The Court of Criminal Appeal dismissed Anthony Barnes’s application for leave to appeal his murder conviction for the fatal stabbing of Richard Forrestal during a burglary at Forrestal’s home in Carrigavantry, Co Waterford.
In a judgment delivered on 21 December 2006, the court considered the legal position when a burglar claims self-defence after killing a householder. It held that burglary of a dwelling is an act of aggression, even where the burglar believed the house was empty. A householder may use force to drive off, immobilise or detain a burglar and end the threat, but cannot kill someone simply for being a burglar.
The court said a burglar who kills a householder during the burglary may have a narrow scope to claim self-defence: where the householder is attempting to kill the burglar simply for being a burglar. Because the burglar’s entry is the initial and serious aggression, the court said such a killing during the burglary cannot be less than manslaughter. The judgment set out these legal principles while considering the appeal; it did not replace the jury’s verdict with a manslaughter finding.
Barnes and Andrew Halligan had pleaded guilty to burglary. At trial Barnes did not give evidence, but his statements to gardaí were before the jury. He said Forrestal had attacked him and that he stabbed him in self-defence. His accounts changed on matters including whether Halligan was present and how the knife came into Barnes’s possession. The jury rejected the exculpatory parts of his account, the appeal court said.
The trial judge twice wrongly told the jury that Barnes had to prove self-defence on the balance of probabilities. After the error was raised, the judge described it as a “very very serious error” and corrected the direction, telling the jury that the prosecution had to disprove self-defence beyond reasonable doubt. The appeal court found no reason to think the jury ignored that correction. It also said the judge’s failure to explain the special legal position of a burglar had advantaged Barnes.
The court rejected the other grounds raised as insufficient to make the trial unsafe or unsatisfactory. It concluded by dismissing the application for leave to appeal.