The Supreme Court quashed the endangerment convictions of Fergal Cagney and Ronan McGrath, ruling that the counts should not have been included alongside manslaughter charges based on the same events because doing so created a risk of a confused and unfair trial.
The combined judgment, delivered by Mr Justice Geoghegan on 25 October 2007, concerned appeals from the Court of Criminal Appeal’s refusal to grant leave to appeal. That court had certified a question about whether section 13 of the Non-Fatal Offences Against the Person Act 1997 could apply in circumstances such as these.
The charges arose after an incident outside the Palace Nightclub in Camden Street, Dublin, in the early hours of 25 August 2000. The judgment said both appellants and their companions had consumed considerable alcohol. Evidence was that Cagney struck two blows at David Langan after McGrath shouted, “hit him Fergal”. Langan fell, struck his head and later died. The medical evidence cited in the judgment said the injuries were consistent with a fall; a witness said he did not think Cagney’s blows caused Langan to fall. The judgment also noted evidence that the fall occurred more than 11 metres from where the blows were struck.
A jury acquitted both men of manslaughter but, by majority, convicted them of endangerment. At trial, McGrath’s liability on the endangerment count was presented to the jury as that of an aider and abettor to Cagney, the principal offender.
Geoghegan said there was evidence on which a jury could have convicted on either count if both had been properly before it. He therefore rejected the first two appeal grounds, which challenged the trial judge’s refusal to withdraw the endangerment count from the jury.
But he said the jury had not been properly directed on the endangerment offence’s mental element. In particular, recklessness required a subjective appreciation of a substantial risk of death or serious harm. The jury’s questions showed it was confused, and the judge’s further direction did not clarify that the test was subjective.
The appeal was allowed on the third ground. Geoghegan considered that including the endangerment count with the manslaughter count, where both arose essentially from the same facts, was inappropriate and likely to make the trial unfair. He said the court need not answer the certified question in absolute terms and did not hold that section 13 could never apply where a death resulted.
The court quashed each endangerment conviction. It rejected McGrath’s separate argument that the verdicts were necessarily inconsistent: a jury could acquit of manslaughter if it considered the death resulted from an independent fall, yet still convict of endangerment.