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Irish Court of Criminal Appeal
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Cite as:  IECCA 25
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Judgment Title: DPP v Mary Kelly
Composition of Court: Hardiman J., deValera J., Peart J.
Judgment by: Hardiman J.
Status of Judgment: Approved
Outcome: Quash conviction, no re-trial
THE COURT OF CRIMINAL APPEAL
Hardiman J. 245/2004
de Valera J.
THE DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT of the Court delivered this 25th day of February, 2011.
This is an unusual case both in terms of its own facts and in terms of the difficulties which arose in the trial.
The facts can briefly be stated. On the 29th January, 2003, about two months before the United States’ invasion of Iraq, the applicant, Mary Kelly, forcibly entered upon an area of Shannon Airport, County Clare, where there was a United States Naval aircraft. She caused considerable and expensive damage to the aircraft. It had landed at Shannon for the purpose of refuelling on its journey to Sicily in connection with logistical preparations for proposed United States military actions.
A considerable number of potential issues at the trial arising from the above facts were removed by what the applicant said to the gardai immediately after she was apprehended on the day on which the events took place. She said:
She never resiled from that position.
History of the prosecution.
Arising from the incident described above, the applicant was charged with two offences. These were as follows:
(1) An offence of trespass.
(2) An offence of causing criminal damage without lawful excuse, contrary to s.2(1) of the Criminal Damage Act, 1991. This is the offence which is the subject of the present judgment.
The applicant was first tried in Kilrush Circuit Criminal Court in July, 2003. On that occasion, she was convicted of the offence of trespass for which she received a one year suspended sentence. The jury failed to agree on a verdict in respect of the criminal damage charge and a retrial was directed.
The second trial took place at Ennis Circuit Criminal Court on the 28th October, 2004. There, the applicant was convicted of the offence of criminal damage and she received a sentence of two years imprisonment which was suspended for a period of four years. She represented herself at this trial, by choice. When, after conviction, the matter was remanded to the 1st December, 2004, for sentencing, the applicant was represented by a solicitor, instructing Senior and Junior counsel on her behalf.
The applicant now applies for leave to appeal against that conviction. In the circumstances, and for reasons which will appear later in this judgment, it seems possible to deal with the application on the basis of grounds two and four of the grounds of appeal filed with the applicant’s notice of application for leave to appeal, dated 3rd June, 2005. These are:
(2) The learned trial judge misdirected the jury on the issue of the defence of justification [sic] and on the ingredients of the offence and in the indictment [sic].
(4) In all of the circumstances taken together the trial was unsatisfactory particularly where the applicant was appearing in person without the benefit of counsel and thereby the trial was in breach of Article 38.1 of the Constitution.
(5) - ”
When the statutory provisions are examined, it will become clear that the “defence of justification” referred to at para.2 above should properly be a reference to the defence of “lawful excuse”.
The Offence of Criminal Damage.
Section 2 of the Criminal Damage Act, 1991 provides as follows:
The words “without lawful excuse” which are at the centre of the present appeal, were further addressed in s.6 of the Act. Section 6(2) provides as follows;
(c) If he damaged… the property in question… in order to protect himself or another or property belonging to himself or another… and, at the time of the act or acts alleged to constitute the offence he believed -
(i) that he or that other … was in immediate need of protection and
(ii) that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances.
6(3) For the purposes of this Section it is immaterial whether a belief is justified or not if it is honestly held.”
Nevertheless, like other statutes passed with the intention of reforming the criminal law in the 1990s, it is a difficult Section to construe and apply. Without crystal clear guidance from a judge it must be considerably more difficult for a jury to consider and apply.
Most unfortunately, as will be seen, considerable difficulty and confusion arose at the applicant’s second trial in the explanation of the law to the defendant and the jury. This must be set out in some detail for the purpose of this judgment.
Points not immediately relevant.
In addition to the legal difficulties which arose at the trial, and which are about to be discussed, there were a number of serious issues arising as to the admissibility of evidence sought to be called by the defence as well as another statutory issue. These will be considered, to the extent necessary, after the issues already indicated have been dealt with because, if the applicant is successful on these legal issues, the other issues will not arise.
The amendment of the Statute.
The Criminal Damage Act, 1991, s.6, was amended by the provisions of the Non-Fatal Offences against the Person Act, 1997. This amendment occurred prior to the acts of damage to the American airplane which the applicant admitted and therefore prior to either trial. Accordingly, it is s.6 as amended, and not s.6 in the original form, which is relevant to the trial.
The amendment was effected by s.21 of the Act of 1997 which provides as follows:
‘(c) If he damaged… the property in question… in order to protect himself or another or property belonging to himself or another… and the act or acts alleged to constitute the offence were reasonable in the circumstances as he believed them to be’ ”. (Emphasis added)
It will be seen that s.6 of the Act of 1991 provided a defence to a person who damaged property in order to protect himself or another or other property belonging to himself or another, but on certain conditions. Under the 1991 Act the conditions for the availability of that defence were:
(2) That the means of protection adopted (here, the damaging of the military aircraft) “were reasonable in all the circumstances”.
There are a number of relevant observations that may be made about the Section, and the Section as amended. Firstly, both require the acts which are the subject of the defence to be “reasonable”. The Section as amended makes it clear that this “reasonableness” is to be assessed in the circumstances, not as they actually were, but as the defendant believed them to be. This is a highly subjective defence. In the original s.6 there was a further condition that the person or property being protected was “in immediate need of protection”. This condition is of an objective nature. Its effect is that one cannot commit an act of malicious to someone else’s property in the name of protecting oneself or a third party unless the person to be protected actually needs protection, and that this need for protection is immediate. In other words, under the original s.6, the defence required this element of immediacy. The relevance of this provision to a case where an act of damage is committed in Ireland with a view to protecting third parties described as “innocent Iraqi people”, in Iraq, from a future attack, is obvious.
The submissions of the applicant (1).
The applicant pointed out that, at the second trial, she gave evidence in her own defence as to what her motivation was. But the learned trial judge ruled that she could not call certain expert evidence which she sought to adduce as to the capacity of her action to disrupt the United States war effort in such a way as could or might save a life or lives of those “innocent Iraqi people”.
As noted above, this is an aspect of the case which will, if necessary, be considered later. It is mentioned here only insofar as it provides necessary context for the understanding of her principal legal submissions.
The evidence which was excluded would have been directed at the reasonableness of her action as means to achieve her intended end, given the provisions of s.6(2) of the Act, as opposed to the reasonableness of her belief, since the latter is “immaterial” by reason of the provisions of s.6(3), cited above, provided only that the belief is “honestly held”. There appears to have been no dispute as to the genuiness or sincerity of the applicant’s belief although she did seek to call evidence from a Dr. Ray Murphy, a lecturer in law in UCG and she stated that his evidence would have been relevant to her state of mind at the time she took this action. Dr. Murphy’s evidence was disallowed. It may be observed that, in general, an issue of law is not to be the subject of evidence but of legal argument and of authoritative guidance by the trial judge.
In any event, the learned trial judge ruled such evidence to be irrelevant and directed the jury to the effect that the defence of lawful excuse was not available to the appellant since he considered that there had to be a connection both in time and in space between the action undertaken and the end sought to be achieved.
Applicant’s submissions (II).
In due course, some statements of the learned trial judge both in rulings and in his charge to the jury will be considered. On the hearing of this appeal, essentially, the appellant submitted that the learned trial judge prevented her from raising the defence of lawful excuse which was open to her under the Section and further misdirected the jury in this regard in such a way as to amount to giving them a direction to convict.
Onus of proof.
Sections 2 and 6 of the Criminal Damage Act, 1991, defined the elements of the offence and separately defined what the legislators intended to be embraced by the phrase “lawful excuse”. It is these Sections that determine what the prosecution must satisfy the jury of in order to discharge the onus of proof that is at all times upon the prosecution.
It is trite law to state that the defendant at trial is not under any onus to prove anything. It is for the prosecution to prove beyond reasonable doubt that the offence was committed. Further, in the particular circumstances of this offence, where the applicant put forward material that she says constitutes a “lawful excuse”, it is for the prosecution to satisfy the jury, beyond reasonable doubt, that this excuse advanced by the applicant was not a “lawful excuse” for the purposes of the Section. In other words, the prosecution must negative the defence.
To put this another way, the prosecution was obliged to remove any reasonable doubt which the jury may have had that the action of the appellant was “reasonable” in the circumstances as honestly believed by the appellant. It was therefore necessary for the prosecution to prove beyond reasonable doubt that the action taken was not “reasonable” in the circumstances as honestly believed by the defendant.
In her written submissions lodged for the purpose of this case the applicant has said:
Of more immediate relevance, she complains that the judge informed the jury during his charge, that the defence of lawful excuse was not available to the appellant because:
Earlier, on Day 4 of the trial, and in argument as opposed to in his charge to the jury, the learned trial judge had said:
The course of the trial.
This Court has to approach the trial on the basis of the transcript which is before us. It has very often been remarked, notably in
Hay v. O’Grady  1 IR 210 that it is difficult for the “arid” pages of a transcript to give an entirely accurate impression of what took place at the trial. Nevertheless it has to be said that in this case the transcript conveys an impression of considerable confusion at the trial on a very important legal point. This turns on the question of “immediacy”. Does an “immediate” “need” for protection have to be invoked notwithstanding the amendment of the Act, before the defence is triggered at all? Is this a question of law (for the judge) or a question of fact (for the jury)?
Most regrettably it has to be said that the transcript creates the impression that for some days of the trial the learned trial judge had not fully appreciated the effect of the fact that the Act of 1991 had been amended in the manner already set out, which of course removed the express mention of an “immediate” need for protection.
In fairness to the learned trial judge, it must be said that the Indictment merely laid the relevant count as follows:
Criminal damage contrary to s.2(1) of the Criminal Damage Act 1991”.
Discussion of the Amendment.
During the course of the trial the applicant gave evidence in what can only be described as a highly discursive manner, and in language which is not altogether clear. Factual evidence and legal submissions are all mixed together, the applicant saying that she wanted to give evidence and to call certain witnesses to show the jury the reasonableness of the action which she took when she damaged the aircraft and that “this would help stem justification for the action I took” (sic). She gave a lengthy narrative account of her life story leading up to her decision to take action against the aircraft and said:
Continuing, she said that she had asked a friend to buy an axe with which she intended to damage the aircraft “to protect life and prevent crime”.
In cross-examination, the question of the destination of the aircraft being Sicily and not Iraq, and the fact that there had been evidence that the aircraft was travelling for logistical purposes (i.e. carrying spare parts to Sicily) and that it had no offensive capability. The applicant maintained that nevertheless the aircraft was part of the military build up for an invasion of Iraq, and that it was for this reason that she damaged it, in order to protect the lives of people in Iraq and to prevent what she saw as a crime. She said that her witnesses “will be helping build the facts of my case and demonstrate the reasonableness of my action”.
The applicant then called a Commandant Horgan who discussed the definition of “military logistics”. The judge considered that his evidence was “not very relevant” to the charge against the applicant and that he would not allow it. The applicant then called a Mr. Denis Haliday who gave evidence about “international law”, and said he had a certain expertise to support the case that the applicant was making in her defence of lawful excuse. He then started speaking about Nazi Germany and the judge held his evidence was not admissible. In discussion as to the reasons for this ruling the learned trial judge said:
On the next day again, the learned trial judge explained his reasons for excluding the evidence once more by saying:
On the same day, he said that the defence did not cover damaging property “in the belief that you are defending something many miles away, a considerable distance away, and also somewhere in the future. It has to be immediate, that’s the basis on which it is not relevant”.
In response to these repeated statements of the requirement for immediacy the applicant opened the Criminal Damage Act, 1991 and the Amendment in the Non-Fatal Offences against the Person Act, 1997. Having heard these provisions the learned trial judge said, addressing counsel for the prosecution:
Later, in addressing the applicant the learned trial judge said:
Charge to the jury.
The charge to the jury also proceeded a little chaotically, in part because Ms. Kelly, who was conducting her own defence, made some of the requisitions well after the usual time for doing so and while the jury had already been deliberating, the other side and the judge being of the opinion that the requisitions had finished. But a number of things emerged quite clearly. One is that the jury were correctly told that the issue in the case was that of “lawful excuse” (see Day 6, pp 50-51) and about lawful excuse the judge said:
Limitations of a transcript.
The Court wishes to repeat what it has already said that the impression of a trial gained from a transcript may be a very misleading one. But it is the only objective record available to go on.
Safe and satisfactory?
This Court’s role on the hearing of an appeal such as the present one is to see whether it can be said that the conviction is both safe and satisfactory. Based on the transcript, it seems difficult to regard the trial as satisfactory. This is for reasons both positive and negative which (still focussing on the points to do with the 1991 statute as amended) might be summarised as follows:
(1) The learned trial judge does not seem to have been made aware until well into the trial that the 1991 Act had been amended so as to remove the express mention of “immediate need of protection”, as a trigger of the defence of lawful excuse. This seems clear from the learned trial judge’s references “immediate” and to “now” at vital stages of the transcript, quoted above. After the self represented applicant had, as part of the defence case, opened the 1991 Act and the amending provision the learned trial judge turned to the prosecution for a reply to the point which the defendant was “now making”.
The phrase, quoted above, was:
It should of course be noted that it is the responsibility of the prosecution, who are able to decide on the precise charge to be brought and to know what it is well in advance, to keep the learned trial judge abreast of the statutory foundation and any amendments thereto. The trial judge comes fresh to the case, often without notice and perhaps after another case has just finished and will not normally have an opportunity to study the statutory provisions in advance.
(2) The prosecution’s reaction to the applicant relying on the amendment was to argue that, notwithstanding the deletion of the phrase about “immediate need”, there must be a requirement for immediacy even if not expressly mentioned in the amending provision. By way of reply, Ms. Kelly relied on the statutes, which she opened again and the judge asked the prosecution for further submissions. The prosecution replied that counsel believed that the judge had already ruled on the matter. This was a rather unfortunate submission because whereas the learned trial judge had indeed made several remarks to the effect that immediacy or a “connection in time and space” was required, he had apparently done so before becoming aware of the amendment to the statute. Counsel repeated his argument that the immediacy requirement remained, and that “it had to”. The judge asked why that was so and counsel repeated that there must be:
(3) It thus appears that the prosecution submission on this point came down to this: that there remained an implied, though no longer an express, requirement of immediacy in the need for protection.
(4) It will clearly be seen from the foregoing that the prosecution case was that the amending statute simply “didn’t make any difference”; the law, according to the prosecution, was exactly the same after the amendment as before it. This appears to involve the proposition that, in enacting the amending provision of 1997, the legislature had acted in vain. But there is a canon of construction presuming that the legislature does not act in vain, and for good reason. (See Bennion Statutory Interpretation sub. tit. “Parliament does nothing in vain, doctrine that”.)
(i) It assumed that the substitution of other words in 1997 had no effect whatever so that the law remained, after the amendment, in exactly the same state as it did beforehand.
(ii) A vital aspect of the defence - the availability of the defence of lawful excuse upon which the applicant had relied from the beginning (as her statement to the guards shows) was, in the end, said not to be constituted by the statute mentioned in the Indictment, but by an implication from it which is not at all obvious to a lay person or (speaking for myself) to a lawyer either.
(iii) There must also be considered the high constitutional value, affirmed in many cases over the years, that the criminal law should be clear and precise so that a citizen may know, without having to qualify as a lawyer, what is within the law and what is prohibited. This principle was recently reaffirmed in the Supreme Court in DPP v. Cagney and McGrath  IESC 46 and the cases mentioned there, including A.G. v. Cunningham  IR 28 and
King v. Attorney General  IR 223. In the first of these cases O’Byrne J. referred to:
In the second case, Kenny J. stated:
Ms. Kelly was a lay litigant. On other occasions, when she wished, she was represented by solicitor and counsel but she has an absolute entitlement to represent herself if she wished. The wisdom of that course is not a matter for the Court. But when she decided to represent herself, she had absolutely no notice of what the prosecution case turned out to be: that the amending statute meant absolutely nothing, made no difference at all and that there was an implied requirement for immediacy in the need for protection before the defence of lawful excuse was triggered. This argument by the prosecution apparently developed only after, several days into the hearing, it appears to have been first realised (by anyone other than Ms. Kelly) that the 1991 Act had been amended, and what the implications of that were.
The prosecution argument, that the amending statute made no difference at all, raises serious legal issues as to whether it was correct to presume that the Oireachtas had acted in vain, as was implicit in the prosecution case. The Court cannot see on the transcript that this complicated and far reaching legal issue was in anyway explained to Ms. Kelly with sufficient clarity. It does appear obvious from the later remarks of the learned trial judge, quoted above, that he substantially accepted the prosecution case that there was need for a nexus in time and space between the act to be protected against and the act of damage committed.
The judge then informed the jury, on at least two occasions, that there was no “immediate nexus” or connection between the two. These references are quoted above.
This observation, in itself, was either a direction in law, which the jury were bound to accept, or was an observation on the facts. In the latter case the expression of opinion by the judge which, if accepted, would in practice make conviction inevitable, should properly have been accompanied by a statement to the effect that this was a matter of fact, that the jury must form their own view on it, that the judge’s view was not binding and should be accepted by the jury only if they agreed with it. None of this was done and it does not appear from the transcript that the prosecution or the learned trial judge directed their minds whether this issue, or the topic of “lawful excuse” in general was a matter of fact or a matter of law, or a mixed question.
In those circumstances, and without going beyond this first point, the Court cannot find that the trial and the verdict was safe or satisfactory. We will therefore treat the application for leave to appeal as the hearing of the appeal, allow the appeal and quash the conviction.
It will be observed that in deciding the case on this, the narrowest of the points urged, the Court has not found it necessary to reach a conclusion on the various questions raised as to the propriety of the exclusion of certain evidence or on the availability of another statutory defence based on s.18 of the Non-Fatal Offences against the Person Act, 1997. Nor has the Court considered the availability or otherwise of any defence under what was referred to as the “Nuremburg principles”. It behoves the Court to express its judgment on the basis of the narrowest issue capable of resolving the case and we do so here.
We would only add what must in any event be obvious: that the statutory provisions affecting this case are, quite apart from the misfortunes which afflicted this particular trial, in a state of some confusion and perhaps ambiguity and might with advantage be looked at again by the proper authorities. It is important that a case of this sort should be resolved, as it is the defendant’s constitutional right, by a trial before a jury. There is therefore a particular imperative on the draftsman to produce a statutory provision which is capable of being readily understood by an ordinary person. And writing for a general audience, it will be found, produces better draftmanship.