Court of Appeal: Man serving life sentence for murder has conviction quashed due to trial judge error

About this case:

• Judgment:
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Justice Mahon explained that the trial judge was entitled to use his discretion to insist that the trial should continue after the man had discharged his legal team, but held that there was an onus on the trial judge to ensure that the accused person, while representing himself, did not take any step which might weaken his adopted line of defence.

Background

In May 2015, Mr Tadgh Butler was convicted of murdering his cousin, Mr Michael O’Dwyer, contrary to Common Law, (as provided for by s. 4 of the Criminal Justice Act 1964), by a jury in the Central Criminal Court; and was sentenced to life imprisonment.

Central to Mr Butler’s appeal was the contention that the learned trial judge erred in law by forcing Mr Butler to conduct his own defence following Mr Butler’s discharge of, and the withdrawal by, his legal team. Mr Butler then sought to re-engage his legal team but they did not feel they could act in the circumstances. Mr Butler unsuccessfully applied to the learned trial judge for an adjournment to enable a new legal team to be engaged.

Accused forced to conduct his own defence

On the sixth day of the trial Mr Butler parted company with his legal team, and sought an adjournment of the case to facilitate his appointment of a new legal team.

The trial judge offered Mr Butler the choice of either re-engaging his legal team or proceeding with the case and representing himself – however his senior counsel, having consulted with Mr Butler sought leave that he, his junior counsel and his solicitor be permitted to discharge themselves from the case.

Mr Grehan advised the court that his new instructions from Mr Butler were ‘radically different’ to his pre-trial instructions on which he had conducted the trial up to that point. He indicated that Mr Butler now wished to seek to recall the prosecution witness, and put a ‘totally different’ version of events to him compared to that put in his earlier cross examination of that witness.

In pressing for an adjournment of the trial, Mr Butler said he was unable to represent himself and did not wish to do so.

The prosecution counsel requested the court to direct that the trial should continue. After a further exchange between the learned trial judge and Mr Butler, the learned trial judge ruled as follows:

“I take the view that the case should now proceed. At this juncture you must take responsibility for the course which you have adopted and it is your responsibility, alright. ..”

Court of Appeal

Delivering the judgment of the three-judge Court, Justice Mahon explained that the trial judge was entitled to use his discretion to insist that the trial should continue in circumstances where Mr Butler would no longer be legally represented.

At the time when Mr Butler discharged his legal team, the prosecution’s case had almost concluded; and the trial judge was correct to exercise his discretion with due regard for the interests of justice and the entitlement of Mr Butler to have a fair trial.

However, in circumstances where Mr Butler’s legal team was discharged at an advanced stage in the trial there was an onus on the trial judge, over and above that which is present when an accused is legally represented, to ensure, as far as reasonably practicably possible that the accused person, would not take any step which might weaken any line of defence which he had clearly adopted.

Justice Mahon emphasised that this did not suggest that a judge “should step into the shoes of an accused’s discharged counsel or become the legal advisor to a legally unrepresented accused” – however, in the present case, it became clear to the trial judge that Mr Butler was running a defence that he had accidently stabbed the deceased, and that this version of events was firmly rejected by the witness while giving evidence under oath.

It was also apparent that Mr Butler was under a misapprehension that the introduction of this revised version of events in this manner was sufficient to enable the jury to consider it during its deliberations.

In these circumstances, the learned trial judge, having correctly and appropriately reminded Mr Butler of his entitlement to give evidence under oath; ought to have gone that step further and advised him that if he did not present evidence to support this new version of events – that this could not be considered by the jury as it had not heard sworn evidence in relation to it.

On this basis, the court was satisfied that the conviction ought to be quashed.

Allowing the appeal against conviction on this sole basis, Justice Mahon explained that the Court would consider whether a re-trial should be ordered “in due course”.