessing the credibility of the plea of provocation, the jury may have regard to the proportionality

of the force used.

2.6 There was no dispute between the parties as to that legal position. It is against that background that it is necessary to turn to

the way in which the trial judge addressed the question.

3. The Trial Judge's Charge

3.1 In his initial charge to the jury the trial judge, when dealing with the question of provocation, said the following:-

"Provocation will reduce what, in the normal course of events, would have been a murder verdict back to the level of

manslaughter. What is provocation? Provocation is constituted by words or actions or a combination of words or actions

that so affect an accused person, having regard to his temperament, character and circumstances, that he so loses

control of himself at the time that he carries out a particular wrongful act that he isn’t master of his own mind when he

is doing that act. Now, when you consider provocation you have to – and it’s for the State to negative it – but you have

to consider what is the temperament, character and circumstances of Mr. Hussain. Was he so provoked that he lost

complete control of himself, that he wasn’t master of his own mind? You have to assess the circumstances of the case

and you have to look at the circumstances of the case. You have to consider, well what is losing total self-control?

Losing self-control does not occur – or I shouldn’t say does not occur, but simply losing one’s temper is not losing total

self-control. A fit of jealousy does not constitute the loss of self-control. I can lose my temper with you and I can be

totally aware of what I’m doing and I can be doing it knowing that you have annoyed me. I can get into a jealous rage

and still be totally aware of what I am doing and be in total control of what I am doing. And we’re not talking about, as I

say, what one might describe as a short tempered reaction. What occurred must happen suddenly. There must be no

time for passions to cool and it must be, as I say, something whereby a person is no longer master of his own mind. The

concept of provocation presupposes a non-functioning mind, a man doesn’t know what he’s doing. And before, in a case

such as this one where the issue of provocation is being raised, before you can find the accused man guilty of murder,

the prosecution must establish beyond reasonable doubt that the accused man was not provoked to such an extent

that, having regard to his particular temperament, character and circumstances, he lost control of himself at the time

of the wrongful act. You should consider whether the acts or words, or both, of provocation because it is suggested

here that there is a combination, so to speak, of actions and words. If you find them to have occurred, when related to

the accused, they are a reasonable relation to the amount of force used. If the prosecution has proved to your

satisfaction beyond reasonable doubt that the force used was unreasonable and excessive, having regard to the

provocation, then the defence of provocation fails."

3.2 It was accepted before this Court by both sides that the statement made by the trial judge, in the last two sentences from the

passage cited, to the effect that the defence of provocation would fail in law if the force used was unreasonable and excessive

having regard to the provocation, was incorrect. That statement clearly implies that the jury should assess, objectively, whether the

response to any provocation established was reasonable. That is clearly an incorrect statement of the law in this jurisdiction.

3.3 On being requisitioned by both sides the trial judge recharged the jury as follows:-

"As regards the question of provocation, I did tell you to consider whether the reaction was reasonable to the

provocation, whether proportionality applied. Of course again I did advise you that the test was a subjective test. It’s

not what’s in the mind of the reasonable man. It’s what was in Mr. Hussain’s mind. It might be better if you totally

ignored what I had to say in relation to that but bear in mind, as I say, that it is a subjective test. It’s not what you, as

a reasonable doubt man, might do but what Mr. Hussain, having regard to his personality, temperament and character,

would consider reasonable in the circumstances."

There is again a difficulty about the way in which the defence is explained in this recharge. In the final sentence the trial judge refers

to what Mr Hussain "would consider reasonable". That is not, of course, the test. The test is as to whether Mr. Hussain actually

suffered a total loss of control, not whether he would have considered it reasonable to act in the way in which he did.

3.4 The trial judge was not, thereafter, further requisitioned on that issue.

3.5 However, the jury, through their foreman, asked for further clarification. As appears from the transcript of day 16 page 7 lines 25

– 34 and page 8 lines 1 – 3, the following exchange occurred between the foreman and the judge:-

"FOREMAN: If I may, your honour, I have had one request for a clarification.

JUDGE: Certainly.

FOREMAN: And it’s with regard to how does the view of a juror on the proportionality of a reaction affect the defence of

provocation?

JUDGE: Well, I think I advised you that you should perhaps disregard the issue of proportionality because it is perhaps a

two edged sword from the point of view that someone might perhaps say, well you know somebody couldn’t react in

that manner, it’s way out of proportion but equally it could be said, well if they’re out of their mind obviously they will

react in that manner and the issue of proportionality is really a matter for the mind of the accused man rather than the

mind of a juror. It’s not a question of an objective view. It’s a subjective view. So, as I say, I think all told it might be

better if you disregarded the issue of proportionality.

FOREMAN: Understood. Thank you."

First it must be noted that the jury, in the light of the charge and the recharge, clearly remained unclear, as of that stage, about the

defence of provocation. Although it may well have been in favour of Mr. Hussain, it was also incorrect of the trial judge to say to the

jury that they should totally disregard proportionality. On the basis of the jurisprudence which has already been analysed, it is

appropriate for the jury to consider the reaction of the accused to the events in question as part of their overall consideration as to

whether they conclude, as a matter of fact, whether or not the accused did suffer a total loss of control. In addition it should be

noted that no requisition was made to the trial judge arising out of his reply to the foreman's request.

3.6 It being accepted that the initial charge of the trial judge was incorrect, the real question which arises under this heading is as to

whether the mis-statement of law given in the initial charge had been adequately redressed, by either or both or a combination of the

subsequent statements made by the trial judge to the jury, so that no real risk of the trial having been unfair remained. Before going

on to assess that issue, it is also of some importance to have regard to the jurisprudence concerning points which, as the prosecution

put it, are let lie at a trial. It is, therefore, appropriate to turn briefly to that jurisprudence.

4. Points Let Lie at Trial

4.1 This Court considered the question in People (D.P.P.) v. Cronin [2003] 3 I.R. 377, where, in a judgment delivered by Hardiman J.,

the Court concurred with a passage from People (DPP) v. Moloney, (Unreported, CCA, 2nd March, 1992) to the following effect:-

"We would wish to reiterate the jurisprudence of the court which has been in place for many years that there is an

obligation on counsel on both sides, the prosecution and the defence, to bring to the attention of the trial judge any

inadequacies they perceive in his directions to the jury. If an appeal is brought before this court on a point that has not

been canvassed at the trial this court will regard any person making such a new point as having an obligation to explain

why it is sought to be made on appeal when not made at the trial. That is not to say but that if the essential justice of

the case calls for intervention we have an obligation so to intervene."

In adopting that passage, Hardiman J. held, at p.391.:-

"The reason for this rule or statement of principle is not at all a technical one, or one merely designed to assist in the

orderly conduct of trials and appeals. It is to ensure a proper relationship, based in reality, between the conduct of an

appeal and the task on which the court is engaged, which is to say whether or not the trial was a safe and satisfactory

one."

4.2 On appeal Geoghegan J., on behalf of the Supreme Court, (see D.P.P. v. Cronin (No. 2) [2006] 4 I.R. 329) agreed with the view of

Hardiman J. and held, at p.339 that he would agree:-

"with the view of the Court of Criminal Appeal that the applicant was defended with skill and competence at the trial. It

would be wrong now to set aside the conviction on foot of matters which were deliberately never raised in requisitions

unless this court were of the view that a fundamental injustice had been caused."

4.3 It is, of course, true that the question of provocation was not allowed to lie still in this case. On the contrary both counsel

sought a recharge of the jury on the point. The application of the general principle in such circumstances was considered by this

Court in D.P.P. v. McGovern [2010] IECCA 79 where it was held:-

"This court should not entertain an application in respect of grounds which relate to the five requisitions which were

acceded to and where the recharge was in the terms requested by the defence unless circumstances exist in which the

court should entertain such grounds: the application may be entertained if there is an explanation for the failure to

requisition the trial judge and the essential justice of the case so requires."

4.4 Likewise, in D.P.P. v. Finnegan and Morrison [2011] IECCA 47, the question of seeking a further recharge where it was considered

that an initial recharge had failed to adequately deal with an identified problem, was considered. In that case Macken J. stated:

"According to well established jurisprudence [see: DPP v. Cronin [2004] 4 I.R. 329] (sic), repeated on many occasions,

the matter cannot now be sought to be raised in the course of this application, counsel having expressed themselves

satisfied with the response given and there being no grounds advanced for explaining any error on the part of the

defence team for failing to raise any further objection at the time of trial, and no suggestion of any error or oversight

on the part of counsel.

4.5 In addition it is appropriate to have regard to People (DPP) v. Jason Kavanagh [2012] IECCA 65, where, at para. 55, the following

is said:-

"The finality of a trial is at its conclusion. The question then arises as to when the trial is concluded. After a trial an

accused person has a right of appeal. However, the only issues that may be raised on appeal are those raised and

decided upon at the trial. Thus, the issues to be determined on an appeal are dependent on what transpired in the trial

court".

4.6 Apart altogether from the undesirability identified in the jurisprudence of allowing, in the absence of significant extenuating

circumstances, a point which was not raised at trial from being made on appeal, it is also relevant to take into account the fact that

those who are actually present during a judge's charge and, indeed, recharge, are obviously in a better position to form a judgment as

to whether a judge's charge has adequately conveyed the true legal position to the jury. An appeal court, having only available to it

dry words in a transcript, may not be in as good a position as those who are actually present to reach such a conclusion. An appeal

court must clearly, therefore, be entitled to take into account and place significant weight on any absence of requisition to the trial

judge in assessing whether, on an overall basis, the jury were given appropriate directions on the law.

5. Discussion

5.1 As already noted there is no doubt but that the initial charge by the trial judge to the jury mis-stated the law on provocation

insofar as the charge told the jury that the test was what a reasonable man would do in response to the provocation in question. The

Court is not persuaded that the recharge remedied the problem which arose from that charge. As already noted the trial judge used

the phrase "would consider reasonable" when referring to the approach which the jury should adopt in assessing Mr. Hussain's actions.

Given the earlier statement on this issue by the trial judge in his charge to the jury, the continued use of the term "reasonable" (even

though, on this occasion, referring to what Mr. Hussain might have considered reasonable rather than what an objective third party

might have so considered) left a real risk that the jury would not have properly understood the true legal position. That such was the

case is, perhaps, emphasised by the fact that the foreman returned to the issue in the question to the trial judge to which reference

has already been made.

5.2 In the answer given by the trial judge to the foreman's question, it is stated that proportionality is a matter for the mind of the

accused man rather than the mind of a juror. But, in the Court's view, this answer does not go far enough in making it clear that the

question is not even as to what the accused might have considered proportionate but rather whether the accused in fact suffered a

total loss of control. The lack of clarity on this point is particularly important in the light of the previous confusion about the issue.

5.3 The Court is, therefore, left with a very real concern that the initial misdirection to the jury was not adequately corrected by

either or both of the recharge and the answer to the foreman's question. The Court must, however, also take into account the fact

that the trial judge was not invited to further recharge the jury either after the initial recharge or after the answer given to the

foreman's question.

5.4 At the appeal no real answer was given as to why, if it were considered that the issue of provocation had not been adequately

dealt with in the recharge and/or in the answer to the foreman's question, a further requisition to the trial judge was not made. That

failure is particularly relevant in circumstances where the judge was, on other points, invited to further recharge the jury.

5.5 The Court must, of course, take into account the fact that this is not a point which was left entirely untouched at the trial. The

problem with the judge's original charge was clearly identified and a recharge sought. It seems to this Court that, perhaps, somewhat

less weight needs to be attached to a failure to persist in a point once raised in comparison with a point not raised at all, although, it

must be said, there is a clear duty on counsel to persist with any point which they consider has not been adequately dealt with by a

trial judge in the absence of a clear ruling by the trial judge to the effect that there will not be a recharge on the point in question.

5.6 The Court also takes into account the fact that provocation was the central issue in this case. It was the principal issue to which

the jury would have been required to direct their minds in considering whether to find the accused guilty or not guilty. A failure to

correctly charge the jury on that central issue creates a much greater risk of injustice than an error in respect of a peripheral aspect

of the case.

5.7 On the basis of the authorities earlier cited it is clear that the Court should only entertain a point concerning a judge's charge,

which was not made or persisted with at trial, if the Court is concerned that "a fundamental injustice" is at risk (as per Cronin No. 2)

or "the essential justice of the case so requires" (as per McGovern).

5.8 In all the circumstances of this case, the Court remains concerned that there is a real risk of injustice and that the essential

justice of the case does require the Court to pay significant regard to its concern that the jury may have remained under a significant

misapprehension as to the proper legal basis on which they were to consider the key point in the defence case being provocation. In

those circumstances the Court is of the view that the appeal should be allowed and a retrial directed. In those circumstances, it is

appropriate for the Court to briefly comment on the two other points which were argued on this appeal for they may have some

relevance to any retrial. The Court, therefore, turns first to the judge's charge on recklessness.

6. Recklessness

6.1 In respect of recklessness the trial judge was requisitioned to recharge the jury. In that recharge the trial judge said:-

”a person acts recklessly with respect to a material element of an offence when he consciously disregards a substantial

and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature

and degree that, considering the nature and purpose of the individual’s conduct and the circumstances known to him, its

disregard involves culpability of a high degree. So it’s a subjective test. It’s not the objective test. It’s the subjective

test that applies if you have to consider the issue of recklessness. But on the evidence before you from Ms Haidir, she

has said that the stabbings were intentional. You have the evidence from the accused man in relation to matters and

there are occasions when he describes it as accidental. It’s not intended. So, if you are not satisfied beyond reasonable

doubt that it was intended then you move on and you consider the issue of recklessness, whether or not you are

satisfied beyond reasonable doubt that he acted recklessly. ” (Day14, p.52, lines 27-34 and p.53, lines 1-5)

6.2 It seems to this Court that the first part of that recharge is very closely modelled on the judgment of Henchy J. in the Supreme

Court in DPP v. Murray [1977] 1 I.R. 360, where the following was said at p.403:-

“The test of recklessness in this context is well stated in the Model Penal Code—s. 2.02(2)(c)—drawn up by the American

Law Institute:—

"A person acts recklessly with respect to a material element of an offence when he consciously disregards a substantial

and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature

and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its

disregard involves culpability of high degree."”

6.3 The balance of what the trial judge said in his recharge on recklessness in this case does not seem to this Court to depart, in any

material way, from the law as determined by the Supreme Court in Murray. The Court does not, therefore, see any basis for

suggesting that the appeal could be allowed on the basis of that aspect of the charge. On that basis the Court now turns to the

question of photographic evidence.

7. Photographic Evidence

7.1 The trial judge admitted in evidence seven photographs taken of Ms. Haidir in the immediate aftermath of the event which showed

the nature of the injuries inflicted, two of which showed post operative scarring and suturing or stapling. The admission of that

evidence was objected to on the basis that, it was said, it was more prejudicial than probative. The first point to be made in that

context is that it is principally a matter for the trial judge to form a judgment, in the light of the state of the evidence as a whole and

the issues which have emerged at the trial, as to whether a particular piece of evidence should be admitted where an objection of

that type is raised. The trial judge is in the best position to make a judgment on such issues and this Court should only interfere with

a trial judge's decision in that regard in a very clear case.

7.2 On the facts of this case, there were issues before the Court as to the precise way in which the injuries to Ms. Haidir occurred

and the number of abdominal injuries sustained by her. It was, therefore, open to the trial judge to form the view that, broadly

speaking, contemporaneous photographs of the injuries might be of assistance to the jury in addressing those questions. In those

circumstances it seems to the Court that the admission or otherwise of the photographic evidence in question was well within the

range of options which were open to the trial judge. In those circumstances the Court would not propose to allow the appeal on that

ground.

8. Conclusions

8.1 For the reasons set out in this judgment the Court is not, therefore, satisfied that either the ground of appeal based on the

admission of photographic evidence or the ground of appeal based on the judge's charge or recharge concerning recklessness give rise

to any proper basis for upsetting the conviction.

8.2 However, and notwithstanding the fact that the matter was not fully pursued at the trial, the Court remains concerned that there

is a very real risk of injustice by reason of the manner in which the central question of provocation was explained by the trial judge to

the jury. It was common case that the initial charge to the jury by the trial judge incorrectly stated the law on provocation. For the

reasons analysed in this judgment, the Court is not satisfied that this issue was adequately remedied by either, or both, the recharge

by the trial judge or the answers given by the trial judge to a question from the foreman.

8.3 In those circumstances the Court proposes to allow the appeal and to direct a retrial.