Friday 17 August 2018

Murder accused 'ordinary man placed in extraordinary circumstances', court told

Criminal Courts of Justice in Dublin
Criminal Courts of Justice in Dublin

Eoin Reynolds

A father of three had "trouble in mind" on the night he was stabbed to death by a Brazilian man who he had assaulted and racially abused, a barrister has told a murder trial.

Colman Cody SC said that the deceased, James Banville, had launched cowardly, gratuitous and unprovoked assaults on his client and verbally abused him leaving the Brazilian in fear and causing him to lose self control. The jury of six men and six women began considering their verdict this afternoon and will return to the Central Criminal Court tomorrow.

Juraci Da Silva (36), with an address at Park Lane Apartments in Waterford, has pleaded not guilty to murder but guilty to the manslaughter of 28-year-old James Banville at New Street in Waterford on October 8, 2016. His plea was not accepted by the State and he is on trial at the Central Criminal Court. Mr Da Silva has also pleaded not guilty to assaulting Conor Hogan causing him harm and not guilty to a charge of producing a knife on the same date and at the same place.

Mr Cody urged the jury to find Mr Da Silva not guilty of murder but guilty of manslaughter on the grounds that he was either provoked by the deceased or defending himself from a third assault.

The court has heard that Mr Hogan and Mr Banville snorted cocaine and twice assaulted the accused man on the streets of Waterford City during a 20 minute period after pub closing time in the early hours on a Saturday. After the second assault Mr Da Silva followed the two men and there was a third confrontation during which he stabbed Mr Banville in the heart, fatally wounding him.

Mr Cody said the jury had seen and heard evidence that Mr Hogan and Mr Banville "had trouble in mind, or if trouble presented itself they were going to embrace it." He described the assaults on Mr Da Silva as "gratuitous and unprovoked" and said it could be inferred from CCTV footage that Mr Da Silva was in fear following the first assault. After that assault Mr Da Silva went back to his apartment where he changed his jacket and reemerged onto the city streets.

Mr Cody said it is open to the jury to conclude that if Mr Da Silva took the knife from his apartment at that point, he did so out of concern for the safety of his Brazilian friends who he believed were still out and about in the city. He said they had heard evidence from one of his flatmates that Mr Da Silva wanted to know where his friends were and went out again looking for them. He said there was no evidence that he was seeking Mr Hogan and Mr Banville to get revenge, as the prosecution had asserted.

The second assault on Mr Da Silva came less than 20 minutes after the first. CCTV footage showed that the accused was standing at the steps to his apartment speaking to two girls when Mr Hogan and the deceased came up behind him and punched him a number of times. The girls he was speaking to gave evidence that Mr Hogan and Mr Banville called Mr Da Silva a "pervert" and a "paedophile" as they attacked him.

Mr Cody described the assaults as "cowardly and unprovoked" pointing to the evidence that Mr Da Silva is much smaller than his attackers, was highly intoxicated,  swaying and unsteady on his feet and had shown no aggression at any point. By contrast, he said witnesses had spoken of how Mr Hogan and Mr Banville, both of whom have previous convictions for assault, were taking cocaine and acting in a hyperactive and aggressive manner throughout the night.

He said the jury must consider Mr Da Silva's frame of mind after going on a night out, not bothering anyone and finding himself subjected to two assaults and derogatory, humiliating and racist abuse.

He added: "This was an ordinary man placed in extraordinary circumstances by the actions of Mr Hogan and Mr Banville."

Describing the third and fatal encounter, Mr Cody told the jury that they had heard evidence that Mr Hogan and Mr Banville saw the accused and decided they would "sort him out again". They had heard that the two Irish men landed punches and one of them tried to grab Mr Da Silva and it is only after that that the Brazilian inflicted the fatal wound to Mr Banville.

Mr Cody told the jury that if it is reasonably possible that Mr Da Silva acted to defend himself then he did not have the necessary intent to kill or cause serious injury and should be found not guilty of murder but guilty of manslaughter.

Mr Cody said his client accepts that he stabbed Mr Banville but he did not murder him. He said he accepts some responsibility but that he was a victim on the night and that he behaved as he did because of what he suffered. While he was not the aggressor or the cause of what happened, he accepts that the fact that he had a weapon means it was an unlawful killing but not murder.

Justice Michael White told the jury that they must consider the defences of provocation and excessive self defence. Provocation, he explained, arises where the accused temporarily lost self control. He said it is not merely a loss of temper but a total and sudden onset of passion which deprived him of all self control.

In his summary of the evidence Justice Michael White told the jury that it was obvious from the CCTV footage that the assaults on Mr Da Silva were "entirely unprovoked" and "serious". He said Mr Da Silva was hit on the head and kicked in circumstances where he offered no aggression. He added that in order for the defence of provocation to be accepted, all the elements must be there, including that the reaction was provoked by the deceased, was sudden and total and not calculated.

Explaining excessive self-defence, he told the jury that they should find the accused not guilty of murder but guilty of manslaughter if they decide that he believed he was acting in self defence but used excessive force. If the prosecution has proved beyond reasonable doubt that he intended to kill or cause serious injury and that he was not provoked and did not act in self-defence, they should find him guilty of murder.

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