BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Irish Court of Criminal Appeal
You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P.-v- Ronan McGrath [2004] IECCA 11 (27 May 2004)
URL: http://www.bailii.org/ie/cases/IECCA/2004/11.html
Cite as: [2004] IECCA 11

[New search] [Help]

Judgment Title: D.P.P.-v- Ronan McGrath

Neutral Citation: [2004] IECCA 11


Court of Criminal Appeal Record Number: 154/02

Date of Delivery: 27/05/2004

Court: Court of Criminal Appeal


Composition of Court: Denham J., Ó Caoimh J., Butler J.

Judgment by: Denham J.

Status of Judgment: Approved

Judgments by
Result
Concurring
Dissenting
Denham J.
Refuse leave to appeal against conviction

Outcome: Refuse leave to appeal against convicti

22

COURT OF CRIMINAL APPEAL
[C.C.A. NO. 154 of 2002]

Denham J.
Ó Caoimh J.
Butler J.
THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS
AND
RONAN MCGRATH
APPLICANT


Judgment of the Court delivered on the 27th day of May, 2004 by Denham J.


1. Ronan McGrath, the applicant, hereinafter referred to as the applicant, has sought leave to appeal against his conviction and sentence by Dublin Circuit (Criminal) Court (His Honour Judge Patrick McCartan) on 26th June, 2002. This court heard his application in relation to the conviction together with the application of Fergal Cagney against his conviction.

2. The applicant was brought before a judge and jury in the Dublin Circuit (Criminal) Court on an indictment containing three charges:-
Count No. 1
Statement of Offence
Manslaughter contrary to common law.

Particulars of Offence Particulars of Offence
3. At the end of the prosecution case the jury were directed to bring in a verdict of not guilty on Count No. 3. Applications for a direction made in relation to Counts No. 1 and 2 were refused by the trial judge. Counts No. 1 and 2 were left to the jury.

4. On 26th June, 2002, the jury acquitted the applicant of the offence on Count No. 1, manslaughter, but found him guilty of the offence on Count No. 2, endangerment. He was sentenced to 15 months detention by the learned trial judge.

5. The applicant has sought leave to appeal. He applied for and was granted bail pending the hearing of the appeal. The grounds of his application for leave to appeal are as follows:-6. David Langan was born in 1981 and died on the 30th of August, 2000, in Beaumont Hospital as a result of injuries he sustained to his head near Portobello Bridge in the early hours of the 26th August, 2000. He was buried on 2nd September, 2000. At the time of his internment it was believed that he sustained his injuries as a result of an accidental fall. More information as to the circumstances of his death then emerged. By order of the Minister for Justice, Equality and Law Reform his body was exhumed on 18th December, 2000, for further autopsy.

7. The evidence given at the trial was that David Langan, the deceased, aged 19 years, had attended the Palace Nightclub on Camden Street in Dublin on the evening of the 24th August, 2000. At about 1 a.m. on the 25th August, 2000, the applicant and his cousin Fergal Cagney arrived. The applicant had been working in a public house earlier in the evening. The applicant was aged 17 years at the time of the incident while his cousin was aged 19 years. At about 3 a.m. the Palace Nightclub was closing and a number of people congregated outside the club. It was common case that a large amount of alcohol had been consumed by all concerned. An incident arose outside the nightclub during the course of which the deceased David Langan was seen to push the applicant with some degree of force into the shutters of the nightclub. The applicant became annoyed and was heard to shout at the deceased in an aggressive manner. At this point various friends intervened to hold both parties back from each other. The deceased, David Langan, was lead away by Philip Rahill down Camden Street in the direction of Portobello Bridge. Philip Rahill was seeking to find a taxi for David Langan. The applicant went up the road after David Langan. The applicant was accompanied by Thomas Rooney and his cousin Fergal Cagney. The applicant was restrained by Thomas Rooney and by Fergal Cagney. At the times when he was nearest David Langan there was shouting between them. The applicant was heard to say words to the effect of “why did you push me into the shutters.” When David Langan reached Grove Road on the far side of Portobello Bridge he sat on a low wall by the canal while Philip Rooney tried to hail a taxi. The applicant, Thomas Rooney and Fergal Cagney reached the bridge. The argument between the applicant and the deceased continued. At some point the applicant was held back by Thomas Rooney while Fergal Cagney placed himself between the applicant and the deceased. Examples of the evidence are set out herein. This illustrates the high point of the prosecution case. Thomas Rooney gave evidence that the applicant was trying to get past him and was threatening the deceased. The transcript sets out evidence of Thomas Rooney as follows: A local resident, Colm Burgess, gave evidence of being woken by the noise:
8. Trial Court Ruling
The learned trial judge ruled, on the application for a direction, that the essential ingredients of s. 13 were present and that he would be usurping the role of the jury if he granted the direction.

The learned trial judge ruled as follows:9. Charge of Trial Court

In the course of his charge to the jury the learned trial judge addressed the issue of the offence of endangerment, stating:-
10. The Law
The offence of endangerment was established by s. 13 of the Non-Fatal Offences Against the Person Act, 1997. This act is described in the long title as an act to revise the law relating to the main non-fatal offences against the person and to provide for connected matters. Section 2 defines the offence of assault, and provides that a person found guilty under the section shall be liable to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 6 months, or both. Section 3 sets out the offence of assault causing harm, for which the penalty (on indictment) may be a fine or a term of imprisonment not exceeding 5 years, or both. Section 5 relates to threats to kill or cause serious harm. Section 6 deals with syringe attacks. Section 7 creates the offence of possession of a syringe in certain circumstances. Section 8 deals with the placing or abandoning of a syringe. Section 9 relates to coercion, Section 10 deals with harassment. Section 11 creates the offence of demand for payment of a debt where the demands are of a specified nature. Section 12 covers the offence of poisoning. It is s. 13 which is in issue in this case. It provides:- “Serious harm” is defined by s. 1 as:
The 1997 Act further established under s. 14 an offence relating to endangering traffic, under s. 15 an offence of false imprisonment, under s. 16 an offence of child abduction by parent, guardian, and under s. 17 abduction of a child by other persons. Section 18 describes justifiable use of force. The Act of 1997 also provides for other specific matters relating to offences against the person.

The term “reckless” is not defined in the Act. However, recklessness has been considered in People (DPP) v. Murray [1977] I.R. 360, where at p. 403 Henchy J. stated:-The offence created by s. 13 of the Act of 1997 is a new offence. It has constituent parts. Thus a person shall be guilty of the offence:
(i) who intentionally or recklessly,
(ii) engages in conduct,
(iii) which creates a substantial risk of death or serious injury,
(iv) to another.



In Charleton, McDermott, Bolger, Criminal Law, (Dublin, 1999) at para. 9.161, it is
stated:-
The authors discuss the applicability of the offence to the field of sport. Its application is considered further in paragraph 9.163:-
This offence came to the statute book subsequent to the recommendation of the Law Reform Commission: Report on Non-Fatal Offences Against the Person (LRC 45-1994), hereinafter referred to as the Law Reform Commission Report. The Act of 1997 repealed a large portion of the Offences Against the Person Act, 1861 and is a reform of the law.



In view of the fact that in issue in this case is a new general offence, and that the applicant referred the court to the Law Reform Commission Report, and consequent to which Report the legislation was enacted, the court refers to the said Report in some detail.

Of the proposal to amend the law on endangerment the Law Reform Commission reported:-
“Endangerment
9.230 The Commission recognises that the creation of a new general offence of endangerment would represent an innovation in our criminal law, as Smith has observed, not without its difficulties: Consequently, as may be seen, the legislature established this new offence of endangerment and followed the wording suggested by the Law Reform Commission.

11. Submissions
Oral and written submissions were made on behalf of the applicant and the Director of Public Prosecutions. On behalf of the applicant, in relation to Count No. 2, the issues which had been raised during the trial on the application for a direction, that the case be withdrawn from the jury, were re-argued. It was submitted that s. 13 of the Non-Fatal Offences Against the Person Act, 1997 required a particular mens rea and actus reus which had not been reached. The section, it was submitted, required an intention or recklessness to engage in conduct which created a substantial risk of serious harm or death. It was submitted that there was no evidence as to intention or recklessness. It was also submitted that the conduct was not such as would create a substantial risk of serious harm. It was submitted that there had been an expression of anger and aggression but that this was insufficient to come within the statute. It was submitted that the trial judge did not adequately direct himself as to the ingredients of the offence under s. 13.

On behalf of the Director of Public Prosecutions it was submitted that there was sufficient evidence before the court from which a jury could find or infer evidence of the ingredients of the offence of endangerment as against the applicant. It was submitted that there was evidence that the applicant meant serious harm to David Langan. It was a matter for the jury to decide whether by roaring the words “hit him”, having threatened to do serious harm to David Langan, the applicant counselled or procured the blows that were struck by Fergal Cagney.

12. Decision
12.1. At issue on this appeal is a legal submission as to an offence new to our law – endangerment.

12.2. In prosecuting an offence the prosecution carries an evidential burden. This was described in DPP v. Gilligan [1993] 1 I.R. 92. In that case the Court of Criminal Appeal held that the role of the trial judge at the close of the prosecution’s case at a trial was to decide whether or not a prima facie case was made out; in so doing a judge was not required to accept or reject any particular evidence, but to look at the evidence from the high point of the prosecution’s case. This is the approach adopted by this Court, thus the evidence is looked at from the high point of the prosecution’s case. Examples of this evidence have been set out previously in this judgment.

In DPP v. Gilligan reference was made to R v. Galbraith [1981] 1 W.L.R. 1039, by O’Flaherty J., thus:-

The Court applies this dictum to this case. The strength of the prosecution case depends on the view to be taken on the reliability of witnesses and other matters which come within the provenance of the jury. On a possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant was guilty and so the matter should be left to the jury.

The constituents of the offence are: (a) the mens rea of intention or recklessness: which may be inferred from the evidence; (b) conduct, actus reus, which is a matter of evidence; (c) which conduct creates a substantial risk of death or serious injury: a matter for determination on the evidence; and (d) to another.
12.3. Accordingly, the Trial Judge must look to the prosecution case at its highest in the context of the offence prosecuted. This includes the following:-
(i) Ronan McGrath pursued David Langan to Portobello Bridge in an aggressive manner so as to suggest his intention was to attack David Langan.
(ii) At the canal area Ronan McGrath was shouting and threatening David Langan, in a manner suggesting that he might do him serious harm.
(iii) Ronan McGrath was held back by Thomas Rooney.
(iv) Ronan McGrath roared at Fergal Cagney to hit David Langan for him.
(v) Fergal Cagney hit David Langan.
(vi) Fergal Cagney made his hand into a fist and struck David Langan twice on the head with the bony part of the heel of his hand.
(vii) The punches were quite powerful.
(viii) After the punches David Langan stumbled and hit his head off the ground.
(ix) Striking blows to the head of a person, especially if they have taken alcohol as was known to have happened in this situation, is conduct which creates a substantial risk of harm.

These facts fall to be considered in light of the legal ingredients of the offence. The evidence of Ronan McGrath pursuing, shouting at and threatening David Langan is such that an intent may be inferred from it as to whether he intentionally or recklessly engaged in conduct which creates a substantial risk of death or serious harm to David Langan. The mens rea is one of intention or recklessness. As Henchy J. said in DPP v. Murray [1977] I.R. 360, p. 403 “a person who does not intend an assault may be held guilty of an assault if he has been reckless as to whether his physical activity would have that effect.” Similarly, in this case, even if the applicant did not intent the endangerment (and that is not an issue which was closed to the jury) he may be guilty of endangerment if he has been reckless as to whether his conduct would have that effect.

(i) In this case, on the prosecution’s evidence at its highest, the evidence as to the conduct of the applicant was that he pursued David Langan to Portobello Bridge in an aggressive manner so as to suggest his intention to attack David Langan, at the canal area. He shouted and threatened David Langan in a manner suggesting he might do him serious harm, he shouted to Fergal Cagney in an aggressive manner to hit David Langan, (ii) It was open to the jury to infer the intent of the applicant for his actions, as to whether he was intentionally or recklessly engaging in the conduct. (iii) On this evidence it was open to the jury to decide that the conduct created a substantial risk of death or serious injury to another, in this instance David Langan.

The court is satisfied that the offence of endangerment, on the clear words of the section, may exist even if no injury occurs. Further, the court does not consider that the offence is excluded when injury has occurred. The constituents of the offence as set out in the legislation have to be considered in either situation.

The Law Reform Commission envisaged that this would not be an offence to replace existing offences. Rather it would be a supplement, a residual generic offence. Of course, the court is not bound by the words of the Law Reform Commission Report.

This is a general offence of endangerment. It is not a particularized offence. As it is a general offence its applicability will not be limited to any very specific areas. The Law Reform Commission Report referred to the fact that the creation of a general offence of endangerment would also give effect to the principle that the wanton disregard of others’ safety is in itself deserving of condemnation and sanction as a serious infringement of basic values irrespective of the manner in which such a risk is taken. Counsel referred the court to the fact that the offence may cover situations such as the contamination of a building, or a water supply or blood. Reference was also made to the possibility of the offence arising on the field of sport. However, this offence is worded as a general offence, and is not limited to such examples.

The court bases its decision on the ordinary meaning of the words of section 13 of the Non-Fatal Offences Against the Person Act, 1997. Taking that well established approach to the construction of legislation the words of the section are clear and plain on which the ordinary meaning may be given. Thus the constituent parts of the offence as applicable may be construed as the applicant intentionally or recklessly, engaging in conduct, which created a substantial risk of death or serious injury to David Langan. Considering this aspect of the matter, the court is satisfied also that it was within the trial judge’s jurisdiction to leave this matter to the jury.

The main ground of the application made by the applicant was that the learned trial judge erred in law in failing to withdraw Count No. 2 from the jury on the application for a direction on that Count. The evidence before the court included evidence of conduct from which intention or recklessness could be inferred. While it was submitted that the conduct was not such as would create a substantial risk of serious harm, the evidence included conduct of the applicant in the circumstances surrounding the death of David Langan and the learned trial judge did not err in law in letting the matter go to the jury. In light of the evidence, from the high point of the prosecution case, this court is satisfied that the learned trial judge did not err in failing to withdraw the count from the jury.

Counsel also made a submission, although it was not pursued with the same vigour, that the verdict of the jury was inconsistent insofar as he was acquitted of manslaughter but found guilty of endangerment contrary to s. 13 of the Non-Fatal Offences Against the Person Act, 1997. It was submitted that while manslaughter relates to proof of acts relating to a death s. 13 is to address the social ill of advertent risk taking. However, the court is satisfied that the elements of the offence of s. 13 are set out clearly in the statute and are specific matters which may be addressed by the jury. The fact that the jury acquitted the applicant of manslaughter was not inconsistent with them proceeding to find him guilty of endangerment.

Counsel on behalf of the Director of Public Prosecutions submitted that it was never argued in the trial court that acquittal on the charge of manslaughter should inexorably lead to an acquittal on the charge of endangerment. While that absence of argument would appear to be the case and thus this ground could not be the primary ground of appeal the court has considered the matter in the limited fashion available on this appeal and dismissed the submission.

In conclusion, treating the application for leave to appeal as the hearing of the appeal, for the reasons stated the court is satisfied that the appeal should be dismissed. The court notes that the applicant also filed grounds to appeal against sentence but that these grounds have not yet been argued before the court.

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ie/cases/IECCA/2004/11.html