The Gazette 1973

It is essentially for the jury to find out what was the intention of the accused at the time of the killing. However, where on the evidence self-defence is open as an answer to a charge of murder, the jury must be so satisfied before convicting of that charge, and the accused is entitled to have it left to the jury to con- sider whether, even if they find he used more force than was reasonably necessary to defend himself, he none- theless used no more than he honestly believed to be necessary in the circumstances. In the latter case they should be directed to find him guilty of manslaughter and not of murder. The point of law raised in the Attorney-General's certificate should, therefore, be answered in the affir- mative. The appellant is entitled to have the verdict of murder set aside and, accordingly, it is unnecessary to consider the other grounds advanced on this appeal. As there was evidence which would entitle a jury to reject completely the plea of self-defence, a new trial should be directed on the charges of murder. [The People (Attorney-General) v. Dwyer; Supreme Court (O Dalaigh C.J., Walsh, Budd, Fitzgerald and Butler J . J . ); separate judgments by Walsh J. and But- ler J.; unreported; 19 December 1972] The expression "felon-setter" is not defamatory. On 25 September 1970 The Irish Times published a story concerning the occupation by fifteen members of Sinn Fein of the BOAC office in Grafton Street, Dublin. There was a photograph showing a poster hung from the office window with a man bearing a placard with the words : "Peter Berry—20th century Felon Setter— Helped Jail Republicans in England". The plaintiff, as Secretary of the Department of Justice, was well known to the public. It was pleaded that the afore- mentioned words were defamatory per se. The defence was fair comment on a matter of public interest, and that the publication was privileged. At the trial before Butler J. and a jury, three questions were put to the jury : (1) Whether the material complained of conveyed that the plaintiff had helped in the jailing of Irish Republicans in England? By direction of the Judge, the jury answered "Yes." (2) Was this publication defama- tory of the plaintiff. Answer "No." (3) Damages—does not arise. Judgment was accordingly entered for The Irish Times. The plaintiff appealed. The appellant asked the Supreme Court, as a matter of law, to hold that the words complained of could not be held other than defamatory—in other words they are words which must hold the plaintiff up to public odium and contempt: the test is whether it will lower him in the eyes of the average right-thinking man. There is little doubt but that the object of those dis- playing the poster was to injure the plaintiff in his general reputation. Here there is no allegation of malice against The Irish Times for publishing the placard. The majority of the Supreme Court (O Dalaigh C.J., Walsh and Butler J.J.) per the Chief Justice, held that the words in question is an allegation that the plaintiff had by furnishing evidence or in some other way assisted in the prosecution to conviction of two accused named Lynch and O'Sullivan in England. They were con- victed in an English Court of an offence against the laws of England. No allegation was made that the procedure followed at the criminal trial abroad was not one by which our standards of law and justice could only be deemed a travesty of justice, nor was it sug- gested that the plaintiff was assisting in such repug- 89

Court of Criminal Appeal dismissed his appeal in April 1970. Subsequently, in November 1970, the Attorney- General granted a certificate upon the following question of law of exceptional importance : "Where a person subjected to a violent and felonious attack, endeavours, by way of self-defence, to prevent the consummation of that attack by force, but, in doing so, exercises more force than is necessary but no more than he honestly believes to be necessary in the circum- stances, whether such person is guilty of manslaughter and not murder." The brief facts were that all the persons concerned had been drinking heavily in some bars near the Four Courts on 23 January 1969 and that they were in a provocative mood for an all-in fight and brawl which duly developed. The appellant alleges he was hit on the head from behind with a blunt instrument, and states he brandished his knife to defend himself. When the fighting ended, Smith and Ney had fallen fatally stabbed, and the inescapable inference was that the appellant was responsible. However, even if the appel- lant was being attacked, there was no evidence that any of his assailants were armed, or that he was pre- vented from making his escape; accordingly the appel- lant used more force than was reasonably necessary for his own protection, and, in the circumstances, Henchy J. directed that the verdict should be murder if he were found guilty. The Court of Criminal Appeal approved of this direction, although it had been contended that the Australian case of R. v. Howe (1958) supported a verdict of manslaughter, which had up to then never been considered in Ireland or England. Section 4 (1) of the Criminal Justice Act 1964 pro- vides that: "Where a person kills another unlawfully, the killing shall not be murder unless the accused intended to kill or cause serious injury to some other person, whether the person actually was killed or not. While a person is entitled to protect himself from unlawful attack, he may use no more force than is necessary to ward off the attack, otherwise his acts are unlawful. If his intention in doing the unlawful act was primarily to defend himself, he should not be held to have the necessary intention to kill or cause serious njury. This killing, though unlawful, would be equivalent to manslaughter; this is the view held by the High Court of Australia in R. v. Howe (1958). The English Privy Council in R. v. Palmer (1971) 1 All E.R., actually disapproved of the decision in R. v. Howe; but even there it was held that the question of the possible absence of the intention to constitute mur- der must still be considered by the jury. As Lord Morris said : "If on the evidence in the case the view is possible that though all questions of self-defence and of provo- cation are rejected by the jury, it would be open to them to conclude that although the accused acted unjustifiably he had no intent to kill or to cause serious bodily injury, then manslaughter should be left to the jury." In R. v. Mclnnes (1971) 3 All E.R., the Court of Criminal Appeal, in rejecting the rule in Howe's case, was nevertheless prepared to apply the same logic as the Australian judges, as is evidenced by the judgment of Edmund Davies L.J. when he stated : "The facts, for example, go to show that he may have acted under provocation or that, although acting unlawfully, he may have lacked the intent to kill or cause serious bodily harm, and in that way render the proper verdict one of manslaughter."