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Irish Court of Criminal Appeal
You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P.-v- Fergal Cagney [2004] IECCA 10 (27 May 2004)
URL: http://www.bailii.org/ie/cases/IECCA/2004/10.html
Cite as: [2004] IECCA 10

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Judgment Title: D.P.P.-v- Fergal Cagney

Neutral Citation: [2004] IECCA 10


Court of Criminal Appeal Record Number: 155/02

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

23

COURT OF CRIMINAL APPEAL
[C.C.A. NO. 155 of 2002]

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


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


1. Fergal Cagney, 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 to appeal his conviction together with the application of Ronan McGrath.

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

Particulars of Offence
3. At the close of the prosecution case, on the sixth day of the trial, counsel for the applicant applied to the trial court for a direction to withdraw both Count No. 1 and Count No. 2 from the jury. The application was refused by the learned trial judge.

4. On 26th June, 2002, the applicant was acquitted by the jury on Count No. 1, manslaughter. He was convicted on Count No. 2 by a majority verdict and was sentenced to fifteen months imprisonment.

5. The applicant has sought leave to appeal against his conviction and sentence. He applied for and was granted bail pending the application for leave to appeal. The applicant seeks leave to appeal against conviction on the following grounds:-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 Ronan McGrath arrived. The applicant was aged 19 years of age at the date of the incidents in issue. 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 Ronan McGrath with some degree of force into the shutters of the nightclub. Ronan McGrath 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. Ronan McGrath went up the road after David Langan, he was accompanied by Thomas Rooney and his cousin Fergal Cagney, the applicant. Ronan McGrath was restrained by Thomas Rooney and the applicant. At the times when Ronan McGrath was nearest David Langan there was shouting between them. Ronan McGrath 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. Ronan McGrath, Thomas Rooney and the applicant reached the bridge. The argument between Ronan McGrath and the deceased continued. At some point Ronan McGrath was held back by Thomas Rooney while the applicant placed himself between Ronan McGrath and the deceased. Thomas Rooney gave evidence that Ronan McGrath was trying to get past him and was threatening the deceased. (Examples of the evidence are set out herein. They illustrate high points of the prosecution case). The transcript sets out the evidence of Thomas Rooney as follows: A local resident, Colm Burgess, gave evidence of being woken by the noise:
8. Ruling

The learned trial judge ruled, on the application for a direction, that the essential ingredients of s. 13 of the Non-Fatal Offences Against the Person Act, 1997 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

On the offence of endangerment the learned trial judge charged the jury as follows:-
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 establishes under s. 14 an offence relating to endangering traffic, under s. 15 an offence of false imprisonment, under s. 16 is 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] IR 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 such 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

It was submitted on behalf of the applicant that the applicant had acted as peacemaker between his co-accused Ronan McGrath and the deceased David Langan. Reference was made to the evidence of Philip Rahill, Thomas Rooney and Elaina Serrie. It was submitted that Thomas Rooney, who gave evidence of the applicant striking David Langan accepted in cross-examination that at the canal the applicant was quiet, was not shouting and was not menacing anyone. Reference was made to the evidence of Peter Cannon and Mark Burke that there were guys in the middle trying to keep the peace. As to the confrontation between the applicant and David Langan, reference was made to the evidence that the applicant had interposed himself between Ronan McGrath and David Langan. He was, on his own statements, trying to restrain David Langan. In his statements the applicant said that he hit David Langan once or twice at this stage in response to David Langan coming to him with his hands up, out in front of him. Reference was made to the acceptance, in cross-examination, by Thomas Rooney that matters were very confused and that it was possible that the applicant did not hear Ronan McGrath telling him to hit David Langan.

As to the blows struck by the applicant, reference was made to the applicant’s statements to the Gardaí that he hit David Langan with the inside of his fist and that he said when he swung the second time he lost his footing. Thomas Rooney described two blows struck by the applicant to David Langan and he accepted that “they were not punches a boxer would throw.” Reference was made to Thomas Rooney’s evidence accepting that the blows struck by the applicant did not knock down David Langan.

Emphasis was placed by counsel on evidence indicating that David Langan fell some distance from the place where the altercation took place – a distance of approximately 11 metres. Reference was made also to the evidence of Colm Burgess that he thought that David Langan had stopped and fallen and the evidence of Philip Rahill that he thought David Langan had stumbled and fallen off the path.

Counsel also made submissions in relation to the medical evidence, arguing that it was significant that the medical evidence adduced by the prosecution clearly established that the only external injury sustained by David Langan was the injury to the back of his head from the fall. There was no evidence of any bruising to David Langan’s face. The treating consultant neurosurgeon in Beaumont found no evidence of facial injury on David Langan. The autopsy on 31st August, 2000 found that, apart from the fracture at the base of the skull and the internal injuries, there were no other significant abnormalities. Professor Harbison, who performed the second post-mortem examination in December, 2000, had been informed of the altercation and found no evidence of bruising or bleeding on the face. Professor Harbison’s evidence as to the blood alcohol level was that it was 192 mg per 100 ml of serum and that allowing for breakdown of alcohol by the body between the time David Langan left the nightclub (3.00 a.m.) and the time of the taking of the sample (4.35 a.m.) his blood alcohol level could have been as high as 210 mg per 100 ml.

Counsel on behalf of the applicant submitted further that the prosecution evidence was that one or two blows were struck by the applicant in circumstances of considerable noise and confusion, where he had been consistently and continuously, over a period of time, acting as a peacemaker in a dispute between others, and where one of the parties involved in the dispute, whom he had been trying to restrain, approached the applicant with his hands up. Further, that the medical evidence was to the effect that there had been no significant blow struck by the applicant. That the evidence was that the applicant had used the side of his fist, that the blow was not the sort of punch thrown by a boxer and that it had not caused David Langan to fall. That there was evidence that David Langan fell a distance of 11 metres from the confrontation. Further, that there was evidence of alcohol consumption and incoordination which would explain the fall.

In relation to the offence of endangerment itself, it was submitted that insofar as it refers to an allegation of intentional endangerment it is a crime of specific intent and that there was no evidence that the applicant acted with specific intent to create a substantial risk of death or serious harm. It was submitted that the evidence indicates that it was the intention of the applicant to keep the peace between Ronan McGrath and David Langan and, at the time of the confrontation with David Langan, to defend himself and his cousin from attack.

Submissions were made on the nature of the offence and the necessary mens rea. It was submitted that the ruling of the learned trial judge failed to consider the submissions made on behalf of the applicant, in particular in relation to the necessity for proof of the appropriate mens rea of the offence of endangerment, and that in so failing he erred in law. It was further submitted that there was in any event insufficient evidence of such mens rea to have allowed Count No. 2 to be considered by the jury and that accordingly the conviction ought to be quashed.

The submissions made on behalf of the Director of Public Prosecutions were similar to those made in relation to the co-accused Ronan McGrath. It was submitted that there was sufficient evidence from which a jury could find or infer evidence 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, that he struck David Langan twice. That is was a mater for the jury to decide whether in all the circumstances on the facts the applicant was guilty of the offence.

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 the 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, which is 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. The applicant acted to try and calm the situation.
(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.

The facts of the case fall to be considered in light of the legal ingredients of the offence. 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 will have that effect.” Similarly, in this case, even if the applicant did not intend the endangerment (and that is not an issue which was closed to the jury) he may be guilty of endangerment if he was reckless as to whether his conduct, his physical activity, would have that effect. There was evidence of physical activity in this case by the applicant, two blows which he made to the head of David Langan.

There was evidence that initially the applicant was a peacemaker, he was trying to calm down the situation and to keep Ronan McGrath and David Langan separated. There was evidence of the general circumstances in front of the Palace, then proceeding up to Portobello Bridge, and then of the 5 to 10 minutes altercation by the canal. There was also clear evidence that the applicant struck David Langan twice on the head with the heel of his hand, fist closed. There was other evidence, including as to the confusion, the place where David Langan fell and the medical evidence. As to the medical evidence it is notable that there was evidence that the applicant hit David Langan above the left ear and on the back of the head: not on his face. Quintessentially the evidence was a matter for the jury to weigh, consider credibility and reliability, and to make a determination. The court is not satisfied that from this aspect the trial judge erred in refusing at the conclusion of the prosecution case to withdraw Count No. 2, the charge of endangerment, from the jury.

In this case, taking the prosecution’s evidence at its highest, the evidence of the conduct of the applicant was that he hit David Langan twice on the head, it was open to the jury to infer the intent of the applicant for his actions, as to whether he intentionally or recklessly engaged in the conduct. On the evidence it was open to the jury to decide that the conduct created a clear risk of death or serious injury to another, in this instance David Langan.

It is pertinent also to consider the offence in issue. 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. In light of the evidence indicating the high point of the prosecution case, the facts therein from which an intent or recklessness may be inferred in the circumstances, the facts therein indicating acts, conduct, from which it may be inferred that David Langan was endangered, this court is satisfied that the learned trial judge did not err in failing to withdraw the count from the jury.

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 application 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.

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