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The Supreme Court will later give its decision on a motorcyclist who wants his conviction for the murder of a member of a rival club in Co Limerick annulled.
Alan McNamara, 52, of Mountfune, Murroe, Co Limerick, was convicted in 2017 of the murder of Andrew O’Donoghue.
Mr. O’Donoghue died after McNamara shot him at the gates of the Road Tramps motorcycle club in Mountfune on June 20, 2015.
The appeal raises important questions about the scope of the provocation defense. The court has said the provocation law “is unresolved and needs to be considered.”
McNamara denied the murder and the central argument in his appeal is that the trial judge made a mistake by not allowing the jury to consider a provocative defense.
Among the questions raised is whether the reasonableness of McNamara’s alleged loss of self-control in response to an alleged provocation should be decided on the basis of objective subjective or “reasonable person” evidence.
The appeal hearing was held today by virtual videoconference that could be observed in the Supreme Court. McNamara observed him from the Midlands prison, and members of Mr. O’Donoghue’s family also observed him via video conference.
McNamara claims it was caused by an attack on him and his wife outside a pub the night before by members of Road Tramps who claimed he was in their “territory.”
That was followed by an incident unit at his home later that night, where three members of the rival club threatened to kill him.
Don O’Donhue was not involved in any of those incidents.
McNamara, a founding member of Road Tramps before joining the Knights club in early 2015, drove to the Road Tramps facility the next day, June 20, 2015, one or two miles from his home.
He said he did so after his stepson contacted him to tell him that he and other members of the Knights were in a car chasing a member of the Road Tramps in the direction of that club’s facility.
McNamara, who was armed with a clipped shotgun, said he shot Mr. O’Donoghue because he believed that a metal bar in the latter’s hand was a firearm.
He told Gardaí that he never intended to kill Mr. O’Donoghue and expressed remorse.
After his appeal was dismissed by the Court of Appeals, the Supreme Court agreed to hear a new appeal focused on whether the provocation should have been presented to the jury for consideration.
In today’s presentations, Hugh Hartnett SC, for McNamara, said the existing provocation defense law cannot be explained in a digestible way to a jury and requires reform.
In this case, the trial judge was asked to ask if there was evidence that could lead a jury to decide that McNamara had lost control, he said.
The events of the previous afternoon and the day of the shooting were evidence of “cumulative” and “extreme and intentional” provocation.
As a result, McNamara was in a state of “fear and panic” and the jury had to decide whether the cumulative effect of the events amounted to a provocation that would lead McNamara to lose control, Hartnett argued.
The courts’ focus should be on the mental state of the accused person and not on whether or not the deceased was guilty of the alleged provocation, he added.
In opposing the appeal, Michael Delaney SC, for the DPP, said that what was involved here was “retaliation” rather than provocation.
There was “a lot of evidence” to show that McNamara was in control of himself on June 20, 2015, including that he had been in telephone contact with his insurance company, Delaney said.
He added that the defense of provocation aimed to strike a balance between reducing guilt and protecting society and that it is public policy to reduce incidents of fatal violence, he said.
He referred to the observations in another case in which a judge had said that there was “a minimum degree of self-control” that each member of society has the right to expect from their peers as, otherwise, “social life would be impossible” .
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