A significant new test set by the Supreme Court for those pursuing provocation as a partial defence to murder includes ruling out provocation on the basis of "hurt to male pride".
The former test for a person losing self-control was entirely subjective but the new test requires people to exercise ordinary restraint, such as would be applied by an ordinary person of the same age and state of health of the accused.
Mr Justice Peter Charleton said provocation has to be "serious provocation" and "trivial insults" are out.
Provocation cannot merely be gang vengeance, “warped notions of honour” or “unacceptable” ideas as to the proper romantic or sexual conduct of men or women.
“Women should be as entitled as men not only to say no to sexual propositions but to leave those to whom they were apparently committed and move on to seek happiness elsewhere without that being trapped in a situation where violence could even partially excuse homicide,” he said. “It is not acceptable.”
Objective elements have never been entirely abandoned here from application of the defence of provocation, he stressed.
The provocative act, by action or “gross insult”, is required to be “outside the bounds of any ordinary interaction acceptable in our society”.
An accused is also to be judged as if sober and race may be relevant if an insult is racial.
A trial judge is required to filter claims of provocation so that only those with “an air of reality” are to be allowed to go to a jury, he said.
Two separate appeals
The new test was set out in significant judgments of the five judge court delivered on Friday by Mr Justice Charleton on two separate appeals.
The court dismissed the first appeal, by motorbiker Alan McNamara, against his conviction for the murder of a member of a rival club in Co Limerick, after finding there was no basis to allow a provocation defence go to the jury.
It allowed the second appeal, by Zoltan Amasi, against his conviction for the May 2014 murder of Joseph Dunne in Naas, Co Kildare, quashed the conviction and ordered a retrial after finding a provocation defence was available to Mr Amasi.
McNamara (52), from Mountfune, Murroe, Co Limerick, was found guilty in 2017 of the murder of Andrew O'Donoghue, who died after being shot by McNamara at the gates of the Road Tramps motorcycle club at Mountfune on June 20th 2015. McNamara denied murder and his core argument was the trial judge erred in not permitting a defence of provocation go to the jury.
He claimed he was provoked arising from an attack on him and his wife outside a pub the previous evening by members of the Road Tramps who claimed he was in their “territory”. That was followed by a drive by incident at his home later that night where three members of the rival club made threats to kill him. Mr O’Donoghue was not involved in either of those incidents.
Mr Justice Charleton said McNamara had time to restrain emotion and to seek lawful means of redress, such as complaining of a criminal wrong to the authorities, and there was no basis for letting provocation go as a defence to the jury.
It would also be contrary to any proper analysis of the level of provocation in this case to consider any ordinary person in this context, of the same age, sex and without mental infirmity and of general intelligence, “could lose self control to the degree of shooting someone in the face with a sawn-off shotgun”.
The victim was also disconnected from the attack on McNamara and was merely a member of the same biker group as the original assailants, he said.
The second appeal arose after Zoltan Amasi, aged in his forties, from Harbour View, Naas, was convicted in 2016 by a majority jury verdict of the murder of 20-year-old Joseph Dunne in May 2014.
Mr Dunne, from Athy, had been out with friends in Naas and thumped a van which was parked on the road on which he was walking. The van belonged to Almasi who chased after him with a baseball bat and hit him once on the side of the head.
Almasi told gardaí he only intended to swing the bat towards the young man, did not deliberately hit him and it was most likely an accident if he did. Mr Dunne died from a severe traumatic head injury caused by one blow.
Mr Justice Charleton said certain evidence was excluded by the trial judge from the jury on the basis of wrong submissions from the prosecution to the trial judge and on appeal.
There was a “provocative event”, the attack by Mr Dunne on the van, he said. Events unfolded in a “deeply regrettable” way from there but there was no break in how they progressed and there was “some air of reality” about a provocation defence in this case, the assessment of which was a matter for the jury.
In consequence of the “serious” errors in the prosecution submissions, the correct result was to overturn the conviction and order a retrial.