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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."
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-
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