The Court of Appeal allowed Damien O’Brien’s appeal against his assault conviction after finding the trial judge had not made sufficiently clear to the jury that self-defence had to be assessed subjectively. It dismissed his appeal against conviction on a separate charge of threatening a shop worker with a syringe.
O’Brien had been convicted by a jury at Limerick Circuit Criminal Court on 30 January 2015 of assaulting a worker at a Henry Street shop and threatening another worker at a Catherine Street shop with a syringe. The incidents occurred on the same afternoon in October 2013. The Court of Appeal’s judgment, delivered on 12 May 2016, addressed the appeals against conviction only, not O’Brien’s separate appeals against sentence severity.
On the assault count, the defence relied on self-defence and argued that the worker had swiped at O’Brien before he lunged at him. The trial judge’s initial direction invited jurors to decide whether O’Brien’s response was reasonable and proportionate, which the prosecution accepted implied an objective test. The judge then recharged the jury, telling them to consider O’Brien’s state of mind and the surrounding circumstances before deciding whether the force was reasonable and proportionate.
The appeal court said the recharge did not sufficiently clarify that the test was subjective: whether O’Brien acted on an honest belief and whether the force was reasonable in the circumstances as he believed them to be. The court upheld this ground and allowed the appeal on the assault count.
The court rejected the challenge to the syringe-threat count. The defence argued there was no evidence the recipient perceived a risk of infection. The court held that the prosecution did not have to prove the recipient actually perceived such a risk. It found there was evidence that O’Brien brandished a syringe aggressively, threatened to kill the worker and caused him to fear being stabbed. The court said a properly directed jury could infer either an intention to cause belief in a risk of infection or that the threat was made in circumstances where such belief was likely. It concluded that the trial judge correctly allowed the count to go to the jury and upheld the conviction as safe.
The court also rejected the argument that the jury should have been required to adjourn deliberations overnight. The trial judge had offered jurors the choice of continuing or resuming the next morning; they chose to continue and returned a verdict at 6pm. The appeal court found no unfairness and dismissed that ground.