DPP v Solowiow: Trial judge must assess defendant’s lies in time, nature and circumstances of offence when directing jury

In this case, Director of Public Prosecutions v Solowiow, the Supreme Court held that the trial judge had given the jury adequate warning on the inferences they could draw from Solowiow’s original false accounts of events. That he did not direct the jury that Solowios’s lies were not evidence of guilt of murder rather than manslaughter did not cause an injustice.

 

Background

In May 2012, Solowiow murdered 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 on the street. Later he admitted to causing Ryan’s death while in a fit of rage. But he alleged 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 also allowed the DPP to argue that it was 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.

 

Supreme Court

MacMenamin J wrote the judgment for the unanimous five judge panel. He outlined the law in relation to direction of a jury where a defendant had given a false account of their involvement, known as the “Lucas Warning”:

35. Standing back from the facts of this case, it is clear that the core principle in R v Lucas [1981] QB 720, is that, where an accused’s lies are capable of constituting corroboration, the jury must be instructed that there are many possible reasons why people lie, and that, before relying on the lie in question, it must be satisfied that the motivation behind the lie was a realisation of guilt, and a fear of the truth.

 

That test was later refined in England and Wales for cases where the defence of provocation is raised: R v Richens [1994] 98 Cr App Rep 43. MacMenamin J outlined the relevant facts:

41. Richens was a case where the circumstances showed that not only could the partial defence of provocation arise, but have a close connection with the offence. The judgment concerned a 17 year old accused, who, the defence claimed, was enraged that the victim claimed that the defendant’s girlfriend, who he had raped, had actually consented to have sex. Both the defendant and the girl disposed of the body. The defendant maintained a false account of what occurred for a considerable period. Critically, the accused denied any involvement at all in the crime. He was arrested 17 days after the crime and on the following day admitted his involvement.

 

In this case, the trial judge had given a Lucas Warning, but Solowiow argued that the trial judge should have gone further and specifically directed the jury that his lies could not provide proof of his guilt of murder as opposed to manslaughter.

MacMenamin J approached this appeal from the question of the overall adequacy of the trial judge’s direction. Dismissing the appeal, he stated:

  1. The charge, as a whole, was detailed and fair. It is not to be parsed and analysed with a view to finding some small detail or omission which contains a flaw of no significance. One might rhetorically ask what more should the judge have said on the basis of the evidence before the jury? It is, theoretically, possible to criticise the charge on the basis that the omission of what I might characterise as a Richens warning. But this charge did contain a detailed warning in a case where the issue was entirely obvious: was the defendant guilty of murder or manslaughter? The judge took care to ensure that the jury were aware of the fact that the defendant accounted for his lies on the basis that he was afraid, and then “thought about telling the gardaí about the three guys.” He accounted for the fact that he told his friends the lies, on the basis that he did not know whether or not the deceased was going to die. The judge gave the essence of the Lucas warning. He gave illustrations of the application of the warning. And, by the time of the trial, what was in the lies was not in dispute, and was by then a secondary issue. It was clear that the defendant had committed a homicide, and did not dispute that. It was no longer the central issue.
  2. The question must be, how material was the omission of this one hypothetical sentence, which counsel for the defendant now suggests? Was the charge fundamentally flawed? In my view, it was not. No injustice was done in this case. One must assess the relationship of the lies both in time, and in their nature, to the circumstances of the offence. The jury might have paid regard to the lies, but this was not the central consideration when in the trial itself the vista had changed. This case does not concern theoretical possibilities. It must be anchored in its own facts. I do not consider the omission to be fatal to the charge or the subsequent conclusion.

 

On the second issue of whether Solowiow had a right to appeal at all, given that he had not made a requisition to the trial judge to amend his jury direction, MacMenamin J held for the DPP, citing Kearns J in Cronin (No 2) [2006] 4 IR 329:

Without some such limitations, cases will continue to occur where a trawl of a judge’s charge years after the event will be made to see if a point can be found which might have been argued or been the subject matter of a requisition at the end of the judge’s charge at the original trial, even though competent lawyers at the trial itself did not see fit to do so. It is an entirely artificial approach to a review of a trial and one totally disconnected from the reality of the trial itself. …

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