Court of Appeal allows appeal on assault conviction but dismisses threat conviction due to jury fitness concerns.

THE COURT OF APPEAL

Birmingham J.

Mahon J.

Edwards J.

Record No CA 33/2015

Bill No LK 32/2014

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

DAMIEN O’BRIEN

Appellant

Judgment of the Court delivered on the 12th day of May 2016 by Mr. Justice Edwards.

Introduction.

1. In this case the appellant appeals against his conviction by a jury at Limerick Circuit Criminal Court on the 30th of January 2015 on

a count of assault contrary to s. 2 of the Non Fatal Offences Against the Person Act 1997 (the Act of 1997), and also on a count of

making a threat to injure another with a syringe, contrary to s. 6(1)(b) of the Act of 1997.

2. Following his conviction the appellant was sentenced to 6 months imprisonment to date from the 21st of October 2014 in respect

of the s.2 offence, and to five years imprisonment, also to date from the 21st of October 2014, in respect of the s. 6(1)(b) offence.

The appellant also appeals against the severity of his sentences. However, this judgment is concerned solely with his appeal against

conviction.

The evidence in the case

3. The evidence adduced by the prosecution was largely, though not entirely, uncontroversial. The counts in respect of which the

appellant was tried related to two separate incidents which occurred on the same afternoon.

4. Count No 1, which charged the s. 2 assault, was preferred in respect of an incident that occurred at Gleeson’s Spar shop at Henry

Street, Limerick, on the 10th October, 2013. A Mr. Michael Gleeson and his brother own this shop. The Gleeson family also has

another shop at 43, Catherine Street, Limerick.

5. The jury heard that Michael Gleeson was working at his said shop at Henry Street when the appellant entered the premises shortly

after 5.00 p.m. on the 10th October, 2013. Having been interrupted in the course of serving another customer by the appellant, who

was observed to be behaving aggressively, Mr Gleeson asked the appellant to leave his shop. The appellant started shouting and

uttering threats and then, at about 5.04 p.m., he lunged at a Mr. Andrzej Stradomnski who was working behind the counter grabbing

him by the neck, and in the course of doing so knocked over a display stand containing chocolate and sweets. The appellant was

then forcibly restrained by Michael Gleeson and other members of the staff. He was put out of the premises. The incident was

recorded on a CCTV system. Relevant footage was played at the trial.

6. Mr Stradomnski testified in his evidence in chief that he had not offered any provocation to the appellant and had done nothing to

cause, or to justify, the appellant in grabbing him. Asked what he did next, i.e., after he had been grabbed, Mr Stradomnski said

“Well, I tried to defence me.” It was suggested by the defence that Andrzej Stradomnski had made “a swipe” at the appellant prior to

the appellant’s lunge. In the course of being cross-examined, Mr Stradomnski was being asked to comment on the CCTV footage,

when the following exchange occurred:

Q. … He has you by the jumper, he hasn't touched your skin. He has you by the jumper. You pull him into you, isn't that

right? Play it on now, guard. Here comes Mr what you call him, catch him, first of all, around the left-hand side of the

neck and now his left hand is there around my client's neck as well, isn't that right? Did you see that?

A. I see that.

Q. You saw that and then he pulls him away. Are you sure you didn't make a lunge for my client because it looks very

like it to me, that you made a lunge for him when he was outside the counter, causing him to back off?

A. I just said -- excuse me.

Q. You don't understand?

A. I just said: "Leave the shop."

Q. You just said: "Leave the shop" you said more than that. You're leaning across with your hand out there, isn't that

right? In fact you made a swipe at him, didn't you?

A. Yes.

7. This formed the basis for a claim of self defence advanced at the trial. The defence also complained that excessive force was

applied to the appellant when he was being restrained.

8. Count No 2., which charged the s.6(1)(b) offence, was preferred in respect of an incident that occurred at the Gleeson’s other

shop at Catherine Street, Limerick, later on the same afternoon.

9. The prosecution evidence was that the appellant entered the shop in Catherine Street and stole a Bounty bar. He left the shop

with the Bounty bar. A nephew of the shop owners, a Mr. Seaghan Gleeson and another employee, a Mr Karl Hanley, went outside to

confront him. Mr Hanley asked the appellant to return the Bounty Bar. The appellant then produced and brandished a syringe and

threatened to kill both Mr Gleeson and Mr Hanley. Mr Gleeson in his evidence in chief testified to the following (inter alia):

Q. Now when he produced the syringe, as you have described it, did he say anything at that time?

A. He was threatening to kill me.

Q. Anything else?

A. Just abusive. I can’t really remember most of what his -- what was said. I just remember being frightened and that

was it. I -- and next -- once the syringe was produced, I ran. That was ...

Q. What was your reaction?

A. Just one of instant shock. Just one of instant fear.

Q. Fear of what?

A. Of being stabbed with a syringe.

10. The evidence was that, armed with the syringe, the appellant then chased Mr Gleeson along a nearby street. Mr. Gleeson

managed to escape his pursuer after he had successfully positioned himself such that there was a car between him and the appellant.

Asked about this, Mr Gleeson gave the following further evidence:

Q. You were dodging him using the car?

A. Yes. Yes.

Q. And at the car, was he saying anything to you?

A. More threatening and abusive, just, “I’ll kill you” just was main -- main stay of what he was saying to me.

Q. Right. And what were you thinking at that stage?

A. Just hoping that I wouldn’t be hurt.

Q. Yes. Hurt with what?

A. The syringe, be stabbed.

11. The appellant, having been later arrested, claimed in interviews with him conducted by members of An Garda Siochána, that he

did not have a syringe but that what he had in his hand was in fact a bookmaker’s biro.

The grounds of appeal

12. The appeal has been advanced on three grounds.

13. The first relates solely to the count charging assault contrary to s.2 of the Act of 1997 (count no 1.), and contends that the trial

judge misdirected the jury on the law with respect to self defence, and in particular failed to make clear to the jury that the relevant

test is a subjective one.

14. The second relates solely to the count concerning the making of a threat with a syringe, contrary to s 6 (1) (b) of the Act of

1997. It was submitted that a direction ought to have been granted on this count in circumstances where, it was contended, there

had been no evidence that the appellant’s victim to perceived a risk of infection with disease.

15. The third relates to the failure of the trial judge to accede to a defence request made in the course of requisitions following the

judge’s charge and shortly before 4.00pm on day 3, the jury having initially retired at 3.43pm, to adjourn the trial overnight so that

the jury could instead deliberate in a refreshed and rested state on the following morning.

The charge on self defence.

16. The law on self defence in the case of a non-fatal assault is based on s. 18 of the Act of 1997, as amended, which (to the extent

relevant to the present case) provides:

18.—(1) The use of force by a person for any of the following purposes, if only such as is reasonable in the

circumstances as he or she believes them to be, does not constitute an offence—

(a) to protect himself or herself or a member of the family of that person or another from injury, assault or

detention caused by a criminal act; or

(b) to protect himself or herself or (with the authority of that other) another from trespass to the person; or

(c) to protect his or her property from appropriation, destruction or damage caused by a criminal act or from

trespass or infringement; or

(d) to protect property belonging to another from appropriation, destruction or damage caused by a criminal act

or (with the authority of that other) from trespass or infringement; or

(e) to prevent crime or a breach of the peace.

(2) “use of force” in subsection (1) is defined and extended by section 20 .

(3) [not relevant]

(4) [not relevant]

(5) For the purposes of this section the question whether the act against which force is used is of a kind mentioned in

any of the paragraphs (a) to (e) of subsection (1) shall be determined according to the circumstances as the person

using the force believes them to be.

(6) [not relevant]

(7) [not relevant]

(8) [not relevant]

(9) [not relevant]

17. Subsection (2) of s.1 of the Act of 1997 is also relevant, in as much as it provides:

For the purposes of sections 17 , 18 and 19 it is immaterial whether a belief is justified or not if it is honestly held but

the presence or absence of reasonable grounds for the belief is a matter to which the court or the jury is to have

regard, in conjunction with any other relevant matters, in considering whether the person honestly held the belief.

18. The effect of section 18 has been considered in a number of cases that have come before this Court, and its predecessor, the

former Court of Criminal Appeal. These have included the following cases on which the respondent in this appeal places particular

reliance, namely: The People (Director of Public Prosecutions) v McGinty (unreported, Court of Criminal Appeal, 3rd of June 2003); The

People (Director of Public Prosecutions) v O’Reilly (unreported, Court of Criminal Appeal, 30th of July 2004); and most recently The

People (Director of Public Prosecutions) v Quinn [2015] IECA 308 (unreported, Court of Appeal, 18th of December, 2015).

19. It is clear from s. 18 of the Act of 1997, as confirmed by this Court and its predecessor, that s. 18 involves applying a two part

test. The first limb is concerned with deciding whether the accused may have honestly believed it was necessary to use force for one

of the five purposes specified in s.18(1), and in fact did so. The second limb concerns a determination as to whether such force as

was in fact used was reasonable in the circumstances as he honestly believed them to be. In respect of both limbs the test is at all

stages a subjective one. However, in assessing the honesty of the asserted beliefs, the trier of fact, whether it be a non jury court,

or a jury, is required to have regard to the presence or absence of reasonable grounds for those beliefs, in conjunction with any other

relevant matters. To that extent, but to that extent only, the assessment as to whether an individual was acting in self-defence

contains an objective component. Moreover, where self defence has been raised or asserted, the jury must be told that it is for the

prosecution to prove beyond reasonable doubt that the accused did not act in self defence. The accused does not bear an onus of

proving that he acted in self defence.

20. In this case, it is accepted by counsel for the respondent that the trial judge’s initial charge contained a misdirection in as much

as he incorrectly invited the jury “to examine the accused’s response and decide whether it was reasonable and proportionate in the

circumstances”, thereby implying an objective test. However, the trial judge was requisitioned by counsel for the prosecution in

respect of that aspect of his charge, and the trial judge was asked to re-charge the jury concerning how they should approach a

claim of self defence. Counsel for the defendant supported the prosecution’s request, and the trial judge agreed to re-address the

jury on self defence.

21. The jury were then recalled and the trial judge proceeded to tell them, inter alia, that:

“…once you are satisfied that the accused had a genuine belief that he was acting in self-defence at the time, you must

take into account the accused's state of mind and all of the circumstances surrounding the matter and, having taken

these into account, you must determine whether the force used by the accused was reasonable and proportionate.”

22. In oral submissions to this Court, counsel for the respondent submitted that the judge’s recharge was to the effect that self

defence was to be construed subjectively. It was accepted that the trial judge had used his own formulation, but it was submitted

that it was sufficient and appropriate.

23. Counsel for the defendant, the late Mr Nix SC, complained that the re-charge had not been adequate and he raised a further

requisition. However, the trial judge refused to re-charge the jury a second time.

24. This Court considers that it is a finely balanced question concerning whether the trial judge’s re-charge on self defence was in

fact adequate, given that it reiterated the proposition that the jury needed to “determine whether the force used by the accused

was reasonable and proportionate”. That injunction was not expressly qualified, as ideally it ought to have been, by adding the rider

“in the circumstances as the accused honestly perceived them to be.” Nevertheless, the trial judge did tell the jury that they “must

take into account the accused's state of mind” and “all of the circumstances surrounding the matter” before proceeding to make

their said determination, arguably implying, on one view of it, that their adjudication as to the reasonableness and proportionality of

the action taken in purported self defence was to be judged with reference to the circumstances as the accused perceived them to

be. However, on balance, we do not consider that the formulation used by the trial judge in recharging the jury fell on the right side

of the line between an adequate direction and a misdirection, and we are not convinced that it did in fact serve to make it sufficiently

clear to the jury that the test to be applied at all stages was a subjective one.

25. We are therefore disposed to uphold this ground of appeal.

The refusal to direct an acquittal on the count of making a threat with a syringe

26. It is appropriate at the outset, in considering this issue, to set out the terms of s. 6(1) of the Act of 1997:

6.—(1) A person who—

(a) injures another by piercing the skin of that other with a syringe, or

(b) threatens to so injure another with a syringe,

with the intention of or where there is a likelihood of causing that other to believe that he or she may become infected

with disease as a result of the injury caused or threatened shall be guilty of an offence.

27. The appellant contends that as there was no evidence before the jury that the alleged injured party, Mr Seaghan Gleeson,

perceived a threat of infection with disease, the count charging the offence of making a threat with a syringe contrary to s. 6(1) (b)

of the Act of 2010 (count no 2 on the indictment) should have been withdrawn from the jury.

28. In written submissions to this Court, and repeated in oral argument, counsel for the appellant contended that:

“There were no surrounding circumstances established in evidence to provide any basis for drawing an inference about

intention or the likely creation of a belief about ‘infection’, such as might for example be established where a syringe

clearly has blood contained in it or where an incident takes place in a drug treatment facility or a hospital, This perceived

“risk of infection” element distinguishes the offence from, and in fact renders it completely different from, an offence such

as threatening to injure someone with an offensive weapon or suchlike. As such, it requires proof of a very specific

perception of risk, which cannot be assumed. It cannot be assumed that every person who brandishes a syringe is

intending to create an impression about infection, or is creating a likelihood that another person will believe that a risk of

infection exists. There must be some evidential basis for this contention, however tenuous, and there was no basis

established in evidence in the case at issue. Notwithstanding the personal history of the appellant, there was no evidence

tendered that he was visibly a drug addict, or that anyone perceived him to be such.”

29. In response, counsel for the respondent has argued that the argument advanced on behalf of the appellant is based upon a

flawed analysis of s. 6(1)(b) of the Act of 1997, and a misunderstanding concerning the ingredients of the offence created by that

provision.

30. It was submitted by counsel for the respondent that a correct analysis of the provision at issue reveals the creation of an offence

in respect of which the actus reus consists of threatening to injure another by piercing the skin of that other with a syringe, and the

mens rea consists of so doing in one of two circumstances. The first circumstance that can constitute sufficient mens rea is where

the threat is proffered with the positive intention of causing the recipient of the threat to believe that he or she may become

infected with disease as a result of the injury threatened. The second is where the threat is proffered in effect recklessly, i.e., in

circumstances where there is a likelihood of causing the recipient of the threat to believe that he or she may become infected with

disease as a result of the injury threatened.

31. It was contended by counsel for the respondent that to secure a conviction for an offence contrary to s. 6 (1)(b) of the Act of

1997, it is not in fact necessary for the prosecution to prove that the victim actually perceived a risk of infection with disease.

32. This Court considers that counsel for the respondent’s analysis is correct and that the ingredients of an offence under s. 6 (1) (b)

of the Act of 1997 are as he has stated. We are satisfied that it was not in fact necessary for the prosecution to prove that Mr

Seaghan Gleeson actually perceived a risk of infection with disease.

33. We further consider that the trial judge was right to allow count no 2 to go to the jury. Although it is true to say there was no

evidence of the express utterance by the appellant of a threat in terms that he would pierce the skin of Mr Gleeson with a syringe,

there was ample evidence that the appellant had brandished a syringe, that he had done so aggressively, that his demeanour had

been threatening and that the words “I’ll kill you” were uttered, and that Mr Gleeson had perceived himself under threat of being

stabbed with the syringe that was being brandished. There was also sufficient circumstantial evidence to have allowed a jury,

properly charged, to have drawn the inference that the appellant behaved as he did with the intention of causing Mr. Gleeson to

believe that he might become infected with disease if so stabbed. Equally, even if they were not satisfied beyond reasonable doubt to

draw the inference that the appellant positively had such an intention, there was also sufficient evidence to have allowed a jury,

properly charged, to have concluded beyond reasonable doubt that the appellant behaved as he did in circumstances where there

was a likelihood of causing Mr. Gleeson to believe that he might become infected with disease if stabbed with the syringe.

34. We are satisfied that the application for a direction on count no 2 was correctly refused, and we are not disposed to uphold this

ground of appeal.

The failure to adjourn on the evening of day 3

35. The Court has considered the transcript of the trial and is entirely satisfied that the trial judge’s decision not to accede to

defence counsel’s application to adjourn the balance of the case until the following day represented a legitimate exercise of the trial

judge’s discretion, and that it did not result in any unfairness.

36. The trial judge in fact dealt with the matter very fairly. His reaction to the request was not an outright refusal. Rather, he said

the following:

JUDGE: … just in relation to the jury's deliberations, I am going to suggest to them that it is late in the day and I am

going to give them the option as to whether they want to continue considering their verdict today or whether they

would prefer to do so tomorrow; as such, that there's absolutely no pressure on them in respect of matters, but that if

they are feeling in any way tired or anything of that nature that I am quite prepared to allow them to continue their

deliberations tomorrow morning.

MR NIX: Very good, Judge.

JUDGE: I intend to approach it that way and I will emphasise the fact that they're under no rush or no pressure and I

don't want them to feel in any way hurried about matters, given the lateness of the hour. Okay?

MR NIX: Thank you, Judge.

37. The trial judge then said to the jury:

“I know that you've had to absorb an awful lot today and that you may be pretty tired at this juncture. I will give you

the opportunity if you would rather start - or continue your deliberations in the morning, I am quite happy to do that. Or

if you feel that you can approach this case with the clarity and fairness that you're expected to do in accordance with

your oath, whether you'd rather continue with your deliberations today. I don't know whether you want to have a

discussion amongst yourselves or if you would like to retire just for a moment or whatever way you want to do it.

But, Mr Nix has pointed out to me that perhaps people may be a bit tired after a long day today and I just want to give

you the option. If you decide to continue deliberations today, that's fine. If you feel that you might be fresher about it in

the morning, that's fine. But, I leave it to you to decide.”

38. Notwithstanding the trial judge’s invitation, the jury did not avail of the opportunity to break until the morning. It is clear from the

trial judge’s remarks that he was assiduous in investigating the concern expressed by defence counsel about the jury possibly being

too tired to do justice in the case. There was absolutely no evidence before the court concerning any unfitness on the part of the

jury to continue. The jury themselves did not complain in any way.

39. It also requires to be borne in mind that at the point at which the issue was raised it was only mid afternoon. Moreover, the jury

were placed under no pressure whatever to return with a verdict that evening. In the event, they returned with a verdict at 6.00pm

which, although it was some two hours approximately after they had first retired, was still only early evening. The trial judge was best

placed to make a judgment concerning the jury’s fitness to deliberate. In our view, he made appropriate enquiries and we can find

nothing to criticise in the manner in which he exercised his discretion.

40. We are not therefore disposed to uphold this ground of appeal.

Conclusion.

41. In circumstances where we have seen fit to uphold one of the appellant’s three grounds of complaint, but have rejected the

others we will allow the appeal in respect of count no 1. However, in respect of count no 2 we are satisfied that the appellant’s trial

was satisfactory and his conviction was safe. We therefore dismiss his appeal against conviction in respect of count no 2.