Court of Criminal Appeal dismisses appeal seeking Supreme Court certification of a murder conviction point of law.

THE COURT OF CRIMINAL APPEAL

CCA No. 113/09

MacMenamin J.

deValera J.

McGovern J.

Between/

The People (at the Suit of the

Director of Public Prosecutions)

Respondent

And

David Bourke

Appellant

Judgment of the Court delivered on the 23rd day of January, 2014, by MacMenamin J.

1. On the 25th January, 2013, this court upheld the appellant’s conviction for murder of his wife, Jean Gilbert. The substantive

judgment was of some 35 pages, addressing issues raised on the appeal. That judgment should be read in conjunction with this

judgment. The appellant, having been convicted of murder, and having unsuccessfully appealed, now seeks a number of alternative

reliefs outlined in his notice of motion herein. In essence, the applicant asks first, that the court either set aside, or add an

addendum, to its earlier judgment, addressing a point which, it is said, was not addressed in the judgment. Alternatively, counsel

contends that a number of points of law arise which should be certified for the consideration of the Supreme Court pursuant to s. 29

of the Criminal Justice Act 1924.

Setting aside or adding an addendum to its earlier judgment

2. The point raised on behalf of the appellant can be simply stated. The appellant says that the judgment of this court did not

address an important point in the appeal, namely, whether the trial judge should have charged the jury specifically that a person may

have the intention to commit a serious injury, and yet still be in a position to avail of the defence of provocation.

3. In the charge, the trial judge did pose an alternative to the jury. He said that if the appellant had engaged in a calculated killing

where he intended to cause death or serious injury, this was murder, even if he had been in a rage or lost his temper when he

stabbed the deceased. As an alternative to this, the judge put a proposition to the jury which he said was one which would reduce

the verdict to manslaughter. The jury could arrive at that verdict if they found that the appellant was not “the master of this own

mind”, that he was so out of control that he was not acting rationally, that, in effect he could not prevent himself from stabbing his

wife.

4. The question raised relates to whether, despite his intention to kill or injure, the appellant was still entitled to avail of provocation

as a defence. This court in its earlier substantive judgment concluded that the question did not arise for consideration inter alia by

reason of the judgment of the Supreme Court in Director of Public Prosecutions v Cronin (No.2) [2006] 4 IR 329 (“Cronin”). This court

pointed out that the point, now sought to be relied on by the appellant, was not taken at the trial. The court found that the defence

did not ignore the point at trial through some inadvertence, but rather made a tactical decision not to pursue the point in a

requisition. For this reason, this court did not entertain the point. But this is not the only determining factor. This court also found

there was no question of there having been an injustice to the accused in the judge’s charge, taken as a whole.

5. The substantive judgment, which should be read in conjunction with this judgment, contains an extensive description of the

appellant’s conduct, and his state of mind, in a continuum of events over a period of 24 hours which led up to the killing of his wife.

The case was made that the appellant had not formed the intention to kill his wife until he entered the living room where she was

with the couple’s two children. From the court’s point of view, the narrative in the substantive judgment also demonstrated the

difficulty with any “provocation” defence. There was no evidence that the victim said, or did, anything provocative at the time of the

attack. But the trial judge set out every extenuating circumstance from the appellant’s point of view in detail. Despite the fact the

appellant did not do anything provocative in the immediate time frame prior to the attack, the appellant contended there was

something in her demeanour which caused him to “snap”. The trial judge set out the defence case that, the victim’s conduct prior to

the attack had been extremely difficult, involving the conduct of an adulterous affair in a very obvious way to the appellant. She had

said she was going to leave him. The trial judge described all the events in what he called the “build up” to the attack. He specifically

told the jury that they must have regard to these matters in reaching their verdict between murder and manslaughter. He asked

them, in effect, to bear in mind the affront to the appellant caused by the victim’s conduct, the fact that the appellant had

previously found love letters between the victim and her boyfriend, and the fact that the victim had been out with her boyfriend for

the entire night before the attack. In effect, he outlined a range of circumstances which might mitigate against murder and in favour

of manslaughter. The trial judge could only fully and extensively engage in this exercise in the context of distinguishing between

murder and manslaughter, and in the context of putting matters before the jury which might be considered by them in determining

whether what had occurred was, in fact, murder.

6. There was clear evidence that the appellant had been ruminating on causing the victim serious harm for hours beforehand while he

was at home in bed on the night before the attack. Prior to the attack, the appellant came downstairs and went into the kitchen. He

selected a knife from a drawer in the kitchen. He concealed the knife in his waistband. He went into the living room. His two young

children were there. His wife was on the telephone “smiling and looking smug” in the appellant’s view of matters. There was no

exchange of words beforehand. The victim did not then engage in any conduct which would come within the realm of provocation.

The appellant inflicted four stab wounds, one to the deceased’s back on the right side, and three on her left side. Three of these stab

wounds penetrated the chest entering the lungs, liver, spleen, kidney and aorta. There were multiple incision wounds on both hands

of the deceased which were defence injuries, i.e. injuries caused by the victim trying to defend herself from the attack. The State

Pathologist testified that the appellant had selected a narrow kitchen style knife with a sharp tip, and that the two tracks resulting

from one of the stabbings were consistent with the knife having been partly withdrawn, and then reinserted, causing a second

wound-track in a slightly different direction. This track continued through the diaphragm and across the surface of the right lobe of

the victim’s liver. The transcript made the situation very clear. The appellant admitted that he intended to cause his wife serious

injury and pain. Against this, the jury was instructed to consider the victim’s prior conduct to the appellant.

7. This court observed in the substantive judgment that the judge’s charge was extremely favourable to the appellant. The court also

pointed out a number of observations which the judge made, in the absence of the jury, to the effect that his strong belief was that

the appellant should have been accused of manslaughter and not murder. He criticised the prosecution for this, on more than one

occasion, albeit in the jury’s absence. The jury convicted the appellant of murder.

8. It is no understatement to say that the nature of the judge’s charge was such that no defence legal team would have wished to

make a requisition which might have altered its effect. The jury were asked to consider whether the appellant was an actor of high

renown, when he was giving evidence in his defence. They were instructed to judge the appellant, not by their standards but, by his

standards, and how he reacted. They were asked to look at the build up of events leading to the appellant going to Mullingar to

collect his daughter, and then coming back to find that two persons (by implication the victim and her boyfriend) had been eating in

the kitchen. This was the application of a subjective test.

9. After the charge to the jury, there were requisitions. Even though the prosecution sought to requisition the judge on another

aspect of the law, the defence team entirely refrained from doing so. It is very clear that the appellant’s counsel felt that the charge

the judge had put to the jury did not pose any real problem for their client. Indeed, the opposite was true. Counsel for the defence

observed in the requisitions that the judge had dealt with the matter “fairly”. Counsel said, “if we’re talking about provocation, as we

are, the state of mind of this man is, of course, as you have told the jury, the state of mind at the particular time.” The defence

wished to avoid a situation where any further charging would cause the jury to become “hopelessly confused”. They specifically asked

the judge not to recharge the jury on provocation. His then counsel said “the matter has been very clearly and fully aired.” This was,

pre-eminently, a deliberate tactical decision.

10. In the present application the appellant faced a number of insurmountable difficulties. The first was that this court had concluded

that the “provocation point”, as stated above, simply did not arise in the appeal because of the fact there was no requisition on the

point now sought to be urged. To be clear, and at risk of repetition, counsel for the accused commented at the trial that the judge’s

charge had dealt with that issue “fairly”. The requisitions made were by counsel for the Director. These concerned the suddenness of

the loss of control and the option of two verdicts, murder and manslaughter. All this is set out in some detail in the substantive

judgment. Not only is it clear that a tactical decision was made at the time, but from the defence’s point of view, this was a

justifiable decision. This is precisely one of the circumstances envisaged in Cronin where this Court will not entertain a point on

appeal.

11. As will be explained later, the only circumstance in which this Court might review or revisit a final judgment in general would be if

there is a manifest error (under the slip rule), or if there had been a fundamental failure in fair procedure or natural justice in the

appeal. There was no breach of the fair procedure rules in the appeal.

12. Counsel for the appellant in this appeal was specifically asked to deal with what is termed the “Cronin point”. He was invited to

deal with it in his oral submissions. He now makes the point that the matter was not addressed by counsel for the Director in

response. However, the applicability of Cronin to the appeal was very lengthily addressed in counsel for the Director’s written

submissions. That submission extended to 23 A4 pages; the relevance of Cronin occupied fully 13 of those pages. It was for that

reason that counsel for the appellant was asked specifically to address the point at an early point in the substantive appeal hearing.

The court is unable to accept any contention that there was a want of natural justice or fair procedures in a circumstance where the

appellant’s counsel was specifically asked to deal with a matter which was of primary concern to the court. The court would also note

that the Cronin point was also specifically addressed (and sought to be rebutted) in the appellant’s own written submissions in the

substantive appeal. There is no basis for setting aside, or writing an addendum to the earlier judgment. It is true that counsel for the

defence did not refer to the Cronin point. It had been dealt with in the written submissions extensively. Oral and written submissions

have the same value. We turn then to the statutory position, as interpreted by this and other courts.

13. Section 29 of the Courts of Justice Act 1924 reads:

“The determination by the Court of Criminal Appeal of any appeal or other matter which it has power to determine shall be

final …”

As is pointed out by this Court in The People (at the suit of the Director of Public Prosecution) v David Timmons [2013] IECCA 86, it

cannot be suggested that the word “final” in this provision could have any meaning other than what it conveys, namely that the

determination given is conclusion of all the matters so determined.

14. The court would also reiterate observations drawn from Pringle v Ireland & Anor [1994] 1 I.L.R.M. 467 as to the finality of its

judgment. In Pringle, Murphy J. considered the word “final” as it applied inter alia to the Court of Criminal Appeal. He stated that this

put the decision of that court “beyond review by any other judicial body”.

15. In The People (DPP) v Cunningham [2012] 2 I.L.R.M. 406, Hardiman J. stated that:

“The Courts whose decisions are thus invested with finality and conclusivity are the Supreme Court and the Court of

Criminal Appeal, both primarily appellate courts. … It therefore appears that where there is … a right of appeal provided by

law, finality cannot be said to attach to the decision of a court which is subject to that right of appeal unless and until

the appeal has concluded or no appeal has been taken within the time limited for doing so.”

16. In The People (at the Suit of the Director of Public Prosecutions) v Dermot Laide & Desmond Ryan [2005] IECCA 85, this Court

(McCracken J.) stated:

“There are circumstances in which a Court may have an inherent jurisdiction to set aside or vary what appears to be a

final order. This may arise under the “slip rule” where there has been a manifest error in drawing up the terms of the

order, and it may also arise where the Court has been mislead, either innocently or deliberately, as to the factual

background of the case, or where the order does not accurately reflect the judgment of the Court. None of these

considerations arise in the present case. There are also circumstances where natural justice may require the

reconsideration of a decision or an order. …”

McCracken J. then referred to the decision of the Supreme Court in in Re Greendale Developments Ltd (No. 3) [2000] 2 I.R. 514 where

Denham J. said at page 544:-

“The Supreme Court has a jurisdiction to protect constitutional rights and justice. This jurisdiction extends to an inherent

duty to protect constitutional justice even in a case where there has been what appears to be a final judgment and

order. A very heavy onus rests on a person seeking to have such a jurisdiction exercised. It would only be in the most

exceptional circumstances that the Supreme Court would consider whether a final judgment or order should be rescinded

or varied. Such a jurisdiction is dictated by the necessity of justice. A case will only be reopened where, through no fault

of the party, he or she has been subject to a breach of constitutional rights.”

17. To reiterate therefore, this court is entirely unconvinced that there has been any breach of natural justice or fair procedures in

the appeal hearing. What is in written submissions is as much part of an appeal as oral submissions. Counsel for the Director had

clearly set out her position as to Cronin. Counsel for the appellant was asked to address this point. There was no error either such as

would come under the slip rule.

18. It is true that, on very few occasions, this Court has, in very exceptional circumstances furnished judgments which addressed

points not dealt with in its judgment (see Director of Public Prosecutions v Gormley [2010] 2 I.R. 409; and earlier Director of Public

Prosecutions v D. O’S. [2004] IECCA 23). These cases are, however, quite distinct from the instant case where this court set out in

its substantive judgment why it was unnecessary to address the point now relied on by the appellant’s new legal advisors. There is no

jurisdiction to set aside or amend the court’s earlier judgment.

19. The court would add that, in writing a judgment, a court is not required to address every issue raised. The appellant had the

advantage of a very fair adversarial trial. The basis for this court’s decision was entirely clear from the earlier judgment (see also Ruiz

v Spain (2001) 31 E.H.R.R. 22). The court sees no basis whatsoever for setting aside, or varying its earlier judgment.

The s. 29 application

20. As an alternative, the appellant seeks to certify the following questions as to involving a point of law pursuant to s. 29 of the

Criminal Justice 1924.

“1 Is a direction to a jury adequate on the law of provocation which does not make clear that the defence is operative

even though the accused had an intention to kill or cause serious injury during the course of the assault in which he killed

the deceased?

2 In a murder trial in which the jury must consider the defence of provocation, does an incorrect direction by the trial

judge in his charge to the jury to the effect that the defence of provocation does not apply when the accused who

intended to cause serious injury or kill, amount to a fundamental defect such that the conviction should be quashed

despite the fact that the jury was correctly charged as to the defence of provocation in other respects?

3 Where, in a criminal trial, counsel for the prosecution has requisitioned the trial judge in respect of a matter of

importance for the benefit of the defence; and where that requisition has been rejected in explicit and final terms; and

where counsel for the defence did not make the same requisition after such rejection, do the same restrictions apply as

to whether complaints should be heard in the Court of Criminal Appeal on the subject matter of such requisition and as to

the weight to be attached to such complaint, as apply in circumstances where no requisition or ruling has been made to

or by the trial judge?

4 Are the provisions of DPP v Cronin (No. 2) which enable an appellant to argue a point not taken at trial confined to

circumstances in which the explanation for not raising the point is due only to error or inadvertence.”

21. The first three of these points derive from circumstances which arose specifically on the issues in this case. These are not points

of “exceptional public importance”. But the appellant faces yet a further obstacle. In the People (Director of Public Prosecutions) v

Thomas Ulrich [2011] IECCA 30, Macken J., speaking for the court stated:

“The law relating to applications for a certificate pursuant to s. 29 of the Act of 1924, as amended, is very clear,

especially in one essential aspect. It is a certificate which may only be sought when the question is one “arising form the

decision of this Court”. This is clear from several cases, and, in particular, was repeated in the case of DPP v Eamon Kelly

(Unreported, Court of Criminal Appeal, 11th July 1996) in a judgment delivered by Blayney J. in which he stated:

“The first hurdle which the applicant has to cross on this application is to establish that the decision of this court on his

application for leave to appeal involves a point of law set out in the notice of motion.””

Later, in the same judgment, Macken J. stated that:

“The decision of this court, therefore, must be found to include statements, principles or findings of law which generate

the right, whatever its merits, to raise the actual question sought to be the subject of a certificate pursuant to s. 29 of

the Act. Further it is clear … that even a closely related question will not suffice.”

(See, to similar effect, the judgment of this court in People (Attorney General) v Anthony McCarthy & Ors (Unreported, Court of

Criminal Appeal, 16th June 2010); see also Director of Public Prosecutions v Brendan O’Sullivan (Unreported, Court of Criminal Appeal,

18th December 2013).)

22. Also relevant is the decision of the Supreme Court in The People (Attorney General) v Dwyer [1972] I.R. 416, and the subsequent

decision of this court in The Director of Public Prosecutions v Brendan O’Sullivan. Just as in this appeal, this Court expressed the view

that a direction to the jury in the case before it could have been better expressed. However, the court made clear:

“When the charge of the learned trial judge [was] considered in its entirety it [was] not deficient.”

The same observation applies in this case.

23. In The People (Attorney General) v McCarthy, this Court specifically stated:

“It is not sufficient for the applicant to show that the court incorrectly applied the law to the facts of the case. That

would be tantamount to permitting a repetition of the original hearing on the application for leave to appeal. It would

circumvent the statutory rule that there is, in the ordinary way no appeal to the Supreme Court from a decision of the

Court of Criminal Appeal. Even where the law is not disputed and is clearly and correctly stated there is often room for

disagreement as to whether it applies in a particular case. Section 29 does not permit an appeal where the appellant

merely wishes to dispute the manner in which the Court of Criminal Appeal appealed the law to the facts.”

24. As in O’Sullivan, the essence of this court’s determination in this appeal was that, although the judge’s direction to the jury in

some aspects could have been better worded, the charge as a whole was not deficient. No more than in O’Sullivan, the judgment of

this court in the substantive case did not touch on, in terms of s. 29 “a point of law of exceptional public importance and [which] it is

desirable in the public interest” that there should be an appeal to the Supreme Court. In the view of this court, there is no point of

law of exceptional public importance which it is desirable to clarify in the public interest. These criteria are not in any way satisfied.

25. In fact, any consideration of the first two of the points now sought to be certified also demonstrates that they derive, very

specifically, from the charge to the jury or the conduct of the trial generally in this particular case. It cannot be said that these are

points of more general application which are of “exceptional public importance”, or matters which it is desirable to clarify in the public

interest.

26. Nor can it be said that the third and fourth point arises from some new point or aspect of the law in the judgment of this court.

Rather, the situation is that this court determined that, on an application of Cronin, the appellant was not permitted to rely on the

point adverted to earlier.

27. The court would additionally observe in relation to points 1 and 2 that the law of provocation generally has been considered in the

following cases; People (Director of Public Prosecutions) v Davis [2001] 1 I.R. 146; People (Director of Public Prosecutions) v Noonan

[1998] 2 I.R. 439; People (Director of Public Prosecutions) v Kelly [2000] 2 I.R. 1; and, within the past two years, People (Director of

Public Prosecutions) v Curran [2011] IECCA 95. This Court has repeatedly emphasised that it is necessary that the matters identified

transcend the specifics of the case before this Court, and that the matters in question constitute genuine points of law of

exceptional public importance on which it is desirable that the views of the Supreme Court be obtained.

28. With regard to points 3 and 4, the law has been addressed by the Supreme Court in Cronin and this decision has been approved

and followed by this court. What arose in the earlier judgment was an application of the principle in Cronin to the facts of the case.

There is no deviation from the Cronin principles. It is difficult to avoid the conclusion that the appellant is seeking to characterise the

application of a principle, now well established, in such a way as to reconstitute that principle as a point of law coming within s. 29 of

the Act of 1924, as amended. The application of Cronin has also been the subject of decisions in Director of Public Prosecutions v

Campbell [2005] IECCA 27, and Director of Public Prosecutions v Maloney (Unreported, Court of Criminal Appeal, 2nd March 1992).

Conclusion

29. For the reasons outlined, therefore, this court will decline to grant the reliefs sought in the notice of motion.