Court allows appeal quashing murder conviction where self-defence evidence was insufficient for jury consideration.

THE COURT OF CRIMINAL APPEAL

CCA No. 1/12

O’Donnell J.

Herbert J.

Edwards J.

Between/

The People at the Suit of the Director of Public Prosecutions

Respondent

And

Thomas O’Connor

Appellant

Judgment of the Court delivered on the 24th of November 2014, by O’Donnell J.

1 On the 5th of June 2010 the appellant Thomas O’Connor, a young man aged 22, killed his friend and neighbour John O’Brien, then

also a young man aged 22 and about to get married. John O’Brien died as a result of a blunt force trauma to his head caused by being

struck by a rock which was recovered as part of the garda investigation and found to weigh 1.6 kilograms.

2 The evidence was that during the evening of the 4th of June both the appellant and the victim had been drinking in the

underground car park of Superquinn in Greystones and driving around the area with the victim’s brother Jimmy. There was evidence

that in the course of the evening the victim had struck two younger men and was restrained by Thomas O’Connor. There was a

dispute as to just how serious this altercation was, but it was something upon which, understandably, the defence placed some

stress.

3 Finally, in the early hours of the morning having disagreed about what to do next, they separated at a roundabout on the road

between Greystones and Charlesland and started in different directions. As it happened, there was a considerable amount of evidence

from both passing motorists and residents who witnessed part at least of what transpired. Among those accounts was some evidence

that the appellant was shouting something and cursing, and then made a u-turn and doubled back. A number of witnesses gave

evidence that they saw a man wearing a grey hoodie, as the appellant was, standing over another man who was then lying on the

ground, and striking him repeatedly. There was also evidence that the victim was very badly injured indeed, was bleeding profusely,

and in particular, that his head was seriously deformed. Dr Curtis, the Deputy State Pathologist, gave evidence that the victim

suffered a catastrophic head injury.

4 After this incident, the appellant went to the home of his former girlfriend. He told her a story which is now accepted to be

completely untrue of having been assaulted by a man carrying a knife. He obtained bleach from her to wash the blood from his hands,

and scrubbed his clothes to remove the blood stains. He then got two firelighters from her and left. It is clear that his former girlfriend

was very agitated about the scene in her house. The appellant then went to the house where he lived with his current partner and

tried to burn his clothes in a bin. He also returned to the scene of the incident, and spoke to gardaí there. He did not at that stage

admit any involvement in the incident. Later on that day when confronted by members of the victim’s family he said that John O’Brien

had been fine the last time he had seen him the previous night.

5 Later on the 5th of June the appellant contacted his partner, told her what he had done and then set off to see his daughter. He

was however arrested by the gardaí. There were a number of interviews during which he did not require the attendance of a lawyer.

The account he gave was contained in the following lengthy statement which was introduced in evidence on Day 3:

“I first met him over Superquinn in Greystones about 8.30 pm or earlier. I had to go to the shop and get bread and I

bought drink and I bumped into John O’Brien and he asked me did I want to go drinking. We sat down in the

underground car park at Superquinn and started drinking. We were there for a while and then I said I had to head

home to drop the [bread] home. I came back over to the car park after speaking to Jimmy O’Brien. We then came

over in the car and sat in the car for a while drinking. Then I just went spinning the car with John and Jimmy, just

all over the place then. Me and John went back over to Superquinn car park where we met two other fellows and

started hanging around with them - drinking. We were over there for a while. We then went out to the car park and

John started getting into an argument with the two boys we had met up with and he started hitting them. We were

there for about half an hour longer. Then we walked out of the car park near the Chinese at Superquinn and John

started to have an argument with a fellow in a car and the lads, the lads we were with went home then. He went

up to his nanny’s house, I think they call her nanny; we were there for about five seconds. She put us out. We

were too drunk. So then we just went walking around Charlesland. We were giving some man abuse in Charlesland.

We climbed over the fence that separates the two estates, Charlesland and Burnaby Lawns or Court. We went up

the main road, going on a mission to find more drink. We just walked around for ages seeing if people were in their

houses, like friends. There was no one in their houses so we just kept walking up the road and went into some

estate and just sat there drinking more. We were there for a while just drinking and acting the bollocks and then

the drink was gone he said let’s go back to his house because his girlfriend wasn’t there and I said ‘no I’m going to a

friend’s house’ and he said ‘fuck you so’ and the two of us just walked up the road and we got as far as the

roundabout and I crossed over and then I heard my name being called and I turned around and I got a couple of

boxes in the head from John O’Brien and the two of us were tussling on the ground and he picked up the rock to hit

me with it. He missed and then I picked up the rock and I hit him a few times on the head and I just seen all the

blood on my hands and I panicked then I ran. I picked up the rock and ran up the road with it, went to go through

the shortcut to my friends house where I threw the rock in the ditch. I ran to my friend’s panicking. I went into her

house and washed my hands – my hands and got firelighters. I ran out of the house and ran into the field and burnt

my jumper because it was covered in blood. Then I left the field and walked around the corner to see if he (John

O’Brien) was okay. But then the guards were there with him and I panicked and ran. I ran home to 6 Burnaby Court.

I took my clothes off and through them into a bin. My tracksuit bottoms the T shirt into the wheelie bin in the back

garden of 6 Burnaby Court. I went into the sitting room and sat there for the night shaking – that was it really.”

6 Subsequently in another interview he elaborated on this count a little:

“Then I heard my name being called and I turned around and I got a couple of boxes in the head from John O’Brien

and the two of us were tussling on the ground and he picked up the rock to hit me with it. He missed and then I

picked up the rock and hit him a few times in the head….

…yeah he was telling me to fuck off and get off him. When I hit him first I hit him again as he had a hold on my leg,

and I hit him again and seen the blood on my hands panicked and got up.”

7 He gave a third version with a little more detail:

“When he tried to hit me with it, he missed, and that’s when he stumbled and fell onto me and the two of us fell on

the ground and that’s when we started fighting then, rolling around on the ground. He dropped the rock when we

fell. Then the two of us were on the ground, fighting. He was trying to reach for the rock again. I kept pulling him

away. Then we rolled closer to it. Then I picked it up and hit him … when I hit him the first time, he was still boxing

and kicking me in the head. That where I first hit him with the rock. That’s the only place I hit him with it.”

8 These accounts are essentially consistent with each other. However, these statements do not contain a full account of his visit to

his former girlfriend’s house. In addition to this, the prosecution put stress on other matters set out in his interviews and in particular

the following questions and answers:

“Q. Well what was the main reason you were scared about?

A. I was scared, it was my friend and me had an argument and I just went too far.

Q. Did you feel you had lost control during the row?

A. Yeah.

Q. You knew you had done serious damage?

A. I knew I had done serious damage but I didn’t think I had killed him.”

Earlier he had been asked why he did not stop after the first blow. He answered, “In a rage. He did hit me for no reason and the two

of us were on the ground fighting”

9 In the course of the trial there was reference to other details of the case, but the foregoing account is sufficient for the purposes

of this appeal.

10 On day 6 of the trial counsel for the accused applied to the Court that the jury might consider the defence of provocation. The

trial judge was critical, perhaps understandably, of what he considered to be the low threshold required before it could be said that a

defence of provocation had been raised on the evidence sufficient to allow it to go to the jury. Nevertheless he did permit the

defence of provocation to go to the jury. As the jury was about to be called back into court, counsel for the accused observed that

unlike provocation he did not need the leave of the Court to argue any issue of self-defence. The trial judge then made it clear that

he had considered the question of self-defence and did not consider that it arose sufficiently to go to the jury. There was then an

extended argument between the parties. The trial judge said that self-defence presupposed a functioning mind and a person who

makes a rational decision, presumably contrasting it with the situation where provocation arises. He then quoted a statement of the

law on self-defence:

“Self defence as a defence will offer an absolute defence where the force used is reasonable when viewed

objectively by a jury and also reasonable when viewed subjectively by the accused person. Self defence will reduce

what otherwise might be murder to manslaughter and in circumstances where the force used is unreasonable when

viewed objectively, but reasonable when viewed subjectively the accused man and self defence is not available

where the force used is neither reasonable when viewed objectively or subjectively.”

11 Counsel for the accused agreed with that statement of the law. Accordingly nothing turns for the purposes of this appeal on this

compressed statement, and accordingly the court offers no view upon it. Ultimately on day 6, page 17, the trial judge ruled:

“I do not consider that the defence of self defence is an absolute defence or as a partial lies in this case and I do

not consider there is any evidence from which the jury can infer that the force used by the accused in this case

was reasonable when viewed subjectively and if a jury have no evidence from which they can come to that

conclusion or draw the inference that the accused was acting reasonably, then there is no way in my view in which

the defence of self defence is open and I do not propose to leave it to the jury.”

12 Accordingly the jury was addressed on the question of provocation but not on the question of self-defence. The central issue in

this appeal is whether that ruling was correct.

13 The law relating to self-defence can be stated quite succinctly. No person has a right to engage in a fight. But if a person is

subjected to an unlawful assault, then they are entitled to defend themselves and if they use no more force than is objectively

necessary to repel the assault, then they commit no offence, even if the use of force results in the death of their assailant.

Furthermore, in the case of lethal force, if the accused used more force than was objectively necessary, but no more than he, in the

judgment of the jury, subjectively considered necessary, then that reduces murder to manslaughter.

14 All of this must however be read through at least two prisms that involve a certain degree of mental gymnastics. Once an issue of

self-defence (or any other defence) is raised and it is accepted, it is for the prosecution to negative it beyond any reasonable doubt.

That may at times involve some double negatives. When someone is found not guilty after raising a defence of self-defence, it means

that the jury was not satisfied beyond reasonable doubt that the person was not acting in self-defence. The second prism

complicating the issue is that the law on self-defence is stated in terms of the decision for the jury. There is however a threshold

question for the judge whether an issue has been raised sufficient for it to go to a jury. That is the issue which arises here. This is

sometimes described as an evidential burden, but this description does not mean that the defendant has to tender any evidence. The

threshold can be met from the evidence before the court even if all the evidence has been tendered by the prosecution. The only

burden, if that is an appropriate word, on the accused, or his legal team, is to identify the evidence sufficient to allow the matter to

go to the jury. It is also, of course, the case that at this point a court is not concerned with the credibility or cogency of the

evidence. The case must be taken at its highest from the accused’s point of view but, in doing so, the court must address the

evidence, and not any supposition hypothesis or speculation. Thus, where there is a conflict of evidence, the court must for the

purposes of this exercise take the version most favourable to the accused. This can be a difficult task. However, this approach does

not mean that a court can pick and choose between individual portions of the same evidence. In this case for example, the account

given by the accused must be looked at as a whole to consider whether it is capable of raising the defence of self-defence as a

complete defence or as a partial defence reducing murder to manslaughter.

15 The test to be applied has been discussed in relatively recent decisions of this court. A useful formulation is that set out in the

judgment of Hardiman J. in The People (Director of Public Prosecutions) v. O’Carroll [2004] IECCA 16 (“O’Carroll”). There he said:

“This topic is discussed at some length in DPP v Davis, cited above [[2001] 1 I.R 146], and it is not necessary to

repeat that discussion here. That case held that the defence of provocation had to be raised, and not merely

invoked, by the provision of some evidence raising it so as to trigger the prosecution’s duty to rebut it. In Davis this

Court cited with approval the following passage from McAuley and McCutcheon Criminal Liability (2000) at page

851:-

‘The general principles governing defences apply: a burden rests with the accused who must be able to

show that provocation is a live issue, or, as Lord Devlin put it, who must produce a credible narrative of

events suggesting the presence of the various elements of the defence.’ (para. 21)

The Court continued:-

“It is clear that this may be done either by direct evidence including the accused’s own evidence, or by

inference from the evidence as a whole.

That statement of the evidential burden in relation to provocation is also apt to describe the same

burden in relation to self defence.

We would also repeat, in relation to self defence, certain other remarks in the judgment of the Court in

Davis which were of course addressed to the specific defence of provocation. As with provocation, the

evidential burden of raising the defence of self defence is not a heavy one but it necessarily involves

being able to point to evidence of some sort suggesting the presence of the elements of self defence.

Like provocation, self defence is not an issue which will automatically go to the jury simply because the

defence is invoked or mentioned. The burden which rests with the accused is to produce or indicate

evidence suggesting the presence of the elements of the defence, whether through direct evidence or

by inference from the evidence as a whole. Before leaving the issue to the jury the judge must satisfy

himself that an issue of substance, as distinct from a contrived issue or a vague possibility has been

raised.” (paras. 22-24)

16 It is clear from this extract that there is a threshold when a defence of self-defence is intimated, and that a judge can properly

determine that the issue does not arise. But that is a difficult exercise. In this case the difficulty is compounded by the fact that a

defence has not been raised directly by the accused either by giving evidence on his own behalf, or in any of the many interviews

which he had with the gardaí. Therefore, if the defence has been raised, it can only be by inference from the evidence as a whole. In

this case, counsel recognised, realistically, that the evidence here was not strong and that it was on the margins as far as a

complete defence of self-defence was concerned, i.e., that the force used was no more than was objectively necessary, but they

argue that there was strong basis for saying that the partial defence should go to the jury since it was essentially a subjective test.

17 In analysing this it may be useful to separate a number of the components of self-defence. First, there must be an unlawful attack

– or assault. The defence is not available to persons who simply engage in a fight. Second, the use of force must be to repel the

assault and for the purposes of defence. The defence is not available to immunise someone who takes the opportunity of a minor

assault to launch an attack with perhaps lethal consequences. Third, the reasonableness of the force used is relevant in two

respects. A jury must consider whether it has been established that the force was objectively unreasonable and if so whether it has

been established that the accused knew it to be so.

18 Here there is some evidence on the question of an assault or an attack being initiated by the victim. This is the account given by

the appellant although it may be difficult to square that evidence with the evidence of onlookers that it was the accused who turned

back towards the victim. However, that is classically a matter for the jury. Taking the evidence at its high point from the accused’s

point of view, there is evidence that he was stuck on the head by the victim, that in the course of a scuffle the victim attempted to

hit him with a rock, and that during the scuffle the victim was still attempting to get the rock. It is not the function of the Court at

this point to make any assessment of the credibility of the accused’s account. Accordingly, there was evidence going to the first two

elements of the defence. The third issue, the reasonableness of the force used is central to either version of the defence of self-

defence. But it is classically a matter for the jury to determine. In The People (Director of Public Prosecutions) v. Nally [2007] 4

I.R.145 (“Nally”) the Court of Criminal Appeal said that “[t]he question whether the amount of force used is objectively reasonable is

quintessentially a matter of fact for a jury” (para. 24). This must be even more clearly the case where the issue is the reasonableness

of the force used when viewed subjectively. The statement by the accused that he was in a rage, had gone too far and had lost

control, all suggest that the force used was unreasonable when viewed objectively or indeed subjectively. It was suggested however

by counsel for the accused at the trial, and again on this appeal, that such a statement while damaging to any suggestion that force

used viewed subjectively by the accused was no more than was necessary, was not necessarily fatal to it, since it was possible that

the statement was a reflective one, i.e., a statement made in hindsight rather than expressing his thoughts (and therefore his state

of mind) at the time of the incident.

19 This Court can readily appreciate the trial judge’s frustration with the flimsy nature of the evidence from which it is suggested an

inference of self-defence could be drawn, particularly in the context of the rest of the evidence in this case. In Nally the Court of

Criminal Appeal observed that it was permissible for a judge to sum up in the usual form and express his own view that the amount of

force could not be objectively justified, while leaving the ultimate resolution of the issue to the jury. Nally was treated as a case in

which the trial judge effectively directed a verdict of guilty leaving the jury to decide between murder and manslaughter. However

provocation was raised there and let go to the jury. Accordingly it is difficult to distinguish this case from Nally save that here the

judge did not even permit the partial defence go to the jury. There may be a tension between what was decided in Nally and the

observation in O’Carroll, but it is not necessary to explore that here since the contentious question here was the reasonableness of

the force used which as was stated in Nally, is quintessentially a matter for the jury. The Court in O’Carroll observed the evidential

burden is not a heavy one. There was evidence in this case suggesting that the victim had been violent earlier in the evening, that he

initiated the attack, that he had been the first to seek to use the rock as a weapon, and furthermore that all of this occurred in the

course of a drunken tussle. This Court thus considers that there was a sufficient case to go to the jury, albeit that the judge would

have been entitled to make clear to the jury how limited that evidence was and the weight of contrary evidence.

20 In the circumstances, it is not necessary to consider the further arguments raised. The appeal must be allowed, the conviction

quashed, and a retrial directed.