Supreme Court allows appeal quashing conviction for endangerment where manslaughter count exists for same facts.

THE SUPREME COURT

Record No. 481/2004

Murray C.J.

Hardiman J.

Geoghegan J.

Fennelly J.

Kearns J.

BETWEEN/

THE PEOPLE AT THE SUIT OF THE

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

FERGAL CAGNEY

APPELLANT/APPLICANT

AND

THE SUPREME COURT

Record No. 464/2004

BETWEEN/

THE PEOPLE AT THE SUIT OF THE

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

RONAN MCGRATH

APPELLANT/APPLICANT

JUDGMENT of Mr. Justice Geoghegan delivered the 25th day of October 2007

This is a combined judgment relating to two separate appeals from the refusal in each case of the Court of Criminal Appeal to grant

leave to appeal against convictions under section 13 of the Non-Fatal Offences Against the Person Act, 1997. The prosecution in

each case arose out of the same set of facts. The certificate of the Court of Criminal Appeal enabling such appeals to be brought was

in identical terms in each case. The point of law which the Court of Criminal Appeal considered to be of exceptional public importance

and that it was desirable in the public interest an appeal should be taken to the Supreme Court is expressed in the form of a question

in the following terms.

“Is the offence of endangerment contrary to section 13 of the Non-Fatal Offences Against the Person Act, 1997 capable

of being construed so as to cover circumstances such as in the instant case?

The question as framed in that form is, in my view, unintentionally slightly ambiguous. In both of these cases there were manslaughter

counts arising broadly out of the same circumstances and it is not entirely clear whether the question is a purely abstract one as to

whether a section 13 count should ever be included in an indictment along with manslaughter if the relevant facts on the ground are

the same or whether the question relates peculiarly to the actual and somewhat unusual facts of this particular case. I do not think

that this really matters because the certificate is merely the condition precedent to the appeal being brought. What is of importance

is the grounds of appeal in each case and I intend now to refer to those.

In the Cagney case the three grounds of appeal can be summarised as follows:

1. The learned trial judge ought to have withdrawn the section 13 count at the end of the prosecution case.

2. The learned trial judge was wrong in making a finding that there was evidence which if accepted by a jury could as a

matter of law lead to a conviction of the appellant of the section 13 offence.

3. The certified question itself or in other words whether section 13 can be construed to cover the circumstances of this

appeal.

In the McGrath case there are four grounds of appeal contained in a document headed “Amended Grounds of Appeal” and dated 28th

March, 2007. The first three grounds are identical to the grounds of appeal in the Cagney notice of appeal. The fourth ground reads

as follows:

“The verdict of the jury is inconsistent in so far as he was acquitted of manslaughter but was found guilty of

endangerment contrary to section 13 of the Non-Fatal Offences Against the Person Act, 1997.”

The charges arose out of the tragic occurrence which happened on the night of the 24th August, 2000. The two appellants who are

cousins of each other had attended the Palace Nightclub in Camden Street, Dublin on that night. More accurately, they arrived at the

club in the early hours of the following morning. Fergal Cagney was aged 19 years and Ronan McGrath 17 years. The Nightclub closed

around 3.00 a.m. and there was then a congregation of people outside the club. It is not in dispute that a considerable amount of

alcohol had been consumed both by the appellants and by their companions who included the deceased David Langan, the victim of

the alleged crime. There was evidence to the effect that the deceased had pushed Ronan McGrath with some force into the shutters

of the nightclub and that the latter had become angry and aggressive as a result. Various other friends joined the group with a view

to calming them down. Ultimately, David Langan was led away by one of the friends Philip Rahill down Camden Street in the direction

of Portobello Bridge. This was with a view to finding a taxi. The two appellants accompanied by another friend Thomas Rooney

followed behind. At times Ronan McGrath surged towards David Langan. On such occasions he was restrained by Mr. Rooney and by

the co-appellant Fergal Cagney. The appellant, Ronan McGrath was still complaining apparently about being pushed into the shutters.

David Langan and Philip Rooney reached the far side of Portobello Bridge and sat on a low wall attempting to hail a taxi. Fergal Cagney

and Thomas Rooney following behind reached the bridge and the argument continued. Ronan McGrath shouted an instruction to Fergal

Cagney with the words “hit him Fergal”. Fergal Cagney then struck two blows at David Langan. These were described by one witness

as “not being a boxer’s blow”. In a statement to the guards, Fergal Cagney raised a self-defence issue alleging that the deceased had

started “to come at him”. There was no direct evidence whether by way of admission or otherwise that Fergal Cagney heard the

instructions given to him by Ronan McGrath. However, Fergal Cagney’s attack on David Langan was made after those instructions

were given and David Langan was seen to stagger backwards and fall to the ground hitting his head. An ambulance was procured and

David Langan was taken to hospital in an unconscious state and sadly died a few days later. The medical evidence established that

there were no injuries to the deceased’s face or neck and the cause of death noted by the first pathologist was “severe injuries and

that the appearances were consistent with having occurred following a fall.”

There was considerable evidence to the effect that Fergal Cagney had at all times attempted to act as a peacemaker between Ronan

McGrath and David Langan. On occasions, he had physically restrained Mr. McGrath in attempting to calm him down.

It can hardly be disputed that the immediate cause of the death was the fall. In this connection, the appellants placed reliance on

evidence that the fall occurred at a point over 11 meters away from the place where the blows were struck.

Mr. Rooney was obviously a key witness and under cross-examination by Mr. Shane Murphy, S.C., counsel for Mr. Cagney, Mr. Rooney

stated that he did not think that blows struck by Fergal Cagney on David Langan had caused the latter to fall. Indeed it was put to

him that that is what he told the gardaí and he accepted that that was possible.

The evidence of the State pathologist, Professor Harbison, established that Mr. Langan’s blood alcohol reading was 192 mg per 100 ml

of serum and that allowing for the time which had elapsed his blood alcohol level could even have been higher and indeed as high as

210 mg per 100 ml at the relevant time. Professor Harbison agreed in evidence that with such a blood alcohol reading a person might

fall more easily and would be likely to fall more heavily.

An accurate summary of the factual evidence is contained in paragraph 32 of the written submissions on behalf of the appellant,

Fergal Cagney. It reads as follows:

“It is submitted that the prosecution evidence, in summary, was that one or two blows were struck by the appellant in

circumstances of considerable noise and confusion, where he had been consistently and continuously, over a long period

of time, acting as a peace maker in a dispute between others, and where one of the parties involved in that dispute,

whom he was trying to restrain approached the appellant with his hands up. Furthermore, the medical evidence adduced

by the prosecution was to the effect that there was no indication that there had been a significant blow struck by the

appellant. The evidence was that the appellant had used the side of his fist, that the blow is not the sort of punch

thrown by a boxer, and that it had not caused Mr. Langan to fall. There was evidence that, in fact, Mr. Langan had

stumbled or slipped and the evidence established that he fell a distance of more than 11 meters from where the

confrontation had taken place. There was evidence of alcohol consumption and resulting incoordination (sic) which could

explain the fall.”

I do not find it necessary to go into any further detail in relation to the evidence especially having regard to the fact that it is

analysed in rather more detail in the judgment of Hardiman J. and there are substantial relevant extracts from the transcripts in the

judgment of the Court of Criminal Appeal, delivered by Denham J. with whom Ó Caoimh J. and Butler J. sat. There is just one other

matter relating to the evidence on which I would like to comment. It is set out in one of the extracts of transcript contained in the

judgment of the Court of Criminal Appeal that Mr. Rooney gave evidence to the effect that the appellant, Ronan McGrath, had

threatened the deceased and that this threat took the form of a threat “to beat him up” and “to kill him”. There was some limited

discussion about this at the hearing of the appeal before this court and the interesting argument was made by counsel for the

appellant, Fergal Cagney, that the threat to kill had formed part of a third count in the indictment against Ronan McGrath only, that a

direction had been given by the trial judge in respect of that count because of the thinness and uncertainty of the evidence and that

for that reason the evidence of this threat should be excluded.

Whilst this submission from a common sense point of view has its attractions, I do not think that it can stand up in law. Even if there

had been a voir dire in relation to it, the evidence could not have been excluded. It was actual evidence given at the trial. Once the

evidence went to the jury that evidence had to be considered like any other part of the evidence. The most that could have been

done would be that a requisition could have been made to the trial judge that in his charge he should have explained to the jury that

this threat had been the basis of the third count as against Ronan McGrath and that he was directing the jury to enter a not guilty

verdict in respect of it because he took the view that since that was the only evidence it was too thin and uncertain to ground a

conviction. He could have then been asked to say to the jury that possibly they might take a similar view of this particular evidence

and might ignore it if they did so. No such requisition was ever made however and provided that the judge was correct in allowing the

case go to the jury it would seem to me that that evidence had to be included.

It is only fair to say, however, that the case was run in relation to both counts on the basis of conduct of Fergal Cagney with Ronan

McGrath being treated merely as an aider and abettor and in that context neither in the speeches nor in the charge did the threat to

kill, if it existed, play any part.

I now turn to the grounds of appeal. In this connection it would seem logical to deal first with the Cagney appeal. This is because the

case went to the jury rightly or wrongly on the basis that in relation to each count i.e. the manslaughter and the endangerment, Mr.

McGrath’s criminal liability, if any, was as an aider and abettor only. To illustrate this it is only necessary to cite the following short

passage from the charge of the learned trial judge.

“As has been pointed out, if Fergal Cagney is not guilty of manslaughter it follows then that Ronan McGrath is not guilty

of the manslaughter. The same applies to count 2, because it is the prosecution’s case that the principal offender in

relation to count 2 was Fergal Cagney and that he was aided and abetted by Ronan McGrath in the commission of the

crime.”

It might have been open to argument that Ronan McGrath could be convicted of the endangerment offence as a principal and not

merely as an aider and abettor on the basis of the directions which he purported to give to Fergal Cagney. I merely use the word

“arguably” because of course other aspects such as mens rea would have to be considered. It is not indeed entirely clear from either

the opening or closing speeches of counsel for the prosecution that on both counts Mr. McGrath was being prosecuted merely as an

aider and abettor. It is not necessary to resolve any such ambiguity however because the trial judge in his charge was entirely

unambiguous as I have illustrated by the passage cited above. That is the only case that went to the jury and that is the only case

which should be considered.

In the event, the jury found both appellants not guilty of manslaughter. They found both appellants, however, guilty of the section 13

offence by a majority. This meant that the Court of Criminal Appeal was concerned only with the endangerment counts. Suddenly, all

the arguments of counsel were focused on section 13 and its meaning and on the factual matrix relevant to it. On the basis of the

transcript of the trial, I am of opinion that while this obviously had to be the case, there is an inherent artificiality about it. On any

reading of the transcript, in my view, it is perfectly obvious that the focus of all counsel and of the trial judge was almost entirely on

the manslaughter charges and that minimum thought and consideration was given either by counsel or the trial judge to the

necessary proofs in relation to the endangerment count. In making this comment, I am attaching no blame to either counsel or the

trial judge. In the case of defence counsel, they were in a near impossible position, in my view, trying to defend both counts.

Obviously, and quite rightly they would have regarded the manslaughter as the more serious count. But, strange as it may seem, the

harm which had to be contemplated for the purposes of either the concept of intention or the concept of recklessness in the case of

a section 13 offence was much more serious than the harm which had to be contemplated for the purpose of the manslaughter count.

In the latter case, as the learned trial judge correctly pointed out, there had to be an intention of doing the deceased some physical

injury “not merely trivial or negligible in character”. For the purposes of the section 13 count however, there had to be intentional or

reckless engagement in conduct which created “a substantial risk of death or serious harm to another”. These different ingredients of

the mens rea would seem to me to put counsel in an impossible position. If he were to explain to the jury that a much more serious

form of intention or recklessness was required for the second count which was in terms of sentence etc. the less serious count there

would be a danger that the jury might opt for the manslaughter count. In one sense and fortunately from the point of view of counsel

for the defence, the learned Circuit Court judge, with all respect to him, made no attempt at all properly to explain to the jury what

was meant by “reckless” engagement in conduct which created a substantial risk of death or serious harm to another. Still less did he

explain that there would have had to be an appreciation that there was such a substantial risk or in other words a subjective mens

rea in relation to this aspect of the offence as well as any other. The judge did to some extent refer to arguments made by counsel

but only as arguments made by counsel. He did not himself give proper judicial direction. The trial judge seemed to take the view that

the real defence of the section 13 count was self-defence under section 18. That defence did arise under the statement of Fergal

Cagney but the subjective mens rea was also of crucial importance. It is clear from the questions asked by the foreman that the jury

itself was wholly confused as to the meaning of section 13.

At a late stage Mr. Hartnett, S.C., counsel for the appellant, Ronan McGrath realised this and I think realised the inadequacy of the

judge’s charge when he made the following submission while the jury was in its room.

“I am just concerned My Lord, the jury are clearly concerned about this very strange section 13, which is a new offence,

and I submit that they should be told that they cannot extrapolate backwards, or they cannot look backwards from the

death that they must examine what was in the minds of the accused, or either accused, and that before they could find

him guilty of that offence they have to find that there was actually an intention to create a risk that was more than just

an ordinary risk, that it was a substantial risk of death or injury that could lead to death or the loss of a limb, or damage

to a limb. Or alternatively in relation to recklessness, that the accused must be shown to have acted not only in gross

breach of duty of care, but recklessly in the sense that he realised that he was creating an appreciable risk of death at

the moment of striking and of course having assessed and appreciated the risk that he chose to run the risk.”

I believe that Mr. Hartnett’s submission was correct. Its contents had not featured sufficiently in the trial for the obvious reason that

the concern was primarily in relation to the manslaughter count.

Where “recklessness” is a constituent of a criminal offence in Ireland the leading authority on its meaning is The People (DPP) v.

Murray [1977] I.R. 360. The judgments of Henchy J., Walsh J. and Griffin J. make it clear that the required mens rea for the purposes

of recklessness as to consequences is subjective and not objective. In particular Henchy J. endorsed the American Law Institute

definition in the “Model Penal Code”. In Charleton and McDermott Criminal Law at p. 46 it is submitted that the definition contained in

s. 2.02(2)(c) of the Model Penal Code “constitutes the definition of recklessness in Irish Law”. It is cited as follows:

“A person acts recklessly with respect to a material element of an offence when he consciously disregards a substantial

and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature

and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its

disregard involves culpability of high degree”.

It seems clear therefore that for the purpose of a count under section 13 based on recklessness as was the case here the accused

would have had to consciously disregard a risk not of just causing harm but of causing serious injury or death.

As a result of further discussion in relation to Mr. Hartnett’s submissions, the trial judge recalled the jury and instructed them as

follows:

“I have already read the section to you, section 13 of the Non-Fatal Offences Against the Person Act, 1997. Just to be of

assistance to you in the legal sense, firstly you must be satisfied beyond a reasonable doubt that there was an

engagement in conduct which created a substantial risk of death or serious harm to another and that it was done

intentionally or recklessly. Intentionally means that an intention must have been formed and recklessly means the

conscious running of a non-justifiable risk.”

The trouble with that further clarification is that it still did not explain that subjectivity rather than objectivity was involved in the

necessary mens rea.

How does any of this fit in with the actual grounds of appeal? Not very well in my view because the grounds of appeal do not include

any criticism of the charge. On the other hand having regard, in particular, to the new territory being traversed in relation to section

13 and the terms of the certificate of the Court of Criminal Appeal, I do not think that too narrow a view should be taken of the

notice of appeal and I intend to approach it in the following way.

Assuming that the Director of Public Prosecutions was entitled to include the endangerment count in the indictment along with the

manslaughter count (which assumption was not challenged at the trial by the defence at or before the stage of the application for

the direction), there can be no criticism in my view of the learned trial judge’s refusal to grant the direction. There was evidence on

which a jury could have convicted on either count if both counts were properly before them. There was a vast amount of evidence

and the jury was entitled not merely to assess whether there was express evidence in relation to any relevant matter but also as to

whether inferences could be drawn which established a particular matter beyond reasonable doubt. An example of the latter for

instance would be as to whether Fergal Cagney heard the instructions coming from Ronan McGrath. But there are other examples also

relating for instance to the causality of the fall. A judge is only obliged to deal with an application to withdraw a case from the jury on

the grounds put forward to him by counsel. On that basis, I do not think that the learned trial judge can be faulted. I would,

therefore, dismiss the first two grounds of appeal.

As I have already pointed out there are some problems of interpretation of the certified point of law and in effect the third ground of

appeal is simply requesting the court to give a negative answer to the certified question. At least until there have been more cases of

prosecutions under section 13 of the 1997 Act it would seem to me to be unwise for this court to give too absolute an answer. For

my own part, I do not find it necessary even to attempt one as I am quite satisfied that the inclusion of the endangerment count in

the same indictment as the manslaughter count where the manslaughter alleged was based essentially on the same set of facts was

inappropriate and likely to give rise to a confused and unfair trial. I am very doubtful whether an endangerment count should, in any

circumstances, be included in an indictment which contains as its primary count an assault manslaughter charge. But I think it is only

necessary for me to express the view that on the facts of this particular case, at any rate, the endangerment count ought not to

have been included and a conviction on that count ought to be quashed.

There is an obligation on the Director of Public Prosecutions and on the trial judge in a criminal case to ensure a fair trial. I do not

know how that could have been achieved in a case such as this where in the case of the more serious offence i.e. manslaughter, the

jury had simply to consider whether the act was likely to cause some injury above the level of trivial with an objective test in relation

to that evaluation whereas in relation to the lesser offence of endangerment, complex instructions would have to be given to the jury

first of all that they had to consider the matter as of the time the danger was created and not have regard to the actual damage

that resulted and secondly, that the mens rea required an actual subjective appreciation of the likely creation of a substantial risk of

death or serious injury as defined.

I agree with the view expressed by Hardiman J. that if the Director of Public Prosecutions considered that there ought to be a second

count included in this case it ought to have been one of say common assault.

It has been argued in the Court of Criminal Appeal and in this court that the Oireachtas never intended there to be a section 13

prosecution when it was alleged in another count that death did in fact result. In making this submission heavy reliance is placed on

the report of the Law Reform Commission which resulted in the legislation. I do not think that this court should follow that particular

approach. In interpreting a section, a court is always entitled to have regard to similar antecedent legislation or to a report of the

Law Reform Commission etc. which may have given rise to the legislation. But that is where there is some problem or ambiguity in

relation to interpreting the legislation following the normal canons of statutory construction. The common law courts and in particular

the courts of this jurisdiction have never ruled out as applicable a piece of legislation which on its wording would be applicable simply

because it would not have been part of the policy behind the legislation. In my view, the court is bound to look in the first place at

the words of the section irrespective of what the policy leading to it may have been. Applying that criterion, I find it difficult to assert

or even suggest that the Director of Public Prosecutions was ipso facto precluded from bringing a prosecution under section 13 on the

facts of this case. For instance, if the Director of Public Prosecutions had done so without including a count of manslaughter it is not

clear to me on what basis it could be suggested that section 13 would not be applicable.

My objection to the Director of Public Prosecutions having included this count is based therefore not on a suggestion that the section

as a matter of policy was not intended to be used this way but rather on the basis that it created a basic unfairness in the conduct

of the trial. I have explained in some detail my reasons for forming that view and I do not think it is necessary to go into it any

further.

On that basis therefore and taking a broad view of the third ground of appeal, I would allow the appeal and since the hearing of the

application for leave to appeal was in practice a hearing of the appeal itself, I consider that this court ought to quash the conviction

in each case in relation to the endangerment count.

It is necessary only very briefly to deal with the additional ground of appeal which is in the McGrath case. In my view, the appeal

could not have been allowed on that particular ground because the verdict of the jury whereby there was an acquittal of the

manslaughter but conviction in relation to the section 13 offence was not necessarily inconsistent. If the jury, for instance, took the

view that the injury was caused by an independent fall the jury would have had to acquit of manslaughter but would not necessarily

have had to acquit of the endangerment.

I favour therefore the appeal being allowed on the third ground only and in the sense explained.