The Court of Criminal Appeal dismissed David Curran’s application for leave to appeal his convictions for the murders of Pawel Kalite and Marius Szwajkos. The judgment, delivered by O’Donnell J. on 14 December 2011, rejected challenges to the trial judge’s directions and concluded that the jury’s verdict was not unsafe.
Curran was convicted after a 15-day Central Criminal Court trial. The appeal focused principally on provocation: the defence argued that words and movements by the two men caused him to lose self-control. The appeal court said the trial judge had correctly explained the prosecution’s burden to disprove provocation beyond reasonable doubt, and that the charge had to be assessed as a whole rather than by isolating particular words.
The jury had asked whether the prosecution or defence had to prove that words or acts causing a sudden loss of control had occurred. The appeal court held that the judge answered correctly: the defence had no obligation to prove anything, and the jury had to consider whether the prosecution had disproved provocation beyond reasonable doubt.
Curran also argued that the judge should have told the jury to disregard prosecution counsel’s comment about the defence not calling Stephen McGuirk, who was central to Curran’s account of a phone call before he arrived at the takeaway. The appeal court noted that the comment was brief, was answered by defence counsel, and was covered by the judge’s repeated directions that Curran had no obligation to call witnesses. It ruled that the comment did not make the trial unfair or the verdict unsafe.
A further ground concerned the absence of a “Lucas” warning about lies or false accounts. The court said the issue had not been raised with the trial judge and found no serious risk of injustice warranting consideration despite that omission. It also rejected complaints about other requested directions and the judge’s explanation that proof beyond reasonable doubt did not require mathematical or moral certainty.
The court therefore dismissed the application for leave to appeal. The judgment did not quash the convictions or order a new trial.