[ad_1]
A motorcyclist has urged the Supreme Court to revoke his conviction for the murder of a member of a rival club in Co Limerick.
Alan McNamara’s appeal raises important questions about the scope of the provocative defense and the five-judge court reserved the trial for a later date.
The court has said the provocation law “is unresolved and needs to be considered.”
McNamara (52), of Mountfune, Murroe, Co Limerick, was convicted in 2017 of the murder of Andrew O’Donoghue, who died after McNamara shot him at the gates of the Road Tramps motorcycle club in Mountfune on June 20, 2015.
McNamara denied the murder and the central argument in his appeal is that the trial judge made a mistake by not allowing a provocative defense to go to the jury. 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 through a virtual videoconference that could be seen in the Supreme Court where the secretary of the court, John Mahon, was. 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 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 Gardai 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 released to the jury.
Speaking on Monday, 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, the attorney 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, the attorney argued.
Provocation defense aims to strike a balance between reduced guilt and the protection of society and is a public policy to reduce incidents of fatal violence, he said.
It is “difficult to improve” the comments of the late judge Adrian Hardiman in another case that there is “a minimum degree of self-control” that each member of society has the right to expect from his peers as, otherwise, “social life would be impossible” , presented the lawyer.
[ad_2]