Supporting Documents:
119-17 AFL.pdf119-17 Rspndts Notce.doc

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court does not grant leave to appeal to this Court under Article 34.5.3 of the Constitution from the order of the Court of Appeal made on the 3rd March, 2017.

REASONS GIVEN:

Jurisdiction

1. This determination relates an application of the applicant in the underlying proceedings, Christopher McNamara, for leave to appeal under Article 34.5.3 of the Constitution, from a judgment of the Court of Appeal (Birmingham J., Mahon J., Edwards J.), delivered on the 3rd March, 2017.

2. As is clear from the terms of the Constitution, and many determinations made by this Court since the enactment of the 33rd Amendment, it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed against either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there should be an appeal to this Court.

3. The Court considers it desirable to point out that a determination of this 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 a precedential value in relation to the substantive issues 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.

The Appeal

4. On the 24th January, 2014, after a 10 day trial in the Central Criminal Court, the applicant, Christopher McNamara, was convicted of murder, and sentenced to life imprisonment.

5. The applicant was charged with the murder of James Boyce on the 7th March, 2011, at 150 St Munchin’s Street, St Mary’s Park, Limerick.

6. The prosecution case was that, on the evening of the murder, the applicant called at the home of the deceased, sometime around 8 p.m. He left after a period, but returned to the location around midnight. The evidence was that the applicant and the deceased were friendly, despite the fact that there was a significant age gap between them. The deceased was a man in his 70’s who did not enjoy good health. The applicant was a young man. The applicant was a regular visitor to the home of the deceased.

7. As summarised by the judgment of the Court of Appeal (Birmingham J.), the background to this case was a robbery that went wrong. The deceased had saved certain sums of money. He lived frugally. He kept his savings at home. There was evidence that, after the murder, although a person of very limited means, the applicant had access to large sums in cash. The prosecution case was that these were the proceeds of the robbery.

8. The applicant pleaded not guilty at the outset of the trial. However, by the end, and after the defence closing speech, it was clear then, if not before, that the only issue in the case was whether the appropriate verdict was murder or manslaughter. Among the witness statements read to the jury was one by the applicant’s mother, who stated that her son had admitted to her having been involved in Mr. Boyce’s death.

9. At the trial there was some question about what precisely had been the cause of Mr. Boyce’s death. The State Pathologist gave a description of the injuries, which confirmed that the deceased had been the object of an assault with an object with a long narrow striking edge. A brush head was found in the bedroom, which could have caused the traumatic injuries. There was, too, a question as to the deceased having previously had coronary difficulties.

10. But by the time of the judge’s charge to the jury, the only matter in issue was whether or not the applicant/accused was guilty of murder or manslaughter. It was a position where unless the jury were satisfied that the applicant had murdered the deceased, the only possible alternative verdict was manslaughter as a default. The judge defined the defence of murder to the jury. He pointed out that an accused person is to be presumed as having intended the natural and probable consequences of his conduct, but that such presumption might be rebutted. He alerted the jury to the fact that the prosecution was obliged to prove beyond a reasonable doubt that the presumption had not been rebutted. He made clear that the question of intention was one for the jury.

11. After the judge’s charge, both counsel for the prosecution, and defence, made requisitions. It is necessary only to briefly touch on the defence requisitions. Counsel submitted that the judge had not given an illustration as to what the presumption of innocence entailed. He sought to emphasise the State Pathologist’s emphasis that some people might suffer the type of injury in question without side-effects of the type which befell the deceased. He laid emphasis on the nature of the injuries sustained by the deceased which were more complex than might be anticipated. After further requisitions, the judge charged the jury to the effect that, the defence in urging manslaughter were urging the jury to take into account the State Pathologist’s evidence, and the uncertainty raised by the various possible causes of death.

12. The jury convicted the applicant of murder.

13. Before the Court of Appeal the focus of criticism was on the contention that there had been a failure on the part of the trial judge to clarify the distinction between murder and manslaughter. Counsel for the applicant submitted to that court that this had been fundamentally unsatisfactory, when the only issue in the case was whether the prosecution had established the requisite mens rea, and had done so beyond reasonable doubt. Counsel for the applicant sought to draw attention to the fact that, while manslaughter was one of the verdicts available to the jury, and that was, of course, the verdict that was being sought, the judge had not defined manslaughter, and never explained the ingredients of the offence.

14. The Court of Appeal concluded that, while the judge had dealt with the legal issues quite briefly, this was in a situation where the trial had not given rise to legal issues of any great complexity. The issue had to be seen in the context of the charge as a whole, and the run of the trial as a whole. In its judgment, the Court of Appeal pointed out that there were only two possible verdicts in the case, and that it was not in dispute that there had been an unlawful killing for which the applicant bore responsibility. If the prosecution could not prove that the accused had acted with the requisite intention for murder, then, by default, the appropriate verdict was manslaughter. That court concluded that this was not a case where the judge could be criticised for what he had said. His definition of murder, while brief, was entirely accurate. Rather, he was being criticised for what he did not say, that is, for his failure to provide a definition of manslaughter.

15. The Court of Appeal concluded that the jury had been properly equipped to decide whether to return the alternative verdict of manslaughter. It followed that, if they were not satisfied of murder, then the only alternative verdict was that of manslaughter. This was a issue which was not in dispute.

16. The application to this Court can be summarised quite succinctly. It is said that the appeal concerns an issue of general public importance regarding the direction to be given to a jury when the key issue to be deliberated upon was whether the defendant was guilty of murder or manslaughter. Essentially, the point raised is whether or not a trial judge, in a case where manslaughter is accepted by the defendant, is obliged to provide the jury with sufficient guidance on the distinction between murder and manslaughter, or whether it is simply sufficient to provide guidance on the murder charge, and to treat manslaughter as an alternative verdict. It is said the trial judge inadequately directed the jury in relation to the correct test to be applied.

17. The application for leave, and the response thereto, can be found on the Courts Website. It is unnecessary to set out the details of the response in any detail. In essence, it is said, that what is in question here is not a point of general public importance, but rather a point which arose in the individual circumstances of the trial.

Decision

18. Issues raised before this Court must be rooted in the facts of the case in question. This is not a point of general public importance. It is case specific. It arose in the context of this trial where the only issue was between murder and manslaughter. There was no other alternative verdict but for murder. By charging the jury in relation to murder, in the context of the default being manslaughter, the judge had put the jury in a situation where it was in a position to make an accurate determination on the facts of the case. While one might envisage other circumstances in which an issue of this type might arise, and where there might be some question of general public importance, this is not that case. The jury simply had a binary choice. If they accepted what was said in relation to murder, then it was their duty to convict. If, on the other hand, they considered that the evidence fell below the threshold necessary for murder, and where, on the run of the trial, the whole issue was that of intention, then it would follow that the default verdict, in the context of this case, could only be manslaughter.

19. In the circumstances, therefore, the Court does not consider that this satisfies the constitutional criteria, as a point of general public importance. Nor is it in the interests of justice that this Court should deal with an appeal in this application. The application is refused.

And it is hereby so ordered accordingly.