Wife-killer appeals verdict on provocation grounds

In March 2009, David Bourke (52) was sentenced to life imprisonment by Mr Justice Barry White after a Central Criminal Court jury found him guilty of the murder of his wife Jean Gilbert (46) at their home at Laverna Dale, Castleknock, Dublin 15, on August 28, 2007.

The former insurance administrator had denied murder but admitted he stabbed his wife under severe provocation because she was going to leave him for another man.

At the Court of Criminal Appeal, counsel for Bourke, Michael O'Higgins , said that in essence the appeal came down to a net issue where it was contended that the trial judge gave a material misdirection to the jury on the law regarding the defence of provocation.

The judge had attempted to "rewrite the law on provocation".

He said the trial judge put it to the jury that they had to consider whether Bourke had carried out a calculated killing with intent to cause death or serious injury, in which case they could return a verdict of murder, or if the verdict could be reduced to manslaughter should they find Bourke was not master of his own mind and was so out of control he was not capable of acting rationally.

Mr O'Higgins submitted that this definition of provocation was "grossly wrong".

Isobel Kennedy, counsel for the State, countered that Mr Justice White gave an "admirable" charge in "crystal-clear terms" where he explained the issue of provocation to the jury in "very straightforward and understandable terms" and applied the relevant previous cases from both here and other jurisdictions.

She said that even if the court were to say there was a misstatement on the law on provocation there could be no injustice on foot of the "overwhelming" evidence against Bourke to support a charge of murder.

Mr Justice MacMenamin said the appeal court would reserve its decision and deliver judgement on the matter in the new term.