The Court of Appeal has quashed a murder conviction and ordered a retrial after finding that the jury may have been confused by the trial judge’s directions on provocation.
Zhen Dong Zhao was convicted by a jury majority of 10 to two on 5 December 2012 of murdering Noel Fegan outside an internet café and call shop on Wellington Quay, Dublin, on 20 May 2011. The appeal was confined to how the trial judge dealt with provocation in the jury charge.
The court said the charge repeatedly stressed that the jury should consider the accused’s individual circumstances and state of mind, rather than that of an average or reasonable person. But it did not clearly explain how the defence of provocation interacted with the intent required for murder. In particular, the jury was not expressly told that provocation could apply even where the accused intended to kill or cause serious injury, and that it is in such cases that the defence falls to be considered.
The court said there was no clear misdirection comparable to one in an earlier case, and noted that neither side had raised a specific requisition on this point at trial. However, it described this case as particularly finely balanced. It was concerned that jurors might have thought they had to decide whether provocation prevented Zhao from forming the required intent. The court concluded that the charge on this aspect was not as clear as it should have been and quashed the conviction, directing a retrial.
The judgment recounted that the dispute began when Fegan used a telephone in Zhao’s shop and left without paying the full charge. An argument followed, during which accounts differed about who first slapped whom and how Fegan came to be on the ground outside. The court said it was clear that Zhao kicked Fegan several times, including in the head area, while he was on the ground. The incident was brief; CCTV showed the kicking at 3.53pm, less than four minutes after Fegan entered the premises.
Zhao’s defence did not call evidence. After the prosecution case, his counsel asked the trial judge to leave provocation to the jury. The prosecution did not oppose that request. On appeal, the Court of Appeal also refused to allow Zhao’s counsel to argue that remarks by prosecution counsel in closing had been improper, because that complaint had not been raised at trial or in the appeal notices.
The Court of Appeal added a tentative observation that reading passages from appeal judgments may not always be the most effective way to explain complex legal issues to juries. It said trial judges could consider outlining a proposed charge in advance to counsel for comment.