Husband appeals murder conviction
Mr O’Higgins said the judge’s interpretation had been previously considered by the appeal court and had been “very robustly rejected” and submitted that the judge’s charge amounted to an attempt to “on-the-spot rewrite the law on provocation”.
He said the authorities were “black and white” and it appeared that if a person was so out of control they could not control their actions and could not form an intention they would not be criminally liable at all.
Mr O’Higgins said what Mr Justice White had described was akin to an irresistible impulse on behalf of a person to carry out an act without the necessary legal or medical appreciation of the nature and quality of their acts, which he submitted would lead to a verdict of not guilty by reason of insanity.
Isobel Kennedy SC, for the State, countered that there was “absolutely” no misstatement or error in law on the part of the trial judge in the course of his charge to the jury.
She submitted that Mr Justice White gave an “admirable” charge in “crystal clear terms” where he “admirably” explained the issue of provocation to the jury in “very straightforward and understandable terms” and applied the relevant previous cases from both here and other jurisdictions.
Ms Kennedy said the issue as advanced by Mr O’Higgins was not raised during the original trial or at the requisition stage.
She said that even if the court were to say there was a misstatement on the law on provocation there could be no injustice on foot of the “overwhelming” evidence against Bourke to support a charge of murder.
Presiding judge Mr Justice John MacMenamin asked both parties whether it was open to the appeal court to reach a conclusion that the case was manslaughter or whether a retrial would follow in the event it found the conviction for murder was unsafe.
Mr O’Higgins said he was concerned that the issue as to whether provocation had led to a loss of control and whether the case was manslaughter would ultimately be for a jury to decide, while Ms Kennedy said that she would need to take instructions from the DPP on the matter and then argue her case.
Mr Justice MacMenamin, sitting with Mr Justice Eamon de Valera and Mr Justice Brian McGovern, said the court would reserve its decision and deliver judgement in the new term.