A judge was wrong to tell a jury hearing the trial of a Co Cork woman accused of murdering her husband that there was an onus on the woman to satisfy them, on the balance of probabilities, of the truth of her evidence, the Court of Criminal Appeal ruled yesterday.
The court was giving its reasons for its decision earlier this month to overturn the conviction of Mrs Norma Cotter for the murder of her husband, Cpl Gary Cotter (40), in their home at Broomfield West, Midleton, Co Cork, on January 3rd, 1995.
The court ordered that Mrs Cotter should have a new trial and released her on her own bail of £1,000 and an independent surety of £5,000.
By a 10-2 majority, a jury in the Central Criminal Court in October 1996 found Mrs Cotter guilty of murdering her husband, who died from a wound to his right lung as a result of a single shotgun blast in the chest.
Giving the Court of Criminal Appeal's reasons for overturning that conviction yesterday, Mr Justice Lynch referred to passages of the trial judge's charge to the jury and said these were erroneous insofar as they imposed or suggested an onus of proof on Mrs Cotter. There was no such onus on Mrs Cotter, he said.
It was not possible to lay down any hard-and-fast formula for explaining to a jury the legal concept that a person was presumed to intend the natural and probable consequences of their conduct, but that presumption might be rebutted. No matter what formula was adopted, the judge said, it more often than not gave rise to an awkwardness of expression which the trial judge must be careful to ensure did not lead to confusion.
He also said the trial judge had erred in certain other passages of his charge to the jury.