The Supreme Court dismissed Mark Cronin’s appeal against convictions for murder and possession of a firearm with intent to endanger life, rejecting his challenge to the trial judge’s directions to the jury.
Cronin was convicted by a Central Criminal Court jury on 27 March 2000. The appeal concerned whether the trial judge should have directed the jury to consider that the gun might have fired accidentally after Cronin’s arm was pushed aside, potentially supporting a verdict of manslaughter rather than murder. That possibility had not been raised by the defence at trial. A new legal team sought to add the ground to the appeal in January 2003, and permission was granted when the appeal hearing began.
Justice Kearns said an appeal court should generally require an explanation when a point is raised for the first time on appeal. He said there should be evidence of a substantial error or oversight sufficient to suggest a real injustice, as well as an explanation for why the point was not taken at trial. In this case, no error or oversight by the trial lawyers was alleged, and no explanation was given for not raising the alternative defence earlier.
The court also considered the judge’s directions on murder and manslaughter. Justice Kearns said the jury had been told that murder required proof that Cronin intended to kill or cause serious injury, and that if this intent was not established, the offence was manslaughter. He considered the directions adequate to cover the possibility that the killing was unintended, without specifically highlighting an alternative that could undermine the defence case that Cronin had not fired the gun.
The judgment distinguished between a defence-requested alternative and one raised by the judge on the judge’s own initiative. Where there is a sufficient evidential basis, a judge should in principle leave alternative defences to the jury if the defence requests it, even where those defences conflict. The judge should explain their legal elements and any inconsistencies.
But where an accused is represented by experienced counsel, Justice Kearns said the judge should generally not introduce an unrequested defence that conflicts with the chosen case. Doing so could weaken the defence’s prospect of acquittal. The court noted that exceptional circumstances, such as an unrepresented accused or seriously incompetent legal advice, might call for intervention, but said these would be rare.
The Supreme Court agreed with Justice Geoghegan on the other grounds and dismissed the appeal. The judgment does not record a change to the convictions.