Ruling on provocation plea in murder trials sought

A senior judge said yesterday it was "desirable" that the provocation defence in murder trials should be clarified by the Supreme Court.

Mr Justice Barrington made the remark when dealing with an application by the DPP asking the Court of Criminal Appeal to certify points of law for clarification by the Supreme Court. This arose from the CCA's decision last week to quash the conviction of a Co Wicklow man for the murder of his father and direct a new trial. Thomas Heaney (28) was jailed for life at the Central Criminal Court in 1996 after he was convicted of the murder of his father Peter (59) at their home at Marian Villas, Arklow, on October 9th, 1994. The trial heard the victim died from shock and haemorrhage due to a stab wound in the chest, that he had a total of nine stab wounds on his body and three wounds to the head caused by a blunt instrument.

When appealing that conviction last week, Mr Patrick Gageby SC, for Mr Heaney, argued the trial judge had failed to properly direct the jury regarding the law to be applied when considering the defence of provocation and had particularly failed to direct the jury about the subjective nature of the test on whether an accused was so provoked as to have lost self-control.

In its judgment allowing the Heaney appeal, the Court of Criminal Appeal said it had held, in the Keith Kelly case last year, that the proper test was purely subjective and had set out general guidelines on the principles to be applied when charging a trial jury on provocation. It had stated the trial judge must apply the principles to the evidence. Just because an accused said they lost control, the jury did not have to accept that.

The court had said it would not be enough for the defence to show an accused lost their temper, was easily provoked or was drunk. The loss of self-control must be total, the reaction must come suddenly before there was time "for passion to cool", could not be tinged by calculation and must be genuine in the sense an accused could not deliberately have set up a situation which they later claimed constituted provocation.

When the Heaney case was mentioned before the CCA yesterday, Mr Paul O'Higgins SC, for the DPP, asked the court to certify that points of law arising from its decision in the case were of such exceptional public importance as to make it desirable that an appeal be taken to the Supreme Court.

Mr Patrick Gageby SC, for Mr Heaney, said there would be issues about his client's status if the matter went to the Supreme Court.

Mr Justice Barrington said the court would be disposed to grant the certificate sought by the DPP if it felt it had the power to do so. He adjourned the matter for a week to see if counsel could find precedent for such an action. It was desirable that the law on provocation should be clarified.