Director of Public Prosecutions (respondent) v. Padraig Nally (applicant). Criminal law - Homicide - Defence - Self defence - Direction of trial judge that self-defence available as partial defence only - Whether issue should have been left to jury - Whether trial judge entitled to direct jury to find accused guilty - Whether direction of trial judge invalidated conviction - Whether conviction unsafe.
The Court of Criminal Appeal (Mr Justice Kearns, Mr Justice O'Donovan and Mr Justice de Valera); judgment delivered October 12th, 2006.
Whilst there is a right vested in a trial judge to direct a jury to acquit an accused, there is no right to direct a verdict of guilt. The question whether the amount of force used by an accused in self-defence was objectively reasonable is a matter of fact for a jury to determine.
The Court of Criminal Appeal so held in quashing the conviction and directing a retrial.
Paul O'Higgins SC and John Jordan BL for the prosecutor; Brendan Grehan SC and Michael Bowman BL for the defendant.
Mr Justice Kearns delivering judgment of the court said that the applicant had been charged with murder of a traveller who had come unsolicited to his house. The trial took place in the Central Criminal Court (Carney J.) in Castlebar Courthouse. At the conclusion of the trial, the jury returned a verdict of manslaughter, the applicant having pleaded not guilty to the single count on the indictment.
The applicant was a bachelor aged 60 who lived alone on a farm. He had developed anxieties that his house would be burgled and that he might be harmed or killed by intruders. There was a basis for these fears.
Evidence was given during the trial that there had been a spate of burglaries in the area, which, in the mind of the applicant, were sufficient to put him in constant fear that he could be a victim of such crime.
On October 14th, 2004, the applicant was alone in the house when he found Mr Tom Ward sitting alone in a car. The applicant asked him what he was doing on his property. Mr Ward indicated he was inquiring as to whether or not a car on the defendant's property was for sale. The applicant was suspicious that Mr Ward was not alone. Mr Ward told him that his father, John Ward, had gone around the back of the house. The applicant went round the back and, on seeing John Ward pushing open the back door, retrieved a loaded shotgun from a nearby shed. The applicant gave evidence that as he approached John Ward, a shot was accidentally discharged which hit John Ward in the lower right loin area and right hand. According to the applicant, John Ward then threw himself at the applicant and a physical struggle ensued. At some point the applicant managed to pick up wood with which he struck John Ward repeatedly across the head and upper body.
Mr Ward had called out to his son for assistance but at this point, Mr Ward junior left the scene. It was the applicant's case that he was extremely concerned that Mr Ward junior was gone for reinforcements or that he might return with some weapon.
Mr Ward senior appeared to have been a man of considerable strength who had much experience of fighting. He was also a man with a number of previous convictions and evidence was given that he was violent. John Ward remained conscious at all stages during the struggle and began to limp or run from the property. As he did so, the applicant returned to the shed and retrieved more cartridges and reloaded the shotgun. The applicant followed Mr Ward out onto the public roadway and fired a further shot at him from a few yards distance which proved fatal. Realising that Mr Ward was dead, the applicant picked up his body and threw it into an adjoining field.
The applicant gave evidence that he feared the consequences if others returned and found the body. The applicant then called the Gardaí and met with them at the farm and indicated exactly what had taken place.
The applicant gave evidence that the Wards had entered his property some weeks previously, ostensibly for the purpose of seeking directions to a nearby lake, a reason he did not believe was genuine. The applicant gave evidence that on the days leading up to the incident he had difficulty sleeping and was on edge.
The applicant's defence at trial was one of self-defence. At the conclusion of the evidence counsel for the prosecutor invited the trial judge in the absence of the jury to rule and direct that the defence of self-defence raised be allowed go to the jury in a truncated form, shorn of any possibility that the jury might acquit altogether, on the basis that the amount of force used was so excessive as to destroy any notion that it was objectively reasonable and that in such circumstances it should only be open to the jury to convict of either murder or manslaughter.
Counsel submitted that to rule otherwise would be to open the door to some form of prophylactic killing as part of the legal regime of self-defence. He submitted that, on the facts established in evidence, Mr Ward had retreated from the scene but was nonetheless shot in circumstances where he no longer posed a threat to the applicant.
The trial judge should not, he urged, leave open the possibility that the jury might bring in a verdict which, if it was a complete acquittal, would be perverse.
In ruling upon the matter the trial judge stated: "if the jury, on the evidence, found a full self-defence to be applicable, in other words that there was no crime, that would be perverse having regard to the evidence which has been given and I do not allow the full defence of self-defence. I do allow the partial defence of self-defence which is capable of reducing the admitted killing from murder to manslaughter and the case may proceed to the jury on that basis".
Having deliberated, the jury returned a unanimous verdict of not guilty of murder but guilty of manslaughter. Thereafter, the trial judge imposed a sentence of six years imprisonment.
On the hearing of the appeal, counsel for the applicant argued that once the issue of self-defence had been raised it then became an issue solely for determination by the jury and that the trial judge was not entitled to truncate the defence in the manner which he did. Counsel argued that while the judge was entitled to express a view in relation to the facts, he was precluded from directing that the evidence adduced was sufficient to require a particular verdict one way or the other. That being so, the trial judge was not entitled to deprive the jury of the option of considering whether the force used by the applicant was objectively reasonable, nor was he entitled, where no unlawful killing had been admitted, to direct the jury that they must find the applicant guilty of either murder or manslaughter.
Mr Justice Kearns said that the law of self-defence in this jurisdiction was encapsulated in The People (Attorney General) v. Dwyer IR 416 which held that: " person is entitled to protect himself from unlawful attack. If in doing so, he uses no more force than is reasonably necessary, he is acting lawfully and commits no crime even though he kills his assailant. If he uses more force than may objectively be considered necessary, his act is unlawful and, if he kills, the killing is unlawful. His intention, however, falls to be tested subjectively . . ."
In the course of his summing up to the jury, the trial judge directed the jury in relation to the issue of self-defence in the following manner: "self-defence permits of two different terms of defence . . . what is known as full self-defence, and where full self-defence operates, there is no crime at all. A person is entitled to use reasonable force to defend his life . . . and if the force was reasonable having regard to all the circumstances, then even though there . . . was a deliberate killing, there is no crime committed.
"I have ruled in your absence that, on the facts of this case, a finding that the force used to kill John Ward was reasonable and necessary to the degree that no crime at all was committed and that it was entirely justified would be a perverse finding, and it is not open to me to allow matters to go to you which I rule as a matter of law are perverse . . ."
Mr Justice Kearns said that two questions arose as a result of the ruling and direction given by the trial judge. They were:
(a) may the trial judge allow a limited form of self-defence only to be considered by the jury, notwithstanding that the defence wish that the entire issue of self-defence be considered by the jury?
(b) is the trial judge entitled, on facts such as those established in the present case, to direct the jury effectively to bring in a verdict of guilty of either murder or manslaughter, shorn of any possibility of a verdict of not guilty?
Mr Justice Kearns said that the court was satisfied that the answer to the second of those two questions was determinative of both.
Mr Justice Kearns then referred to The People (Director of Public Prosecutions) v. Davis 2 IR 1 where the Supreme Court held that the constitutional right to trial with a jury had, as a fundamental and essential characteristic, the right of the jury to deliver a verdict. The court further held that, while there was a right and duty vested in a trial judge to withdraw the case from the jury and direct them to acquit, there was no corresponding right on the part of a trial judge to direct a jury to enter a verdict of guilty.
The Supreme Court said a similar view was recently taken by the House of Lords in R. v. Wang 1 WLR 661, where it was decided that the decision of all factual questions, including the application of law as expanded by the trial judge, was a matter for the jury. In that case, Lord Bingham reviewed a number of authorities, including Woolmington v. Director of Public Prosecutions AC 462 and Chandler v. Director of Public Prosecutions AC 763.
The House thus concluded in R. v. Wang that there were no circumstances in which a judge was entitled to direct a jury to return a verdict of guilty.
Mr Justice Kearns said that neither the decision of the Supreme Court in The People (Director of Public Prosecutions) v. Davis 2 IR 1 or any of the English authorities were opened to the trial judge. The court mused that it may have been because the proceedings were heard procul ab urbe - far from the city - in circumstances where the marshalling of written legal authorities may have posed certain practical difficulties.
Nonetheless, the prosecution should have anticipated that the nature of the ruling being sought was one which required support, if it was available, from decided authority as it was clear that the issue of self-defence was central.
Mr Justice Kearns said that had the prosecution allowed the trial to proceed in the usual manner, the trial judge would undoubtedly have given appropriate directions to the jury in the usual form.
That usual form would have enabled the trial judge express his opinion that the amount of force used could not be objectively justified in the context of the defence of self-defence, but would have left the ultimate decision on that issue to the jury.
As events transpired, the jury were denied the opportunity to return a verdict of not guilty, even if such a verdict may have flown in the face of the evidence and however inappropriate the trial judge might have considered such an outcome to be.
The authorities, both in this and the neighbouring jurisdiction, made it clear that the jurors, who swear an oath to deliver a verdict in accordance with the evidence, must retain the ultimate power to determine issues of guilt or innocence. That must, of necessity, include the power to return a verdict which conflicts with the opinion of the trial judge. The question whether the amount of force used was objectively reasonable was quintessentially a matter of fact for a jury.
The court therefore acceded to the application for leave to appeal and to quash the conviction. In quashing the conviction, the court also directed a retrial.
Solicitors: The Chief Prosecution Solicitor for the prosecutor; Seán Foy (Ballinrobe) for the defendant.
Paul Christopher, barrister