THE COURT OF CRIMINAL APPEAL
[CCA no.: 132/10]
O’Donnell J.
Moriarty J.
Hanna J.
Between:
Director of Public Prosecutions
PROSECUTOR/RESPONDENT
V
David Curran
ACCUSED/APPLICANT
Judgment of the Court delivered on the 14th day of December by O’Donnell, J.
The Facts
1 On the evening of 23rd February, 2008, David Curran (hereafter “the Applicant”) stabbed
and killed two Polish men, Pawel Kalite and Marius Szwajkos, with a screwdriver, outside
their home at 48 Benbulbin Road, Dublin 12.
2 In relation to the earlier part of the day there appears to be little controversy. The Applicant
and four friends, Sean Keogh, Katy Doherty, Catherine Dempsey, and Stephen McGuirk,
spent the late morning and early afternoon hours at a nearby canal smoking cannabis and
consuming alcohol and benzodiazepines. When the group dispersed later that afternoon the
Applicant along with his cousins Stephen McGuirk and Sean Keogh, proceeded to steal a
moped and set it on fire in the nearby park. The Applicant had taken a screwdriver from the
stolen vehicle and had left with the intention of breaking into and robbing nearby factories.
By this time, the Applicant who had a history of drug abuse, had consumed a considerable
amount of alcohol and taken roughly 15-20 benzodiazepines.
3 Meanwhile at the Drimnagh Takeaway, located on Benbulbin Road, a scuffle had broken
out between Stephen McGuirk and Pawel Kalite. It appeared that Mr McGuirk had brushed
against Mr Kalite outside the takeaway. Mr Kalite had taken offence, and a scuffle ensued.
Katy Doherty and Catherine Dempsey joined in the altercation. Mr Kalite had fallen to the
ground, and all three young individuals began to kick him while on the ground. The fight
broke up when the Applicant’s father arrived at the scene and escorted his nephew, Stephen
McGuirk away from the Takeaway. At that time, Mr Kalite got up and walked back up to his
house at 48 Benbulbin Road.
4 Moments later, the Applicant was seen running to the Takeaway with the screwdriver in his
hand. In his interview at the garda station a few days after the incident, the Applicant
admitted that he had received a call from Katy Doherty telling him that his cousin had been in
a fight with a Polish man outside the Drimnagh Takeaway. Ms Doherty confirmed this
account in her evidence at the trial. However, when the Applicant came to give evidence at
the trial he claimed that he had no recollection of any phone call from Ms Doherty. Instead he
said that he had received a phone call from Stephen McGuirk, telling him that his father had
been stabbed. The Applicant contends that it was this call and this news that brought him to
the scene of the Takeaway. The phone records from that evening obtained from Ms Doherty’s
phone indicated there were four phone calls placed from that phone to the Applicant’s phone
immediately prior to the Applicant’s arrival at the Takeaway. The suggestion at the trial was
that Mr McGuirk might have used Ms Doherty’s phone but there was no positive evidence to
that effect. Stephen McGuirk did not give evidence at the trial.
5 Although there are conflicting accounts as to the source of the phone call and the
information given, the information received was enough to bring the Applicant to the scene
of the Takeaway. When he arrived at the Takeaway there is uncontradicted evidence that he
was enraged and acting in an extremely aggressive manner. He began to attack an occupied
car by kicking the vehicle and attempted to damage it with the screwdriver. Independent
witnesses described the Applicant as being “out of control” and “hopping mad”. One of the
occupants of the vehicle recalls the Applicant shouting “was it youse?” to which another
individual responded “it’s not them”. Catherine Dempsey, one of the accused’s companions,
gave evidence that when the Applicant arrived at the Takeaway he had been shouting “he
stabbed me da”. No other witness could confirm that the Applicant had said anything in
relation to his father being stabbed and it does not appear, even on his own account, that the
Applicant took any steps to ascertain his father’s condition.
6 Once the Applicant had been informed that the individuals in the car were not involved he
took the screwdriver and proceeded to run up Benbulbin Road to number 48. Stephen
McGuirk, Sean Keogh, Katy Doherty and Catherine Dempsey followed the Applicant up the
road to the house. By the time the Applicant had reached number 48 three Polish individuals
had emerged from the house. The Polish man who had been in the scuffle at the Takeaway,
Pawel Kalite, was at the front gate with a female occupant of the house Kamila Szeremeta,
while a second man Marius Szwajkos was further back. The Applicant gave evidence that the
two men were shouting in their own language and “moving towards” him. It was these
actions by the two Polish men that the Applicant contends compelled him to advance towards
the Polish people. The Applicant swiped at Kamila Szeremeta and then plunged the
screwdriver into the head of the first victim, Pawel Kalite, who had been standing behind her.
Seconds later the Applicant struck the second man Marius Szwajkos in the head with the
screwdriver after Mr Szwajkos had jumped the garden fence to come to the aid of the first
victim. The two men died as a result of the head wounds inflicted by the Applicant. After the
two men were struck, the Applicant and his friends fled the scene.
7 This sequence of events, starting from the moment the Applicant arrived at Drimnagh
Takeaway to the final blow to the second victim, took place over a course of a 20 minute
period starting just past 6.30 pm. There are varying accounts of the interactions between the
victims and the Applicant at the scene of 48 Benbulbin Road. Neighbours who had witnessed
the stabbing from their homes recalled that there had been shouting and confirms the words
or movements made by the victims towards the Applicant. Ms Szeremeta gave evidence that
there was “loud conversation”; however she could not confirm that the first victim was
moving towards the Applicant. On the other hand, Ms Szeremeta’s brother Raddek Szeremeta
testified that when Mr Kalite emerged from the house, he did not shout or say anything to the
teenagers who were coming up the street. There was evidence that Pawel Kalite changed his
shoes to heavier boots before going out of the house to confront the accused and his
companions. That there was a confrontation there is no doubt. During his evidence, the
Applicant recounted that the Polish individuals had been screaming at him in their own
language and that he believed that the two men were moving towards him. When asked what
had been going through his mind immediately before he stabbed the first victim, the
Applicant responded by saying “they were coming for me now and that made me go mad”. In
answer to the question “when you stabbed him were you in control of yourself or not?” the
Applicant responded “no”. After objection, the Applicant was asked what he meant when he
said he went mad and replied that he had “lost control”. The Applicant was tried along with
Sean Keogh for the murder of Mr Kalite and Mr Szwajkos. He pleaded not guilty. After a 15
day trial in the Central Criminal Court he was convicted of murder. He now appeals his
conviction.
Provocation
8 The main, if not the sole, issue in this trial was whether the accused was entitled to the
defence of provocation. It appears that prior to the landmark decision in People (DPP) v
MacEoin 1 IR 27, provocation had not been the subject of any reported case in this
jurisdiction. Since that date however, the issue has given rise to a significant number of
decisions of this Court. See, for example, DPP v Kehoe [1992] ILRM 481, DPP v Mullane
(Unreported, Court of Criminal Appeal, 11th March, 1997), DPP v Noonan [1998] ILRM
154, DPP v Bambrick [1999] 2 ILRM 71, DPP v Kelly [2000] 2 IR 1, DPP v McDonagh
[2001] 3 IR 201, DPP v Davis [2001] 1 IR 146, DPP v Doyle (Unreported, Court of Criminal
Appeal, 22nd March, 2002), and DPP v Byrne IECCA 47/00 (Unreported, Ex tempore, Court
of Criminal Appeal, 24th February, 2003). The issue has also been discussed in text books
including Charleton, Offences Against the Person (Dublin: Round Hall, 1992), Charleton,
Bolger and McDermott Criminal Law (Dublin: Butterworths, 1999), and McAuley and
McCutcheon’s Criminal Liability (Dublin: Round Hall, 2000). In addition, the defence has
been the subject of detailed consideration by the Law Reform Commission in its recent
Report on Defences in Criminal Law (LRC 95-2009) following the Consultation paper on
Homicide: The Plea of Provocation published in 2003 (LRC CP27-2003). As was observed
by Keane, CJ in DPP v Byrne IECCA 47/00 (Unreported, Ex tempore, Court of Criminal
Appeal, 24th February, 2003), “the law (on provocation) has got into a state of affairs which,
one can only say, is not that easy for a lay person to follow: some lawyers have difficulty in
following it too”.
9 It is worth considering some of the sources of the current confusion. Until DPP v MacEoin,
it was accepted, that the Irish law on provocation was essentially that summarised in the
classic direction given by Devlin, J in R v Duffy [1949] 1All ER 932 namely:
“Provocation is some act, or series of acts, done by the dead man to accused
which would cause in any reasonable person, and actually causes in the
accused, a sudden and temporary loss of self-control, rendering in the accused
so subject to passion as to make him or her for the moment not master of his
mind.”
The reference to “any reasonable person” makes it clear that this is an objective test.
10 Provocation is unusual in that it operates only to reduce murder to manslaughter. In any
other offence matters alleged to amount to provocation operate only as an element going to
sentence. The roots of the defence lie therefore in the history of the mandatory death penalty
and as a consequence, a desire to distinguish between different homicides. One such
homicide was where the victim had in some sense provoked the fatal attack. The historical
origins of the defence are important. As Lord Hoffman put it in the UK House of Lords
decision in R v Smith (Morgan) [2000] 4 All ER 289, the doctrine: “… comes from a world of Restoration gallantry in which gentlemen
habitually carried lethal weapons, acted in accordance with a code of honour
which required insult to be personally avenged by instant angry retaliation …
(t)o show anger “in hot blood” for a proper reason … was not merely
permissible but the badge of a man of honour.”
Thus in R v Mawgridge (1707) Keil 119, Holt CJ set out four categories of provocation which
operated to reduce murder to manslaughter including a grossly insulting assault, seeing a
friend attacked, seeing an Englishman unlawfully deprived of liberty, and catching another
man in the act of adultery with one’s wife. The continued, if controversial, existence of a
defence rooted in such concepts, is, itself perhaps, an indicator of continuing belief that the
existence of the mandatory sentence of murder, and the significance of the public labelling of
a crime as murder, has continued to create a demand for a defence which distinguishes
between culpable homicides. Even in the examples given by Holt CJ the modern eye can
detect some of the essential elements of the defence; an action on the part of the victim, often
wrongful, which triggers an immediate reaction in the accused causing that person to
immediately lose complete control and during which brief period and before they can regain
control of themselves they kill the victim. While not fully excusable the offence is partially
understandable, and the victim’s actions are normally not beyond reproach. In such
circumstances, the killer will escape the mandatory death sentence (or now a mandatory life
sentence), but since the wrongdoing involves the intentional taking of the life of another, that
will be marked and punished by a conviction for manslaughter.
12 As time went on the defence appeared increasingly anomalous. There is logical difficulty
in contemplating, under the pre MacEoin test, a reasonable man who nevertheless could kill
another person in a fit of passion. While a defence of provocation seemed to show some
sympathy with what was almost a caricature of the hot-blooded gentleman quick to take
offence, and equally quick to act decisively and lethally, modern society finds it hard to
sympathise with or understand the concept of defending one’s honour, or that of another, by
the intentional killing of another person. In the words of modern commentators, Neal and
Bagaric, in the article, “Provocation: The Ongoing Subservience of Principle to Tradition”
(2003) 67 Journal of Criminal Law 237 at p. 247: “… (t)he ‘concession to human frailty’ is misguided. We are not that frail
after all. Angry impulses do not so overwhelm us to the point that we become
enslaved by them.”
13 At the same time however the wholly objective test, was itself under challenged. In
MacEoin, the Court of Criminal Appeal referred to the fact that the purely objective test had
been subject to severe criticism in the dissenting judgment of Murphy, J. in the Australian
case of Moffa v The Queen (1977) 13 ALR 225, and in the then leading text books, such as
Smith and Hogan Criminal Law (2nd edition, pp. 213-215) and Russell on Crime (London:
Stevens & Sons, 12th edition, 1964, Ch. 29), and in an influential article in the 1954 Criminal
Law Review authored by Prof. Glanville Williams: “Provocation and the Reasonable Man”.
The Court drew an analogy with the recent changes in the law of self-defence, established in
People (Attorney General) v Dwyer [1972] IR 416, and concluded that the test for
provocation ought to be wholly subjective. The test therefore was whether the accused had in
fact been provoked to such an extent that he or she was no longer the master of his or her own
mind, and responded by killing the victim. Whether a reasonable person would have been
provoked, and/or considered that a violent response was necessary, was relevant if at all to
the question of whether the accused’s account was to be believed. It is important to remember
however that in a criminal trial the prosecution must negative any defence beyond reasonable
doubt, and thus the test which would apply in a trial is whether the prosecution had proved
beyond reasonable doubt that the accused had not suffered a sudden and temporary loss of
self control rendering him or her no longer the master of his or her mind. This involves the
prosecution not only in proving the subjective state of the mind of the accused, but doing so
negatively i.e. to exclude any reasonable possibility that the accused was, subjectively
provoked.
14 This apparently enlightened approach, apparently in tune with the views of influential
commentators, gave rise to a renewed consideration of some of the traditional limitations on
the availability of the defence, such as the requirement of immediacy, and the fact that
intoxication had hitherto been considered irrelevant to provocation. Some of the language in
MacEoin however suggested that if the violence used in response to the subjectively
perceived provocation was “disproportionate” then the defence would not apply. This too
came under scrutiny. It was criticised as illogical by Charleton in Offences Against the
Person, (Dublin: Round Hall, 1992). The point was ultimately clarified by the decision in
DPP v Kelly [2000] 2 IR 1 where the Court rejected the proportionality qualification. The
intersection (or more correctly the lack of it) between the question of intent to kill, and the
defence of provocation was also clarified in DPP v. Bambrick [1999] 2 ILRM 71 which made
it clear that these were two separate concepts. A person who successfully raised the defence
of provocation, had ex hypothesi, the requisite intent to commit murder. Where provocation
applied, the killing was deemed partially excusable and therefore was reduced to
manslaughter. All of these subsequent developments led to a broadening of the defence as
established in MacEoin.
15 However, the approach in MacEoin never found favour in other common law countries
although all struggled with the defence of provocation, and adjusted the law to some extent.
The development of the law in MacEoin was subjected to a thoughtful and compelling
criticism by McAuley and McCutcheon in Criminal Liability (Dublin: Round Hall, 2000).
The authors argued that MacEoin was flawed, and was based on an incorrect analogy with the
law of self-defence. In People (Attorney General) v Dwyer [1972] IR 416 it had been held
that even a mistaken belief in the appropriateness of the violence used, could give rise to a
partial defence of self-defence reducing murder to manslaughter, because it was said , it
negatived the intent necessary for murder. But in provocation there was no question of a lack
of necessary intent. It was therefore doubtful if the same reasoning could apply. The authors
also pointed out that the adoption of a wholly subjective test for provocation was problematic
since it seemed to indulge qualities, which the law ought to deprecate: lack of self-control;
unusual pugnacity and hot headedness; and the holding of morally repugnant beliefs.
Provocation essentially represents a judgement by society that a person, who has otherwise
intended to kill his or her victim, should in certain circumstances, neither be treated nor
labelled as a murderer, but rather should be guilty of manslaughter only. That was a societal
judgement as to what was or was not even partially excusable. It was difficult to see why
society should include in these circumstances the consequences of characteristics which a
civilised society should more naturally condemn. As the subsequent judgment of this Court in
DPP v Davis [2001] 1 IR 146 acknowledged, these academic criticisms of MacEoin had
considerable force, although it might also be pointed out that if MacEoin had been correct in
rejecting the wholly objective test, but too swift in adopting a wholly subjective approach it
was following an approach advocated with considerable enthusiasm in what were then the
standard academic works.
16 The argument in McAuley and McCutcheon’s Criminal Liability text draws heavily on the
development of the law in England and Wales. A decision of the House of Lords in that
jurisdiction, delivered shortly after the decision in MacEoin had reviewed the law of
provocation in that jurisdiction. In DPP v Camplin [1978] AC 705, the House of Lords had
addressed the criticism of the wholly objective approach exemplified in Bedder v DPP [1954]
1 WLR 1119 and had held that the UK Homicide Act of 1957 had modified the approach by
requiring that the characteristics of the accused should be taken into account by the jury in
considering the gravity of the provocation but that the Court should still judge the accused’s
conduct by the standard of self-control to be expected of an ordinary person of the sex and
age of the accused. This qualification of the objective test carries its own difficulties. It was
criticised in R v Smith (Morgan) [2000] 4 All ER 289, which sought to adopt the same
standard in relation to both the gravity of provocation and the self-control exercised, but this
view in turn was rejected soon after by a majority of the Privy Council (over the powerful
dissents of Lord Bingham and Lord Hoffman and Lord Carswell) in Attorney General for
Jersey v Holley [2005] 2 AC 580. In the latter case, the observation of Lord Nicholls of
Birkenhead at para. 27, that “(t)he widely held view is that the law relating to provocation is
flawed to an extent beyond reform by the courts” and his plea for urgent comprehensive
reform, could be applied with even greater force to the law in this jurisdiction, where the law
of provocation has until now escaped any statutory reform.
17 Some modern criticism of the law of provocation has suggested that it is an anachronism
which cannot be justified in logic. This type of reasoning has led to the abolition of the
defence in the State of Victoria in Australia. There, any question of provocation only arises in
relation to sentence. However, on the other hand, the continued existence of a defence which
could reduce murder to manslaughter still has attractions in some jurisdictions and is
arguably necessary where there is a single mandatory life sentence for murder. Increasingly,
it was asserted that the defence could be available in circumstances where it was alleged, for
example, that a battered spouse had killed an abusive husband. In one sense, this was a
recognition of the continuing vitality of the underlying theme in the defence of provocation:
the concept that in certain circumstances a conviction and penalty for murder was
inappropriate. As it was put in the dissent in AG for Jersey v Holley 2 AC 580, at para. 44 by
Lord Bingham of Cornhill and Lord Hoffmann: “It was a humane concession to human infirmity and imperfection,
acknowledgement “that by reason of the frailty of our natures we cannot
always stand upright”.”
18 In legal terms, and in the absence of legislative attention, this resulted in pressure to relax
the requirement of immediacy, since in many cases the accused could not point to a single
immediate act causing her to lose control. Accordingly, by the late 20th century the defence of
provocation occupied an uneasy intermediate world tied to sometimes anachronistic historical
concepts, and yet seeking to accommodate the demands of a modern society.
19 In that context, the move to a wholly subjective approach, as set out in the judgment in
MacEoin, was initially seen as an enlightened development in accordance with the best
academic analyses. However, it has become increasingly clear that the formulation of the
defence in wholly subjective terms is, unless carefully defined and applied, particularly
capable of creating a dangerously loose formulation liable to extend the law’s indulgence to
conduct that should deserve censure rather than excuse. The application of a wholly
subjective approach creates more difficulty in this area than the application of the familiar
subjective test in the ascertainment of mens rea. The jury’s inquiry takes place against the
structure created by s.2 of the Criminal Justice Act 1964, that a person is presumed to intend
the natural probable consequences of his action. This creates a starting point, and indeed a
tool for analysis that allows the jury to address the assertions of the subjective belief of the
defence, against the objective evidence of their conduct, albeit by the standard of beyond
reasonable doubt. However, since intent is not an issue in provocation, there is no similar
presumption, or analytical structure. A jury is left with the asserted evidence on behalf of the
accused, and an instruction that a prosecution must negative the existence of such alleged
provocation, beyond any reasonable doubt. When it is recognised, that in many cases (and in
this respect the present case is somewhat unusual) there will be only two participants in the
incident, one of whom is by definition by the time of the trial dead, the difficulties posed for a
jury are real and obvious. The increased incidence of a provocation defence being raised in
murder trials, is suggestive more of an expansion of the scope of the defence, rather than a
surprising resurgence of the values and behaviour of “Restoration gallantry”. There is a clear
and pressing need for a comprehensive review of this area, and its interaction with other areas
of the law of homicide, and at a minimum, a statutory regulation of the scope of the defence
of provocation.
20 In the meantime, the existing law must be applied. It is apparent from a consideration of
the development of the defence that what at first sight might appear to be antiquated
phraseology and fine linguistic distinctions, are of the essence of the correct approach to the
defence, if it is to be maintained within proper bounds. As Lord Nicholls of Birkenhead
observed in the UK Privy Council case of Attorney General for Jersey v Holley at para. 22, it
is important that the question for the jury is whether the provocative acts or words alleged
and the defendant’s response, met the standard prescribed in that jurisdiction by statute, and
“… not the altogether looser question of whether, having regard to all the circumstances, the
jury consider the loss of self control was sufficiently excusable”. That warning might apply
with even greater force in the Irish context. Since the test in this jurisdiction is wholly
subjective, the jury is not entitled to consider whether the loss of self-control was sufficiently
excusable (loose though that test may be). In such circumstances, the jury would be driven to
speculate upon, and perhaps partially excuse, murderous rages by violent individuals. This
would be entirely regrettable. It is the stock-in-trade of every bully from the school yard to
the street corner, to demonstrate a finely tuned sensitivity to imagined slights, and to respond
with gross and excessive violence. A principle of law which instructed a jury to give credence
to such a person’s behaviour, and acquit of murder if reasonably possible that such an
account was true, would risk fundamentally divorcing the law from the jury’s, and the
public’s, innate sense of justice. There is force in Lord Hoffman’s observation in R v Smith
(Morgan) [2000] 4 All ER 289, that:
“A person who flies into a murderous rage when he is crossed, thwarted or
disappointed in the vicissitudes of life should not be able to rely on his antisocial propensity as even a partial excuse for killing”.
21 The decision of this Court in People (DPP) v Davis [2001] 1 IR 146 is very important
therefore in providing guidance to courts in ensuring that the structure for the defence is
maintained. It emphasises that it is only those cases where provocation as properly defined as
genuinely being raised that should be permitted to go to the jury. The Court also laid
emphasis on ensuring that all the elements of the defence, and in particular those features
which distinguish true provocation from mere uncontrolled rage, are maintained. As the
judgment pointed out, at p. 158, provocation will involve focusing “inter alia on the
distinction between vexation, temper, rage or cognate emotions and provocation in its
technical sense”. A condition of being “vexed” or even “in a rage” does not remotely
approach evidence suggesting the “total of self-control which alone can palliate a fatal
assault.” On the contrary, it was necessary that there should be some evidence whose
credibility will fall to be assessed by the jury, that, as stated on p. 158, “the particular
accused was in fact provoked to the extent of total loss of self-control, that he killed the
deceased while in this state, in response to the provocation, and without there having been
time for his passion to cool”. This should also be understood in the context, that there is a
“minimal degree of self-control which each member of society is entitled to expect from his
or her fellow members: without such a threshold, social life would be impossible” (p. 160 of
judgment). This is important and valuable guidance. In the words of Hardiman J. at p. 158:
“The defence of provocation does not operate in such a way as to allow any
person who kills another in a fit of temper to establish that much and no more,
and then defy the prosecution to exclude the reasonable possibility of
provocation. He must show some, even weak or limited, evidence of all the
elements of provocation as that phase is understood in law, and usually this
will involve focusing, inter alia, on the distinction between vexation, temper,
rage or cognate emotions and provocation in its technical sense.”
22 In DPP v Kelly [2000] 2 IR 1 the Court also drew a useful distinction between selfdefence and provocation at p. 10: “Self-defence presupposes the existence in the accused of a calculating mind
even if it is a mind operating under stress. … A successful defence of
provocation, on the other hand, presupposes at the critical time the existence,
not of a calculating mind, but of a mind subject to a “sudden and temporary
loss of self-control rendering the accused so subject to passion as to make him
or her for the moment not master of his mind”.”
Finally , as Fennelly J pointed out in DPP v Stephen Delaney [2010] IECCA 123 , an
approach used in the law of self defence is also useful in the field of provocation. While the
question is subjective , a jury may test the credibility of the defence by asking itself whether
anyone would react in the particular fashion to the provocative acts or words alleged .
23 These distinctions, like those in Davis, are useful in seeking to identify the true nature and
proper limits of the defence of provocation. The present case illustrates however, that the
modern emphasis on subjectivity can, without careful control, lead to the defence being
raised in almost any circumstances. The Applicant here, on all the evidence, was already
engaged on a trail of destructive activity long before he received any phone call. He had
stolen a moped, set it on fire and appropriated the screw driver with a view to further
criminality. In his interview he admitted that he had received a phone call from Katy Doherty
telling him that his cousin (and she) had been involved in a scuffle with a Polish man outside
the chipper (an account which if given to the accused was true). Katy Doherty for her part
gave evidence in Court that she had made such a call. If all of this was true, then it was
indicative of aggression and revenge rather than provocation. However, when he came to
give evidence the accused claimed to have no memory of receiving any such call from Katy
Doherty. Instead he said he had received a call from Stephen McGuirk telling him something
which was untrue: that his father had been stabbed. Whatever information the Applicant
received, what he did was to go to the takeaway, which was the scene of the scuffle, of which
on her evidence Katy Doherty had informed the Applicant. There is uncontradicted evidence,
that when he arrived there, he was acting in a manner which was extremely aggressive and
violent. He attacked an occupied car by kicking it and attempting to damage it with the screw
driver. He was in the words of one independent witness – words relied on by the defence –
“out of control”, a description which seems amply justified. He then proceeded to number
48, plainly intent on further violence. At this stage it should be noted that nothing which
could remotely constitute provocation emanating from the victims, had occurred. When three
Polish people emerged from the house (two men and a woman) David Curran made a swipe
at the woman with a screwdriver, and then plunged it into the head of the first defendant,
Pawel Kalite and seconds later, drove the screwdriver into the head of Marius Szwajkos.
24 So far, everything pointed to the accused being in a savage and violent rage, fuelled by
drugs and alcohol. Nothing suggested that the accused’s mood or mental state was brought on
by anything done or said by the victims of the attack. Given the fact that the case law shows
that the distinction between rage and anger on the one hand, and the total loss of self-control
involved in provocation on the other, is a crucial question, it is more than regrettable that the
critical evidence of the accused in this regard, was introduced in response to a plainly
inappropriate and leading question. When asked what was going through his head Mr Curran
had said “that they were coming for me now and that made me go mad”. He was then asked
“now when you stabbed them, were you in control of yourself or not?” Over the entirely
proper objection of counsel for the prosecution, the accused answered “No”. The objection
was quite properly sustained by the trial judge. The accused was then asked what he meant
when he said he went mad, and he answered simply “lost control”.
25 This very limited passage of evidence was the entirety of the evidence on the question of
loss of control, which nevertheless led the Court, to conclude, correctly, that there was now
evidence in the words of Mr Justice Hardiman, however weak or limited, which required the
jury to consider the defence of provocation. The case advanced on Mr Curran’s behalf
however, also had to identify acts of provocation on the part of the unfortunate victims. This
provocation was said to amount to both words and actions. In this case the words amounted
to the evidence that the victims were shouting, in Polish, it should be noted. There is no
evidence that Mr Curran, or anyone else other than the victims understood Polish. The
alleged provocative actions of the two men were described in this Court as a “moving
towards” Mr Curran. Much effort was then expended on the question again described as
“crucial” which was whether the second victim, Marius Szwajkos, was himself “moving
towards” Mr Curran before the first blow was struck. The combination of the Polish words,
and the alleged movement of both accused, was, it was said, what amounted to provocation,
and caused Mr Curran to lose control (something which necessarily implied that he was in
control up to that point) and make an attempt to kill or injure Kimila Szeremeta, and then to
kill Pawel Kalite and Marius Szwajkos. Even viewed through the necessarily imperfect lens
of a transcript, such an account is deeply implausible. It is perhaps a perverse tribute to the
energy and skill of the defence in this case as well as to the frailties of the current law of
provocation that the issue occupied a trial (admittedly involving more than one accused) over
a period of seventeen days, and a further three days in this Court. This is, however, the
essential background of fact and law, against which the Applicant’s contentions must be
considered.
26 The Judge’s Direction on the Defence
On behalf of the accused it was sensibly and realistically accepted that a large part of the
judge’s charge was impeccable. This was inevitable since the judge had emphasised on
multiple occasions that the test for the jury was whether the prosecution had proved beyond
reasonable doubt that David Curran had not been provoked by the words and movement of
the victims. However, the Applicant now contends that the judge’s charge was inaccurate and
misleading in an important respect which it is said was then reflected in a single question
posed by the jury, and that far from clarifying the matter, the judge’s answer to the question
on day 15 was itself defective.
27 The first part of the direction which is criticised occurred on day 14 where the judge said
(p. 50 of the transcript):
“The only issue therefore with regard to Mr Curran is whether or not he is guilty of murder.
In his case there are two ways in which murder may be reduced to manslaughter. One is if
the DPP fails to prove the intent that I have mentioned, the intent to murder or cause serious
injury, and secondly, if the defence of provocation is acceptable to you. In a murder trial the
defence can rely on provocation to reduce the crime of murder to manslaughter. To do so
there must be evidence of words spoken or acts done or a combination of both by the
deceased which causes in the accused person a sudden and temporary loss of self control
rendering him so subject to passion as to make him for that moment not master of his own
mind”. (Emphasis added).
28 The judge continued (day 14 of the trial, p. 51 of the transcript):
“The test is subjective and not objective. So you would ask yourself were
the(re) words spoken or acts done by the deceased person or persons which
having regard not to what a reasonable man might have done because that is
an objective test and that’s not the test but having regard to what the accused
did taking into account their temperament, their character and circumstances.
So, just to repeat that, you would ask yourself were the(re) words or acts done
by the deceased persons which, having regard to the accused’s temperament,
character and circumstances, might have caused him to lose self-control,
that’s the subjective test. It is not an objective test …”
29 Counsel for the Applicant suggests that the reference to “acceptable” is misleading since
it may be thought to imply a choice on the part of the jury. Similarly, to use the word “must”,
might suggest that there was an obligation on the part of the accused to adduce this evidence.
These submissions were elaborated on in respect of other aspects in the charge (day 14 of the
trial, p. 51 of the transcript): “And as I have said, if the defence of provocation holds, then the verdict in the
case of Mr Curran is one of manslaughter and not murder. So why does the
law recognise the possibility that this defence can hold good and even in
circumstances where the accused person intended to kill or cause serious
injury? For provocation to apply you must have a number of elements which I
am about to mention. There must be acts or words done or both by the accused
persons. Those acts or words must have had an effect, must have had a cause
and effect on the accused person. When looking at the effect or the cause it
might have had on the accused person, you must consider his personality; that
is, his character, temperament and his circumstances. Having done that, you
must ask yourself what type of effect must those words have had before the law
allows a person even to kill and yet not be guilty of murder.
So what type of effect must those words or acts have before the defence is
availed of? The effect must have been more than simply instilling anger or
even great anger in the person in question and must be more than simply
causing rage or even great rage in the accused person. The words or actions
must cause or must provoke a sudden unforeseen unset of passion which, from
that moment on, totally deprives the accused person of his self-control. Partial
deprivation of self-control is not enough. There must, as I have said, be a
sudden, unforeseen onset of passion which from that moment on, totally
deprives the accused person of his self-control … If that occurs and if that’s
caused by the acts or words of the deceased person, then, in circumstances
where the accused would otherwise be guilty of murder, he is not. The defence
of provocation holds good and he would be guilty of manslaughter in those
circumstances.
So, the law allows a person even to kill without being guilty of murder … –
when in a condition, when he is in a condition caused by the words or by the
actions resulting in total deprivation of self-control, a total loss of self-control,
that he can do nothing with it. If the evidence falls short of that, and I’ll come
in a moment as to how you will address it by way of question, then
provocation is not available. In this case the only acts or words relied on
which possibly could constitute provocation are the words i.e. the shouting,
which it is alleged took place outside no. 48, immediately prior to the killing of
these two people, and the movement of the two deceased immediately prior to
killing. That’s the evidence relied upon as constituting provocation.”
30 Counsel for the Applicant fairly acknowledges that after the passage complained of the
trial judge did correctly state the onus of proof in relation to the ultimate issue of provocation
as follows (day 14 of the trial, p. 52 of the transcript): “So to kind of sum up in provocation you would ask yourself, is it reasonably
possible that these acts and words of shouting and movement could have
triggered the sudden onset of passion in David Curran which for him resulted
in total loss of self-control? Is it reasonably possible the evidence sustains
that? If it is, then he’s entitled to the benefit of the doubt and consequently
provocation would be availed of. You might ask it from the other side which is
whether the prosecution has proved beyond a reasonable doubt that David
Curran was not provoked in the manner that I have mentioned and decided in
accordance with the above principles. Bearing in mind that at all stages in
relation to every important aspect and element of this case, the onus of proof
is on the prosecution and they must discharge that to the level which I have
mentioned i.e. beyond a reasonable doubt.”
31 The recognition of provocation as a partial defence to the most serious crime tolerates
unchecked displays of anger.
32 It is contended on this appeal, that this charge incorrectly blurred the distinction between
the judge’s task in determining whether there was evidence of provocation to go to a jury,
and the jury’s task in deciding whether such evidence was credible. This Court however,
cannot accept that the charge taken as it must be, in its full context, was defective. It must be
remembered that the charge was delivered orally to the jury and heard by them over an
extended period of two days. The question in any case is how the jury may have understood
the judge’s instructions on the law. It is important therefore to view the charge as a whole,
and seek to assess the impact it, and any passage contained in it, may have had on twelve
individuals who are hearing it for the first time, albeit assumed to be listening attentively. It is
not desirable to select individual words or phrases and subject them to a detailed almost
semiotic analysis, if a jury would not have done so in the moments in which they heard the
charge. In this case there was a repeated instruction to the jury that the onus was at all times
upon the prosecution to prove every element of the offence, and in particular to disprove
provocation, beyond any reasonable doubt. The jury were instructed as to the meaning of that
concept. The test was also inverted, so that it was put to the jury, that if there was a
reasonable possibility that David Curran’s account was correct, then he was entitled to the
benefit of the doubt and should be acquitted of murder. It is only human experience, that in
an oral presentation, that a repeated and consistent message is much more likely to have an
impact than inferences and nuances which might subsequently be sought to be drawn from a
written text. There is no doubt that giving a clear instruction to a jury on the tangled law of
provocation is not an easy task since it involves instructing a jury on unfamiliar concepts, and
on the task of considering whether a prosecution had proved a negative beyond a reasonable
doubt. In the passage complained of, the court is satisfied that the judge was doing no more
than outlining the elements necessary to establish a defence of provocation, and that he then
went on to point out, that in respect of any such element, the prosecution had to disprove that
element or at least one of them, beyond any reasonable doubt, and if not the accused was
entitled be acquitted of murder and convicted only of manslaughter. The court correctly
identified the elements which must exist for the defence of manslaughter, and then correctly
instruct the jury as to the approach to be taken to the evidential standard in respect of such
elements.
The Jury’s Question
33 The second and related complaint made by the Applicant related to the question raised by
a jury on day 15 (p. 29 of the transcript). That was in the following terms:
“For the defence of provocation to be acceptable, we have been directed that
there must be evidence of words spoken or acts done to cause a sudden loss of
control. Is it for the prosecution to prove that there (were) such words or acts
or it is for the defence to prove?”
34 The Applicant points to the use of the phrases “to be acceptable” and “there must be
evidence” as evidence that the jury picked up on the language of which the Applicant had
already criticised. That is speculation, but if so, it only demonstrates that the jury were paying
close attention to the judge’s instructions. Counsel goes further and suggests that the second
sentence of the question should be understood as addressing the specific question as to the
onus of proof of the truth of the existence of the words or acts contended for. He argued, that
the jury ought to have been told that if there was a reasonable possibility that the words or
acts emanated from the victim the jury must “act on that” unless disproved by the
prosecution. Counsel was however reluctant to explain exactly what was meant by the phrase
“act on that” but it appears that he was contending for an approach which atomised the
incident and sought to convert any aspect of it, which the jury could consider had not been
proved beyond a reasonable doubt into positive proof of the contrary. The Court does not
accept that this approach was correct, or indeed that the question by the jury invited this level
of analysis. Rather, the Court considers it was at a general level and was answered correctly
by the judge. He told the jury, that it was not for the defence to prove anything. Furthermore,
he told them that if there was any evidence from any source, then the jury must consider
whether the defence of provocation had been negatived by the prosecution beyond any
reasonable doubt. This was entirely correct.
Counsel’s Comment on a Failure to call a Witness
35 The next point raised by the Applicant was that the trial judge erred in failing to direct the
jury to disregard a suggestion by prosecuting counsel commenting on the failure of the
defence to call Stephen McGuirk to give evidence of making any phone call. The relevant
portion of the prosecution’s closing is as follows (Day 13 of the trial, p. 37 of the transcript):
“David Curran says he’s no memory of any phone calls with Katy Doherty.
But he does try and tell us he got a phone call from Stephen Fogarty – Stephen
McGuirk, which is entirely different, telling him that his father was stabbed.
Now, we don’t have any record of that call and the defence has not chosen to
have Stephen McGuirk give evidence of making any phone call. But there are
other reasons for us to be very dubious about the truth of what David Curran
says about him believing his father was stabbed …”
36 In his closing speech, counsel on behalf of the Applicant referred to this comment and said
that it was entirely inappropriate to suggest (Day 14 of the trial, p. 2 of the transcript):“(t)hat in some way there’s some kind of onus on the defence or a
responsibility on the defence to call a particular witness, when there is not.
And you know from the same garda in the case … that Stephen McGuirk did
not say to the guards that my client David Curran stabbed the two victims in
this case. And it is for the prosecution to put before you relevant, credible
evidence and, in my respectful submission, if the prosecution didn’t put up
Stephen McGuirk to give evidence, you are entitled to infer nothing against
David Curran, but rather to infer that the prosecution has taken the view that
he’s not a credible witness.”
37 The trial judge gave a general direction as follows (Day 14 of the trial, pp. 46-47 of the
transcript):
“This presumption [of innocence] is a cornerstone rule of our criminal justice
system. It means, in effect, that the accused person has to prove nothing. There
is no obligation on him to give evidence or call evidence on his behalf … So
no adverse inference can in any way be drawn from the fact that Mr Keogh
didn’t give evidence, for example, or that no evidence was called on behalf of
any of the other two, of course, apart from Mr Curran himself. There is no
obligation at any stage of the trial upon the accused person to prove anything.
… (t)he onus of proof is at all stages on the DPP, and that onus of proof on
the prosecution relates to each and every element constituting the offences
which are levelled against these accused persons. So these are fairly
fundamental rules and they apply to all criminal cases.”
38 Subsequently the trial judge revisited the issue and said (Day 14 of the trial, p. 48 of the
transcript):
“(T)here is no obligation on an accused person to give evidence or to call
evidence on his behalf.”
39 Counsel has referred us to a number of UK authorities on the circumstances in which a
judge may comment on the failure of the defence to call a witness. See for example R v
Wright [2000] Crim L R 510, and Archbold Criminal Pleading, Evidence and Practice 2011
(Sweet & Maxwell, 2011), para 4-400/1, and R v Kahn (Shakeel) [2001] Crim L Rev 673.
There, the Court observed that having regard to the dangers involved in such comments
“much will depend on the judge’s sense of fairness, but the dangers of adverse comments,
and of failing to warn the jury not to speculate will usually be the paramount consideration”.
No Irish authority was cited. The UK and Canadian authorities which were cited to this Court
all concern comments made by the judge on the failure to call a particular witness, and an
explicit invitation to the jury to draw adverse inference from the absence of such a witness.
The present case is much different. In the first case, it can hardly have escaped the jury’s
attention that there was a conflict of evidence about the phone calls made to the Applicant
alerting him to the events at the Takeaway, and that Mr McGuirk, the Applicant’s cousin, and
a key player on the Applicant’s account, had not given evidence. Second, the comment here
was made by counsel in the course of a closing speech. It was not dwelt upon, and the jury
were not asked explicitly to draw an adverse inference, in the manner in which that is
formally done when the trial judge in the UK cases, is asked to address the matter. In the
circumstances the Court does not consider that the comment made by counsel brought the
jury’s deliberations much further than they would have been in the absence of such a
comment. The comment was countered, by counsel for the Applicant, and while the trial
judge made no specific reference to counsel’s remark, his general and repeated instruction to
the jury was that the accused was under no obligation to call any witness, and he specifically
mentioned Stephen McGuirk. There is no doubt that inviting the jury to draw an inference
from the absence of a witness is something which must be approached with considerable
caution. Concentration on that issue runs the risk of inviting the jury to speculate on evidence
which was not given, rather than to determine the case on the evidence which was. If there
was more elaborate discussion of the absence of Mr McGuirk, and in particular if that had
been dwelt upon by the trial judge, then the matter might have to be scrutinised more
carefully. In the circumstances of this case however, the Court is satisfied that the comment
made by counsel for the prosecution could not be said to have rendered the trial unfair or the
jury’s verdict unsafe.
The Lucas Warning
40 The Applicant contends on this appeal, that the trial judge erred in failing to direct the jury
as to the manner in which the memos of interviews of the Applicant should be considered and
in particular by failing to direct the jury as to the implications of the finding that particular
assertions by the Applicant in those interviews could not reasonably be true or were lies. It
was submitted that the trial judge should have given a direction to the jury in the nature of the
“Lucas” warning. In this regard, the Applicant relied on People (DPP) v Brady (Unreported,
Court of Criminal Appeal, 5th May, 2005) and People (DPP) v Cleary IECCA 25
(Unreported, Court of Criminal Appeal, 3rd March, 2006) and People (DPP) v Tuohy &
Wallace IECCA 153 (Unreported, Court of Criminal Appeal, 5th December, 2006). In
particular, the Applicant pointed to the need for such a warning in a provocation case. See R v
Ritchins (1994) 98 Cr App R 43, and R v Taylor [1998] Crim L R 822 and R v Miah [2003]
EWCA Crim 3713.
41 It has not been definitively determined in this jurisdiction, as to when precisely a Lucas
warning or, a modified Lucas warning, should be given to a jury. There is however no doubt,
that there are cases in which it is appropriate to do so. Those are cases in which, in particular,
the Applicant admits or concedes at or before the trial, that an earlier account given, and
normally to the gardaí shortly after the event, is false and untruthful.
42 The admission, or proof, that an accused person has been telling lies can have a very
potent impact upon a criminal trial. There is a natural tendency to assume that if it has been
established that the accused was lying on a previous occasion, then there is no reason to
believe that he or she is telling the truth when in Court. In such circumstances it is necessary
to remind the jury that they should not necessarily make the leap from an acknowledgement
of lying to a determination of guilt. Human experience, and indeed the experience of courts,
can show that while it may not be very creditable, persons who have been involved in
incidents, and particularly those in which another person has lost their life, may not always be
forthcoming about their role in the events, and in particular may seek to exculpate themselves
by denying involvement or possibly asserting some other exculpation such as self-defence.
Here the prosecution understandably dwelt on the fact that the assertion of provocation had
come late in the day, and that the accused had initially denied any involvement in the crime.
It is unnecessary however to consider whether a Lucas warning was necessary in this case,
and if so in what terms. That is because the trial judge was not invited to give any such
warning, and no requisition was raised on this issue. It is the settled jurisprudence of this
Court, that it does not normally permit a party to raise an issue which was not argued at the
trial. If this Court considered that there was a serious risk that an injustice had been done on
this issue, then notwithstanding the failure of counsel to raise the matter at trial, it might have
to consider whether the absence of a Lucas warning was critical. However, the Court is not so
satisfied in this case and accordingly this ground must be dismissed.
Other Issues on the Judge’s Charge
43 The Applicant also raises a number of very specific issues in relation to the judge’s
charge. Counsel fairly and frankly concedes that the individual aspect of the judge’s charge
may itself not be clearly wrong, but he contends that cumulatively they should lead to a
conclusion that the overall charge was inadequate, and that the application should be allowed.
First, the Applicant contends that the trial judge misdirected the jury by failing to direct it that
having regard to the fact that the test of provocation was to be applied by reference to the
circumstances that the Applicant believed them to be, the jury should consider the matter on
the basis of any mistaken belief as to the facts which as a reasonable possibility applied to the
Applicant. This he contended, should include the fact that he believed that his father had been
stabbed by one of the victims and/or that both victims were moving towards him and/or
shouting. It is also suggested that the learned trial judge erred in failing to direct the jury that
a series of acts and events over a period of time could be taken into account in assessing
whether the defence of provocation applied. Third, it is alleged that the trial judge should
have directed the jury that if there was a reasonable possibility that the Applicant had lost
control as a result of the combination of effects arising from the perceived conduct of the two
victims or either of them acting together, then the defence of provocation applied. Finally, it
is said that the trial judge ought to have charged the jury that while it was the duty of the
members of the jury to act as a collective unit, nevertheless the individual members of the
jury were bound by their oath not to come to a verdict with which they did not truly agree in
the exercise of their independent judgment. It is fair to point out that each of these points
were raised in requisitions on behalf of the Applicant.
44 The Court considers that these points can be taken together. While it is perhaps possible
that if a charge in these terms had been given to the jury, it would have been deemed beyond
objection or at least beyond these specific objections, that is very far from saying that the
absence of such specific directions renders inadequate the charge that was actually delivered.
Here the Applicant seeks to present a wish list of propositions which the Applicant desire to
see in the charge to the jury, and the absence of which it is now contended renders the trial
unsafe. There is, with respect, a fallacy in the Applicant’s reasoning in this regard. The
process of argument seems to follow a number of stages. The first, a statement of law is
identified, itself unobjectionable. The judge is then requisitioned upon it. If the judge does
not then adopt the specific language suggested by counsel it is said that the charge is
inadequate. But the trial judge’s charge is not designed to be a receptacle for propositions
desired by either party. The function of the charge is to put the jury in a position to address
the issues of fact arising in the particular case, in the correct legal framework, and thus to be
able to deliver their verdict. This Court is satisfied that the charge in this case was more than
adequate to perform this task, and conspicuously fair to the accused.
Moral Certainty
45 Finally, in relation to reasonable doubt, the trial judge said (day 14 of the trial, pp. 48-49
of the transcript):
“So may, might, or probable is not sufficient; it must be higher than that. It
must reach the standard being beyond a reasonable doubt. It does not have to
elevate itself to any level of certainty, either mathematically or morally, but it
is a substantial threshold that the DPP has to meet. … So ladies and
gentlemen you must remember where the onus of proof is right throughout this
case, and the level to which the standard must be met before the DPP has
satisfied you with regard to his legal responsibilities in proving a case of this
nature.”
46 Counsel submitted that it was certainly correct to direct a jury that there was no
requirement to be mathematically certain but that it was not correct to direct the jury that they
were not required to be “morally certain”. It was submitted that a description of a finding
that the prosecution case has been proved beyond a reasonable doubt if a member of the jury
is “morally certain” to the extent that that phrase means something less than
“mathematically” or “scientifically” certain could be appropriate, but a specific direction
that the jury need not be morally certain, amounted to a dangerous formulation that was liable
to be interpreted as an understatement of the burden of proof.
47 Counsel referred us to the decision of the United States Supreme Court in Victor v
Nebraska 511 US 1 (1994) where the jury had been directed that they were required to be
“morally certain”. O’Connor J., speaking for the majority of the Supreme Court, held that
the reference to moral certainty was at least undesirable:
“We are somewhat more concerned as Sandoval’s argument that the phrase of
“moral certainty” has lost its historical meaning, and that a modern jury
would understand that to allow conviction on proof that does not meet the
beyond a reasonable doubt standard. Words and phrases can change meaning
over time: a passage generally understood in 1850 may be incomprehensible
or confusing to a modern juror. And although some contemporary dictionaries
contain definitions of moral certainty similar to the 19th century understanding
of the phrase … (“a degree of probability so great as to admit of no
reasonable doubt”) we are willing to accept Sandoval’s premise that “moral
certainty” standing alone, might not be recognised by modern jurors as a
synonym for “proof beyond a reasonable doubt”. But it does not necessarily
follow that California instruction is unconstitutional.”
48 However, a consideration of the reasoning of the US Supreme Court might lead to the
opposite conclusion than that for which the Applicant contends. It is surely a fallacy to start
from the proposition that the phrase “moral certainty” has a fixed meaning irrespective of the
period in time, country, location or indeed specific linguistic context in which it was used.
Words must be interpreted in their context, both national, and specific. It might be possible
for example that modern day US courts could be concerned that a reference to “moral
certainty” might suggest to a jury a form of reasoning other than the logical sifting of the
evidence in a case. Even in this jurisdiction, if the phrase was deliberately contrasted with a
concept of scientific or mathematical certainty, then it might indeed suggest some standard
lower than or at least different to the beyond a reasonable doubt standard. But here, in the
specific content in which it was being used, it appears to the Courts that it was being used as
meaning something essentially similar to mathematical certainty. The alliterative phrase
“mathematically or morally” sought to identify for the jury the truth that the beyond a
reasonable doubt standard, while exacting, is not a synonym for certainty. While this Court
does not consider that in this passage the jury were being invited to identify and consider
some separate concept of moral certainty, if it was, then that can only have been the meaning
attributed to in the Oxford English Dictionary (2nd edn., 1989) at p. 1070, in the extract from
the judgment of O’Connor J in Victor v Nebraska just cited – namely, “a degree of
probability so great as to admit of no reasonable doubt”. In the context in which it was used
this Court has no doubt that it illustrated for the jury the standard of proof required and could
not be said to have misled them in any way.
49 In the circumstances this ground must be rejected. Accordingly, the application for leave
to appeal will be dismissed.