Court of Appeal dismisses appeal against manslaughter and firearm possession sentences for gross negligence homicide.

THE COURT OF APPEAL

[153/2015]

Birmingham P.

McCarthy J.

Kennedy J.

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

OLIVER KIERANS

APPELLANT

JUDGMENT of The Court delivered on the 12th day April of 2019 by Mr. Justice McCarthy

1. On 27 February 2015 the appellant was convicted of manslaughter (having been charged with murder), possession of a firearm in

suspicious circumstances contrary to section 27 A of the Firearms Act, 1964, as amended, and possession of a firearm with intent to

endanger life contrary to section 15 of the Firearms Act, 1925, as amended. He was sentenced to terms of imprisonment of nine years

for manslaughter, eight years for that of possession in suspicious circumstances and twelve years for that of possession with intent

to endanger life, the sentences to run concurrently. It is not in dispute but that the offence of manslaughter was committed by virtue

of his gross negligence. He appeals against the convictions and sentences.

2. The appellant was married to the deceased Patricia Kierans for 33 years and they had four children all of whom had grown up and

were living in or were en route to Australia at the time of the homicide. Difficulties had arisen in the appellant’s relationship with his

wife in the spring or early summer of 2013 and she had left the family home as a consequence. The appellant had licences for a rifle

and a shotgun but he had sawn off a length of the barrels and also the stock: obviously a sawn off shotgun is useful only to kill or

cause serious injury and not for any legitimate purpose, and, indeed, the appellant said that he had adapted it so that he could use it

to commit suicide. He said he had the firearm in his possession during the fatal incident, which occurred in a bedroom in the family

home, so that he could threaten that he would take his own life if his wife did not believe his denial that he was not conducting an

extramarital relationship which she apparently erroneously suspected. The appellant denied that he had intended the killing and that

the gun had “discharged accidentally” due to the unexpected movement of a bed consequent upon a sudden movement either by him

or the deceased. The possession of a firearm (the sawn off shotgun) with intent to endanger life related to the fact that he sought

to shoot a Garda Fay when he sought to arrest him.

3. Four grounds of appeal were pleaded in the notice of appeal but one abandoned and those now relied upon are that the learned

trial judge erred: -

(i) in failing to properly direct the jury as to the law in relation to intention as it applied to the alleged offence and to the

particular factual circumstances of the case;

(ii) in not instructing the jury that, when considering the issue of whether the appellant was in possession of a firearm in

circumstances giving rise to a reasonable inference that he did not have it in his possession for a lawful purpose, the

ought to acquit even if they prefer the prosecution case, if the version advanced by the appellant was reasonably

possible;

(iii) in how she charged the jury in respect of the allegation of possession of a firearm with intent to endanger life.

4. Each of these grounds relate to supposed deficiencies in the judge’s charge. The first thing to be said is that every charge must be

considered as a whole and it is wholly illegitimate to attempt to isolate and take entirely out of context elements thereof either with

respect to particular topics as has undoubtedly occurred here. We need hardly quote authority for this rudimentary proposition. We

do not intend to repeat it when addressing each one individually although it applies equally to all of them. We cannot, needless to

say, quote in this judgment the entirety of the charge but we think that the general observation will suffice.

Ground 1

The learned trial judge erred in law in failing to properly direct the jury as to the law in relation to intention as it applied to

the alleged offence [of manslaughter] and to the particular factual circumstances of the case.

5. As the appellant concedes, the learned trial judge gave a very comprehensive charge in respect of the constituent elements of the

offence of manslaughter as it arose on the evidence in the case and in particular manslaughter by gross negligence. It is suggested

that this was done in a manner which did not permit of the jury to find the appellant not guilty simpliciter of murder. He further

submits that the judge erred in failing to explain to the jury “that they would be required to find each of the criteria has been proven

beyond reasonable doubt by the prosecution”. Taking the charge as a whole, no rational juror nor jury could not but have been aware

of the fact that the responsibility for proving every element of the prosecution of any charge before them lay at all times on the

prosecution and never shifted to the accused, that the standard of proof is proof beyond a reasonable doubt, that the benefit of any

reasonable doubt must be given to the accused and that if more than one view of the evidence, being one favourable to the accused

and one favourable to the prosecution arose, the view favourable to the accused should be taken. When addressing the particular

topic of manslaughter the learned trial judge plainly explained, on any view of the transcript, each element of it by reference to the

evidence and the want of an explicit reference in that passage of the charge to a verdict of not guilty simpliciter rather than not

guilty of murder but guilty of manslaughter, is an example of what we have deprecated above, namely, declining to have regard to the

charge as a whole but rather isolating and taking out of context the portion dealing with a particular topic.

6. The learned trial judge made it clear that three verdicts were open to the jury on the charge of murder, namely, guilty of murder,

not guilty of murder but guilty of manslaughter and not guilty simpliciter, and, furthermore, that the prosecution were required to

prove each matter beyond a reasonable doubt, and that if the jury entertained a reasonable doubt in respect of specific charges they

must acquit.

7. We therefore reject this ground of appeal.

Ground 2

Failing to instruct the jury that when considering the issue of whether the appellant was in possession of a firearm in

circumstances giving rise to a reasonable inference that he did not have it in his possession for a lawful purpose they are to

acquit even if they preferred the prosecution case, if the version advanced by the appellant was reasonably possible.

8. In his submission, the appellant says that “the learned trial judge may have left the jury with the impression that they should

choose the version that is more reasonably possible that the other, rather than that they should choose the interpretation consistent

with innocence, even if they do not preferred that in her interpretation” (sic). We cannot see any basis for this proposition even if

one can find oneself confined to the supposedly offending passage. This is to say nothing of the fact that appellant, again in this

respect, illegitimately isolates such passage.

9. The appellant further complains of an error in the charge in respect of the allegation of possession of the firearm with intent to

endanger life. In this respect it is submitted that the trial judge’s description “of what matters ought to be considered by the jury did

not fully grapple with either the nature of the allegation contended for by the prosecution nor did reference is engaged way the

manner in which the appellant had denied those allegations in his evidence” (sic). This charge referred to the use of the firearm when

approached by Garda Fay. The Garda had encountered the appellant when he was still in possession of the firearm, subsequent to the

homicide. Clear evidence on CCTV footage existed to show him pointing the firearm at that Garda and indeed attempting to pull the

trigger.

10. Effectively, the suggestion here is that the jury might have thought that the use of the term “handling of the gun” was a “much

attenuated characterisation of the prosecution case” and that left the jury with the impression that “the mere handling of the gun

and perhaps the issue of in whose direction it faced” was the full extent of the prosecution case, leading in turn to the impression

that the attempt to pull the trigger “was not a significant or necessary part of the evidence”. We cannot but surmise that the

implication here is that the jury would have thought that it was merely, and literally, that the fact that appellant had held, physically,

the firearm was enough to prove the charge. This proposition is insupportable on the plain and ordinary meaning of the words used

when the sentence in which they appear is taken as a whole.

11. Under this head it was also suggested that the judge ought to have more fully dealt with what was said by the appellant in

evidence when cross-examined and in particular his denial that he had attempted to discharge the firearm when pointing it at the

Garda. The judge quoted his evidence verbatim on that topic, when a judge is not, in general, required to do so. On any view of this

ground there is no foundation for it.

12. There was no rational basis for any requisition on any of the issues raised by the appellant since there was no error and

accordingly, the principles in DPP v Cronin [2006] I.E.S.C. 9, have no relevance.

13. We accordingly reject this ground of appeal also. The appeal against conviction will accordingly be dismissed.

14. We now turn to the appeal against severity of sentence. It is baldly submitted by the appellant that the trial judge erred in

imposing the particular sentences. We deal with each offence in turn: -

Manslaughter

15. The appellant submits that the trial judge erred in imposing a sentence of nine years in respect of this count, and that the

headline sentence of twelve years was too high. Counsel for the appellant states that greater weight ought to have been given to

the appellant’s personal circumstances, including the deterioration of his marriage, and the emigration of his grown up children.

Despite the fact that the accused did not plead guilty, counsel argued that the appellant was not without remorse for what had

happened and that insufficient weight was given to this by the trial judge.

16. The respondent submits that the appellant was charged with a very serious offence, for which the maximum sentence is life

imprisonment. The trial judge assessed the offence as falling within the lower end of the upper range of gross negligence

manslaughter and determined a headline sentence of twelve years, and after mitigation, arrived at a nine-year sentence, resulting in

a 25% reduction from the headline sentence, notwithstanding that fact that the appellant was precluded from relying upon mitigation

afforded by a guilty plea. The judge expressly took the appellant’s family circumstances and his previous good character into account.

It was submitted that the sentence arrived at in the circumstances was entirely fair.

17. The aggravating factors present in this case are significant. Firstly, in respect of count one, the appellant made use of a firearm.

The appellant re-loaded the firearm after his wife was killed. This was a case of domestic violence - a woman was killed by her

husband in the family home. In modern times, the Courts have become fully cognisant of this aggravating factor. The appellant fully

contested the charges throughout, so no mitigation can be afforded for a guilty plea. We think that this diminishes any real evidence

of remorse. Nonetheless, the judge still afforded the appellant some mitigation in this respect, by her finding of regret going “beyond

his own mere self interest.” Further, the appellant failed to seek any medical or emergency aid after the homicide and instead left the

scene.

18. We think that the sentence imposed was well within the margin of discretion afforded to the trial judge. We can detect no error in

principle.

S.27A Offence

19. The appellant submits that the trial judge erred in imposing a sentence of eight years in respect of the s.27A offence, and that

the judge failed to have specific regard to the lack of any relevant previous convictions of the appellant, which was a significant

factor, and ought to have afforded a greater degree of mitigation.

20. The respondent submits that the sentence was appropriate as the offence fell within the upper range of seriousness based on the

facts.

21. We think that the offence was correctly assessed at the higher range. This offence was intimately connected with the

manslaughter. A sawn off shotgun has no purpose other than to inflict death or serious injury. Again, therefore, we think that the

sentence was well within the margin of discretion of the trial judge. We can detect no error in principle.

S.15 Offence

22. The appellant submits that the trial judge erred in imposing a sentence of twelve years’ imprisonment in respect of the offence of

possession of a firearm with intent to endanger life. Notwithstanding the absence of a guilty plea, there was considerable evidence of

remorse on his part and he showed considerable insight into the harm caused by his actions. The trial judge ought to have afforded

greater mitigation having regard to this factor.

23. The respondent submits that despite the fact that the appellant contested the criminal charges put to him, the trial judge still

found elements of remorse, and afforded in mitigation to the appellant by reason thereof. While no physical injury occurred in the

public house, the risk of endangerment to those present was extreme, and, importantly, endangered a member of the Gardaí.

24. At the appeal hearing, the Court had the benefit of viewing the CCTV footage concerning this offence, where the appellant can

be observed holding the firearm and checking the weapon after it failed to fire when aimed at Garda Fay. Further, a barman can be

seen ducking in fear behind the bar for his own protection. The calmness of the appellant is clear, he can be seen checking the

weapon, and he made no attempt to escape. He had re-loaded the firearm after the homicide some hours before.

25. Further, since the incident occurred in a public house, the appellant would have been aware of the probability of encountering

members of the public. The fact that he put an unarmed member of An Garda Síochána in fear of his life in these circumstances is the

most serious aggravating factor, when we in this country have the privilege of having an unarmed police force. When Garda Fay

approached the appellant, he showed intention to actually discharge the firearm, since he can be seen to pull the trigger. The gravity

of the offence was correctly assessed by the learned trial judge as being in the upper range.

26. We accordingly think that the sentence imposed was well within the margin of discretion afforded to the trial judge. We can

detect no error of principle.

27. It is important to stress the necessity of the application of the principle of general deterrence in sentencing in cases involving the

use, or threat of use, of firearms against members of the An Garda Síochána, which are actions to be abhorred.

28. The appeal against sentence is accordingly dismissed.