Director of Public Prosecutions (prosecutor / respondent) v Anthony Barnes (defendant / applicant)Criminal law - Application for leave to appeal - Burglary - Nature of the offence of burglary and the permitted response of a victim of that offence - Whether there is scope for the defence of self defence by the burglar - Whether trial judges charge to jury rendered the verdict unsafe - Whether conduct of the trial rendered it unsafe or unsatisfactory - Bunreacht Na hÉireann, Articles 40.3.1, 40.5 - Criminal Justice (Theft and Fraud Offences) Act 2001(No.50), s.12(1)(a).
The Court of Criminal Appeal (Mr Justice Hardiman, Mr Justice Hanna, Mr Justice Feeney); judgment delivered on December 21st, 2006.
The offence of burglary is not merely a crime but an invasion of a victim's constitutional right to inviolability of the dwelling. A private citizen, however outraged, may not deliberately kill a burglar simply for being a burglar. Although he is not liable to be killed by the householder simply for being a burglar, he is an aggressor and may expect to be lawfully met with retaliatory force to drive him off or to immobilise or detain him and end the threat which he offers to the personal rights of the householder. As regards the degree of force a victim can properly use against a burglar, there must be both a subjective and an objective component in the assessment of the degree of force. There is only narrow scope for the defence of self-defence by the burglar. It is limited to defence against an attempt by the householder to kill the burglar simply for being a burglar. The killing of a householder can never be less than manslaughter by reason of the burglar's initial aggression.
The Court of Criminal Appeal so held in dismissing the application for leave to appeal.
Paul O'Higgins, SC and Paul Carroll, BL for the prosecutor / respondent; Jeremy Maher, SC and Michael Delaney, BL for the defendant / applicant
Mr Justice Hardiman, delivering the judgment of the court, commenced by outlining the facts of the case. Mr Forrestal, aged 69, years was stabbed to death in his house in Co Waterford, on the afternoon of July 21st, 2005. He was killed by Anthony Barnes, the applicant for leave to appeal in these proceedings. The applicant together with another man called Andrew Halligan had come to the house on that day to burgle it. They apparently entered the house in the belief that there was no one there, which was true. But just after four minutes past two on the afternoon of July 21st, Mr Forrestal returned to his house. He was dropped off there by a friend, Mr Murphy. Mr Murphy then went off to collect another person: the two of them together with Mr Forrestal were going to have lunch in the latter's house. Mr Forrestal had been dropped off so that he could start preparing the lunch.When Mr Murphy and the other person, Mr Kent, returned to the house they found an appalling situation. The outer door "was driven off the hinges" and when the inner door was opened its travel was stopped by the dead body of Mr Forrestal, lying with the feet against the door.
There was no account of what had happened in the house other than that of the applicant. His fellow burglar, Halligan, a young man with more than 30 convictions for burglary alone, claimed to have left the house before the stabbing. It is common case that the applicant and Halligan were in the house to commit burglary. The applicant's defence was one of self-defence: he claimed in statements to the Gardai that he and Halligan had been disturbed by Mr Forrestal who had (his accounts vary) either come at him with a knife or had come at him and then left the room in which he was confronting the applicant and got a knife, or come at him, dragged him from a window through which he was trying to escape, threw him onto a bed and left the room to get a knife. Barnes claimed to have disarmed Mr Forrestal and stabbed him to death in self-defence.
Mr. Justice Hardiman considered in detail the wounds of the deceased as described in evidence by the state pathologist. In summary, the main injuries were to the trunk. There were four stab wounds and a puncture wound. Two of the injuries were deeply penetrating and between them injured both lungs, the aorta, the main blood vessels and the oesophagus or gullet and the windpipe. There were also minor incised wounds or cuts to the left forearm and the hand, consistent with being defensive wounds. The cuts on the left forearm and hand were consistent with defence injuries.
Mr Justice Hardiman then turned to the applicant's versions of events. The applicant did not give evidence at his trial. However he made a number of statements, and had a number of questions and answer sessions with the gardaí. The applicant went to a Garda station in Waterford, accompanied by his father, on the afternoon of June 22nd, the day after the killing. Very shortly afterwards he made a statement in which he described going by himself to rob Mr Forrestal's house. On this occasion he said: "I was about to leave the house when somebody came in and grabbed me. He started swinging me around. I ran into the bedroom and tried to break out the window. He pulled me back from the window and I landed on the bed. He went down to the kitchen and got a kitchen knife. I tried to barricade the door and he pushed it in. He came into me with the knife and tried to stab me. I caught his hand. I stuck the knife into him. I think it was just once. I ran out the door. It was a complete accident. I did not mean to kill him."
Later, on the same afternoon, the applicant was questioned by two detectives. To these, he continued to insist that he was by himself at the time. He gave them further details of the robbery. He said that he had put his foot through the window and tried to get through the window "but he pulled me back." He then said: "I was on the bed. He ran to the kitchen and he came back with a knife. I tried to barricade the room but he pushed it in. The knife had a black handle. He busted the door in on top of me. He came at me with a knife. He had it in his right hand. I caught his hand with my right hand as I am right handed. I tried to get past him to get out. I was trying to get the knife off him. I got the knife off him. It was a matter of seconds. I just did that."
Mr Justice Hardiman noted that a major change was the account of where the knife came from. The applicant said he had run into the box room and "Yer man got a knife and came in after me". Asked where the man got the knife the applicant said "He picked it up off the table". He said the table was in front of the door of the box room. He protested that he only went to rob the house. "There was no attempt to kill the man". Speaking of the door to the box room the applicant said "I pulled it in when I saw him with the knife." He said that the door closed into him. He said: "He hit the door by the hinges with his shoulders and came in on top of me". Asked to describe what happened next he said: "I killed him then, he came in with a knife to stab me, I got the knife off him and I stabbed him." The applicant said he didn't know how many times he'd stabbed him but it was more than once. He couldn't say if they were deep stabs because "I was blank". The applicant gave a further interview on the night of July 22nd. He admitted that Andrew Halligan had driven him to the Forrestal house, and admitted that it was Halligan who had kicked in the window of the box room and not himself as he had previously said. There was another interview with the gardai the following day.
Mr Justice Hardiman stated that the accounts varied in a number of ways. The first is whether the applicant was alone or with another person, later identified as Halligan. While he was denying that anyone else had been present, he claimed that it was he who had kicked out the window, (actually kicked out by Halligan, and was in the act of trying to get through it when Mr Forrestal grabbed him. The applicant later changed this account, when the presence of Halligan was admitted. He said that he was in the kitchen (where the knives were) when the man came in. He first said that the man had left him on the bed in the box room and gone to get the knife, later that the man had taken up the knife after they had struggled in the kitchen. He said that he had dropped the knife in the room, but later agreed that he had taken it with him and dropped it in a field. He said that the man, obviously Mr Forrestal, had said "I'll kill you", but the applicant said this only in answer to a question as to whether he had said anything. He said that he had tried to stop the door being pushed in with his own palms against the door but no marks of this were found by gardaí.
Mr Justice Hardiman stated that in falsely claiming that he had kicked out the window and tried to escape through it, the applicant was setting up a story, subsequently admitted to be false, which placed him in physical retreat from the premises at the time Mr Forrestal laid hands on him. Finally, the applicant claimed that during the stabbing "I was blank". Mr Justice Hardiman stated that if this was so (and it might explain his varying accounts) his statements were virtually worthless.
Mr Justice Hardiman said that the learned trial judge charged the jury on the central issue in the case, the applicant's defence of self-defence, wholly along the lines of the judgments in this court in the classic case on the topic, People A.G. v. Christopher Dwyer IR 416. In the course of doing so he made what he himself described as "a very, very serious error" as to the burden of proof in self-defence cases. This error, and the attempt made to correct it, are discussed below.
Mr Justice Hardiman stated that burglary is presently constituted by s.12(1)(a) of the Criminal Justice (Theft and Fraud Offences) Act 2001. Each defendant pleaded guilty to this offence. Mr Justice Hardiman stated that the court wished to make it clear, in the absence of other express Irish authority to this effect, that to the extent that the common law permitted the killing of a burglar by a householder simply for being a burglar, and no matter what the other circumstances, it no longer does so in this jurisdiction. It has not done so for at least 70 years. Many social and historical reasons could be cited to support this conclusion but in reality it was unnecessary to cite more than one: the Constitution of Ireland. This provides at Article 40.3.1:
"The State guarantees by its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen."
By the next sub-Article it is provided that:
"The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen."
Mr Justice Hardiman said that it seemed an elementary proposition, in the light of such provisions, that a person cannot lawfully lose his life simply because he trespasses in the dwellinghouse of another with intent to steal. In as much as the State itself will not exact the forfeiture of his life for doing so, it was ridiculous to suggest that a private citizen, however outraged, may deliberately kill him simply for being a burglar.
But Mr Justice Hardiman stated that this was by no means the end of the matter. A person who committed such a violation exposed himself to various legal penalties, if he is detected and convicted. But that was not the limit of his exposure. Although he is not liable to be killed by the householder simply for being a burglar, he is an aggressor and may expect to be lawfully met with retaliatory force to drive him off or to immobilise or detain him and end the threat which he offers to the personal rights of the householder and his or her family or guests. It was, in the court's view, quite inconsistent with the constitutional doctrine of the inviolability of a dwellinghouse that a householder or other lawful occupant could be ever under a legal obligation to flee the dwellinghouse or, as it might be put in more contemporary language, to retreat from it. It followed from this, in turn, that such a person can never be in a worse position in point of law because he has decided to stand his ground in his house. In individual cases the question will immediately arise, what degree of force may the householder deploy to those ends? It was impossible to lay down any formula with which the degree of force can be instantly calculated. Nor would it be just to lay down a wholly objective standard, to be judged by the standards of the hypothetical reasonable person.
Mr Justice Hardiman said that the victim of a burglary was not in the position of an ordinary reasonable man or woman contemplating what course of action is best in particular circumstances. He may be (and Mr Forrestal actually was) aging, alone, confronted with numerous and/or much younger assailants (the applicant was almost exactly 50 years younger than his victim). In almost every case the victim of burglary will be taken by surprise. The victim will, therefore, be in almost every case shocked and surprised and may easily be terrified out of his wits. To hold a person in this situation to an objective standard would be profoundly unjust. Equally, however, it could not be left to every person himself to lay down for himself how much force he or she was entitled to use. There must be both a subjective and an objective component in the assessment of the degree of force proper to be used by the victim of a burglar.
Mr Justice Hardiman considered the position of the burglar. Mr Justice Hardiman said that considering the heinous and inherently aggressive nature of the crime of burglary in a dwellinghouse, there is an air of improbability about the burglar, the initial aggressor, relying on the defence of self-defence when he has violently killed the householder. Mr Justice Hardiman said that the scope for the defence of self-defence by the burglar is very limited to a defence against an attempt by the householder to kill the burglar simply for being a burglar. But the killing of a householder by a burglar, during the course of the burglary, could never be less than manslaughter, by reason of the burglar's initial, grave, aggression.
Mr Justice Hardiman considered the evidential question raised by counsel for the applicant that the Court of Criminal Appeal, unlike the jury at the trial, was bound to accept the veracity of the defendant's account in considering the facts to which the legal principles of self-defence by a burglar should be applied. Counsel for the applicant supported this argument with a proposition of limpid clarity: the applicant's account was the only account available. Mr Justice Hardiman stated that it did not appear that the court was constrained in the manner contended for by counsel for the applicant. On the contrary, since it was clear that the jury had disbelieved the exculpatory aspects of the applicant's statement, and there were ample rational grounds for them to do so, the court was bound by that finding.
Mr Justice Hardiman said that the court had noted that the learned trial judge's charge in this case produced a misdirection on the law of self-defence in respect of the burden of proof. It is well settled that once a defendant intending to plead self-defence has met the evidential burden, the onus is on the prosecution to prove beyond a reasonable doubt that the killing was not in self-defence. Nevertheless, the learned trial judge on two occasions in the course of his charge informed the jury that the position was otherwise and that, self-defence being a defence, the onus of establishing it rested on the defendant, and that the standard of proof according to which he had to discharge this onus was the balance of probabilities. When the error was made the subject of requisitions by both sides, the trial judge recharged the jury, and did not shrink from describing what he had previously said as "a very very serious error". He then told them what the true position was. Mr Justice Hardiman considered this aspect in detail and stated that to hold that this correction, prefaced as it was by an unusually abject confession of error, rendered the verdict unsafe or unsatisfactory, would require one to conclude that the jury had simply ignored the correction. The court was of the view that there was no reason to believe that the jury would have done that.
Mr Justice Hardiman stated that counsel for the applicant relied on a number of other points in a critique of the conduct of the trial. Mr Justice Hardiman said that the court having considered these, was satisfied that none of them were such as would render the trial unsafe or unsatisfactory. But certain of the points raised call for comment. Mr Justice Hardiman stated that there was, unfortunately, no doubt that in the course of the trial the learned trial judge twice made somewhat arch and oblique comments about the fact that neither senior nor junior counsel for the defendant was wearing a wig. Section 49 of the Courts and Courts Officers Act, 1995, provides that counsel are not required to wear wigs. Mr Justice Hardiman stated that it was inconsistent with respect for the proposition that counsel may not be required to wear wigs to make arch (or any) remark about whether they are so equipped or not. A judge was in a powerful position; some of his powers are discretionary; advocates less doughty and experienced than those for the defendant might feel constrained in the interests of their client to conform with the judge's obvious preferences in this regard. Needless to say there was no question in the conduct of the case of the slightest bias, or even appearance of bias in the conduct of the trial, but that was not the point.
Mr Justice Hardiman concluded that, for the reasons set out above, the court would dismiss the application for leave to appeal.
Solicitors: Chief Prosecution Solicitor (for the prosecutor / respondent); Newell Quinn Gillen (Waterford) (for the defendant / applicant).
Kieran O'Callaghan, barrister.