The Court of Criminal Appeal has dismissed David Bourke’s appeal against his conviction for murdering his wife, Jean Gilbert, finding the conviction safe and declining to interfere with it.
Bourke was convicted by a majority jury verdict at the Central Criminal Court on 30 March 2009 and sentenced to life imprisonment. The appeal concerned whether the trial judge had misdirected the jury about provocation, a partial defence that can reduce murder to manslaughter.
The appeal court said the jury had to decide whether Bourke intended to kill or cause serious injury, and whether he had suffered a sudden and temporary loss of self-control in response to provocation. The judgment described evidence that, on the morning of 28 August 2007, Bourke stabbed Gilbert at their home. The stabbing itself was not disputed at trial; the issue was whether the offence was murder or manslaughter.
The court reviewed evidence about the relationship breakdown and Bourke’s anger and jealousy, including his admissions that he had considered taking a knife and intended to seriously harm Gilbert. It also noted evidence that he had sought to help her after the attack and expressed remorse. The judgment described these matters as part of the evidence the jury considered in deciding his state of mind and whether the killing was premeditated or provoked.
Bourke argued on appeal that the trial judge had wrongly presented the jury with a choice between a calculated killing and a total loss of control so extreme that he could not act rationally. The appeal court accepted that one passage in the charge referred to a total loss of self-control, but held that the charge had to be assessed as a whole. It found the judge had properly explained the subjective test for provocation and had applied it to the evidence, including the circumstances and the appellant’s character and history.
The court also noted that defence counsel at trial had not asked for the jury to be recharged on provocation and had opposed recalling them, arguing it could confuse them. It found this was a tactical decision, rather than an oversight, and said the appeal point could be refused on that basis. In any event, the court concluded that the jury had been properly and fully directed, including in a later summary of the law, and that no injustice had occurred.
The court delivered judgment on 25 January 2013 and dismissed the appeal.