The Supreme Court answered “Yes” and “No” to two certified questions in Jonathan Dunne’s appeal: a person may be convicted of murder where the victim dies well after the attack and after lawful medical decisions, and duress is not a defence to murder in Irish law.
The judgment, delivered by Ms Justice O’Malley on 11 May 2016, concerned Dunne’s conviction for murdering Ian Kenny. Dunne admitted shooting Kenny twice at close range in a car in Stillorgan on 4 July 2007, intending to kill him. He had pleaded guilty to attempted murder and received a 12-year sentence. Kenny survived the shooting in a persistent vegetative state and died in hospital on 31 July 2009.
Dunne argued that the prosecution had not proved the shooting caused Kenny’s death when it occurred. During Kenny’s final admission to Beaumont Hospital, doctors decided, with his father’s agreement, not to use intensive care, ventilation, inotropes or resuscitation if his condition worsened. They continued antibiotics, oxygen and suctioning. The decision followed severe pneumonia and sepsis in a patient whose brain injuries left him highly susceptible to infection.
The Supreme Court held that the medical decision did not break the chain of causation. It was not a decision to cause or accelerate death, and the injuries from the shooting remained an operating and substantial cause. The Court said a third-party act breaks causation only if it is so independent of the accused’s act that it should be treated in law as the cause of death. On the evidence, Kenny’s repeated infections and vulnerability to pneumonia arose from the catastrophic brain injury caused by the shooting.
The Court also rejected Dunne’s argument that duress should be available as a full or partial defence to murder. Dunne had told gardaí he was forced to shoot Kenny after threats against him and his family. The Court did not determine whether that account would satisfy the requirements of duress if the defence were available. It held that excluding murder from the defence was a longstanding common-law rule and that changing it, including by creating a partial defence, required legislation.
The Supreme Court’s answers resolved the certified legal questions; the judgment did not set out a separate order quashing or otherwise altering the murder conviction. Justice O’Malley noted that Dunne also had an appeal pending against his earlier attempted-murder conviction, despite his guilty plea, and that the Director of Public Prosecutions had consented to an extension of time. She said quashing that conviction might resolve the apparent duplication, but cautioned that this course should not be presumed appropriate in other cases.