Supporting Documents:
 
THE SUPREME COURT
DETERMINATION THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) RESPONDENT APPLICANT
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES.
Result: The Court does not grant leave to the Applicant to appeal to this Court from the Court of Appeal.
Reasons Given:
1. This determination relates to an application seeking leave to appeal, under Article 34.5.3° of the Constitution, from the judgment of the Court of Appeal (Birmingham, Mahon and Edwards JJ.) dated the 12th May, 2016, (The People (at the Suit of the Director of Public Prosecutions) v. O’Brien [2016] IECA 146).
2. The submissions of the parties are set out in the Notice of Application for leave to appeal and the Respondent’s Notice, both of which are available on this website.
3. As is clear from the terms of the Constitution and from the many determinations made by this Court since the enactment of the Thirty Third Amendment it is necessary, in order for this Court to grant leave, that it be established to the satisfaction of this Court that the decision sought to be appealed either involves a matter of general public importance or that in the interests of justice it is necessary that there be an appeal to this Court.
4. The applicant was convicted by a jury of an offence under s. 6(1)(b) of the Non-Fatal Offences Against the Person Act, 1997. The particulars on the indictment read as follows:
“Damien O’Brien on the 10th October 2013, at Limerick City, threatened to injure Seaghan Gleeson by piercing his skin with a syringe, with the intention of or where there was a likelihood of causing Seaghan Gleeson to believe that he may become infected with disease as a result of the injury threatened.”
5. The subsection provides as follows:
with the intention of or where there is a likelihood of causing that other to believe that he or she may become infected with disease as a result of the injury caused or threatened shall be guilty of an offence.
6. At the trial the prosecution evidence was that the applicant stole a confectionery bar from a shop; that he was confronted by two employees from the shop; that he produced a syringe and threatened the two men. One gave evidence that the applicant threatened to kill him, and that his reaction was one of shock and fear that he would be stabbed with a syringe. This man was then chased down the street by the applicant, who continued to threaten to kill him. In reply to the question “And what were you thinking at that stage?” the witness said that he was just hoping that he would not be hurt with the syringe.
7. The applicant sought a direction in the trial, subsequently appealed against conviction, and now seeks leave to appeal to this Court on the basis that the provision required evidence from which it might be inferred that the person threatened by him perceived a risk of infection with disease. The Court of Appeal accepted the submission made by the respondent, to the effect that where the actus reus of threatening to injure another by piercing the skin of that other with a syringe was established, the mens rea of the offence could be proved in one of two ways. One was to prove that the threat was made with the positive intention of causing the recipient to believe that he or she might become infected. The other was to prove that the threat was made recklessly – that is, in circumstances where there was a likelihood of causing the recipient to believe that he or she might become infected. It was therefore not necessary to prove an actual fear of infection. The Court also considered that there was ample circumstantial evidence from which the jury could have concluded either that that the applicant behaved as he did with the positive intention of causing the witness to believe that he might become infected if stabbed; or that he did so in circumstances where there was a likelihood of causing that belief.
8. The point of law of general public importance is stated in the application for leave to be the proper identification of the ingredients of the offence. It is asserted that the legislation is uncertain and that the Court of Appeal erred in reaching its conclusions. It is further asserted that, in the absence of any provision creating an evidential presumption, there was no evidence establishing either an intentional or reckless creation of a belief about infection.
Decision
9. The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having any precedential value in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.
10. Quite apart from the necessity to raise a point of law of general public importance, it is a pre-requisite for leave to appeal to this court that the applicant should demonstrate arguable grounds for an appeal. The Court sees no arguable ground in this application. The section quite clearly has the meaning contended for by the respondent and accepted by the Court of Appeal. The mens rea and the actus reus of the offence relate to the accused and his actions, not to the state of mind of a victim.
And it is hereby so ordered accordingly.
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