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Man sentenced to life for kicking man to death has conviction quashed

CourtsBy Sunday World
Zhao Zhen Dong
Zhao Zhen Dong

A Chinese national jailed for life for the 2011 murder of a man outside his internet café on Wellington Quay has had his conviction quashed on appeal.

Zhao Zhen Dong (38) of Jervis Street, Dublin, had pleaded not guilty to the murder of Noel Fegan at Wellington Quay, in the capital on May 20, 2011.

He was found guilty by a jury at the Central Criminal Court and was given the mandatory life sentence by Mr Justice Patrick McCarthy on December 5 2012.

Zhao successfully appealed his conviction on grounds that the trial judge erred in explaining the concept of provocation to the jury.

In a judgment delivered today, the Court of Appeal quashed his conviction and ordered a retrial. He was remanded him custody to appear before the Central Criminal Court on Monday next.

Speaking on behalf of the Court of Appeal, Mr Justice George Birmingham said Zhao had made Ireland his home was running an internet café and call shop on Wellington Quay in Dublin providing computers and telephones for customers to use in order to make calls or access the internet.

On the date in question, the deceased, Noel Fegan made a call from Zhao's shop to his daughter and went to leave the premises without having paid for it.

Zhao indicated to Mr Fegan that he would have to pay and Mr Fegan suggested “untruthfully it would appear”, that he had been unable to connect to the number that he dialled and no payment was due, the judgment stated.

When Zhao pointed to a computer screen to show the call had connected, Mr Fegan threw one or more coins on the counter which did not cover the cost of the call.

A number of witness accounts did not tally, the judgment stated. It was clear an argument ensued and Mr Fegan slapped Zhao in the face.

Mr Fegan either ran or was dragged out of the premises and ended up on the ground where he received a number of kicks, including kicks to the head.

The appeal netted down to a complaint that the jury weren't expressly and explicitly told that the defence of provocation was still available to Zhao even in a situation where there was an intention to kill or cause serious harm.

The case was a “finely balanced one”, the judgment stated, and it was particularly important that the jury should have the assistance of a clear, comprehensive and easily understandable charge by the trial judge.

On this one aspect, the charge was not as clear as it might have been and there had to be a concern that the jury might have been confused and might have believed that they had to consider whether the provocation to which Zhao was subjected prevented him from forming an intention to kill or cause serious injury.

In these circumstances, Mr Justice Birmingham, who sat with Mr Justice Garrett Sheehan and Mr Justice John Edwards, quashed the conviction and ordered a retrial.

The court made one final observation and did so “in a very tentative manner indeed”.

In a complex area of the law such as provocation it is understandable that judges would look to the possibility of reading extracts from authoritative decisions of the superior courts.

A numbr of very experienced trial judges have followed this practice over many years.

However, this court would express some doubts as to whether that is necessarily the most effective method of communicating to the jury what the real issues are in a particular case.

It is entirely a matter within the trial judge's discretion, but there may be something to be said for judges, in cases of complexity, giving an outline in advance of what he or she intends to say in a charge, thus offering an opportunity for comment and observation by counsel.

It is the second time the new Court of Appeal has quashed a murder conviction on the basis of a judge's explanation of provocation to a jury.