New Appeal: On the evidentiary effect of an initial false account of events on a defence of provocation

In this determination (DPP v Solowiow), the Supreme Court granted Solowiow leave to appeal against his conviction for murder where he raised a defence of provocation. The Court granted leave on one ground relating to the trial judge’s direction to the jury:

That the trial judge erred in failing, in the context of the trial of this case, to explain or adequately explain to the jury that the fact that the accused has lied in early accounts to An Garda Síochána was not, of itself, evidence which could provide proof of his guilt of murder as opposed to manslaughter but that such evidence could go to the credibility of the accused and, in that context, be taken into account by the jury in assessing, on the basis of all of the evidence, whether the prosecution had negatived provocation to the criminal standard.


In May 2012, Solowiow caused the death of his girlfriend Mary Ryan by fracturing her larynx and causing her blunt force trauma. When first interviewed by gardai, Solowiow stated that Ryan’s injuries were caused by three men who assaulted her. Later he admitted to causing Ryan’s death while in a fit of rage. But he stated that he did not mean to harm her.

The DPP prosecuted Solowiow for murder; he argued a partial defence of provocation, which, if accepted by a jury, reduces the offence of murder to manslaughter. In October 2013, the Central Criminal Court convicted Solowiow of murder. Solowiow appealed that decision to the Court of Appeal on a number of grounds, all arguing that the trial judge failed to direct the jury correctly.

In April 2016, the Court of Appeal (here) dismissed Solowiow’s appeal. That judgment quotes extensively from the trial judge’s direction to the jury. [22 – 29] dealt with the trial judge’s direction to the jury on how they should consider Solowiow initially lying to gardai. Solowiow sought leave of the Supreme Court for a further appeal on that one issue.

In granting leave to appeal, the Supreme Court summarised Solowiow’s argument on the trial judge’s direction to the jury relating to his early denial of causing Ryan’s injuries:

It is said that it requires to be made clear to the jury in the judge’s charge that such evidence is not evidence of guilt of murder as such but rather is evidence which may go to the credibility of the accused and, to the extent that it may lead to a legitimate questioning of that credibility, may be taken into account by the jury in conjunction with all of the evidence on provocation which may be given at the trial. It is said that the charge in this case does not do so, that there is no Irish authority on the question and that the question of whether a charge should so do raised an issue which meets the constitutional threshold.

However, the Court will also allow the DPP to argue that it is not open to Solowiow to appeal on the grounds raised, as he did not make a requisition to the trial judge to amend his jury direction on that issue.

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