A Supreme Court judge has asked the Director of Public Prosecutions to set out his views on the rights of burglars and the rights of householders who disturb them.
Mr Justice Adrian Hardiman said this was "quite a significant issue of law" and he asked for the DPP to provide submissions on it to assist the court in determining an appeal by a Waterford man against his conviction for the murder of Richard "Dick" Forristal, a horse breeder, during a burglary at Mr Forristal's farm last year.
Mr Justice Hardiman was presiding at the Court of Criminal Appeal on the appeal by Anthony Barnes against his conviction for Mr Forristal's murder. The judge said the case was "very unusual" in that the appeal was based on self-defence by a burglar against a householder in his own home.
"It's an unusual case because the victim was the householder and not one of the burglars," he said.
"The court is entitled to submissions from the DPP as to the respective rights of the disturbed burglar and the rights of the householder," the judge said.
The three-judge court adjourned the appeal pending the handing in of further submissions by both the DPP and by Barnes's legal team on the issues raised.
Barnes (20), Clonard Park, Ballybeg, Waterford city, was convicted by a jury last March of the murder of Mr Forristal (68) at his home at Carrigavantry Stud, Co Waterford, on July 21st, 2005. He was sentenced to life imprisonment.
The trial lasted six days before Mr Justice Paul Carney and was the first murder trial to be heard at the first sittings of the Central Criminal Court in Waterford.
Mr Forristal's body was discovered shortly after he had returned from the funeral of Tara Whelan (17), who was killed in a terrorist attack in Turkey four days earlier.
Barnes claimed that when he stabbed Mr Forristal in the chest a number of times he was defending himself from a knife attack by Mr Forristal. He said he was trapped in a bedroom after being chased there by Mr Forristal, who disturbed the burglary.
Presenting Barnes's appeal yesterday, Jeremy Maher SC argued that Mr Forristal's act in getting a knife was unlawful. He said that Mr Forristal should have contacted the Garda Síochána or should have left his house to get assistance. Mr Forristal had not used reasonable force in getting a knife and threatening to kill Barnes, counsel argued.
"I am saying that what he did was criminal. It was an unlawful attack. He went beyond what the circumstances demanded," he said. "He went beyond what was reasonable in the circumstances. He might have challenged him in a physical but non-knife-wielding manner."
Opposing the appeal, Paul O'Higgins SC, for the DPP, submitted that self-defence could not be relied on by Barnes. He argued the killing of Mr Forristal could never be lawful because it originated from the burglary and could never in law be innocent.
"Reasonable force, up to lethal force, can be used without the obligation to retreat in defence of oneself or one's dwelling," he said.
Also yesterday, the court upheld a seven-year sentence on another man who took part in the burglary at Mr Forristal's home.
Andrew Halligan (22), Ardmore Park, Waterford, had pleaded guilty to trespass with intent to commit burglary last March.
Mr Justice Carney jailed him for seven years after hearing that he had 150 previous convictions, including 27 for burglary.
Dismissing Halligan's appeal against sentence, Mr Justice Hardiman said that there was no suggestion that Halligan was in any way involved in Mr Forristal's murder.
Halligan had "an alarming record" of previous convictions and there had been no error in principle in the seven-year sentence handed down by Mr Justice Carney, the court ruled.