The Supreme Court has upheld a ruling that the defence of provocation could not be left to the jury in Alan McNamara’s murder trial, finding no realistic basis for the defence in the circumstances of the case.
The judgment, delivered by Mr Justice Peter Charleton on 26 June 2020, affirmed the Court of Appeal’s decision upholding trial judge McDermott J’s ruling. The jury had found McNamara guilty of murdering Andrew O’Donoghue at Road Tramps Motorcycle Club premises near Murroe, County Limerick. The trial judge imposed the mandatory sentence of life imprisonment. Self-defence was put to the jury but rejected.
The court considered the limits of provocation, a partial defence that can reduce murder to manslaughter. It said the defence requires a sudden and total loss of self-control in response to genuinely serious provocation by the victim. The loss must not be considered or planned, fabricated, or fuelled by drink or drugs. The court also said the defence does not extend to mere insult, gang vengeance or warped notions of honour.
Evidence at trial was that, the evening before the killing, three Road Tramps members assaulted McNamara and his wife outside a pub and took his Caballeros club jacket. Later that night, witnesses said, other club members arrived at the couple’s home and threatened them. The next afternoon, McNamara armed himself with a loaded sawn-off shotgun and drove to the Road Tramps premises. He shot O’Donoghue at close range. O’Donoghue had not taken part in the earlier assault and, the judgment said, was an unarmed and uninvolved man holding a bar.
McNamara did not testify at trial. His defence relied on statements to gardaí, including that he feared for his stepson’s safety and believed O’Donoghue’s bar was a firearm. The jury rejected his self-defence account. On appeal, his counsel argued that the earlier events and the wider group conflict could amount to provocation, and that the jury should decide whether McNamara had lost control.
The Supreme Court rejected that argument. It said provocation generally must come from the person killed, subject to limited exceptions such as people acting together in a joint attack. It found those exceptions did not apply: O’Donoghue was not involved in the earlier robbery or acting in concert with those responsible. The passage of time, McNamara’s arming himself and going to the clubhouse also left no realistic basis for the defence.
The court held that a trial judge may withdraw provocation where the evidence could not support a jury finding for the accused. It affirmed the Court of Appeal’s decision on the basis that there was “a lack of reality” to the defence in this case. The appeal did not overturn the murder conviction or life sentence.