The Court of Criminal Appeal quashed Richard O’Carroll’s murder conviction and ordered a retrial after finding that the jury had not been properly directed on self-defence and the possible verdict of manslaughter.
O’Carroll had been convicted by a jury on 12 December 2002 of murdering Keith Fortune on 2 May 1999. The seven-day trial concerned a fatal stabbing during a scuffle on a landing at a public house in Bray, Co Wicklow.
O’Carroll did not give evidence at trial. Statements admitted by the prosecution recorded him saying that Fortune had produced a knife and that they struggled over it. In one statement, he said he had stabbed Fortune while defending himself. A State Pathologist testified that the wounds were consistent with close combat. The appeal court concluded that this evidence was enough to raise self-defence for the jury’s consideration.
The trial judge told jurors that if they found self-defence, they should acquit. But the Court of Criminal Appeal said the jury should also have been directed to consider whether O’Carroll used more force than was reasonably necessary, but no more than he honestly believed necessary. If so, the appropriate verdict would have been manslaughter. That option was not put to the jury.
The appeal court rejected the Director of Public Prosecutions’ argument that the conviction could stand because O’Carroll’s trial counsel had not sought correction of the direction, which favoured the defence by making acquittal more likely. The court said counsel faced a difficult, unexpected situation and was not obliged to request a correction that could worsen the client’s position. It also found that the omission deprived O’Carroll of the possibility of a manslaughter verdict, so the court could not conclude that no miscarriage of justice had occurred.
The court treated the application for leave to appeal as the appeal itself, allowed it and quashed the conviction. It held that the case was appropriate for retrial and ordered one. The decision did not determine guilt at any retrial.