Fergal Cagney (appellant) v The Director of Public Prosecutions (respondent); Ronan McGrath (appellant) v The Director of Public Prosecutions (respondent)
Criminal law - Statutory offence of reckless endangerment - Appeal against conviction - Whether offence of endangerment should be proffered in same indictment as offence of manslaughter when grounded on same facts - Non-Fatal Offences Against the Person Act 1997, section 13.
The Supreme Court (Mr Justice Murray, Chief Justice, Mr Justice Hardiman, Mr Justice Geoghegan, Mr Justice Fennelly and Mr Justice Kearns); judgment delivered October 25th, 2007.
The fundamental value that crimes had to be defined with precision and without ambiguity so that the criminal law was certain and specific required that section 13 of the Non-Fatal Offences Against the Person Act 1997 be carefully and strictly construed. The mens rea for the purposes of the offence of endangerment contrary to section 13 of the Act of 1997 was that there had to be intentional or reckless engagement in conduct which created a substantial risk of death or serious harm to another. The offence of endangerment involved advertent risk taking and the required mens rea for the purposes of recklessness as to consequences was subjective so that the accused would have had to consciously disregard a risk, not just of causing harm, but of causing serious injury or death.
Arising from the obligation on the prosecutor and the trial judge to ensure a fair trial: (1) if the prosecution proffered a charge as an alternative to another, the sense in which it was an alternative and the circumstances in which the alternative could become relevant had to be explained to the jury; (2) in circumstances where the actions of the defendant would clearly constitute an established and recognised criminal offence, namely assault, it was desirable that the obvious offence should be charged and it was undesirable that section 13 be used; (3) the inclusion of an endangerment count in the same indictment as a manslaughter count, where the manslaughter alleged was based essentially on the same set of facts, was inappropriate and likely to give rise to a confused and unfair trial.
The Supreme Court so held in allowing the defendants' appeals from the refusal of the Court of Criminal Appeal to quash their convictions of endangerment contrary to section 13 of the 1997 Act.
Shane Murphy, SC, and Sean Guerin, BL, for the first appellant; Hugh Hartnett, SC, and Aileen Donnelly, SC, for the second appellant; Paul Coffey, SC, and Pauline Walley, SC, for the respondent.
Mr Justice Hardiman stated that each defendant had been charged with the offence of manslaughter and also with the offence of endangerment, contrary to section 13 of the Non-Fatal 1997 Act. The particulars of the section 13 offence recited that the appellants "did intentionally or recklessly engage in conduct which created a substantive risk of death or serious harm to another". Each accused was acquitted of manslaughter but convicted of the second count of endangerment. The deceased, David Langan was 19 years old at the time of the events leading up to his death. The first accused was then 17 years old and the second accused was also 19 years old. None of the three had any previous convictions or had come to the attention of the gardai. The accused had not come to the unfavourable attention of the gardai since August 2000 either. Each received a sentence of 15 months imprisonment.
Summarising the facts, Mr Justice Hardiman stated that there had been a confrontation between the deceased and the two accused. A witness said the first accused hit the deceased with the heel of his hand around or just above the left ear. The first accused made statements to the gardaí in which he said he had struck the deceased, but did so in self-defence. He said he did not hear the second accused saying "hit him". It was common case that, shortly after being struck, the deceased had fallen on the road and appeared to be unconscious. He did not subsequently recover consciousness and died in hospital. The only externally visible injury on the deceased was the injury to the back of his head which two doctors said was consistent with a fall. The State Pathologist said that the level of intoxication of the deceased would be likely to cause "in-coordination" which might cause him to fall easily in response to a push, or being mildly unbalanced, by tripping.
The prosecution could not offer any specific explanation as to why the endangerment charge was brought, and no assault charges were brought, but indicated that the weakness of the manslaughter case, as perceived by them, related to the difficulty of proving that the deceased's death had been caused by the blow struck by the first accused. Mr Justice Hardiman said that the offence of endangerment was a statutory offence created by section 13 of the Act of 1997 which provides that:
"A person shall be guilty of an offence who intentionally or recklessly engages in conduct which creates a substantial risk of death or serious harm to another."
Mr Justice Hardiman said that a major feature of the offence is that it resides in the creation of the risk of death or serious harm, and not the accomplished reality of either. Secondly, the penalty on indictment exceeds that available for all but the most serious form of assault.
The question certified by the Court of Criminal Appeal was as follows: "Is the offence of endangerment contrary to section 13 of the Act of 1997 capable of being construed so as to cover circumstances such as in the instant case?" Mr Justice Hardiman said that the offence itself was general in scope and not specific, so that it may be applied after the event to events which are not obviously criminal in themselves and whose legality or otherwise cannot be accurately assessed in advance. For example, would the terms of the statute extend to an omission to assist an individual in circumstances which, perhaps, would involve some risk to an intervener? Did it extend to actions done with the alleged victim's consent, as in the context of extreme sports?
Mr Justice Hardiman said that it was beyond doubt that the death of the deceased was unintentional. The two counts were left to the jury in the following way. Prosecuting counsel told them that: " . . . if you decide not to convict on manslaughter, you must then go on to consider reckless endangerment, because they both relate to the same incident, they are alternatives for the purpose of your decision". Mr Justice Hardiman said that from a legal and constitutional point of view, it is a fundamental value that a citizen should know, or at least be able to find out, with some considerable measure of certainty what precisely is prohibited and what is lawful. Mr Justice Hardiman quoted Kenny J. in King v Attorney General IR 223 who said that
"It is a fundamental feature of our system of government by law (and not by decree or diktat) that citizens may be convicted only of offences which have been specified with precision by the judges who made the common law, or offences which, created by statute, are expressed without ambiguity . . . in my opinion both governing phrases (in s.4 of the Vagrancy Act, 1824) a 'suspected person' and 'reputed their' are so uncertain that they cannot form the foundation for a criminal offence."
Mr Justice Hardiman said that the fundamental value that crimes had to be defined with precision and without ambiguity so that the criminal law was certain and specific required that the notably open-ended section 13 be carefully and strictly construed in accordance with fundamental principles of law and of construction. Mr Justice Hardiman said that considerations of the same sort, make it undesirable that so vague and open-ended a section should be used in circumstances where the actions of the defendants as alleged by the prosecution would clearly constitute an established and recognised specific criminal offence, viz assault in one or other of its variants. In those circumstances it was desirable that the obvious offence should be charged. With regard to the mental element of the offence, Mr Justice Hardiman agreed with the judgment of Mr Justice Geoghegan.
It was inconceivable, in Mr Justice Hardiman's view, that a section 13 charge would have been preferred in the instant case were it not for the fatality. None of the medical witnesses were asked to opine on whether the blow said to have been struck by the first defendant was such as to create a "substantial" risk of death or serious harm to a healthy 19 year-old person in the deceased's position, or whether there were grounds to advert to such a risk on the facts proved. Alternatively, such a drastic result might have been improbable, unlikely, odd or even freakish. The omission to explore that topic could have been due to a failure adequately to consider the mental element of the offence created by section 13 or of the state of recklessness in general, or to notice that an element of advertence was required in either case. Instead of offering medical or other evidence on that topic, the prosecution proceeded on the basis that the fatality itself was the indicator of the existence of a substantial risk. No other evidence of the existence of such risk was offered. That was illogical and ignored the obvious fact that huge risks were often taken without any actual consequence at all while tiny risks, unpredictably and improbably, could result in catastrophe. In the instant case, the section 13 offence was left to the jury as an "alternative" to manslaughter without any explanation from the prosecution or the learned trial judge of the sense in which the second charge was alternative to the first.
Mr Justice Hardiman opinioned that section 13 was often presented as an alternative to a jury who may not fully understand the seriousness of the offence created by that section, in the hope that they may think it was a trivial or technical offence only. If the prosecution proffered a charge as an "alternative" to another, the sense in which it was an alternative and the circumstances in which the alternative could become relevant, have to be explained. Here, no proper explanation was given. That mode of proceeding was not fair to the defendants or to the jury. On the hearing of the appeal, the prosecution frankly referred to their possible difficulties in proving causation. They may have felt that to do so in the presence of the jury would have undermined their chances of a conviction on the manslaughter charge. That approach made the section 13 charge, not an alternative in any real sense, but a fallback. If there was genuine doubt as to causation, there should not have been a conviction of manslaughter in any event and in fact the appellants were acquitted on that charge. But the case was left to the jury on the basis that the prosecution told them that the endangerment charge was alternative to manslaughter without further explanation. The prosecution did not discuss the elements of the offence of endangerment but left that to the trial judge; they offered no assistance when he charged the jury without referring to the need for advertence.
Mr Justice Hardiman was of the view that the formulation of the Court of Criminal Appeal failed to make it clear that recklessness involved not merely the taking of a risk but the advertent taking of the risk. The established principles of law in relation to recklessness supported his view that the offence, when committed recklessly as opposed to intentionally, required advertence. Mr Justice Hardiman preferred to rephrase the summary of section 13 offered by the Court of Criminal Appeal as follows: "Thus, the constituent parts of the offence as applicable may be construed as the appellant intentionally or recklessly engaging in conduct which creates a substantial risk of death or serious injury, to which he has adverted, to another." Mr Justice Hardiman believed that that approach was consistent with the authorative statement of the requirements of recklessness such as DPP v. Murray IR 360. As a result of the judgment in Murray, an accused in Ireland must have foreseen the risk that his conduct would bring about the relevant result, but have elected to proceed with his conduct nevertheless.
In conclusion Mr Justice Hardiman said that neither the prosecution nor the trial judge referred to the necessity to establish advertence by the defendants or either of them to the serious risk which the prosecution were alleging in order to bring home a charge under section 13 on the basis of recklessness. That was a grave defect in the trial affecting both defendants, since it obviated the need for the jury to address the question of the respective defendants' state of advertence or the lack of it which it was legally necessary for the jury to address. On that basis, Mr Justice Hardiman quashed the convictions. In all the circumstances of the case, notably the fact that it was more than seven years since the incident, the general good character of the accused and the fact that one of them had in the meantime suffered devastating injuries in a road traffic accident, a retrial was not ordered.
Mr Justice Geoghegan said that the certificate from the Court of Criminal Appeal was merely the condition precedent to the appeal being brought and what was of importance were the grounds of appeal in each case. In the first defendant's case the three grounds of appeal could be summarised as follows: 1. the trial judge ought to have withdrawn the section 13 count at the end of the prosecution case; 2. the trial judge was wrong in making a finding that there was evidence which, if accepted by a jury, could, as a matter of law, lead to a conviction of the defendant of the section 13 offence; 3. the certified question itself or, in other words, whether section 13 could be construed to cover the circumstances of the appeal.
In the second defendant's case there was an additional ground of appeal to the effect that the verdict of the jury was inconsistent in so far as he was acquitted of manslaughter but was found guilty of endangerment contrary to section 13 of the 1997 Act. Mr Justice Geoghegan felt it logical to deal first with the first defendant's appeal because the case went to the jury on the basis that in relation to each count, the second defendant's criminal liability, if any, was as an aider and abettor only.
Mr Justice Geoghegan highlighted the different ingredients of mens rea vis-à-vis manslaughter and endangerment where in the latter case, there had to be an intention of doing the deceased some physical injury "not merely trivial or negligible in character". For the purposes of the section 13 count, however, there had to be intentional or reckless engagement in conduct which created "a substantial risk of death or serious harm to another". Mr Justice Geoghegan recalled that the jury had not been instructed in relation to what was meant by "reckless" engagement in conduct which created a substantial risk of death or serious harm to another or that there would have had to be an appreciation that there was such a substantial risk or in other words a subjective mens rea in relation to that aspect of the offence as well as any other. It was clear from the questions asked by the foreman that the jury itself was confused as to the meaning of section 13.
Where "recklessness" was a constituent of a criminal offence in Ireland the leading authority on its meaning was The People (DPP) v. Murray IR 360 which made it clear that the required mens rea for the purposes of recklessness as to consequences was subjective and not objective. It was clear, therefore, that, for the purpose of a count under section 13 based on recklessness, the accused would have had to consciously disregard a risk not of just causing harm but of causing serious injury or death.
Assuming that the prosecutor was entitled to include the endangerment count in the indictment along with the manslaughter count (which assumption was not challenged at the trial by the defence at or before the stage of the application for the direction), there could be no criticism in his view of the trial judge's refusal to grant the direction sought. There was evidence on which a jury could have convicted on either count if both counts were properly before them and Mr Justice Geoghegan, therefore, dismissed the first two grounds of appeal.
Mr Justice Geoghegan was satisfied that the inclusion of the endangerment count in the same indictment as the manslaughter count where the manslaughter alleged was based essentially on the same set of facts was inappropriate and likely to give rise to a confused and unfair trial. Mr Justice Geoghegan was doubtful whether an endangerment count should, in any circumstances, be included in an indictment which contained, as its primary count, an assault or manslaughter charge. But he thought it was only necessary to express the view that, on the facts of the case, the endangerment count ought not to have been included and a conviction on that count ought to be quashed.
There was an obligation on the prosecutor and on the trial judge in a criminal case to ensure a fair trial. Mr Justice Geoghegan did not know how that could have been achieved in a case such as this where in the case of the more serious offence, i.e. manslaughter, the jury had simply to consider whether the act was likely to cause some injury above the level of trivial with an objective test in relation to that evaluation whereas in relation to the lesser offence of endangerment, complex instructions would have to be given to the jury first of all that they had to consider the matter as of the time the danger was created and not have regard to the actual damage that resulted and secondly, that the mens rea required an actual subjective appreciation of the likely creation of a substantial risk of death or serious injury as defined. Mr Justice Geoghegan agreed with the view expressed by Mr Justice Hardiman that if the prosecutor considered that there ought to be a second count included it ought to have been one of, say, common assault.
Applying the normal canons of statutory construction, Mr Justice Geoghegan found it difficult to assert or even suggest that the prosecutor was ipso facto precluded from bringing a prosecution under section 13 on the facts of the case. His objection to the prosecutor having included the count was based, therefore, not on a suggestion that the section, as a matter of policy, was not intended to be used that way but rather on the basis that it created a basic unfairness in the conduct of the trial. On that basis and taking a broad view of the third ground of appeal, Mr Justice Geoghegan allowed the appeal and since the hearing of the application for leave to appeal was in practice a hearing of the appeal itself, he quashed the conviction in each case in relation to the endangerment count.
Mr Justice Geoghegan was of the view that the appeal on the additional ground of appeal in the second defendant's case could not have been allowed because the verdict of the jury whereby there was an acquittal of the manslaughter but conviction in relation to the section 13 offence was not necessarily inconsistent. If the jury, for instance, took the view that the injury was caused by an independent fall they would have had to acquit of manslaughter but would not necessarily have had to acquit of the endangerment. Mr Justice Geoghegan therefore favoured the appeal being allowed on the third ground only.
The Chief Justice, Mr Justice Murray, Mr Justice Fennelly and Mr Justice Kearns concurred with the judgments of Mr Justice Hardiman and Mr Justice Geoghegan.
Solicitors: Garrett Sheehan & Co. (Dublin) for the first appellant; Michael J. Staines & Co.(Dublin) for the second appellant; Chief Prosecution Solicitor for the respondent.
Paul Christopher, barrister