The Court of Criminal Appeal has refused David Bourke’s application to reopen or amend its earlier judgment upholding his murder conviction, and declined to certify four proposed questions of law for the Supreme Court.
In a judgment delivered on 23 January 2014, the court said its substantive judgment of 25 January 2013 had already explained why it did not consider an argument about provocation. Bourke argued that the jury should have been told that provocation could apply even if an accused intended to kill or cause serious injury.
The court said the issue had not been raised by the defence at trial. It found the defence had made a deliberate tactical decision not to seek a further direction, describing the trial judge’s charge as favourable to Bourke. The jury had been told to consider circumstances put forward by the defence, including his wife’s conduct before the killing, when deciding between murder and manslaughter. The court said there was no injustice in the charge considered as a whole.
Bourke also argued that the earlier appeal hearing involved unfair procedures because the prosecution’s oral submissions did not address the “Cronin point”. The court rejected that claim, saying the prosecution had addressed it at length in written submissions and Bourke’s counsel had been specifically invited to respond. It said written and oral submissions had equal value, and found no basis to set aside or add to the earlier judgment.
As an alternative, Bourke asked the court to certify four questions under section 29 of the Criminal Justice Act 1924. They concerned provocation directions, the effect of an allegedly incorrect direction, restrictions on raising issues not pursued at trial, and the application of the Supreme Court’s decision in DPP v Cronin (No. 2).
The court said the questions arose from the specific facts and trial, did not raise points of exceptional public importance, and did not arise from a new point of law in its earlier decision. It concluded that the jury charge, viewed in its entirety, was not deficient. The court declined all relief sought in the motion. The judgment concerns this application; it does not alter the earlier decision upholding the murder conviction.