The Court of Criminal Appeal allowed Shahzad Hussain’s appeal against his conviction and directed a retrial, citing a real risk of injustice from the trial judge’s directions to the jury on provocation.
The judgment, delivered by Clarke J. on 28 July 2014, said the judge’s original charge incorrectly suggested that the jury should assess objectively whether the force used was unreasonable or excessive in response to provocation. The court said Irish law required the jury to decide whether Hussain actually suffered a sudden and temporary total loss of self-control, taking account of his temperament, character and circumstances.
The trial judge later told the jury that the test was subjective, but also referred to what Hussain “would consider reasonable”. The jury foreman then asked how a juror’s view of proportionality affected the defence. In response, the judge said proportionality was a matter for the accused’s mind and suggested the jury disregard it.
The appeal court said those explanations did not clearly correct the original error. It noted that the jury’s question showed they remained unclear about provocation. Although the defence and prosecution had both sought a recharge, counsel did not ask for another after the recharge or the judge’s answer to the foreman. The court said that failure was relevant, but concluded that the central importance of provocation and the risk of injustice required it to consider the issue.
The appeal arose from events at about 2pm on 6 January 2011 at 48 Fitzwilliam Court in Drogheda. Hussain had been charged with murdering Muhammad Arif and with assault causing harm and assault causing serious harm to his estranged wife, Rashida Bibi Haidir. The judgment said Hussain did not deny inflicting the injuries that caused Arif’s death. At trial, his case was that he encountered his estranged wife and Arif in circumstances suggesting an affair and that provocation caused him to lose self-control. These were the charges and defence described in the appeal judgment; the court’s order was for a retrial.
The court rejected two other grounds. It found no basis to upset the conviction on the recklessness directions, which it considered consistent with the law. It also held that admitting seven photographs of Haidir’s injuries, including two showing post-operative scarring and suturing or stapling, was within the trial judge’s discretion given disputes about how the injuries occurred and their number.
The operative decision was to allow the appeal and direct a retrial because of the unresolved concern about the provocation directions. The court did not allow the appeal on the photography or recklessness grounds.