A Supreme Court justice has rejected Brian Rattigan’s challenge to a trial judge’s closing remarks to the jury in his murder trial, concluding that the comments did not overstep the bounds of permissible judicial comment.
In a judgment delivered on 12 December 2017, Ms Justice Dunne said she would dismiss the appeal on this ground. Her judgment addressed only the challenge to the trial judge’s charge. She agreed with Ms Justice O’Malley’s views on a separate question about section 16 of the Criminal Justice Act 2006, but did not consider that issue in her own judgment.
Rattigan was convicted in 2009 of murdering Declan Gavin, who was stabbed outside an Abrakebabra outlet at Crumlin Shopping Centre in August 2001. The Court of Criminal Appeal refused leave to appeal in 2013. It later certified a point of exceptional public importance about whether section 16 applied to statements made before the Act came into force. The Supreme Court also allowed Rattigan to add grounds challenging the trial judge’s concluding remarks and the refusal to discharge the jury after the charge.
The disputed remarks described a series of circumstances as making Rattigan “unlucky” if he was not the attacker, including his fingerprints at the scene, a vehicle similar to one owned by a friend, and statements the prosecution said were lies. The judge told jurors they could convict only if satisfied beyond reasonable doubt that the combination of matters was not a coincidence.
After the jury retired, defence counsel sought to have it discharged, arguing that the remarks turned a previously balanced charge into a prosecution speech. The trial judge declined. The prosecution argued on appeal that the charge had to be read as a whole and that the jury had been told it could reject the judge’s comments.
Justice Dunne said the trial judge had explained that fact-finding belonged to the jury and had made clear that jurors could reject any comments with which they disagreed. She considered the remarks a way of drawing attention to the logic of the evidence, rather than endorsing a witness or deciding a contested fact for the jury. She said the charge was “far removed” from one that would improperly influence a jury.
The judgment concludes that the trial judge’s remarks remained within the narrow boundary of permissible comment. Justice Dunne would therefore dismiss the appeal on this ground. The source does not state the Supreme Court’s overall disposition of the separate statutory issue in this judgment.