Court of Appeal dismisses murder appeal regarding intoxication evidence admissibility and jury direction accuracy.

THE COURT OF APPEAL

[307/16]

Birmingham J.

Mahon J.

Hedigan J.

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

V

LIAM POWER

APPELLANT

JUDGMENT of the Court delivered on the 5th day of June 2018 by Birmingham P.

1. On the 16th November 2016, the appellant was convicted of the offence of murder. The conviction was by a majority verdict of

ten to two and came after a period of 14 hours and 38 minutes deliberation over a period of four days.

2. Two issues are raised in this appeal. First, it is contended that the trial judge erred in the particular circumstances of the case in

admitting evidence of a statement made by the appellant at the time of his arrest notwithstanding his intoxicated state. Secondly, it

is said that the judge erred in misdirecting the jury in relation to intoxication and specific intent.

The Background Facts

3. On the 16th September 2014, the body of the deceased, Mr Gints Intenpergs was discovered by Gardaí at his home in Tullow, Co.

Carlow. He was pronounced dead at the scene. The cause of death was a subdural haemorrhage as a result of blunt force trauma to

the head. Another individual, Mr Aigars Sildars, was found in another room of the house and he too had been the victim of an assault.

4. The evidence at trial established that there had been a social gathering at the house in Tullow. Those present were the appellant,

the deceased, Mr Sildars and also Mr Sackalausks, who was a co-accused at trial. There was evidence that Mr Power consumed a

very considerable amount of alcohol and other intoxicants over the course of the day and that the consumption continued at the

home of Mr Intenpergs. During the course of the social gathering a game of arm wrestling took place at the kitchen table in the early

hours of the 16th September 2014 and this developed into a physical altercation involving Mr Power, Mr Sackalausks, Mr Sildars and

the deceased.

5. At trial, the defence position was that it was accepted that Mr Power unlawfully killed Mr Intenpergs but that his level of

intoxication prevented him from forming the requisite intent for the offence of murder. It was also canvassed that he was provoked by

the words and/or actions of Mr Intenpergs.

6. Before turning to the two grounds of appeal, concerning the pre-arrest statement and the judge’s charge in relation to intoxication,

it is helpful to record that the appellant was acquitted of an assault charge in relation to Mr Sildars and that the murder charge faced

by Mr Sackalausks was withdrawn after the judge ruled certain admissions inadmissible. Mr Sackalausks then pleaded guilty to an

assault in relation to Mr Sildars.

The Arrest

7. Gardaí attended at 10 Shaw Park, Carlow, the appellant’s residence. The evidence of both Detective Sergeant Stephen Delaney

and Detective Garda Donal Lawlor was that when they arrived Ms Dolores Kenny, the landlady of the appellant, answered the door

and said “we/he has been expecting you.” Both Gardaí who were present gave evidence that the appellant appeared hung-over but

they would not have regarded him as intoxicated. They said that he was coherent.

8. Detective Garda Lawlor asked if he could speak to the appellant in private and the appellant invited the Gardaí into the kitchen

area. The appellant was immediately cautioned by the Detective Garda and signed the notebook to say that he understood the

caution. The appellant then stated:

“I understand the caution. I was there last night in Tullow. Things got out of control and I kicked the head off him. Look

at my runners. Shit happens. I lost the head, what can I do? That’s all I can say. This note is correct. I don’t want to say

anymore. This is correct.”

The evidence at trial which was not in dispute was that the note was read back to Mr Power and that he signed Detective Garda

Lawlor’s official notebook. There was also evidence that following those comments made following caution that the appellant

voluntarily handed Gardaí items of his clothing, including his blood-stained runners.

9. The appellant was arrested and brought to Carlow Garda Station, arriving there at approximately 3.20 pm. Mr Power was seen by a

doctor, who at 4.20 pm certified him as being unfit to be interviewed for a period of three hours. Thereafter, a formal interview with

Mr Power was conducted at 8.15 pm and during that interview the earlier statement was read back to him and he agreed that it was

correct. Further, during that interview the earlier observations in the kitchen were read back to him and he agreed they were correct.

10. During the course of his detention five interviews were conducted with Mr Power and during these he fully admitted his

involvement in the killing of Mr Intenpergs. In the course of the present appeal, counsel summarised the interviews by saying that his

client had admitted an involvement in a brutal assault and that was borne out by forensic evidence and the nature of the injuries

sustained by the deceased. However, while not dealing with the issue in the same detail during the course of the detention, the

appellant had also stated that he had been involved in a broadly similar assault on Mr Sildars. However, Mr Sildars suffered only minor

injuries and these would not seem to be consistent with having been the victim of an assault in any way comparable to that to which

the deceased was subjected. Counsel argues that this is relevant, as the appellant is not somebody who gives a particularly good

account of himself and indeed may not be somebody who does himself justice. It is said this is relevant to the question of whether

there was an unfairness in admitting into the evidence the remarks that he made at his residence pre-arrest. It is important to

appreciate that there was no suggestion that anything untoward occurred when the Gardaí called to Mr Power’s home. There is no

suggestion of sharp conduct or underhanded behaviour on the part of the Gardaí. It is argued that in the particular circumstances of

the case, admitting the remarks made by Mr Power constituted an unfairness.

11. At trial, the admissibility of the comments made by Mr Power was challenged.

12. It was pointed out that at a time subsequent to the recorded remark when Mr Power had been arrested and brought to Carlow

Garda Station, that the member in charge was sufficiently concerned about his level of intoxication to contact a doctor. Then, when

a doctor saw him, he certified him as unfit to be interviewed.

13. The trial judge ruled in favour of admitting the evidence. In doing so, she referred to three factors which had influenced her:

(i) There was evidence from prosecution witnesses which showed that Mr Power was capable of conversing with others.

(ii) Mr Power agreed at a later stage, after he had been certified as fit to be questioned that the notes of the admissions

made earlier in the day were correct.

(iii) That the accused had the benefit of having a consultation with his solicitor after his arrest and detention and before

he was interviewed for the first time.

14. On behalf of the appellant it is pointed out that when interviewed on five occasions, he had been unequivocal about the fact that

he had been involved in the assault but had referred to the fact that his first action was to hit the deceased with his fist, or as he

put it to “hit him a haymaker”. It is said that the possibility that this first blow may have had fatal consequences cannot be excluded

having regard to the evidence of the State Pathologist. That being so brings into focus what Mr Power’s state of mind was as he

delivered that blow. The point is made that Mr Power may have not done himself any favours when he spoke to the Gardaí in the

kitchen about the kicking to the head of the deceased. He did not mention the throwing of a punch. The defence draws attention to

the fact that the prosecution placed some reliance on Mr Power’s shifting position when closing the case to the jury, pointing out that

his first remarks to the Gardaí had been about kicking to the head, that he had spoken to others, including his landlady, about hitting

the deceased with an ashtray, and then for the first time when interviewed during detention, spoke about a “haymaker” punch.

15. In the Court’s view, the trial judge was fully entitled to admit the evidence of what was said in the kitchen in Carlow. The fact

that the appellant was so intoxicated that he was not in a fit condition to be interviewed or interrogated does not mean that there is

anything wrong in the Gardaí recording what he had chosen to say.

The Judge’s Charge in Relation to Intoxication

16. To contextualise the judge’s charge, it is necessary to appreciate that a number of witnesses gave evidence as to Mr Power’s

level of intoxication at the time of the offence. So, it was inevitable that the issue of intoxication would be addressed by the trial

judge in her charge. She charged the jury as follows:

“[Voluntary intoxication] is not a defence to an offence in our criminal law. A drunken intent is nevertheless an intent. So

voluntary intoxication is incapable of amounting to a defence. But it is material to the question of the intent, specific

intent required for murder. That is the intention to kill or to cause serious injury in relation to murder. It is a factor

therefore in your assessment on the issue of intent. You must ask yourselves if you are satisfied beyond a reasonable

doubt that at the relevant time, the accused had the requisite murderous intent. If you are not so satisfied, then your

verdict is one of manslaughter. And I am assuming that is clear from what I say to you that you must have the necessary

intent at the relevant time. Every offence has an actus reus and a mens rea. The actus reus is the physical act, the

mens rea is the intent or the mental position at the time. And both of these factors must be coincident in time.”

17. At the requisition stage, the defence contended that the charge was not as clear as it ought to be and urged the judge to use

the language of Carney J. in People (DPP) v. O’Reilly [2005] 3 IR 111 at p. 116 who had said

“Intoxication could prevent the accused person having the intent that is necessary to sustain the crime of murder. If he

did not have that intent, you would be concerned with the crime of manslaughter.”

18. It was submitted that the language of Carney J. was clearer than that used by the trial judge and goes further than simply

describing intoxication as a factor.

19. The judge declined to reopen the issue of intoxication.

20. In the Court’s view, the judge’s charge accurately stated the law. That was the judge’s obligation. There is no particular formula

of words that is required to be used. Practitioners may have a preference for one formula over another but ultimately it is for the

judge to choose his or her own language and provided the language is clear and comprehensible and provides an accurate statement

of the law, this Court will not intervene. In the Court’s view the jury was properly charged and this ground of appeal fails. The Court

however takes the opportunity to say that there is much to commend in the language used by Carney J. and trial judges may wish to

make use of it in future.

21. In summary, then, the Court has not been persuaded that the trial was unfair or unsatisfactory or that the verdict was unsafe.

Accordingly, the court dismisses the appeal.