Husband appeals murder conviction

A man who was jailed for life for stabbing his wife to death in front of their three children must wait until the new year to learn the outcome of his appeal against his conviction.

David Bourke (52) was sentenced to life imprisonment by Mr Justice Barry White in March 2009 after a Central Criminal Court jury found him guilty of the murder of his wife Jean Gilbert (46) at the home they shared at Laverna Dale, Castleknock, Dublin 15, on August 28th, 2007.

The former insurance administrator had denied murder but admitted he stabbed his wife under severe provocation because she was going to leave him for another man.

Today at the Court of Criminal Appeal, counsel for Bourke, Michael O’Higgins SC, said that in essence the appeal came down to a net issue where it was contended that the trial judge gave a material misdirection to the jury on the law regarding the defence of provocation.

Mr Justice White, he said, had attempted to “rewrite the law on provocation”.

He said the trial judge put it to the jury that they had to consider whether Bourke had carried out a calculated killing with intent to cause death or serious injury, in which case they could return a verdict of murder, or if the verdict could be reduced to manslaughter should they find Bourke was not master of his own mind and was so out of control he was not capable of acting rationally.

Mr O’Higgins submitted this definition of provocation was “grossly wrong” and specifically excluded the possibility of the defence of provocation if the accused could form the intent. He told the court it was clear from the transcript of the charge that in the judge’s mind the defence of provocation removed the mental element from the case, and in Mr Justice White’s own words, “the intention to kill or cause serious injury is not there because the man is not in control of his mind”.

During the trial, the court heard direct evidence from Bourke he intended to cause his wife pain by stabbing her.

Mr O’Higgins argued the authorities on the matter stated “as clear as day” that not only can an accused have intent to cause serious injury but that it is an integral part of the defence of provocation.

He said Mr Justice White was requisitioned on this point but “refused outright” to be influenced by the submission.