Insanity

District Court Rules

Criminal Law (Insanity) Act, 2006 : S.I. No. 727 Of 2007

S.I. No. 154 of 2011:

District Court (Criminal Law (Insanity) Act 2010) Rules 2011

Circuit Court Rules

 

Criminal Law (Insanity) Act 2006

: S.I. No. 596 of 2007

Cases

 

People (DPP) v Heffernan

[2017] IESC 5
Judgment of Mr Justice Peter Charleton delivered on Tuesday 7th of February 2017

1. In concurring with the principal judgment, that of O’Malley J, some brief observations may be appropriate.

2. The defence of diminished responsibility emerged as a common law development in Scotland. Its elements were first clarified in the case of HM Advocate v Savage [1923] JC 49. In reading the judgment of the Lord Justice Clerk in that case it is clear that a defence akin to insanity had evolved over time through prior decisions made by trial judges in charging a jury on a murder case. This new defence served to reduce a conviction from murder to manslaughter. It emerged in part as a matter of fairness to an accused who was not, as might be colloquially said, entirely responsible for his actions but was, instead, suffering from a substantial mental impairment, and partly also to avoid the death penalty for those considered insufficiently deserving of that ultimate punishment. In addressing the jury in that case, Lord Alness outlined that for diminished responsibility to operate, to reduce a potential murder conviction to manslaughter, more than the mere clouding of reason and restraint, there through drink and drugs, was required. Instead the accused must demonstrate a genuine and serious effect on the balance of the mind:

Formerly there were only two classes of prisoner—those who were completely responsible and those who were completely irresponsible. Our law has now come to recognise in murder cases a third class, the class which I have described, namely those who, while they may not merit the description of being insane, are nevertheless in such a condition as to reduce the quality of their act from murder to culpable homicide. … To say that a man, who takes drink and while under its influence commits a crime, is to be excused from the penalty of the crime merely because he made himself drunk would of course be a most perilous doctrine. And it is not the law of Scotland. The man himself is responsible for getting drunk, and the mere fact that he has taken drink, and while under its influence committed a crime, is not sufficient to excuse him from the consequences of his crime. On the other hand … the state of mind of the prisoner may be such, short of insanity, as to reduce the quality of his act from murder to culpable homicide. …[T]here must be aberration or weakness of mind; that there must be some form of mental unsoundness; that there must be a state of mind which is bordering on, though not amounting to, insanity; that there must be a mind so affected that responsibility is diminished from full responsibility to partial responsibility—in other words, the prisoner in question must be only partially accountable for his actions. And I think one can see running through the cases that there is implied … that there must be some form of mental disease. Well, ladies and gentlemen of the jury, that is a very difficult region of law. I have told you the kind of thing that is necessary. Aberration or weakness of mind; mental unsoundness; a state of mind bordering on insanity although not reaching it; a mind affected so that the responsibility is diminished from full responsibility to partial responsibility. That is the sort of thing that must be proved in order to establish that the crime which would otherwise be murder is only culpable homicide … Here again the burden of proof is upon the accused. … You will consider whether from first to last … the prisoner has proved to your satisfaction that on that night, and in particular at the hour when this incident occurred, his mental state was unsound, that he was in a state of mental aberration, and not fully responsible for his actions. You will consider whether the evidence does not point the other way. That is for you, not for me.
3. In the later case of HM Advocate v Braithwaite [1945] JC 55, the Lord Justice Clerk added that the defence involved a finding of “weakness of intellect, aberration of mind, mental unsoundness, partial insanity, great peculiarity of mind and the like”. It was not, Lord Cooper said, enough to demonstrate “that an accused person has a very short temper, or is unusually excitable and lacking in self control.” The defence did not, in other words, embrace the extreme emotions which may happen at times of family or other relationship stress, but which the law requires be controlled or diverted. Instead, diminished responsibility was described in a way akin to a state of insanity, though not reaching the extreme polarity of lack of comprehension or control of impulse which that complete defence requires; and see Carraher v HM Advocate [1946] JC 108. In Ireland, the introduction of the defence came about by statute.

4. Under the Criminal Law (Insanity) Act 2006, for diminished responsibility to operate as a defence to murder, the conditions set out in s. 6 must be fulfilled. These require the prosecution to prove that the accused perpetrated the external element of the killing of another person, intending to kill that person or cause that person “serious injury”, as s. 4 of the Criminal Justice Act 1964 requires. Hence, the prosecution must prove murder. The essential elements of what makes a killing unlawful remain as a burden to be proved beyond reasonable doubt by the prosecution. For the accused to have this defence, he or she must demonstrate a “mental disorder”, which in s. 1 of the 2006 Act “includes mental illness, mental disability, dementia or any disease of the mind”, but specifically “does not include intoxication”. Under s. 6(1)(c), that mental disorder need not be “such as to justify finding him or her not guilty by reason of insanity” but the accused must demonstrate that his or her mental disorder “was such as to diminish substantially his or her responsibility for the act”. Insanity and diminished responsibility both involve some aberration of the mind which, in the one case removes, and in the other reduces, the accused’s responsibility for a crime. The defences differ, however, in terms of the state of mind of the accused as to the degree of responsibility that can be ascribed for the wrongful action. In raising the defence of insanity, the accused is essentially required to demonstrate that, when carrying out the crime, he or she did not know what he or she was doing, or in older language did not understand the nature and quality of the action. They must, otherwise, demonstrate that they could not comprehend that what they were doing was wrong, meaning morally and not simply legally wrong. Alternatively, they may demonstrate that they were entirely carried out of the realm of self restraint by an irresistible impulse. These principles are reproduced in s. 5 of the 2006 Act not knowing “the nature and quality of the act”, or not knowing “that what he or she was doing was wrong”, or that the person “was unable to refrain from committing the act” In the case of diminished responsibility, by contrast, the accused understands the nature of the crime they have committed, but makes the case that their mind was disordered through illness, disability, dementia or disease such that their criminal responsibility is substantially diminished.

5. The application of the generally available defence of insanity entitles an accused to an acquittal, though subject to compulsory medical treatment in the Central Medical Hospital in virtually every case. The defence of diminished responsibility operates to reduce murder to manslaughter, with the sentence at the discretion of the trial judge. In the application of either defence, it has always been understood that the accused bears more than an evidential burden, that of adducing through defence evidence or of pointing to prosecution testimony which enables an issue to be left to the jury by the trial judge. Both defences carry a persuasive burden. The accused carries the burden of proving the defence. Insanity and diminished responsibility both emerged as defences through judicial development of the law and, as such, reversed the usual burden on the prosecution of disproving all defences of which the evidential burden had been met by the accused. Rather, over centuries, when the defences of insanity or diminished responsibility were raised, the approach of the courts has been that the accused is required to clearly demonstrate that he or she, though ostensibly completing every element of the crime, suffered from mental infirmity in sufficient degree.

6. As of 1922, the laws carried over by Article 50.1 of the Constitution as continuing in “full force and effect” are those “not inconsistent” with our basic law. Authoritatively, the criminal law is that stated in the 26th edition of Archbold’s Pleading, Evidence and Practice in Criminal Cases (London, 1922, Roome and Ross editors). The fundamental presumption of law is that stated on page 13 which is that: “Every person at the age of discretion is, unless the contrary is proved, presumed by law to be sane, and to be accountable for his actions.” A perusal of that edition demonstrates that, at the time of the criminal trial in R v McNaughten (1843) 4 St Tr (NS) 847, the burden and standard of proof was not as completely worked out as it later became in consequence of the decision in Woolmington v DPP [1935] AC 462, whereby it was unequivocally recognised that it is the “duty of the prosecution to prove the prisoner’s guilt.” Even there, the exception of insanity was recognised as placing a burden of proof to the standard of probability on the accused asserting that defence. The second answer of the judges when House of Lords set down in the McNaughten Rules required that “to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the accused” was insane. That must be “clearly proved” to the jury by the accused.

7. The 2006 Act demonstrates a degree of influence by the judge-made Scottish precedent which first recognised diminished responsibility as a defence ameliorating murder to manslaughter. Section 6(2) provides that “it shall be for the defence to establish that the person is, by virtue of [diminished responsibility], not liable to be convicted of that offence”. Certainly, there have been well-reasoned calls for the insanity defence to be treated in the same way as all other defences, specifically requiring the prosecution to disprove the application of the defence once the accused has adduced sufficient testimony for the evidential burden to be met. O’Connor and Fairall in Criminal Defences (3rd edition, Sydney, 1996) at para. 13.7 argue thus:

It is perhaps surprising that the rule has survived to the modern day. It has been criticised by academic writers and judges. It is of questionable pedigree. Neither M’Naughten (an advisory opinion) nor Viscount Sankey’s endorsement [in Woolmington] (mere obiter dicta) is authoritative. Criticism can easily be directed towards the practical difficulties and absurdities thrown up by the divergent rules. The point should also be made that the rule constitutes blatant discrimination against those suffering from mental illness. Forensic psychiatry has advanced beyond the ‘wild beast’ test of the eighteenth century and this archaic rule should be buried as well. But the rule is so firmly entrenched that it would take statutory intervention to change it. Recent reviews of the criminal law have endorsed the rule and occasional calls for legislative reform have not been heard, or if heard, have not been acted upon.
8. This criticism is, however, misplaced. O’Malley J correctly warns against any analysis which enables a burden in relation to a defence to be placed on an accused but would prohibit the disproof by the accused of any element of the crime. The interaction between the elements of a criminal offence and the defences to that crime has been formulated from instance to instance over centuries, but always on the basis of experience. Generally speaking, criminal defences proceed on the basis that the accused must meet an evidential burden in raising a defence on some credible basis; enough that there may be a reasonable doubt. Then the prosecution must demonstrate that, on the totality of the evidence at the trial, this defence not be found by the jury to raise a doubt in their minds. Once the possibility of such a defence has been validly raised, the evidential burden, it is for the prosecution to prove beyond reasonable doubt that its application has been negatived; The People (AG) v Quinn [1965] IR 366. Within the defences to criminal responsibility, there are strong divergent elements which could be argued, on the basis of logic alone, to lead to divergent results. For instance, the defence of entrapment is so closely rooted in considerations of the proper ordering of society and the adherence to basic standards by law enforcement officers that it seems to be the strict view of the reasonable person which the accused must meet to avail of it. Similarly with self-defence in terms of both the proportionality of response to force and the circumstances justifying defensive violence the objective standard is dominant. With murder, the moral culpability intrinsic to that crime has enabled a special reductive defence applicable only to murder whereby the use of too much force enables a jury to bring in a manslaughter verdict; The People (AG) v Dwyer [1972] IR 416. With provocation, a defence which similarly reduces murder to manslaughter and which is designed around avoiding the ultimate opprobrium that a murder conviction represents, subjective factors govern whether the accused, while intending to kill, should be granted a concession based on the human frailty of emotion in the face of insult. This subjective assessment, judged from inside the mind of the accused, though external fact remains relevant, has not met favour in other jurisdictions. More problematic even than that is the resort within this defence to the proportion of response to insult from the internal workings of the accused’s emotion-fuelled state; The People (DPP) v MacEoin [1978] IR 27 and see the review by O’Donnell J of the problems associated with this defence in The People (DPP) v Curran [2011] IECCA 95. It may be appropriate in due course to consider the elements of that defence afresh.

9. The Law Reform Commission, reporting on Defences in Criminal Law (LRC 95-2009) call for the restatement of all defences in subjective terms at paragraph 1.29:

Judges and legislators have repeatedly applied restricting requirements and conditions to the defences and, as Ashworth has noted, there are strong social arguments for such restrictions [Ashworth Principles of Criminal Law (4th edition, Oxford, 2003) at p. 250]. Subjective principles have their foundation in the principle of individual autonomy, and its emphasis on choice, control and fair warning. However, modern liberal philosophy also emphasises that individuals should be viewed as members of society with mutual obligations rather than abstracted and isolated individuals [Ashworth, at p 251]. On this basis individuals have a duty to acquaint themselves with the limits of the law.
10. It can perhaps be argued that the reformulation of all defences in terms of the view of the reasonable person, albeit with a measure of appreciation to those facing situations where the calm application of reason is difficult, is a sensible approach and one most likely to produce a just result. An argument could also be mounted that the defences which serve to reduce murder to manslaughter should also apply to serious assault. But again, experience does not demonstrate any compelling reason based on the application of fundamental justice why the law should be forced in that direction. Again, in analysing any defence, experience is shown to be the driving force. Insanity as a finding generally results in treatment for what, by reason of the definition of the defence, must necessarily be a major mental illness or a physical infirmity undermining mental soundness; s. 5(2) of the 2006 Act enables the person found not guilty by reason of insanity to be committed to “a designated centre”, or for a temporary committal of up to 6 months to enable a report. Insanity is available as a defence to all offences but rarely used outside murder. The circumscription of its elements make it an unlikely resort for those accused of shop-lifting or drug-pushing. Since the likely result of an insanity finding is incarceration in a psychiatric hospital, perhaps over decades, only the charge of murder makes calling it in aid attractive to one accused of crime. As Oliver Holmes wrote: “The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics”; The Common Law (1881) at page 1. At the time in England and Wales when a conviction for murder led to judicial execution by hanging, the standard rule applied, as it does now, that insanity must be clearly demonstrated by the accused. Glanville Williams in Proof of Guilt: A Study of the English Criminal Trial (London, 1963) records that where there were cases in which the persuasive burden was not achieved by the accused but, nonetheless, there remained some question as to his or her sanity at the time of striking the blow, the executive would act appropriately. He records that problem as one capable of resolution by practical measures at page 130:

In insanity cases, common sense has triumphed and the jury have not been allowed to be the final arbiter. Even if, on a charge of capital murder, the jury convict of the murder and refuse to find insanity or diminished responsibility, the Home Secretary [executive branch of government] will, if there is any doubt, take the advice of medical experts, and if they report that the prisoner is insane, the death sentence will not be carried out and he will be transferred to a Broadmoor institution. This enlightened practice has survived strong opposition.
11. There is no death penalty in Ireland; Article 15.5.2° provides: “The Oireachtas shall not enact any law providing for the imposition of the death penalty.” Where the jury rejects the accused’s plea of insanity and find him or her guilty, the result will be a life sentence. By contrast, where the jury accept that the persuasive burden has been met on the part of the accused and the defence of insanity has been successfully raised, the accused will be deemed not guilty of murder but will generally undergo compulsory psychiatric treatment in the designated mental hospital. Treatment for a mental illness is not necessarily verdict dependent; many prisoners sentenced to terms in an ordinary jail may, by executive decision, spend some time in a secure mental hospital. On this appeal, the argument advanced is similar to that advanced on the basis of the guarantee of the presumption of innocence in the Canadian Charter of Rights and Freedoms by the Supreme Court of Canada in R v Chaulk [1990] 3 SCR 1303. The reasoning in that case, however, derived from a precedent based on the presumption of care by the driver of an automobile on a finding of occupancy of the driver’s seat in R v Whyte [1988] 2 SCR 3. The identified principle was that if the “final effect of a provision” requiring the accused to “prove some fact on the balance of probabilities to avoid conviction” this would have the result of violating “the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused.”

12. Insanity and diminished responsibility both require an accused to have been mentally infirm at the moment of striking the fatal blow; the calm planning associated with poisoning or organising a contract killer would seem outruled. Prior behaviour leading to a crime, the presence or absence of motive and the conduct of the accused in concealing or otherwise responding to the circumstances he or she has brought about can be useful as a guide to the workings of the accused’s mind as may psychiatric opinion. The circumstances of the crime and the analysis of the accused’s mind are both relevant to the resolution of whether the accused has clearly demonstrated that either the test for insanity or that for diminished responsibility has been met. This is a persuasive burden. Insanity is a special defence in enabling a form of treatment order by a court where the accused has been proven to have killed the victim but where that accused may not have intended to kill the victim or cause the victim serious injury. It might be argued, as a matter of logic, that someone who does not understand the nature and quality of their actions cannot have fulfilled the mental element of the crime. But what normally would apply in the need for the prosecution to meet proof on the basis of external event and mental culpability is circumscribed by the insanity defence. An accused that kills another, operating under the insane delusion that he is in a battle with evil and non-human forces, for instance, cannot seek an acquittal outside the insanity defence. If that is the state of mind of the accused, society is to be protected by the special verdict applicable to insanity; R v S [1979] 2 NSWLR 1. If an accused person is mentally ill and in consequence has a substantial diminution in the understanding relevant to a situation of homicide or a substantial diminution of control, under the former law up to the reform brought about by the 2006 Act, an accused would have been culpable for not calling such control and understanding as he or she had in aid of not killing the victim. That was the case even if the accused had only a small share of the control or understanding of a person unafflicted by mental infirmity. Since the 2006 Act, a concession has been made. Not, as in the defence of excessive self defence or provocation, to human frailty, but rather to the effects of illness.

13. The condition for this is that the accused carries a persuasive burden and thus the applicability of the defence must be clearly demonstrated. This carries consequences. Unlike circumstances where the accused must solely meet an evidential burden, it may not be enough for the accused to simply test the prosecution evidence and to probe potential weaknesses, thus leaving the task of persuading the jury that a particular defence is inapplicable to the prosecution. Instead, the accused would be wise to actually participate in the trial and in advocating the case for the applicability of the defence or carry the consequences. That is perhaps demonstrated on the facts of this case, where psychiatric evidence was available to the accused but a decision was made not to call it but to rely exclusively on testing the prosecution testimony.

14. If the burden on the defence was merely of persuading the jury that there was a reasonable doubt, how would that work practically? This, after all, was the logic of the decision in The People (DPP) v Smyth [2010] 3 IR 688. There, for the accused to have to demonstrate a probability that he did not know what was in the package taken in care by him in suspicious circumstances was a controlled drug, may have resulted in a conviction where reasonable people would doubt that he ever truly had criminal intent. While that decision that the persuasive burden on the accused was of proving a reasonable doubt of lack of knowledge or suspicion that the package contained prohibited drugs, is the foundation of the argument on behalf of the accused in this case, what is involved here is different. By the 2006 Act, the Oireachtas has conceded a limited defence that those who are demonstrably mentally ill to the degree that they have substantially diminished capacity in control or understanding should not be convicted of murder. What is not required is an absence of understanding or control as in the case of pleading insanity as a defence. But, in both, the result is likely to be committal for treatment. Where a jury find insanity, such a result is almost invariable. Where diminished responsibility results in a manslaughter conviction, the jury verdict demonstrates that an assessment should be made by the executive as to whether more than merely imprisonment is needed.

15. In both of these defences the accused is saying that, despite having perpetrated the external elements of a homicide, he or she is seriously ill. In insanity, the plea is irresistible compulsion or total absence of reason. This is an illness and it requires therapeutic intervention. If the illness does not exist, there is nothing to treat. Hence, the special verdict of insanity can only be arrived at where it is demonstrated clearly on behalf of the accused that his or her condition is one that requires psychiatric intervention; leaving aside issues as to hypo-glycaemia or other physically driven conditions. Formerly, the position was that if the accused demonstrated even the slightest amount of self-control when committing a killing, then the full opprobrium of a conviction for murder would be the result. However, the creation by legislation of the defence of diminished responsibility prays in aid a substantial impairment of understanding or control or both by reason of mental illness. Again, it is right that the accused should demonstrate that clearly. Whereas it has memorably been said, by the distinguished forensic psychiatrist Dr Art O’Connor, that killing is normal and while certainly the number and bestiality of wars that continue to plague mankind evidence this, juries may be tempted to merely doubt sanity through the often repeated claim that resonates through homicide cases in confession statements or in testimony that the accused’s “mind went blank”. Killing requires an effort of will to overcome the intra-species instinct to respect one’s own kind, which can be achieved through planning or through spontaneous decision readily enough, either where pressure is built up over time or in situations of high emotion. Therefore, in both these defences of insanity and diminished responsibility, experience has not demonstrated any constitutional or human rights deficit in requiring a real engagement by the accused in setting out the nature of their mental illness and the dynamic of their impairment as it unfolded in the context of homicide. That is not productive of unjust results. That engagement is only fully called on where the accused has a persuasive burden. By setting the standard as requiring the accused to clearly demonstrate that the defence of either insanity or diminished responsibility is applicable, no accused who has brought about the death of another person may do anything other than fully engage with the trial and demonstrate the reality of his or her case. A persuasive burden of mere doubt would achieve that. Mere doubt as to someone’s sanity or as to the major handicap of mental illness so severe as to substantially diminish responsibility for killing another person is not a ground for therapeutic intervention.

16. In the past, it has been said that the satisfaction that a burden of proof has been met could be expressed in percentage terms. For instance, some might blithely say that if the balance of probabilities is to be met, one must be 51% certain. Such a conception of law is to be doubted. When dealing with legal and evidential burdens of proof, one cannot reduce the process of determining whether a burden or threshold has been met to raw percentage terms. Adjudication is a complex process involving reason, intuition and the application of common sense; a process that cannot sensibly be reduced to a matter of percentages. Probability in a legal context is the expression of satisfaction that a fact can safely be found. Still less should someone dare to express a reasonable doubt in percentage terms. Rather, reasonable doubt is the finding that, on the totality of the evidence, a reasonable person would doubt the guilt of the accused of the crime. The analysis is best left there since formulations calling on certainty or moral certainty have been demonstrated as confusing, as is resort to the absence of probability in assessing whether there is a reasonable doubt; see the judgment of Denning J in Miller v. Minister of Pensions [1947] 2 All ER 372. It is fair that someone who claims a mental illness impairing their understanding or conduct in high degree in the context of homicide should have a defence in the form of diminished responsibility. But equally fair is the requirement that, in putting forward such a defence, the accused should truly engage with setting out his or her defence. Justifiably, the burden may be on the accused to bring forward testimony upon which that fact can safely be found.

17. Finally, O Malley J’s reasoning should be supported that it may not be the case that drawing distinctions between the elements of an offence and the defences to that particular offence will be productive of an appropriate analysis. The elements of offences are enacted as the Oireachtas sees the need to penalise conduct. Often, in the current approach to statutory drafting, defences are also included. Were there a standardised use of common definitions like possession, recklessness, intent and the like, and a common approach to objective or subjective elements in defined defences, we would quickly move towards a criminal code. That is not done as yet. The current rules on elements of crimes and defences to crime are in part very old, many have their origin in common law while some are statutory. In several cases, amendments have been responsive to perceived crises in the application of law. To find an apparently satisfying classification as to what might happen as to defences as consistent with the presumption of innocence, but to say that this cannot constitutionally apply to the elements of an offence, might amount to the unpredictable use of rigid classification on a fragile but well-functioning structure. In criminal law, the construction of offences and the defences to these are very often mixed up. In Woolmington, Lord Sankey recognised two exceptions to what is described as the “general rule”, namely insanity and “any statutory exception”; see [1935] AC 462 at 481 and A Kiralfy – The Burden of Proof (Oxford, 1987) at pages 64-77. A good description of reversed burdens as to the elements of various offences in England and Wales is set out in those pages.

18. There may be circumstances where it is reasonable, and that may be coterminous in many instances with what is constitutionally permissible, to require the accused to demonstrate something. For instance, it is an offence to remove archeologically significant artefacts from Ireland without a licence. Consider circumstances where a gang has raided precious material from an offshore 6th century Christian monastery. It would be unfair for any ensuing prosecution to fail simply because the prosecution could not prove that perhaps one of the gang’s number had not procured a licence. Perhaps the one who might have the licence might not even have been charged. There the element of the offence is both the taking of the artefact and the absence of the licence but the proof of the latter may be on the accused. Where a person is attacked, for that person to strike in defence is regarded as a defence: but in reality, the victim of crime is not committing an assault at all in responding proportionately to unprovoked violence. Proportionate defence of the self or of another unlawfully assaulted is not an assault. Defending yourself simply does not meet the definition of a criminal attack. Yet, there is what is commonly described as the criminal defence of self defence or lawful use of force. Here, as in other instances, the line between what is an offence and what is the defence to an offence cannot be clearly drawn. The law categorises an element as part of the proofs in a crime or as a defence to a charge so as to enable a fair means of setting out what the contest between prosecution and defence may be. In drug cases, it might be remembered that possessing Aspro, a brand of the drug aspirin, is not an offence. The entire nature of the prohibition on possessing a controlled drug is based on the proof of facts sufficient to prove control of the substance, either personally or through another, and a mental element of, at least, suspicion as to the nature of that substance as not being Aspro but as being a prohibited drug. A reasonable person might feel that no criminal offence would be committed until the prosecution demonstrate that someone has done something wrong in accordance with the relevant prohibition. In drugs cases it would be possessing controlled drugs, or dealing in such drugs. The unlawful element comes from the nature of the drug. What is unlawful for cocaine is lawful for aspirin. Yet, in controlled drug trials the accused bears the burden of disproving suspicion that the drug was the specified, or some other, controlled drug. That is the crucial element of the crime which draws moral culpability in the first place. It can tentatively be argued that legislation may legitimately distribute a burden onto the accused where it is necessitated by the nature of the offence and where it does not fundamentally and unnecessarily undermine the duty of the prosecution to demonstrate culpability. No unified theory, however, prohibiting burdens of proof as to the elements of offences on constitutional grounds or of enabling a persuasive burden for defences is either predictably grossly unfair as to the distribution of proof or is necessarily productive of an unavoidably unjust result. Therefore, no such theory is warranted.

19. The appeal should therefore be dismissed.

 

JUDGMENT of Ms. Justice O’Malley delivered the 7th day of February 2017.

Introduction
1. This appeal concerns the burden and standard of proof in a case where a person charged with murder seeks to rely on the defence of diminished responsibility created by s.6(2) of the Criminal Law (Insanity) Act, 2006. The Act requires an accused to “establish” that, by virtue of the section, he or she is “not liable to be convicted” of murder. The appellant sought to rely upon this provision but was, on the 26th June, 2013, convicted of the murder of Mr. Eoin Ryan on the 7th June, 2011. An appeal to the Court of Appeal was unsuccessful. He was subsequently granted leave to appeal to this Court on the question whether the section had been correctly interpreted. In summary, the appellant contends that the burden imposed on the defence by the Act should be construed as requiring him only to raise a reasonable doubt as to his liability to be convicted of murder, and that he was incorrectly held to have been obliged to prove on the balance of probabilities that his responsibility was diminished by reason of the matters set out in the legislation.

2. There is no dispute about the facts of the case and the appeal was presented on the basis of the following agreed summary rather than by reference to the transcript.

“The appellant was convicted of murder after a nine day trial in the Central Criminal Court before the Honourable Mr. Justice McCarthy. It was common case during the trial that on the 7th day of June, 2011 in Cappabeg, Barefield, Ennis he unlawfully caused the death of the deceased, Mr. Eoin Ryan. The main issues in the trial therefore related to whether he intended to kill or cause serious injury to the deceased or whether he was not guilty by reason of insanity, or guilty of manslaughter by reason of diminished responsibility pursuant to sections 5 and 6 of the Criminal Justice (Insanity) Act, 2006, respectively.
The facts leading up to the death of the deceased were that on the evening of the 6th June, 2011 the deceased was drinking with friends in Cruises bar in Ennis, where he met the appellant and they had a brief conversation. Without saying goodbye to his friends the deceased left the bar and then shortly afterwards the appellant left also. At approximately 6 am the following morning the Gardaí received a phone call from the appellant stating that he had killed a man, that the devil was in him and that he came on to the appellant and he killed him.

Gardaí arrived to find the appellant in a distressed state and he brought [them] up into his field where he showed them a water barrel containing the remains of the deceased. Upon interview, the appellant accepted that he had killed the deceased but denied intending to kill a person, stating that the devil had taken over the deceased and it was only after he had beaten the deceased to death that the devil left him and he had realised what he had done to the young man. He then asserted that he had spoken to Jesus and Jesus told him to ring the Gardaí.

The appellant was seen initially by Dr. O’Mahony, a local consultant psychologist, who attended at the Garda station on the same day. He gave evidence that in his view the [appellant] was delusional and suffered from perceptional disturbance. The appellant was subsequently reviewed by Dr. Linehan, who gave evidence that there were discrepancies in his evidence and he gave inconsistent accounts between interviews.

The appellant was afforded the opportunity to prepare his own defence psychiatric report which he availed of but which was not ultimately relied upon at trial.”

3. This somewhat sparse information is amplified in the judgment of the Court of Appeal (The People at the Suit of the Director of Public Prosecutions v. Joseph Heffernan [2015] IECA 310). It appears that both Dr. O’Mahony and Dr. Linehan were called by the prosecution and that the defence did not go into evidence.
4. Dr. O’Mahony said that, on the morning he saw him in the garda station, the appellant had a firmly held delusional belief that, rather than killing a man, he had done the world a service by removing the devil. He stated that the appellant had no insight, or an impaired insight, into the reason why he was arrested.

5. Dr. Linehan, who subsequently reviewed the appellant on behalf of the prosecution, pointed to certain inconsistencies in the appellant’s accounts at interview with her. She said that she found no evidence of formal thought disorder. The results of one test suggested that he was exaggerating but not feigning his symptoms, and she considered that he did have symptoms of an adjustment disorder characterised by depressive symptoms following the death of his father. In relation to a possible diagnosis of schizophrenia, she said that some symptoms displayed by the appellant supported such a diagnosis, some were not inconsistent with it and some did not support it. Ultimately her opinion was that while he was suffering from a mental disorder within the meaning of the legislation, it was not such as would render him unable to refrain from committing the act. Nor was it such as would, in her opinion, substantially diminish his responsibility. Under cross-examination, she expressed the view that the killing was explicable by intoxication.

6. Two defences were left to the jury by the trial judge – diminished responsibility and, on the basis of Dr. Linehan’s evidence, intoxication. On diminished responsibility, the defence made a formal application (in the knowledge that the Court of Criminal Appeal authority of The People (Director of Public Prosecutions) v. Smyth Snr. [2010] 3 IR 688 was against the proposition) that the jury should be told that that the legal burden cast on the defence under the Act was only to raise a reasonable doubt. The trial judge refused the application and directed the jury that it was a matter to be proved by the defence on the balance of probabilities. The appellant was convicted.
The legislation
7. For the purposes of this case it is necessary to consider certain of the provisions relating to the defence of insanity as well as diminished responsibility. The former is dealt with in s.5 of the Act, which provides in relevant part as follows:

“5. – (1) Where an accused person is tried for an offence and, in the case of the District Court or Special Criminal Court, the court or, in any other case, the jury finds that the accused person committed the act alleged against him or her and, having heard evidence relating to the mental condition of the accused given by a consultant psychiatrist, finds that –
(a) the accused person was suffering at the time from a mental disorder, and
(b) the mental disorder was such that the accused person ought not to be held responsible for the act alleged by reason of the fact that he or she –

(i) did not know the nature and quality of the act, or
(ii) did not know that what he or she was doing was wrong, or

(iii) was unable to refrain from committing the act,

the court or the jury, as the case may be, shall return a special verdict to the effect that the accused person is not guilty by reason of insanity.”
8. Section 5(4) reads as follows:
“(4) Where on a trial for murder the accused contends –
(a) that at the time of the alleged offence he or she was suffering from a mental disorder such that he or she ought to be found not guilty by reason of insanity, or
(b) that at that time he or she was suffering from a mental disorder specified in section 6(1)(c),

the court shall allow the prosecution to adduce evidence tending to prove the other of those contentions, and may give directions as to the stage of the proceedings at which the prosecution may address such evidence.”
9. A “mental disorder”, as defined in s.1, includes mental illness, mental disability, dementia or “any disease of the mind”.
10. Section 6 is the provision that introduced into Irish law the concept of diminished responsibility. It does so in the following terms:

“6. – (1) Where a person is tried for murder and the jury or, as the case may be, the Special Criminal Court finds that the person –
(a) did the act alleged,
(b) was at the time suffering from a mental disorder, and

(c) the mental disorder was not such as to justify finding him or her not guilty by reason of insanity, but was such as to diminish substantially his or her responsibility for the act,

the jury or court, as the case may be, shall find the person not guilty of the offence but guilty of manslaughter on the ground of diminished responsibility.
(2) Subject to section 5(4), where a person is tried for the offence specified in subsection (1), it shall be for the defence to establish that the person is, by virtue of this section, not liable to be convicted of that offence.”

11. It is also relevant to note the definition of murder in s.4 of the Criminal Justice Act, 1964:
“4. – (1) Where a person kills another unlawfully the killing shall not be murder unless the accused person intended to kill, or cause serious injury to, some person, whether the person actually killed or not.
(2) The accused person shall be presumed to have intended the natural and probable consequences of his conduct; but this presumption may be rebutted.”

12. In The People (at the Suit of the Attorney General) v. Dwyer [1972] I.R. 416, a murder case involving issues of self-defence, the Supreme Court held that the effect of this section was that the prosecution bore the onus of establishing the necessary intent and also an onus of proving that the presumption in s. 4 (2) had not been rebutted.
The judgment of the Court of Appeal
13. The Court of Appeal (in a judgment delivered by Edwards J.) considered that the interaction between ss. 5 and 6 of the Act was crucial to the determination of the burden and standard of proof under s.6. The new defence was not a “stand alone” defence, and its availability was directly referable to the criteria for establishing insanity. It would be absurd and unworkable if the two sections carried differing interpretations of the burden or standard of proof.

14. The judgment therefore paid close attention to the history of the law relating to insanity from M’Naghten’s Case (1843) 10 Cl. & Fin. 200 onwards. It noted the argument made by many academics, and accepted to an extent by the Canadian Supreme Court in R v. Chaulk [1990] 3 S.C.R. 1303, that the common law rules as to the standard and burden of proof in relation to the defence of insanity were anomalous and difficult to reconcile with the presumption of innocence. However, the Court rejected the submission that the Oireachtas, by making no express reference to the burden of proof in s. 5, intended thereby to discard those common law rules. It considered that there was nothing in the Act to suggest that the Oireachtas believed that traditional policy justifications for the rules – whether arising from concern about sane people escaping from criminal liability on the basis of tenuous insanity pleas, or from the great difficulty in proving beyond reasonable doubt that an accused person is sane – were obsolete. In those circumstances the Court of Appeal held that the use of the word “establish” in s.6(2) meant that the accused bore the burden of persuasion to the same standard as would apply if he or she was relying on the defence of insanity – that is proof on the balance of probabilities.
Submissions in this appeal
15. The appellant does not disagree with the analysis of the Court of Appeal in relation to the insanity defence under s.5, but disputes the analysis resulting in the finding that diminished responsibility is so closely linked to insanity that the same rules must apply.

16. The argument made is that this is a new statutory defence that did not exist at common law. The general rule in a criminal trial, as emphasised in McGowan v. Carville [1960] I.R. 330 and The People (at the Suit of the Attorney General) v. Quinn [1965] I.R. 366, is that the prosecution must prove guilt, while the accused is not obliged to prove anything. The prosecution must also disprove most of the defences available at common law. Section 6 of the Act does not expressly state that this burden is shifted to the defence, and does not address the standard of proof. It is submitted that, having regard to the legislative silence on this issue, the general rule should apply and the use of the word “establish” should be seen as imposing only the burden of raising a reasonable doubt as to the liability of the accused to be convicted of murder. Otherwise, counsel submits, an accused person could be convicted of murder even if the jury harbours a reasonable doubt as to his or her guilt of that offence.

17. In addressing issues of policy, the appellant submits that the result of the defences of insanity and diminished responsibility are significantly different. If successful, the former clears the accused of all culpability. Policy considerations therefore require the placing of a burden of proof on the accused in insanity cases since, if all that was necessary was to raise a doubt, persons who carried out intentional killings could be found not guilty by reason of insanity and would then be discharged almost immediately. By contrast, a successful defence of diminished responsibility still results in a criminal conviction (for manslaughter) and the likelihood of a prison sentence. It is submitted that this distinction means that the same policy justification for a reverse onus cannot apply.

18. The appellant takes issue with the argument that to impose the burden of proof on the prosecution in cases of diminished responsibility would be impracticable or unfair, arguing that many trials involve questions of intent and that in such cases it is normal for the prosecution to have to rely on inferences to be drawn from the surrounding evidence.

19. With reference to the mental element in murder, it is pointed out that in The People (at the Suit of the Attorney General) v. Dwyer the Supreme Court held that the onus of proof resting upon the prosecution included the onus of proving beyond reasonable doubt that the presumption as to intent set out in s. 4 of the Criminal Justice Act, 1964, had not been rebutted. It is argued that if an accused has to prove that his responsibility was substantially reduced, the prosecution will be relieved of the burden of proving intention to kill or cause serious injury. In a similar vein it is suggested that if the Court of Appeal interpretation is correct, an accused who wishes to avail of the defence will have to first prove that he or she killed the deceased and that he or she was not insane.

20. As an alternative submission, the appellant relies upon the authorities relating to the strict construction of penal statutes to argue that there should be no presumption that the Oireachtas intended to alter the ordinary rule that the prosecution bears the burden of proof. Additionally it is submitted that the interpretation contended for by the appellant is required by the double construction rule of statutory interpretation in order to ensure a constitutionally permitted outcome.

21. The respondent submits that where the accused raises a defence of either insanity or diminished responsibility, it is for the prosecution to prove, beyond reasonable doubt, the unlawful killing and the intention to kill or cause serious injury. However, it is for the accused to establish that at the time he or she was suffering from a mental disorder to the relevant extent. In imposing that burden in the case of diminished responsibility the Oireachtas was amending, but not abandoning, the common law position whereby it was for the defence to prove the existence of a mental disorder. It is submitted that there is no authority for the proposition that the imposition of a persuasive burden on the defence would contravene the Constitution.
Defences – the general principle
22. The People (at the Suit of the Attorney General) v. Quinn concerned, in part, the burden of proof in a manslaughter trial where the accused gave evidence that he had acted in self-defence. The Court of Criminal Appeal took the view that the trial judge had correctly charged the jury in telling them, in effect, that where self-defence was put forward it was “sufficient if it be established in such a way as to raise a doubt as to the guilt of the accused in the mind of the jury”. On appeal to the Supreme Court, the sole judgment was given by Walsh J. who said (at p. 382 of the report):

“In the opinion of this Court the directions of the learned trial Judge introduced such an element of doubt on the question of the onus of proof that the conviction cannot be allowed to stand…
When the evidence in a case, whether it be the evidence offered by the prosecution or by the defence, discloses a possible defence of self-defence the onus remains throughout upon the prosecution to establish that the accused is guilty of the offence charged. The onus is never upon the accused to raise a doubt in the minds of the jury. In such case the burden rests on the prosecution to negative the possible defence of self-defence which has arisen and if, having considered the whole of the evidence, the jury is either convinced of the innocence of the prisoner or left in doubt whether or not he was acting in necessary self-defence they must acquit. Before the possible defence can be left to the jury as an issue there must be some evidence from which the jury would be entitled to find that issue in favour of the appellant. If the evidence for the prosecution does not disclose this possible defence then the necessary evidence will fall to be given by the defence. In such a case, however, where it falls to the defence to give the necessary evidence it must be made clear to the jury that there is a distinction, fine though it may appear, between adducing the evidence and the burden of proof and that there is no onus whatever upon the accused to establish any degree of doubt in their minds. In directing the jury on the question of the onus of proof it can only be misleading to a jury to refer to ‘establishing’ the defence ‘in such a way as to raise a doubt’. No defence has to be ‘established’ in any case apart from insanity. In a case where there is evidence, whether it be disclosed in the prosecution case or in the defence case, which is sufficient to leave the issue of self-defence to the jury the only question the jury has to consider is whether they are satisfied beyond reasonable doubt that the accused killed the deceased (if it be a case of homicide) and whether the jury is satisfied beyond reasonable doubt that the prosecution has negatived the issue of self-defence. If the jury is not satisfied beyond reasonable doubt on both of these matters the accused must be acquitted.”

23. The specific reference to insanity as an exception will be noted, as will the use of the word “established” as importing a burden on the defence in that context.
Reverse onus cases – the Irish authorities
24. Article 38.1° of the Constitution provides that “no person shall be tried on any criminal charge save in due course of law”. It is well-established that this provision encompasses the presumption of innocence. However, that does not mean that an accused person can never be subjected to a burden of proof on some issue in the trial.

25. To begin with, there is a long-established presumption of law that the accused person is sane. In The Attorney General v. O’Brien [1936] I.R. 263 the Court of Criminal Appeal accepted the following passage from Stephen’s Digest of the Criminal Law as a correct statement of the law:

“Every person is presumed to be sane, and to be responsible for his acts. The burden of proving that he is irresponsible is upon the accused person; but the jury may have regard to his appearance and behaviour in Court.”
26. In that case the defence of insanity failed. The Court found that there was no misdirection by the trial judge in not putting the case of “irresistible impulse” before the jury, because there was no evidence to ground it.
27. Similarly, in The Attorney General v. Boylan [1937] I.R. 449 the Court of Criminal Appeal rejected the submission that the jury should have been instructed that if an accused gave evidence tending to rebut the presumption of sanity then the jury should acquit if they had a reasonable doubt on the issue. The Court referred to the opinion of the judges in M’Naghten’s Case that the presumption continues until “the contrary is proved to the satisfaction of the jury, and clearly proved.”

28. A reverse onus may arise in other contexts, usually by virtue of legislation. In O’Leary v. The Attorney General [1995] 1 I.R. 254 this Court considered a challenge to the constitutionality of s.24 of the Offences Against the State Act, 1939. The section provided that in a trial of a charge of membership of an unlawful organisation, proof to the satisfaction of the court that an “incriminating document” as defined in the Act was found in the possession or control of the accused

“shall, without more, be evidence until the contrary is proved that such a person was a member of the said organisation…”
29. The plaintiff, a person who had been convicted of membership of an unlawful organisation, sought a declaration that the section infringed the constitutional right to a trial in due course of law, and in particular violated the presumption of innocence, by placing upon him the burden of disproving his guilt. His argument was rejected by the Supreme Court, which held that proof of possession of the document amounted to evidence only and not proof of membership. Its probative value would depend on the circumstances and did not compel a court to convict. The Act did not, therefore, displace the presumption of innocence.
30. The People (Director of Public Prosecutions) v. Smyth Snr. [2010] 3 IR 688 was concerned with the burden of proof imposed on an accused by the provisions of s.29 of the Misuse of Drugs Act 1977 (as amended). The section provides that, where the prosecution proves that the accused was in possession of a controlled drug,

“it shall be a defence to prove that:-
(a) he did not know and had no reasonable grounds for suspecting –
(i) that what he had in his possession was a controlled drug…or

(ii) that he was in possession of a controlled drug.”

31. In its discussion of the correct approach to directing a jury on this issue, the Court of Criminal Appeal observed that the provision in question was not unique, and referred to the defences of insanity and diminished responsibility, as set out in the Act of 2006, by way of comparison. At p. 694 the Court said:
“The prosecution carries the entire burden of proving the commission of the crime. Sound reasons of policy may indicate that a defence should be proven by the accused as a probability. One reason arises in relation to the special defence of insanity. A person who is found to have committed an intentional killing, for instance, and who might make out a plea of insanity on the basis of merely raising a reasonable doubt would, if not insane, be in danger of being discharged almost immediately by the Central Mental Hospital. A decision to reverse on to the accused an element of the proof of the commission of a crime that might normally be expected to be borne by the prosecution, or to set up a special defence such as insanity, is a matter of legislative competence. It is for the Oireachtas, in each case, to set the parameters of proof in a criminal charge; to decide whether there should be a reversed burden of proof in respect of any element of a crime; and to indicate expressly, or by implication, the nature of the burden of proof that is to be discharged by the defence.
How the burden of proof is borne depends upon the substantive law. At a criminal trial, the burden of proof is borne by the prosecution in respect of every issue; except on those issues on which the burden of proof is cast on the accused by statute.”

32. The Court of Criminal Appeal had been addressed on the compatibility of a reversed burden of proof with Article 6(2) of the European Convention on Human Rights and Fundamental Freedoms, and noted the views of the House of Lords as expressed in R. v. Lambert [2002] 2 AC 545 (discussed below). However, it considered that the proper construction of the burden of proof derived from Article 38.1° of the Constitution. The presumption of innocence is a fundamental principle of the criminal justice system, but a decision by the Oireachtas that an evidential burden should be cast on an accused in relation to a particular element does not of itself infringe that principle. However, where the burden relates to an element of the offence as opposed to a special defence, the necessary inference that the statute intended to cast a burden on the accused is not easily made.
33. In an important passage the Court said:

“The court notes that bearing the burden of proving a defence as a probability could have the effect that in respect of an element of the offence an accused person might raise a doubt as to his guilt, but not establish it as a probability. This might lead to a situation where the charge was not proven as to each element of the offence beyond reasonable doubt, but nonetheless the accused could be convicted. That would not be right. Proof of a guilty mind is integral to proof of a true criminal offence, in distinction to a regulatory offence.”
34. On the issue in the case before it the Court held that s.29 of the Misuse of Drugs Act, 1977, validly imposed a burden on the accused to prove the existence of a reasonable doubt as to his state of mind in relation to the controlled substance in his possession.
The European Convention on Human Rights and Fundamental Freedoms
35. Article 6(2) of the European Convention on Human Rights and Fundamental Freedoms entrenches the position of the presumption of innocence in every trial. The compatibility of presumptions creating a reverse onus with this Article was dealt with in the leading authority Salabiaku v France (1988) 13 EHRR 379 where the Court of Human Rights said:

“Presumptions of fact or of law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the Contracting States to remain within certain limits in this respect…
Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence.”

The United Kingdom authorities
36. The concept of diminished responsibility as a partial defence to murder originally developed as part of the common law of Scotland. There seems little doubt but that under Scottish law the burden in relation to the defence lay on the defence. Thus, in H.M. Advocate v. Braithwaite (1945) J.C. 55, the jury was instructed in the following terms:
“If the Crown have established that the accused did this thing, it is not for the Crown to go further and show that he was fully responsible for what he did; it is for the accused to make good his defence of partial irresponsibility, and that means that he must show you that the balance of probability on the evidence is in favour of the view that his accountability and responsibility were below normal.”
37. Interestingly, the Scottish Law Commission published a Draft Proposal in January, 2003, ([2003] SLC 122 (DP)), in which it recommended that the accused should bear an evidential burden only in relation to both insanity and diminished responsibility. However, its view had altered by the time it published its final Report on the 15th July, 2004, (Insanity and Diminished Responsibility [2004] SLC 195 (Report)). The reason for the change of mind was the practical difficulty for the prosecution in obtaining evidence that the accused was mentally normal at the time of the offence. This would be particularly acute if the accused refused to undergo a mental examination. The same issues did not arise in relation to other defences such as self-defence or provocation. In most of those cases, proof of the defence would be given by evidence of the accused’s actions and reactions to external events closely related to the actus reus. The Commission was of the view that it was not disproportionate to impose a burden on the prosecution to disprove such defences, since it would be possible to seek out evidence of the relevant external events. Where, however, the defence is based on a claim of mental disorder there may not be any such evidence.
38. The defence was adopted into English law by s. 2 of the Homicide Act 1957, which originally read as follows:

(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.
(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.

(3) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter.
39. The statutory defence has since been significantly recast by the Coroners and Justice Act, 2009. However, for present purposes it is the authorities on the 1957 Act that are relevant.
40. An early authority on the Act, R. v. Dunbar [1958] 1 Q.B. 1, established that the interpretation of the burden of proof in English law was the same as in Scotland.

41. After the enactment of the Human Rights Act in 1998, a number of challenges were mounted in the United Kingdom on the basis that the imposition of a legal or persuasive burden of proof on the defence in a criminal trial constituted an infringement of Article 6(2). In R. v. Lambert, Ali and Jordan [2000] EWCA Crim 3542 the Court of Appeal considered three separate cases involving a reverse onus of proof and its impact on the presumption of innocence. Two of the appeals, Ali and Jordan, concerned unsuccessful claims of diminished responsibility in murder while Lambert was a drugs case.

42. Reference was made in the judgment of the Court to the “golden thread” identified by Viscount Sankey LC in Woolmington v. Director of Public Prosecutions [1935] AC 462, and it was said that the common law is “fiercely resistant” to a burden of proof being placed on a defendant. However, the Court of Appeal stated that there was another “equally glittering” thread. Proof of the commission of an offence requires proof of a guilty mind, and the ability to prove this depends on the courts being able to rely on the presumption of mental capacity in the absence of evidence to the contrary. It was also noted that there were many statutory exceptions to the “golden thread” rule.

43. The Court considered that, in analysing the permissibility of an onus cast upon the defence, it was important to start with the structure of the offence. It stated that, as a general principle, it would be more difficult to justify a provision that required the accused to prove (or, perhaps, disprove) a constituent element in the offence. If, however, what the defence was required to do was to establish a special defence or exception, then it would be less objectionable to impose a burden of proof. It was important to bear in mind that the presumption of innocence related to the actual offence charged.

44. On the issue of diminished responsibility, the Court ruled that s. 2 of the 1957 Act had not altered the ingredients of the offence of murder. The change brought about by it was the creation of a benefit to defendants who were in a position to take advantage of it. It was irrelevant whether it was treated as creating a defence to a charge of murder or as dealing with capacity to commit the offence. An accused who did not seek to rely on the section did not have to prove anything. The policy considerations said to justify the rule were the difficulty it would create for the prosecution if it had to prove a negative, and the fact that there was no obligation on the accused to submit to an appropriate examination.

45. Leave to appeal to the House of Lords was refused in Ali and Jordan, but granted in the third case, Lambert. That case concerned a charge of possession of a controlled substance with intent to supply. At issue was a provision similar to the Irish legislation under consideration in DPP v. Smyth Snr., discussed above, where it was for the appellant to “prove” that he neither knew nor suspected, nor had reason to suspect, that the bag he was carrying had contained a controlled drug. This had always been understood in English law as meaning proof on the balance of probabilities. In Lambert that burden was held by the Court of Appeal to be justifiable and proportionate having regard to public policy considerations.

46. In contrast, the majority of the House of Lords took the view that to read the section as imposing more than an evidential burden on the defence would amount to an infringement of the presumption of innocence. Of particular concern was the possibility that an accused could be convicted even in circumstances where the jury was not convinced of guilt, and might have thought that the defence offered was as likely as not to be true.

47. It should be noted that some strong observations were made on the dangers of paying too much attention to the structure of the legislative provisions. Lord Steyn was unimpressed by the distinction argued for (by the prosecution) between constituent elements of an offence and the establishment of a statutory defence. At pg 571 he said:

“The distinction between constituent elements of the crime and defensive issues will sometimes be unprincipled and arbitrary. After all, it is sometimes simply a matter of which drafting technique is adopted: a true constituent element can be removed from the definition of the crime and cast as a defensive issue whereas any definition of an offence can be reformulated so as to include all possible defences within it. It is necessary to concentrate not on technicalities and niceties of language but rather on matters of substance.”
48. An effort to re-argue the issue in relation to the defence of diminished responsibility was made in the Court of Appeal in R. v. Foye [2013] EWCA Crim 475. The facts of the case involved an extremely violent killing by a man who, all the expert witnesses agreed, had a severe dissocial, or psychopathic, personality disorder. There was thus no question as to whether or not he had an abnormality of mind and the issue in the case was whether his responsibility was “substantially impaired”. In the appeal against conviction the defendant contended inter alia that he should not have borne the burden of proving, on the balance of probabilities, that he was in a state of diminished responsibility at the relevant time.
49. The Court of Appeal stated that no authority had cast any doubt on the correctness of its view in Ali and Jordan. It did not accept an argument that that view was inconsistent with the House of Lords decision in Lambert. However, rather than simply holding that it was bound by the earlier decision the Court went on to address the issue of principle.

50. The Court said that the “very clear justification” for s.2(2) of the Act of 1957 lay in the following factors.

“(i) Diminished responsibility is an exceptional defence available in an appropriate case with a view to avoiding the mandatory sentence which would otherwise apply, so that a discretionary sentence can be imposed, tailored to the circumstances of the individual case.
(ii) Diminished responsibility depends on the highly personal condition of the defendant himself, indeed on the internal functioning of his mental processes.

(iii) A wholly impractical position would arise if the Crown had to bear the onus of disproving diminished responsibility whenever it was raised on the evidence; that would lead not to a fair, but to a potentially unfair trial.”

51. The Court accepted that the Salabiaku test necessarily involved the proposition that the mere fact that the reverse onus was created by national legislation could not by itself mean that it was proportionate and justified, but it considered that it was “not without significance”. Two questions arose – the first was whether the subsection impinged on the presumption of innocence. If it did, the second was whether it was a proportionate and justified modification of that presumption. It was acknowledged that the two questions overlap, since the extent to which the onus relates to a component of an offence or to an exception of recognised excuse for it can be addressed at both stages.
52. It was also accepted that the distinction between a component of the offence and an exception or excuse could be difficult to discern, depending on the grammatical form adopted by the framers of the provision, and that in any event the distinction might not always provide an answer to the question whether the provision was justified. Nonetheless, the distinction remained relevant to the issue of justification because, as Kerr LCJ. had said in the Northern Ireland case of R. v. McQuade [2005] NICA 2, it was clear that it was easier to justify a burden on a defendant claiming entitlement to a statutory defence than to support a requirement that a defendant discharge an onus of proof in relation to an element of the offence.

53. In any event, the Court considered that there was no difficulty about discerning the distinction in the case of diminished responsibility. Even if the defence of insanity were to be seen as going to mens rea, as it was by the Canadian Supreme Court in Chaulk, the same could not be said of diminished responsibility. The Scottish courts that developed it described it as an extenuating circumstance, with the effect of modifying the character of the crime, or as justifying a modification of the sentence, or both. The legislative provision did not require a defendant to disprove an element of the offence but to establish an exception or excuse, and had nothing to do with the requirement that the prosecution must prove an unlawful killing with the intention to kill or cause grievous bodily harm. The argument that the section created a risk that a defendant might be convicted by a jury that was less than sure of his guilt could not be sustained, since diminished responsibility did not arise at all until the jury was sure that he had carried out an unlawful killing with the requisite intent. In the Court’s view, there was no impact upon the presumption of innocence.

54. However, the Court of Appeal also considered the alternative assumption, that is, that there was an impact on the presumption of innocence. In that context, it took the view that diminished responsibility was closely analogous to insanity, rather than to defences which do not involve abnormality of the mind. The relevant connection was found in the fact that both involve a challenge to the assumption of normal mental functioning until the contrary is shown. In both cases it would as a matter of practicality be impossible for the prosecution to disprove beyond reasonable doubt an assertion that a defendant was insane or suffering from diminished responsibility. It would not be sufficient for the prosecution to invite a jury to reject poor evidence – it would have to go further and adduce evidence of the absence of abnormality. If the defendant refused to submit to medical examination, or refused to cooperate fully, or refused access to medical records, the prosecution task would be impossible.

55. In response to a submission that the section could be “read down” to provide for an evidential burden, the Court said that if operated in this manner the section could involve no more than raising the issue by some piece of evidence. It would be easy to do so, particularly since “abnormality” was not limited to an identifiable or diagnosable mental illness but could extend to any malfunctioning of the mind or personality. As an example, it was suggested that defence counsel could elicit the fact from prosecution witnesses that the accused had been behaving oddly.
The view of the Canadian Supreme Court – R. v. Chaulk [1990] 3 S.C.R. 1303
56. The Canadian Charter of Rights and Freedoms guarantees the right to be presumed innocent until proven guilty according to law. The statute dealing with insanity prohibits the conviction of a person in respect of an act or omission committed while that person was insane, but also provides that every person shall, “until the contrary is proved”, be presumed to be and to have been sane. Canadian courts had held since 1940 that where the issue of insanity was raised there was a burden on the accused to prove it on the balance of probabilities.

57. In Chaulk the appellants, whose defence of insanity in a murder trial had been unsuccessful, claimed that the presumption of sanity and the nature of the burden of proof thereby cast upon the accused was contrary to the Charter. It was argued inter alia that the phrase “until the contrary is proved” should be interpreted as requiring the accused merely to discharge an evidentiary burden – that is, to raise a reasonable doubt as to insanity. That contention was rejected as being contrary to the clear wording of the legislation, which was held to create a persuasive burden.

58. However, the majority also considered that the insanity provisions operated as an exemption from criminal liability, predicated on an incapacity for criminal intent, which depending on the facts would usually amount to either a denial of mens rea or an excuse for what would otherwise be a criminal offence. Since insanity can negative mens rea, the argument put forward by various State parties to the effect that the section only came into play after the prosecution had otherwise proved its case beyond reasonable doubt was rejected. Further, since sanity was an essential element in a finding of guilt, a conviction following a failed claim of insanity must be seen as following from the presumption of sanity and not merely from proof of the ingredients of the offence.

59. In those circumstances the Court found that the reverse onus did infringe the presumption of innocence. However, it went on to hold that the infringement was justifiable because without it the prosecution would be “encumbered with an unworkable burden”. The statutory provisions were described as an accommodation of three important societal interests – avoiding an impossible burden on the prosecution; convicting the guilty and acquitting those who truly lacked the capacity for criminal intent. The resulting compromise would not always produce the ideal result but this was the inevitable consequence of the state of scientific knowledge in the area. Alternative approaches would also raise problems under the Charter.
Discussion and conclusions
60. All of the authorities discussed here share certain fundamental assumptions. The presumption of innocence, whether construed in terms of the Constitution, common law or the European Convention, is a bedrock principle of our criminal justice system. The concomitant principle is that the prosecution must prove every element of a crime. However, the legislature may in some instances cast a burden on the defence in relation to a particular issue. In most cases, any such burden will extend only to the necessity to show the existence of a reasonable doubt. In other, limited instances there may be an onus to prove some matter on the balance of probabilities.

61. In determining whether the reverse burden under challenge amounts to an impermissible infringement of the presumption of innocence, the Court must firstly consider whether, properly interpreted, it does have that effect. If it does, the possibility may arise of interpreting or “reading down” the legislation to require only an evidentiary burden as in Lambert and in Smyth. One way of approaching the issue is to consider the elements of the offence and determine whether or not the defence is being required to rebut an element that would otherwise be for the prosecution to prove beyond reasonable doubt. I bear in mind the necessity for caution in carrying out such an exercise, for the reasons identified by Lord Steyn in Lambert. What matters is the substance rather than the drafting technique adopted in a particular instance.

62. Where a reverse burden of proof might amount to an infringement of the presumption of innocence, because it does indeed require the defence to negative an element in the offence, the question of justifiability arises. This was what occurred in R. v. Chaulk, on the basis that in a given case the defence of insanity could be aimed at negativing mens rea. However, the burden was held to be justified in the light of the practical considerations applicable to the defence of insanity.

63. In the instant case, it seems to me that there is no question but that the Oireachtas intended, by use of the word “establish”, and by requiring the court or jury to make a “finding”, to cast a burden of proof on the defence that goes beyond the raising of a reasonable doubt. Does that violate the presumption of innocence in the case of diminished responsibility, in a manner requiring the Court to either reinterpret the statutory burden or to consider whether the infringement can be justified?

64. In my view it does not. I agree in general with the proposition that any burden cast upon an accused that could result in conviction by a jury, despite a reasonable doubt as to an essential part of the offence, would be an unlawful violation of the presumption of innocence. (I would add to this general proposition a caveat in relation to insanity and mens rea, in that the issues raised in R. v. Chaulk do not appear to have been canvassed in this jurisdiction.) However, I do not consider that the possibility arises in the context under consideration. The successful raising of the defence of diminished responsibility does not depend on negation of any element of the prosecution case, nor on proving any essential aspect of the offence. The long-established elements of murder remain as they were, and are for the prosecution to prove beyond reasonable doubt. Evidence of a mental disorder sufficient to qualify under the Act does not in itself rebut either the common law presumption of sanity and responsibility for actions, or the statutory presumption that the accused person intended the natural and probable consequences of his or her actions. It creates a new, mitigatory defence that reduces the consequences of a proven offence. It is therefore incorrect to suggest that the imposition of a burden of proof could require an accused to prove either the actus reus or the mens rea, since these are matters that must be proven by the prosecution beyond reasonable doubt before the question of diminished responsibility can arise. Whether the necessary prosecution proof arises from admissions by the accused or from other evidence is irrelevant. For the same reason, it is not the case that a person could be convicted of murder by a jury that has doubts about his or her guilt. The context thus differs from Smyth, where a burden of proof to the standard of the balance of probabilities could indeed have had that result.

65. In the circumstances I consider that the provision in question does not affect the presumption of innocence.

66. However, I think that it is worth pointing out that the policy factors that justify the same onus of proof as in the case of insanity are also clear. The same difficulties that the prosecution would face in proving beyond reasonable doubt that an accused is sane would arise in an attempt to prove that the responsibility of the accused was not diminished by reason of mental disorder. If the prosecution bore such a burden it would have to prove this positively – inviting the jury to reject dubious evidence from the defence would not suffice. The problem stems from the intrinsically subjective nature of the defence; from the fact that mental disorders and their effects are not necessarily the subject of ordinary life experience or knowledge and will generally require some level of expert assistance to the jury or court; and from the fact that an accused cannot be compelled to participate in any form of medical examination by the prosecution. For those reasons the defence of insanity has always imposed a burden of proof on the accused. The same considerations arise with diminished responsibility.

67. In the circumstances the jury was correctly charged as to the onus of proof. I would therefore dismiss the appeal.

People (DPP) v Tomkins

[2012] IECCA 82
Judgment of the Court delivered on the 16th day of October, 2012, by MacMenamin J.

1. On the 16th March, 2012, the appellant was convicted in the Central Criminal Court of the murder of his brother, Walter Tomkins, on the 1st July, 2010, at the family home at Cronelea, Shillelagh, Co. Wicklow. This followed a trial in the Central Criminal Court, before Sheehan J. and a jury, between the 8th and 16th March, 2012. While a number of issues, are raised in this appeal, it will be seen that the ultimate basis of this judgment is based on narrow grounds. However in view of the points raised in the wide range and nature of the appeal, it is necessary to outline the evidence in more detail than would be usual.

2. The appellant is now in his early sixties. He did not testify in the trial. He is suffering from advancing Parkinson’s syndrome. He is wheelchair-bound, and now cannot feed himself. He is by now incapable of independent living. Brain damage, which is part of the syndrome, has affected his personality. He is unable to concentrate for any lengthy period of time. The question of the appellant’s mental condition, and its possible effect on him at the time of the offence, lies at the centre of this appeal. These issues of law and medicine are later considered under a number of headings, but specifically in the context of the partial defence of diminished responsibility as defined in s.6 of the Criminal Law (Insanity) Act, 2006. This defence has been raised in a number of trials, but has not been considered in any reported judgment save in the context of sentences for manslaughter where the defence was relied on (The People (at the suit of the D.P.P.) v. Leigh Crowe [2010] 1 IR 129)

The basis of the appeal

3. A number of the grounds of appeal are unusual. They are also framed broadly. Counsel for the appellant argues that the verdict of the jury was against the evidence and the weight of the evidence; and that the jury verdict thus was perverse. It is said the accused was incapable of forming a criminal intent by reason of his medical condition. It is contended that the learned trial judge erred in failing to put to the jury the case advanced, or to explain in sufficient detail the possible verdicts which were open to them. It is contended the conviction is unsafe in light of the fact that the only evidence on the issue of diminished responsibility was that of a defence witness, Dr. Paul O’Connell Consultant Forensic Psychiatrist, which was to the effect that, at the time of the offence, the appellant had been suffering from diminished responsibility. All these points are considered later in the judgment. To assess whether the verdict was perverse, it is necessary to go through the substance of the evidence, and the case as it was put to the jury by counsel and in the judge’s charge

Background

4. Substantial parts of the evidence are undisputed. Both the appellant and his deceased brother were reared and lived on the family farm at Cronelea, Shillelagh, Co. Wicklow. The victim, Walter, was the eldest of three brothers. The appellant was the middle brother. Both he and the victim were bachelor farmers. The youngest brother, Charles Tomkins, also a farmer, married Ivy Tomkins and they have a family. When they were alive, the brothers’ parents, Joseph and Isabella (otherwise Bella) Tomkins, also lived in the family home. When the father, Joseph, died in 1999, the farm property was divided equally between his three sons. The elder two, Walter and Cecil, continued on at home with their mother. Walter Tomkins kept his farming and business activities separate from that of Cecil and Charles, the two younger brothers, who both cooperated in running their respective farms. Charles had not spoken to Walter for a number of years. Although under one roof, Walter and Cecil had a strained relationship. They spoke infrequently. But nonetheless, in later years as the appellant’s incapacity worsened, Walter each day brought dinner home from a local hotel in Shillelagh to his younger brother.

5. The evidence as to deceased’s character was conflicting. Some family members and friends testified he tended to dominate the appellant. However, other evidence portrayed him as being both generous and easygoing. He was described as being a powerful man, sometimes prone to anger. The evidence was that the appellant was, normally, a person of gentle disposition.

6. When the father Joseph died in 1999, he was buried locally at Aghowle, Shillelagh, Co. Wicklow. Bella lived on until 2010, a further eleven years. Towards the end of her life, she was invalided and confined to bed. She had made clear that she did not wish to be buried with her husband. Nine years before her death, in the year 2001, she had arranged for Charles’s wife, Ivy Tomkins, to bring her down to Gorey where her own family were interred to pick out a place for herself in a graveyard there. Bella identified and reserved a suitable burial plot for herself. She offered to pay there and then for the grave but this was not deemed necessary. The fact that, at the time of her death, the payment for the burial plot was still outstanding, has a bearing on the events. The grave remained available for Bella at the time of her death.

7. Later, Bella Tomkins told her niece in law Ivy Tomkins that she was leaving a letter for the appellant setting out her wishes for her own funeral and burial. She also told the appellant that she was going to write down these wishes in the letter, which she would leave in a china cabinet in the family home. She said the letter was not to be opened until after her death.

8. Well before Bella Tomkins died on the 26th June, 2010, the appellant had been suffering from features of Parkinson’s syndrome, although it took time for these to be fully diagnosed. He became increasingly incapacitated, and therefore unable to carry out his farm work. He had been a very active man; his fifty acre holding was his main interest in life. He did little socialising. He carried out his work about the farm, and occasionally went to the mart. With the onset of his illness, the younger brother, Charles took over Cecil’s stock, and saw to the maintenance on both farms. The appellant found it difficult to walk for any distance. He used a tractor to get about.

9. In the year 2010, the appellant had a number of falls. In May of that year, he was referred to Dr. Raymond Murphy, Consultant Neurologist at Tallaght Hospital, and was admitted for investigation. He had been sent to Dr. Murphy five years earlier, in 2006, but the doctor had not been able to arrive at a definitive diagnosis then.

10. By May, 2010 however, Dr. Murphy was able to find objective organic evidence allowing him to make a diagnosis. An MRI scan confirmed widespread shrinkage of the appellant’s brain in the frontal lobe area. The consultant concluded that the appellant was suffering from a form of Parkinsonian known as Multiple Systems Atrophy. As a result of the brain damage, his balance was poor, and he was unable to sit without support. He tended to fall backwards when he sat on a bed. He was suffering from “alien hand” syndrome, a condition where his arm raised itself involuntarily. The appellant had been discharged from hospital on medication a short time before Bella Tomkins died in a nursing home in Naas. Even at the time of the events in question, therefore, the appellant was quite seriously incapacitated, and was apparently slow in carrying out even normal day to day functions, such as dressing himself.

11. The evidence was that when Bella died, Walter did not consult the appellant about the funeral or burial. The elder brother took all this on himself. He did not follow his mother’s wishes. Rather than burying her in Gorey as she had wanted, he decided that she was to be interred near the family home in Aghowle. The uncontroverted evidence was that the appellant was deeply disturbed and distressed that his mother’s wishes had been ignored. Rev. Orr, the local minister, testified that the appellant explained to him that he did not attend the funeral, both because he was too ill, but also because he was so angry and distressed by his brother’s conduct.

12. The funeral took place at Aghowle on Monday 28th June, 2010. Rev. Orr testified that Walter identified to him some of the hymns which were to be sung at the service. The appellant strongly, and, as it transpired correctly, believed that Walter had removed Bella Tomkins’ note from the china cabinet. In one of the statements which he subsequently furnished to An Garda Síochána, he made remarks which require some explanation. He told the Gardai that Walter “had known the numbers of the hymns”. By this, he was seeking to convey that Walter could only have known which hymns were to be sung by their numbers in the Church of Ireland hymn book which she had identified in the note in the china cabinet. When Rev Orr called to the house the appellant told him that his mother should have been buried with her own people in Gorey. Charles’s wife, Ivy Tomkins, testified that the day, after the funeral, the appellant was very annoyed when he could not find the envelope in the china cabinet. What then passed between the brothers largely relies on the appellant’s admissions in statements to the Garda Síochána.

13. Three days later, on the early evening of the 1st July, 2010, the appellant drove his tractor down to one of the fields behind the family home. Charles’s son, Alan Tomkins, was working there with his cousin, John Chamney. The appellant told Alan Tomkins that he had shot Walter. Alan Tomkins phoned his own house and told his parents. He and his cousin went to the family home, where they found Walter lying dead at the end of the hallway. His body was cold. The appellant arrived back at the family home on the tractor, met Charles there, and asked whether Walter was badly hurt. Charles called the Garda Síochána. He found the appellant’s shotgun in the house. For safety, he threw it into the briars in the garden. The ballistics testimony indicated that the gun was very neglected, held together by wire, but could be fired either by pulling the trigger, or by releasing the hammer, once it was cocked.

14. The appellant was described as calm when the Gardaí arrived. Garda Christopher Murray testified that the appellant told him:-

“There was a row. My mother wanted to be buried in Kilcormac or Gorey but she was buried in Aghowle. I shot Walter because he buried her in Aghowle.”
There was evidence this calm appearance may have been attributable to facial immobility which is part of Parkinsons Syndrome.
15. Later, the appellant admitted to Garda Murray that he had used his shotgun to shoot Walter once, in the hallway of the house. He made no mention of there having been an “accident” with the shotgun. The appellant said that there had been a serious disagreement between the himself and the deceased. He never denied in any statement he had intended to shoot Walter, indeed the contrary is true.

16. It is necessary now to go forward a number of months. At the trial in 2011, Charles Tomkins testified that, on 26th September 2010, he was in the process of clearing out Walter’s personal property from his bedroom in the old family home. There was a wardrobe there. In it, Charles Tomkins found a tin box containing a number of his mother’s personal items. Among those items was a note written in Bella’s handwriting in saying:-

“I am to be buried in Gorey. Bella.”
On the outside of the envelope was written:-

“The money in this envelope is to pay for the grave in Gorey.”

Charles did not find any money with the envelope. On this evidence, the jury could reasonably have inferred that the appellant had been correct in his supposition that Walter had removed the envelope from the china cabinet.

17. At the trial, there was extensive testimony as to the appellant’s medical condition at the time of the killing. This will be summarised later in the judgment. At the trial, the case was made that as a result of diminished mental capacity the appellant could not have formed the intent necessary for murder. It was submitted that what had occurred was an accident. The issue of insanity was raised, but the expert evidence did not support this line of defence, and thus that issue did not go to the jury. The ‘partial defences’ of provocation and diminished responsibility formed an important part of the defence case. Nonetheless, after some five hours of deliberation the jury came back with a verdict convicting the appellant of murder.
The role of the Court of Criminal Appeal

18. In response to that contention it is necessary to make clear that the argument made in this appeal is that the verdict was perverse, this court has repeatedly emphasised that it has no power to substitute its own subjective view of a case for that of the jury. While the passage which follows is well known, it is necessary to reiterate the apposite remarks of McCarthy J. in the Supreme Court in People (D.P.P.) v. Egan [1990] I.L.R.M. 780, where he pointed out that the Court of Criminal Appeal may not substitute its own subjective view of the evidence in place of the jury’s verdict. A decision that a verdict was perverse is a very exceptional one as he pointed out in the following terms:-

“… the jurisprudence of the Court of Criminal Appeal since 1924 as, from time to time endorsed by this court is clear. Save where a verdict may be identified as perverse, if credible evidence supports the verdict, the Court of Criminal Appeal has no power to interfere with it. The concepts of lurking doubt, feel of the case, gut feeling, or back of my mind, are foreign to the judicial role as I understand it. Juries are regularly enjoined to disregard their personal feelings or their subjective assessments and to concentrate on the evidence as it is sworn to in the witness box. In many instances what may be difficult and obscure to a trial judge is crystal clear to a jury; the converse is also very possible. To permit verdicts on criminal trials to be upset upon such subjective consideration would seem to me to be a denial of the validity of trial by jury”. ([1990] I.L.R.M. at 784)
19. However the possibility of a perverse jury verdict being set aside is not to be entirely discounted. O’Flaherty J. observed in his judgment in Egan:-
“Similarly if tenuous evidence were left to the jury and the jury acted on it, I have no doubt that the Court of Criminal Appeal would be entitled to intervene. A verdict founded on such unsatisfactory evidence would mean that the trial itself was unsatisfactory and that the verdict founded upon it was unsafe and unsatisfactory”. (at p.780)
20. Clearly therefore, the possibility of a verdict being set aside on the grounds of perversity exists, but it is a very exceptional jurisdiction. Also in The People (D.P.P.) v. C. (P.) [2002] 2 I.R. 285, Murray J. emphasised the reluctance of the Court of Criminal Appeal to interfere with a verdict in a situation where the credibility of a witness is a sole or principal ground of challenge. Speaking for this court, he said that the assessment of a witness’s credibility, and the weight to be attached to that evidence, is a matter “manifestly within the province of the jury” ([2002] 2 I.R. 285 at 296).
21. Thus, this court will be very slow to intervene where it is satisfied that a judge has placed all relevant matters before the jury, and has fully and properly instructed them as to the burden and standard of proof. However, an appeal court may intervene if the judge’s direction to the jury is inadequate either concerning witness credibility, or some matter of law. This is entirely distinct however, from finding fault with the verdict of the jury (see O’Malley, The Criminal Process, Roundhall 2009 para 23.12 and 23.13). This court will only quash a decision as being perverse where there are very serious doubts about the credibility of evidence which was central to the charge, or where a guilty verdict, even by a properly instructed jury was against the weight of the evidence. (See DPP v Quinn 23 March 1998 CCA; DPP v Morrissey CCA 10 July 1998). In assessing this point the court will look at all the evidence which was before the jury, not selected portions of that evidence.

22. In this appeal, Counsel for the appellant submitted that the medical testimony on the question of the appellant’s diminished responsibility at the time of the offence “went one way”, that it had not been controverted at the trial, and that consequently, the jury was perverse in convicting of murder. To assess the validity of this argument and the other points made it is necessary to turn next to the evidence and the judge’s charge to the jury.

23. At the outset, it is important to emphasise that the defences themselves were unusual, it might be thought the fact that they were all put up by the defences to the jury itself gave rise to difficulty. There is no suggestion whatever in this appeal that the learned trial judge’s charge to the jury was anything other than entirely objective. The gravamen of the appeal is, rather, that the jury were insufficiently instructed on the law regarding each of the available defences. This would have been a formidable task. It was a situation where the judge should have received every assistance from counsel, including, where necessary, reference to relevant English authorities and case law. There is now the additional problem that, at the conclusion of the charge to the jury, counsel for the accused made no requisitions. In fact, the sole requisition made was by counsel for the Director, who proposed that, were the jury to consider a verdict of manslaughter was warranted, they should be asked whether their decision had been on the basis of provocation, or, rather, of diminished responsibility, as either finding might bear on the question of sentence. The judge decided that to make this requirement would further add to the complexity of the jury’s task.

24. The case now made is that the verdict was perverse in relation to each of the defences. Three of the defences may be dealt with quite briefly. These were: (a) that what had occurred was an accident; (b) the question of insanity; (c) the contention of lack of requisite intent to commit a criminal offence. It will be more convenient to deal later with the defences of provocation (d)(i) and, and finally, that of diminished responsibility (d)(ii). The court must assess whether the jury verdict was perverse under each of these headings. Then, it is necessary to assess whether there was some deficiency in the judge’s charge such as would warrant quashing of the conviction for murder. We turn first to the defence of accident.

(a) Accident
25. On behalf of the appellant it was submitted that there had been material before the trial court which should have led the jury to conclude that what had occurred was an accident. It is true the evidence did establish that single bore shotgun used for the shooting was extremely old, and badly maintained. The barrel and stock were held together by a wiring arrangement. There was an insufficient trigger guard. At the trial, the prosecution actually accepted, quite properly, that there was ballistic evidence that the gun could be discharged accidentally; not only would it fire if the trigger was pulled, but also if the hammer was cocked more than halfway, and the user’s finger slipped on the hammer at which point there would be sufficient inertia for the hammer to descend and the firearm would then discharge the bullet.
26. However, there was no evidence at all that what occurred was an accident. When the appellant spoke to his nephew Alan Tomkins, and later, Garda Christopher Murray, he did not suggest that he had accidentally discharged the gun. Moreover, in later statements to An Garda Síochána, the appellant admitted that he was very annoyed at his brother for what had happened regarding the funeral and burial, and that he had, at the least, intended to injure his brother by discharging the firearm. The appellant never suggested, even implicitly, that what had occurred was an accident, either when speaking or later to Garda Christopher Murray who arrived on the scene, or, later still to any of the other gardaí to whom he subsequently gave statements. There was simply no evidence that what occurred was accidental. It cannot be said then that this decision of the jury was perverse or unsafe. The verdict on this point was not based on “tenuous” or “non credible material”. There was evidence before the jury from which it could have concluded that what had occurred, was, at the very least, not accidental. There is no suggestion made of error in the judge’s charge on this point in the appeal.

(b) Insanity
27. It is unnecessary to deal with the defence of insanity in detail. Counsel for the appellant accepts that there was insufficient evidence to meet the statutory requirement of proving the defence of insanity on the balance of probabilities; it is therefore unnecessary to consider the point further.
(c) Lack of Requisite Intent
28. It is said there was evidence sufficient to show a lack of requisite intent to commit a criminal offence. No authorities were cited to this court, or to the trial judge, on this defence which without authority in this jurisdiction. Clearly there was evidence that, at the time of the killing, the appellant was suffering from Parkinson’s syndrome and Multiple Systems Atrophy. The frontal lobes of the brain control normal processes of inhibition, which in turn affect social behaviour. At interviews with members of An Garda Síochána however, the appellant admitted that he had loaded the shotgun with the intention of using it on his brother. He admitted it was his intention to injure the deceased. He described removing the gun from behind the wardrobe in his own bedroom, getting cartridges from beneath his bed, loading a cartridge, going out into the hallway of the house when the deceased had gone down to the toilet, cocking the hammer of the shotgun, and then shooting the deceased as he left the toilet to return up the corridor. The ballistic evidence was that the gun had been fired at a range of some 10 metres. Counsel for the prosecution submitted that the entire thrust of the appellant’s statements and interviews showed there was, at least, an intent to wound the victim, and that the appellant had decided he had “had enough” of the deceased.
29. By way of illustration of intent, the prosecution adduced evidence that in a cautioned interview which commenced on the late evening of the 2nd July, 2010 the following exchange took place:-

“Q. If you fired a shot what would you expect to happen?
A. I’d wound him or something he’d badly injured anyway. I’d have to get help quick.

Q. Did you have enough of him?

A. Yes, probably alright.”

In the same interview the appellant also admitted that he had “aimed the gun at Walter’s chest”.
30. The prosecution case on this point went further, and suggested that such disappointment as the appellant expressed at Walter’s death was selfish. The appellant in fact did say to the gardaí that his life had “surely diminished because Walter is dead” and went on to say:-

“I have thought about it a good bit yeah, no-one to bring up the dinner anymore; after this Charlie possibly won’t look after me, Charlie is a hardworking man.”
31. In his charge, the judge referred the jury to the definition of murder provided in the Criminal Justice Act, 1964. He referred them to the evidence of Dr. Raymond Murphy, and the evidence of Dr. Paul O’Connell for the defence. This is outlined later. He also referred to testimony given by Dr. Lucinda Dockery, Dr. Maria Murphy and Professor Ciaran Reagan, all of whom had given evidence as to the possibility that the appellant’s capacity to make judgments might have been affected by medication which the accused had been taking for his condition. It was suggested there was the possibility that the drugs regime may have affected his mind to such an extent to negate his ability to formulate a criminal intent. Clearly, the jury rejected this contention.
32. But on intent, after referring to the defence evidence, the judge stated:-

“If you are satisfied that the killing in this case is an unlawful killing, you then come to consider the question of intent. And the question arises, a question for consideration is, is it possible that Cecil Tomkins did not have the necessary requisite intent to ground the charge of murder. That is an intent to kill or cause serious injury. When you are considering this, the test is of course, subjective. It is not what a reasonable man would have thought or what you yourself might have thought but rather is it possible that Cecil Tomkins with his particular history and illness, a question whether he had the intent to kill or cause serious injury. And just on that, you will recollect that I think that at a certain point it was suggested to you that he didn’t have the requisite intent, then it will reduce the charge to manslaughter. In other words if he was responsible through intending to cause some harm or whatever, but not to cause serious injury, then it would be reduced to manslaughter.
If on the other hand bearing in mind the evidence of Dr. Murphy, the neurologist in the case, as distinct from any consultant psychiatrist if you – you might consider that in that evidence; in his evidence there was material that’s relevant to intent. And in fact that may even be relevant where a person’s ability to form an intent given what he said about the damage to the frontal lobe going to the essence of a person’s being as it were. At any rate these are all entirely matters for your consideration.”
There is no criticism of this part of the charge. It was a fair and objective assessment of the law and the evidence.

33. Moreover, the question of whether the requisite intent had been proved, was, in fact purely a matter of fact for the jury to determine. There was evidence before the jury which led them to be satisfied beyond reasonable doubt that the accused did have the requisite mens rea to commit the offence of murder. The court does not consider that the decision of the jury on this question was perverse, or that the learned trial judge erred in his summation of the evidence in his charge to the jury on this point.

(d) The defences of provocation and diminished responsibility
34. It remains, then, to deal with the two defences of provocation and diminished responsibility. These both relate to the state of mind of the accused. That does not mean, however, that the two defences are in all aspects similar; in fact there lie some critical distinctions between the two. One such point is the question of premediation. Evidence of premeditation of murder may negative the defence of provocation; however such evidence is not necessarily inconsistent with diminished responsibility. In some cases, this must be explained to the jury.
(i) Provocation

35. The defence of provocation may be relied upon where the accused suffers a sudden and temporary loss of self control in response to the conduct of the victim such that he is unable to prevent himself from committing a homicide. Whether the defence is made out relies on a subjective test (The People (D.P.P.) v. Kelly [2000] 2 I.R). The question for the jury was whether there was evidence of provocation; the duty of the judge was to fully charge the jury on the evidence and the law. This must now be considered.

36. In his second interview with An Garda Síochána, which commenced on the 2nd July, 2010, the appellant was asked what had happened at home. He explained that it was: “All over my mother”, and that she had: “left instructions in a glass case in the sitting room”; that the glass case was locked; and that he had concluded that the deceased had been unable to find the key and had prised open the glass case. The appellant said in interview: “how I know this is because he knew all the numbers of the hymns”.

37. The appellant was asked at interview:-

“Did you have words about it?

A. I quizzed him about it and he laughed it off. He went down to the bathroom then and I followed him down the hall. I had the loaded gun but I was slow going down. He was well out of the bathroom. He was coming back up the hall. I pulled him and left one shot off about chest high.”

38. In the same interview he said: “I thought it would only wound him”. He was asked how he had held the shotgun, to which he answered:-

“I was successful at that. I was able to hold it up to my shoulder and sort of aim it, pull back the hammer and let fly, as slow as I was going out of my door he was nearly up to me and staggered back to where he was found”.

39. In a later interview on the 2nd July 2010, the appellant told the gardaí:-

“… I usually use a no. 4 cartridge. On Thursday night I would have used a no. 4. I put the wire on it to keep the trigger guard in place. I knew it was firing alright… I used it to fire off a cartridge at a target, my brother Walter”.

40. The prosecution relied on these, and other similar statements, as indicative of the proposition that the appellant had acted in a cold, detached and calculated fashion on the evening of the offence.

41. The defence case, at the trial, was that the deceased who was big and powerful, could be short tempered, aggressive, and inclined to bully his younger brother. The thrust of that case, on provocation, was that the appellant, having been unable to stand up to his brother on the question as to where their mother was to be buried, found the only protest he could muster was to refuse to attend the funeral; that he became very upset at the deceased’s conduct, and at his own failure to ensure his mother’s wishes had been carried out, that in one response to An Garda Síochána on the evening of the murder he had described the deceased having laughed at him when he raised the issue of the note; and that the deceased had denied to him any knowledge of the mother’s letter of wishes. It was said Walter was abusive to him, told him to “fuck off”, and had said that that the appellant was: “always like that, shutting the stable door after the horse had bolted”. In one garda interviews the appellant said on a number of occasions that the shooting was a “spur of the moment thing”. He also said that his “life had surely diminished because Walter is dead it was spur of the moment. I snapped”.

42. It is necessary also to consider the run of the entire case. In what follows, no criticism of prosecution counsel’s conduct is in any way suggested. But in order to negative the defence of provocation in his closing address, counsel for the Director relied on an analysis of events seeking to establish that the appellant had afterwards been clinical and detached in his description of the events, and that at interview he described what occurred clearly and cogently. Counsel put it to the jury there was no evidence of any loss of control when the appellant was seen at the scene by members of An Garda Síochána or members of his own family; and that his declarations of remorse were self-serving and selfish. Counsel submitted that in the light of his physical incapacity the appellant’s preparation could have taken considerable time. He submitted there had been evidence that the appellant was evasive his account of what happened, and cited an instance when the appellant was asked why he used a cartridge with a stronger charge, to which he simply replied that he had already covered that issue “fairly well”. But when asked whether it was his intention to injure his brother the appellant replied “oh it was, yeah”. Counsel referred to the appellant’s claims that the deceased had assaulted him other occasions, but that he had been ashamed to admit this or make any complaint of it. On this, the prosecution submitted out that there was no independent evidence of previous assaults, nor that the deceased had engaged in any conduct on the evening which would have posed an immediate threat to the appellant such as would constitute provocation. In summary therefore, the thrust of the prosecution case on prosecution was that the crime was premeditated, and that later, in the interviews, the appellant had been making up excuses for what he had done.

43. In turn Counsel for the appellant submitted that the circumstances of the case, taken in conjunction with evidence from Dr. Raymond Murphy, Consultant Neurologist and Dr. Paul O’Connell, Consultant Psychiatrist, indicated that the appellant’s ability to make balanced decisions was such that the jury should make a finding of manslaughter based on provocation.

44. In this appeal Counsel for the appellant submitted there was evidence of a significant degree of frontal lobe atrophy to the brain and that that the burden of proof was on the prosecution to disprove provocation beyond reasonable doubt. He contended this defence evidence should have been coercive. He submitted that all the elements of the provocation defence were present and that the subjective nature of the test to be applied was particularly important where there was evidence that the appellant was suffering from dementia.

45. It is true that Dr. O’Connell, did testify at the trial that the appellant suffered from a degree of dementia, and that his life had been lived within narrow confines where there had previously been few substantially stressful events. His testimony was that one could imagine there had been nothing as stressful in the appellant’s life as losing his mother to whom he was close. The consultant testified too, that the appellant might have had no-one outside his immediate social sphere with whom he had a close attachment, so that his emotional response to his mother’s death was likely to have been felt intensely, and internalised. He said that this was to be seen in the context of the appellant’s previous tensions with his brother which pre-dated the event. His testimony was that his dementia could have impaired the threshold for the release of aggression and statements attributed to the deceased were to be seen against this overall background and thus could have been what precipitated the event.

46. Against this however, there had been other evidence that the deceased was a generous man, and easy enough to get on with. Three witnesses, Marty Stamp, Keith Harris and Christy Noone, all testified to this effect. Furthermore, the appellant accepted in interview that he never argued that much with the deceased who used to bring him up dinner every day, and make sure that he had tea in the evening.

47. In one statement, the appellant told the gardaí that he had challenged the deceased on the Thursday after the burial which had been on the previous Monday. He denied that he wanted to do away with Walter since the Monday:

“No it was only a spur of the moment thing that Thursday, because that Thursday I got the tea and all. He (Walter) came in and turned the television on at 6.30 and at 6.30 I went and watched the television and after the weather he went down to the bathroom. I had raised a row with him before he went down to the bathroom. I asked him where was the envelope. He denied taking the envelope but I knew he had it because he knew the numbers of all the hymns.”
48. At interview, the appellant confirmed that Walter had not been shouting at him, had not hit him at any stage during the day of the killing, or even threatened to do so. He only went so far as to say it was better than me getting a shot in than me getting hit off him the humour he was in you wouldn’t know what he’d do”. But earlier in the same interview, he had been asked how long it had taken him to get the gun out from behind the wardrobe, and then to load it with a cartridge. To this he responded:
“Only a few seconds, or you know the way I am; it took more than a few seconds or a minute or two and before I got back up he was nearly at the wide door”.

49. All this evidence has been outlined in order to show that, in fact, there was evidence before the jury from which they might have concluded that the appellant had not been provoked on the day in question, but, rather, had engaged in a series of calculated or pre-meditated actions which may have taken some considerable time. For the verdict to be perverse, the evidence would have to be tenuous or incredible; here it came largely from the accused’s own admitted statements. This observation as the case of all others in this judgment is far from saying that the jury were obliged to reach a murder conviction.

50. But two questions emerge. The first question is, was there evidence from which the jury might, reasonably, have concluded that there had been provocation? The learned trial judge correctly concluded that was enough evidence for this issue to go to the jury. No criticism whatever is made of this decision, nor or as to the manner in which the learned trial judge charged the jury in relation to the defence of provocation.

51. A second question is whether there was evidence upon which, the jury, having been properly and fully charged as to provocation, could have rejected the defence case? The answer to this question must be that there was such evidence. In the light of evidence as to the appellant’s overall conduct, the jury rejected the defence case of provocation.

52. However, a consideration of the evidence generally shows that the verdict was not perverse. It was not based on tenuous or non credible testimony (again see the passage by O’Flaherty J. in DPP v Egan, quoted earlier). The finding was “manifestly within the province of the jury” as Murray J. observed in The People (DPP) v CP. It is necessary then to address the next issue, that of diminished responsibility.

(ii) Diminished Responsibility
53. The Criminal Law (Insanity) Act, 2006 introduced a new defence to a charge of murder, of diminished responsibility. S.6 of that Act provides:
6. “Where a person is tried for murder and the jury finds that the person—

(a) did the act alleged,
(b) was at the time suffering from a mental disorder, and

(c) the mental disorder was not such as to justify finding him or her not guilty by reason of insanity, but was such as to diminish substantially his or her responsibility for the act, the jury or the court as the case maybe shall find the person not guilty of that offence but guilty of manslaughter on the ground of diminished responsibility.

(2) It shall be for the defence to establish that the person is, by virtue of this section, not liable to be convicted of the offence.” [Emphasis added]

(Section 5 of the Act empowers the trial judge to make directions as to the manner in which evidence of the issues of insanity or diminished responsibility shall be addressed. It is not material to this appeal). It is hardly necessary to emphasise that the new provision in the Act of 2006 differs in important aspects from S. 2 of the Homicide Act 1957 which governs the law in England and Wales. The English provision is to the effect that the defence is open where the accused’s responsibility for acts or omissions is substantially impaired by an “abnormality of the mind”. This is a different term from that of “mental disorder” contained in S.6 of the 2006 Act.
54. In order for the defence of diminished responsibility to succeed, it is necessary, first, that the jury find that the person in question carried out the act in question; second, it must be established that the accused was, at the relevant time, suffering from a mental disorder, but that such disorder was not such as to justify a finding of not guilty by reason of insanity, but would be such so as to diminish responsibility for the act.

55. The term “mental disorder” is, itself, defined in the Criminal Law (Insanity) Act, 2006 as including “mental illness, mental disability, dementia or any disease of the mind but does not include intoxication”. To afford a defence under S.6, the mental disorder must be substantial; clearly that is something more than trivial or minimal, though ultimately the test must be one of common sense which lies within the province of the jury. As to how this should be put in the charge, may assist in English authority analysing application in practice of the defence, bearing in mind the distinction between “abnormality of the mind’ from the term “mental disorder” in our law. (See for an example, of the application of this formulation R v. Sanders [1991] 93 Cr App R 249-50). The question is whether the mental disorder substantially diminished responsibility for the act. This is a jury question.

56. Would a jury verdict of murder on the evidence before it have been perverse provided it was clear that the jury had been properly charged? Here the appellant contends, in rather general terms, that the trial judge failed to explain to the jury the nature and distinction between the defences which were open to the accused. As will now be explained one clear issue arises does arise. As pointed out earlier there is an important distinction between provocation and diminished responsibility. Evidence of premeditation may negative provocation; but such evidence is not necessarily inconsistent with the defence of diminished responsibility. Should the charge in this case have addressed this point? It is necessary first to further analyse the evidence.

The medical evidence in the case

57. The evidence before the jury was that, in general, damage to the frontal lobes affects human behaviour. Dr. Murphy testified that the frontal lobe was very important in social interaction and in making persons behave in a socially acceptable sort of way. He stated that it was important in inhibiting individuals from doing “impulsive types of things”. He contrasted the disinhibited conduct of a child compared to what is socially acceptable in adults. He emphasised the role of the frontal lobes in creating and achieving normally socially acceptable conduct.

58. Dr. Paul O’Connell, Consultant Clinical Psychologist at the Central Mental Hospital also carried out an assessment of the appellant, albeit, eighteen months later, in 2011. He described the effect of the damage to the frontal lobe in this way:

“The frontal lobes in normal functioning are involved in forward planning, forming balanced decisions and inhibiting or resisting impulsive behaviour. Where you have damage involving the frontal lobes where performance is as poor as is now the case with Mr. Tomkins one would expect substantial difficulty in forming balanced decisions, in making plans for the future, or even conducting activities of daily living without nursing support and resisting impulsive behaviour.”

His finding was there were signs indicating there was marked impairment of the appellant’s frontal lobes or higher executive functions. He found evidence of dementia.

59. Dr. O’Connell’s evidence, and Dr. Murphy’s findings, were not contradicted. No medical evidence was adduced by the prosecution to suggest that Dr. Connell’s opinion was an unreliable one. The appellant himself had stated at interview that there had been a row in the kitchen about 7.00 pm over the burial. He said that he asked his brother where the letter was and that the deceased had told him to “fuck off”. He thought that was “fairly smart” and that he “wasn’t real pleased”.

60. Dr. O’Connell testified that it was possible that the tension surrounding the disagreement over his mother’s funeral corresponded with a lucid interval with heightened emotional arousal, bringing various grievances to a head. He testified that in his view at the time of the offence,

“in view of the evidence of dementia, in my opinion Mr. Tomkins had a mental disorder at the material time as defined in the Criminal Law (Insanity) Act, 2006”.

Referring explicitly to the terms of the Act of 2006, his evidence was that this was a mental disorder, defined as including mental illness, mental disability, dementia or any disease of the mind that does not include intoxication. He testified that the available evidence showed that Mr. Tomkins knew the nature and quality of his actions, but it was probable that his moral reasoning was impaired by the effect of his dementia at the material time so that his anger at the circumstances of his mother’s funeral was abnormal. He dismissed any possibility of insanity, but accepted the appellant’s cognitive decline as dementia. He added

“In light of the evidence of a mental disorder namely dementia, which in my opinion in all probability impaired his judgment and emotional regulation at the material time a defence of diminished responsibility is available.”

This form of atrophy is sometimes called “Parkinson’s Plus” reflecting the rapid course the condition takes compared to other Parkinson’s diseases or disorders. The trial judge fully and properly outlined all this material to the jury.

61. It is true of course, that the prosecution had called Dr. Conor O’Neill, a Consultant Forensic Psychiatrist based in the Central Mental Hospital, who carried out an assessment on the appellant on the 23rd July, 2010, only weeks after the event. Dr. O’Neill accepted that the appellant, even at the time of his examination, was exhibiting the signs of Parkinsonism, but he carried out a “mini mental state examination” where the appellant scored well, and did not detect any gross abnormality. He concluded that the time that the appellant did not suffer from any psychiatric or psychotic disorder. However, he also accepted that his focus was solely on whether or not the appellant was fit to be tried or processed through the court system by reason of insanity. In cross examination he accepted that when the frontal lobe is impaired as in Parkinsonism, it could affect inhibitory behaviour. It was put to him the appellant had been unable to carry out certain intellectual tasks put to him in Dr. O’Connell’s tests. Dr. O’Neill accepted this failure would be consistent with impaired ability to forward plan, to form balanced decisions, or to resist impulsive behaviour. He accepted that the signs “all indicated marked impairment of his frontal lobes or higher executive function”, although he had not had the opportunity of prior consideration of Dr. O’Connell’s evidence. Other than this however, there was no other psychiatric evidence on the question of effect of the appellant’s condition on his actions.

62. It is true therefore that the evidence of Dr. O’Connell and Dr. Murphy was uncontradicted on the specific question of diminished responsibility. In hindsight, Dr. O’Connell’s phraseology that, the defence of diminished responsibility was “available”, may have created a difficulty in the jury’s eyes. It may be that he was seeking to avoid trespassing on the domain of the jury. The trial judge set all the evidence out fully.

63. But did the evidence go “all one way”? As the English authorities point out, a jury is entitled to have regard to all the circumstances of the case. A jury is not necessarily bound by even unchallenged and uncontradicted medical evidence, but it may only properly reject it if there is some rational basis for so doing. (See R v Bailey [1978] Cr App Rep 31, R v Saunders [1991] 93 Cr App Rep 245.

64. Here the jury, which deliberated for some five hours, concluded that the circumstances of this offence negatived the defence submission of diminished responsibility. It is not the function of this court to supplant its subjective view for that of the jury. The question which does arise however, is whether the jury was charged as to the distinction between the two defences.

Did the charge deal with premeditation in the context of diminished responsibility

65. In his charge, the judge dealt with the defence of diminished responsibility in this way.

“I do however now come to the final matter, the final defence raised which is the issue of diminished responsibility. … Dr. O’Neil the Consultant Forensic Psychiatrist who first met Cecil Tomkins was not asked to address this issue. Dr. Tobin was not prepared to comment again as I said about Cecil Tomkins state of mind in 2010. So what you are left with is the evidence of Dr. O’Connell who very clearly told us that the partial defence of diminished responsibility was available to the defence. Again as I say the defence is obliged to establish this as a matter of probability. So the defence that you had of a consultant psychiatrist was that of Dr. O’Connell, he seems to be the only consultant psychiatrist who addressed this issue and he said it was available …”

Thereafter the judge recited the provisions of s.6 of the Act of 2006 and added:

“And you have heard all the evidence about dementia. As I said you heard the evidence of Dr. Paul O’Connell that the mental disorder at the time of the event was dementia.

The dementia did not justify according to Dr. O’Connell a finding of insanity, but was such as to diminish(d) [sic] substantially Cecil Tomkins responsibility for the act.”

It is unnecessary here to address any wider issues as to the nature of the defence of diminished responsibility which must await an appropriate case, based on appropriate trial evidence. One point which does emerge clearly is that the charge did not deal with the point that premeditation is not necessarily inconsistent with diminished responsibility. This must be seen in the context that the prosecution had laid great emphasis on the question of premeditation in the context of the provocation defence. Specifically, it had been put to the jury that each step taken by the accused prior to the shooting must have been taken considerable time by reason of the accused’s disability, and that consequently there could not be a close connection between the conduct of the deceased and the acts of the appellant so as to allow for provocation as a defence.

Pre-meditation

66. In R. v. Leonard John Sanders [1991] 93 Cr. App R at p.245 on a charge of murder the defence of diminished responsibility was raised. The medical evidence was unequivocal and uncontradicted. The Court of Appeal held that in such a case the trial judge should direct the jury to accept such evidence, if there were no other circumstances to consider. Where however, such other circumstances exist, that medical evidence should be assessed in the light of those other circumstances. However, the Appeal Court also emphasised the point that pre-meditation is not necessarily inconsistent with diminished responsibility.

67. In the instant case there may have been facts or circumstances which, in the eyes of the jury could displace or throw doubt on the evidence regarding diminished responsibility. But in such a circumstance, this court considers the charge should have addressed specifically the point that evidence of pre-meditation was not necessarily inconsistent with diminished responsibility. In R. v. Matheson [1958] 42 Cr. App. R 145 [1958] 2 All ER 87) Goddard L.C.J., referring to the English definition of “abnormality of the mind” observed:-

“Here it is said there was evidence of premeditation and undoubtedly there was, but an abnormal mind is as capable of forming an intention and desire to kill as one that is normal; it is just what an abnormal mind might do.”

68. In Sanders, too, referred to earlier, one complaint made on appeal was that the charge to the jury the judge had made no reference to premeditation being not necessarily inconsistent with diminished responsibility. The submission was rejected because the judge had in fact made, not one, but a number of specific references to the point.

69. There is no doubt here that the charge was both fair and objective. However, the question of premeditation in the context of diminished responsibility was a relevant point in the case. The jury were not specifically charged that premeditation is not necessarily inconsistent with diminished responsibility. It was this evidence upon which the prosecution relied in order to rebut Dr. O’Connell’s testimony on provocation, but such evidence would not necessarily have negatived diminished responsibility. The charge therefore, contained an error in law. This does not conclude matters however.

Was the point raised at trial?

70. The function of the Court of Criminal Appeal is to decide whether a trial was carried out in a satisfactory manner. Thus the appellants and their counsel will generally be confined to raising points which they considered to be important at the time of the trial, rather than on an ex post facto basis. As the court pointed in The People (D.P.P.) v. Moloney (unreported Court of Criminal Appeal 2nd March 1992), the duty of counsel is to bring to the attention of the trial judge any inadequacies which they perceive in his directions to the jury. If an appeal is brought before the Court of Criminal Appeal on a point that has not been canvassed at the trial, this court will regard any person making such new point as having an obligation to explain why it was sought to be made on appeal when not made at the trial. However, as the court pointed out in Moloney’s case:

“that is not to say that if the essential justice of the case calls for intervention we have an obligation to intervene”.

71. In People (D.P.P.) v. Boyce [2005] IECCA 143, Murray C.J., speaking in the Court of Criminal Appeal observed:

“The inclusion in grounds of appeal matters calling in question a trial judge’s charge to the jury which were not the subject of requisitions has been a subject of observations and statements by this court in its case law over the decades. When considering a trial judge’s charge to the jury at a distance and out of context of the trial itself it may be too easy or simply facile to suggest that some matters should have been dealt with more fully or with greater emphasis or less so. A trial judge has a delicate balance to strike in giving a summary of the evidence and directing the jury on the law in the context and immediacy of the trial having regard to the evidence, the course of the trial, the issues which were of primary controversy, the speeches of counsel and the context of the case as a whole. Counsel for both sides, and in particular the defence, in that immediacy of the context of the trial, are in a special position, at the conclusion of the charge to identify any matters stated by the judge which could have a material effect on the fairness or balance of the charge and which might require the jury to be redirected. It is in that context that the points of real importance fundamental to the fairness of the trial can be best identified. The court leans against points of issue with the charge being identified very much later, out of the context of the trial, sometimes where persons who had no connection with the trial, but only after a “trawl” through the transcript unless of course the points identified are substantial and of fundamental importance to the fairness of the trial.

It is necessary also to re-emphasise the observations of Kearns J., speaking in the Supreme Court in D.P.P. v. Cronin No.2 [2006] 4 1 I.R. 329 at 346, that some:

“error or oversight of substance, sufficient to ground an apprehension that a real injustice has occurred must be demonstrated before the court should allow a point not taken at trial to be argued on appeal. There must in addition be some sort of explanation tendered to explain why the particular point was not taken…”

72. It is clear a number of the issues which arose in this case were novel, at least in this jurisdiction. The defences chose to advance a number of different lines of attack at the trial. It was necessary to explain those in some detail. On the facts just adverted to between the two defence, was of ‘substantial and fundamental’ importance to the fairness of the trial. Evidence which might negative provocation may not necessarily be inconsistent with diminished responsibilities. The charge should therefore have included a clear explanation on the nature of the defence of diminished responsibility, and on the question of premeditation.

73. The paramount duty of this court is to ensure that justice is done. Under statute, (s.12 Courts (Supplemental Provisions) Act, 1961, this court has jurisdiction to determine any questions necessary to be determined for the purpose of doing justice in the case before it.” Counsel has fairly accepted the fact that there was an inadvertent omission to deal with these issues at the trial; specifically in submission to the judge or at the requisite days.

74. One of the grounds of appeal, although broadly stated, is in fact, that the trial judge did not sufficiently explain the distinction between the defences to the jury. It might be said that the exact point now in issue should have been raised more explicitly. Grounds of appeal should not be “broad brush”. There were issues here which should have been addressed to the learned trial judge. It is the duty of counsel to ensure that matters of importance to their client are properly and fully canvassed at the trial. The judge cannot in that sense be faulted if this duty is not discharged. But there is no indication that the point which arises here derives from a retrospective “trawl” through the transcript. This Court has a fundamental duty to ensure that justice is done. It is the considered view of this Court that the defence of diminished responsibility, and not such alternative contentions as were with few realistic prospects of success canvassed at the hearing, went to the very essence of the trial. In the context of a number of alternative defences, being run in somewhat uneasy co-existence, it is readily understandable that the learned trial judge omitted to charge the jury that premeditation of itself was not necessarily inconsistent with a diminished responsibility finding in the exercise of a disordered mind. Nonetheless, the absence of such a direction, in the light of all the evidence is viewed by us as having been of substantial and fundamental importance to the fairness of the trial, and reasonably likely to have left the jury with an incomplete and erroneous view of the law applicable to diminished responsibility. In the light of these exceptional circumstances, the Court will quash the conviction and direct a retrial.

The People v Gallagher

 

[1991] ILRM 339
McCarthy J
The question raised on this appeal is the true construction of s. 2(2) of the Trial of Lunatics Act 1883. S. 2 reads as follows:

(1) Where in any indictment or information any act or omission is charged against any person as an offence, and it is given in evidence on the trial of such person for that offence that he was insane, so as not to be responsible, according to law, for his actions at the time when the act was done or omission made, then, if it appears to the jury before whom such person is tried that he did the act or made the omission charged, but was insane as aforesaid at the time when he did or made the same, the jury shall return a special verdict to the effect that the accused was guilty of the act or omission charged against him, but was insane as aforesaid at the time when he did the act or made the omission.

(2) (as modified by s. 3) Where such special verdict is found, the court shall order the accused to be kept in custody as a criminal lunatic, in such place and in such manner as the court shall direct till the pleasure of the Lord Lieutenant shall be known; and it shall be lawful for the Lord Lieutenant thereupon, and from time to time, to give such order for the safe custody of the said person during pleasure, in such place and in such manner as to the Lord Lieutenant may seem fit.

On 19 July 1989, at the Central Criminal Court, a jury did return a special verdict to the effect that John Gallagher was guilty of the act charged against him but was insane at the time. The order of the Central Criminal Court was that he be detained in the Central Mental Hospital until further order. On 29 January 1990, he applied to the High Court, Johnson J, sitting at the Central Criminal Court, for his release; Johnson J amended the order of 19 July 1989 and, by order of 14 December 1990, did order that John Gallagher be detained in the Central Mental Hospital Dundrum until the pleasure of the Government of Ireland is known. The form of that order derived from the effect of the Adaptation of Enactments Act 1922, of which s. 11 provided:

(1) Subject and without prejudice to the specific adaptations made by this Act or by any order made under the authority of this Act, every mention or reference contained in any British Statute of or to any Minister, Official, Department or Authority of the Government of the late United Kingdom or of the late British Government in Ireland including the Lord Lieutenant exercising executive functions shall in respect of the doing or not doing of any act, matter or thing after 6 December 1922, be construed and take effect as a mention of or reference to the Minister, Official, Department or Authority in Saorstát Éireann exercising in Saorstát Éireann functions the same as or corresponding to the functions exercised in respect of the area now comprised in Saorstát Éireann by such Minister, Official, Department or Authority of the Government of the late United Kingdom or the late British Government in Ireland prior to 6 December 1921; but this section shall not apply to any provision contained in any such Statute relating to the remuneration of any Minister or other official.

(2) If any question shall arise as to which Minister, Official, Department or Authority exercises in Saorstát Éireann functions the same as or corresponding to the functions exercised by any Minister, Official, Department or Authority of the Government of the late United Kingdom or of the late British Government in Ireland, such question shall be determined by the President of the Executive Council, whose decision shall be final.

Historically, the Act of 1883 was applied in its original form before the establishment of Saorstát Éireann in 1921 and since that date as adapted until about 1973 when a practice arose of making an order in the form first used by Johnson J. This form of order is reflected in s. 203 of the Defence Act 1954, as amended by s. 6 of the Courts-Martial Appeals Act 1983 by virtue of which, in a like situation arising at a court-martial, ‘the court-martial shall order that such person be kept in custody in an institution suitable for the detention of such person until further order of the High Court, which court shall for that purpose have all the powers which a judge of the Central Criminal Court would have had if such person had been tried before him’. There does not appear to have been any amendment of the 1883 Act since its enactment. S. 284 of the Mental Treatment Act 1945 recognised the continuing effect of s. 2 of the 1883 Act, identified as a specified section for the purposes of s. 284 which provided:

(2) Nothing in this Act shall affect any power exercisable immediately before the commencement of this section under any specified section.

(3) No power, restriction or prohibition contained in this Act shall apply in relation to a person detained by virtue of any specified section.

Like provision in respect of s. 2 of the Act of 1883 was made by s. 50 of the Health (Mental Services) Act 1981, the Mental Treatment Act 1945, save for Part VIII, having been repealed by s. 7 of the Act of 1981.

The issue both as to the correct form of order and as to the initial power of release from detention has arisen in the High Court in two other cases. In People (Director of Public Prosecutions) v Ellis [1991] ILRM 225, O’Hanlon J held that the proper form of order was in direct and express compliance with s. 2(2), as adapted, whereas in People (Director of Public Prosecutions) v Neilan [1991] ILRM 184, Keane J took the other view and held that the proper form of order was that as made since 1973; that the order for release was a judicial act which could only be validly carried out in a criminal matter by the judiciary. In the instant case, Johnson J, in his careful judgment, clearly concluded that the decision of O’Hanlon J was correct and should be followed. In my view he was right.

On the hearing of this appeal, counsel for John Gallagher has supported the reasoning of Keane J in Neilan’s case, inviting the court to look at the quality of the act of release itself. Keane J held that the words beginning ‘till the pleasure of the Lord Lieutenant shall be known’ to the end of the subsection were constitutionally vulnerable as a purported exercise by the executive of a judicial power, but that these words could be severed from the subsection which could operate validly without them. This was an application of the saving provisions of Article 50 of the Constitution and Article 73 of the Constitution of the Irish Free State (Saorstát Éireann).

The Attorney General who is a notice party to this application also appeals against the order of the High Court. Until the establishment of the office of Director of Public Prosecutions in 1974, all prosecutions on indictment since the establishment of Saorstát Éireann had been brought by or at the suit of the Attorney General, involving from time to time the making of an order under s. 2 of the Act of 1883 in the form similar to that made by Johnson J in the instant case.

The Attorney General contends, however, that the correct form of order was that made by the trial judge on 19 July 1989. He contends that ‘where a person s detained consequent upon the making of such court order, any decision or order relating to his continuing detention or release is similarly an act constituting part of the administration of justice within the State affecting as it does the rights of a citizen to liberty as well as the rights of those who may be affected by the conduct or actions of that citizen if he is set at liberty’ (see written submission No. 3). He further submits that, contrary to the view of Keane J in Neilan, s. 2(2) is not inconsistent with the Constitution nor was it inconsistent with the Constitution of the Irish Free State (Saorstát Éireann) ‘on the basis that the functions to be exercised thereunder in relation to the making of a determination as to the setting at liberty of a person, such as the accused, constitute an exercise of the judicial power and are properly exercisable by the courts.’ (submission No. 6). This argument depended upon the conclusion that the function of determining whether a person such as the accused should be set at liberty, being an exercise of judicial power, had become vested in the People by virtue of Articles 2 and 64 of the Constitution of the Irish Free State (Saorstát Éireann) and Articles 34 and 49 of the Constitution. Such an argument derives support from the observations of Ó Dálaigh CJ in State (O.) v O’Brien [1973] IR 50 at 60. If one does not accept this submission as to the vesting in the People of the particular function, it would remain vested in the executive; if it were a judicial function in a criminal matter such vesting would be inconsistent with the provisions of Article 38 of the Constitution. It would follow that if the argument as to vesting were not upheld, the Attorney General would accept that part of subs. (2) was inconsistent with the Constitution.

In Neilan, Keane J, having made some observations on the nature of the judicial power examined the nature of the order made under the 1883 Act. In the course of doing so he said:

A criminal trial, — and, indeed, the same could be said of a civil trial — is not a disjointed sequence of unrelated events: it is a continuum which begins with the arraignment of the accused and does not conclude until he has been either sentenced by the court or unconditionally discharged. In the former case, the correctness in law of the conviction or the sentence may be reviewed on appeal or there may be no appeal in which case the detention of the accused and his subsequent release becomes solely a matter for the executive. Whether or not there is an appeal, the criminal trial itself has come to a definitive and unmistakable end. Where the accused has been neither convicted nor unconditionally discharged, the court retains its seisin of the case …. Applying, then, the criteria which seem to be relevant, what do they indicate as to the nature of the order now sought? It is not in any sense an order of an arbitral nature; it emanates unequivocally from the State, whether it be judicial or executive in its nature. It derives its legal efficacy from the verdict of a jury resolving disputed issues of fact which had, as its necessary consequence, an order affecting the constitutional right to liberty of the defendant. It is an order which of its very nature calls in aid the executive power of the State, since it is that arm of Government which is responsible for the provision and supervision of the place where the defendant is to be detained. It is undoubtedly an order which, as a matter of history, is an order characteristic of courts in this country. Finally, the order from which it ultimately derives its efficacy is made by a judge presiding at a criminal trial.

By every relevant criterion, accordingly, the order made by the executive is one that is normally part of the administration of justice. No doubt in any case where it could be shown to the satisfaction of the court that the executive has exercised the power purportedly given to them by the section in an unlawful manner, whether because their decision was arbitrary, capricious or unreasonable or was in some other sense vitiated by illegality, the decision could be set aside by the court as a result of an application for judicial review. But that is not a material consideration in determining whether the exercise of the function in question is properly regarded as part of the administration of justice.

He concluded that the order sought constituted part of the administration of justice.

In my view, there is a link missing from this chain of logical conclusion. The overriding circumstance is that the special verdict is a verdict of acquittal; the trial is concluded; the court does not pronounce a sentence; the role of the court is to order the detention of the person, the former accused, until the executive, armed with both the knowledge and resources to deal with the problem, decides on the future disposition of the person. At that stage also the Director of Public Prosecutions ceases to have his ordinary statutory role. The result of the prosecution has been an acquittal but the statute which permits the special verdict requires that the former accused be detained at least for some minimum time.

The argument for the Attorney General is that the relevant words of the subsection ‘till the pleasure of the Lord Lieutenant be known’ constitute the administration of justice in a criminal matter; therefore it must be determined by the judiciary whose role in the administration of justice is derived from the People. This, apart from an unacceptable straining of language, begs the question. It invites the court to construe the section as substituting the courts for the Government on the very ground that its operation is the administration of justice; it is for that very reason that Keane J held it to be inconsistent with the Constitution. If it is the administration of justice, then clearly the statute consigns it to the executive, which is constitutionally not permissible. But it is not the administration of justice. It is the carrying out of the executive’s role in caring for society and the protection of the common good. The subsection cannot be construed solely in relation to the facts of one particular case; obviously, it must be construed in the light of its own language within a constitutional framework. When the special verdict is returned, the court has no function of inquiry into the then mental state of the former accused; that role is given to the executive. Pursuant to subs. (2), the only order that could lawfully be made was an order that the accused be kept in custody as a criminal lunatic in such place and in such manner as the court should direct; immediately after the making of the order or ‘thereupon’ as stated in the subsection, the role of the executive arose — to provide an appropriate place for the safe custody of the accused in such place and in such manner as the executive thought appropriate, until such time as the executive was satisfied that having regard to the mental health of the accused it was, for both public and private considerations, safe to release him. In that sense, the role of the executive, on the making of the judicial order, became like unto the role of the executive in s. 165 of the Mental Treatment Act 1945. When the constitutional validity of that section was challenged in In re Philip Clarke [1950] IR 235, as permitting detention without the intervention of the judicial power, the challenge was rejected. No criticism has been levelled against the decision of the Supreme Court of Justice in Clarke’s case.

If and when a person detained pursuant to s. 2(2) of the Act of 1883 seeks to secure release from detention, as in the instant case, he may apply to the executive, as has been done in the instant case, for his release on the grounds that he is not suffering from any mental disorder warranting his continued detention in the public and private interests, then the executive, in the person of the Government or the Minister for Justice, as may be, must inquire into all of the relevant circumstances. In doing so, it must use fair and constitutional procedures. Such an inquiry and its consequence may be the subject of judicial review so as to ensure compliance with such procedures.

In my judgment, the continued detention under s. 2(2) is a matter for executive decision and the subsection withstands the constitutional challenge. It is for the Government or the Minister for Justice to determine if and when the detained person is to be released. Where persons are already detained ‘subject to the order of the court’ pursuant to orders made by the courts in purported exercise of the powers created by s. 2(2) of the Act of 1883, they are lawfully detained but the duration, location and manner of their further detention must be determined by the Government or the Minister in the manner which I have just outlined.

I would dismiss this appeal.

DPP v Ramzan

 

[2016] IECA 148
Judgment of the Court delivered on the 11th day of May, 2016, by
Mr. Justice Edwards

Introduction
1. This judgment is concerned with an appeal by the appellant against his conviction by a jury on the 20th of January, 2012, on a count of possession of a controlled drug, to wit, cocaine, on the 14th of September, 2006, at Station Road, Lusk, Co. Dublin for the purpose of selling or otherwise supplying it to another, contrary to s. 15 of the Misuse of Drugs Act 1977 (as amended).

2. The facts giving rise to the offence charged are uncontroversial and may be briefly summarized.

3. On the 14th of September, 2006, gardaí from the Garda National Drugs Unit were, based upon intelligence they had received, conducting surveillance on a number of persons, properties and vehicles in the Lusk area of County Dublin. In the course of that surveillance, a number of those gardaí, while travelling in an unmarked car, were following a Nissan Almera motorcar, at a discrete distance back from it, which was travelling from Lusk in the direction of Skerries. The Nissan Almera contained two persons of interest to the gardaí. At a certain point on the road between Lusk and Skerries, an English registered lorry, travelling in the opposite direction, was observed to flash its lights at the Nissan Almera. Once the Nissan Almera had passed the lorry, the lorry then pulled in to the left side of the road. The Nissan Almera then did a U-turn and headed back in the direction from which it had come. As soon as it had passed by the stationery lorry, the lorry immediately moved off again, pulling back out on to the road and taking up a position behind the Nissan Almera. Both vehicles then travelled in convoy for some distance until they reached a roundabout on the outskirts of Lusk.

4. At that point, both vehicles took the same exit from the roundabout and then proceeded along a bypass around Lusk village. After proceeding through a further roundabout, they then exited on to Station Road and headed in the direction of Rush, Co. Dublin. When they reached a furniture factory on the road in question, both vehicles pulled in to the factory car park and stopped. A third man, whom gardaí had observed being dropped off at that location earlier in the day, was observed to be sitting on a nearby wall at this time. The man in the passenger seat of the Nissan Almera got out of his vehicle, and he was noted to have a navy coloured backpack on his shoulders. The Nissan Almera then drove off, and the passenger who had alighted from it walked towards the English registered lorry. Gardaí observed that the lorry had two occupants, i.e., a driver and a passenger. It was later established that the driver of the lorry was the appellant. The passenger door of the lorry then opened, and the man from the Nissan Almera was observed taking a white coloured item from his navy backpack and handing it up to the person in the passenger seat of the lorry. Both the lorry driver and the passenger were then observed to reach behind their seats and to pull a large plastic bag containing white coloured objects into the front of the lorry. They appeared to gardaí to be tearing at the plastic bag as if trying to tear it open. While this was happening, the previously mentioned third man was observed getting down from the wall on which he had been seated, and he also approached the passenger door of the lorry. This man was observed to be carrying a blue sports bag at this time. When he reached the lorry, he was also seen handing an item from his open bag to a person in the lorry through the open passenger door. At this point the Garda surveillance team, suspecting that the men in question were in possession of controlled drugs, intervened. They intercepted the four men and the two vehicles in the factory car park, and they proceeded to search them pursuant to s. 23 of the Misuse of Drugs Act 1977. A large quantity of cocaine, packed in brown taped packages and wrapped in white quilts, was found within the lorry, as was some €85,000 in cash. The quantity of cocaine involved was 8.355 kilograms, worth an estimated €485,000.

5. All five men suspected of being involved, being the two men in the Nissan Almera (the driver of which was separately apprehended), the man who had been seated on the factory wall and the two men in the lorry (one of whom was the appellant), were arrested on suspicion of having committed a drug trafficking offence and were detained. The appellant was interviewed on a number of occasions while so detained and made a number of admissions, including that he knew there were drugs in the lorry and that he was to receive £400/500 from his passenger for his driving of the lorry.

6. All five men suspected of being involved were later charged with various drugs offences. All except the appellant pleaded guilty. The appellant, who was initially charged with three offences, contested his trial. He successfully obtained a direction on Count No. 1 and Count No. 3 on the indictment preferred against him, but was found guilty by a jury on Count No. 2. It is against that conviction that he appeals to this Court.
Grounds of Appeal
7. The Notice of Appeal filed by the appellant lists ten grounds of appeal against conviction designated (a) to (j) respectively. However, these grounds appear to the Court to be capable of distillation into two main and net complaints:

• that the trial judge erred in ruling at various stages of the proceedings that, in the circumstances of the case, the appellant ought not to be permitted to adduce expert testimony in the course of the trial concerning the appellant’s cognitive functioning and mental state at various times following his involvement in a road traffic accident on the 29th of October, 2005, either from a Dr. Niall Pender, a Consultant Neuropsychologist practicing in Ireland, or from various English medical specialists who had treated him for the injuries that he had sustained in the said accident;
• that the trial judge erred in ruling that the detention of the appellant purportedly in accordance with s. 4 of the Criminal Justice Act 1984 was lawful in circumstances where the member in charge of the garda station at which the appellant was detained, who had testified orally that he had been designated to act as member in charge of the said garda station by the superintendent in charge of the relevant garda district, was unable to produce the written record of the superintendent’s direction so designating him.

8. The issue as to whether or not the appellant would be allowed to adduce the expert medical testimony in controversy was raised more than once in the proceedings. It was raised in the first instance pursuant to s. 34 of the Criminal Procedure Act 2010 (the Act of 2010) at a pre-trial hearing on the 28th of June, 2011. It was then raised again at the trial itself. In relation to the complaints concerning the disallowing of medical evidence, it is appropriate to separately consider these various applications.
Complaints Regarding the Disallowing of Medical Evidence

(1) The pre-trial s. 34 application

(a) The circumstances in which the application was made
9. The appellant’s case had been listed for trial before the Circuit Court on numerous dates prior to the substantive hearing commencing on the 16th January, 2012. Those dates were 10th November, 2008; 6th July, 2009; 12th April, 2010; 1st February, 2011; 28th November, 2011; and 11th January, 2012. On those dates, the trial had either not been in a position to proceed or was the subject of a successful late application for an adjournment by one or other side.

10. On the morning of the trial date of 1st February, 2011, the defence served on the prosecution, pursuant to s. 34 of the the Act of 2010, a Notice of Intention to adduce Expert Medical Testimony from a Dr. Niall Pender, who is a Principal Clinical Neuropsychologist at Beaumont Hospital, Dublin; a Dr. P.N. Cooper, who is a Consultant Neurologist attached to a number of English hospitals; a Dr. Nicholas Priestley, who is a Consultant Clinical Neuropsychologist based in Manchester; a Mr. P.A. Vinod Kumar, who is a Consultant Plastic Surgeon attached to a number of English hospitals; and a Dr. Theodore Soutzos, a Consultant Psychiatrist based at the Priory Hospital in Roehampton in London.

11. Also, on that date, the accused’s legal team formally notified the prosecution and the court of the accused’s intention to seek to rely on a defence of insanity as provided for in s. 5 of the Criminal Law (Insanity) Act 2006 (the Act of 2006). This was in circumstances where the accused’s legal team had in fact informally put the prosecution on notice of this matter on the evening before.

12. The prosecution indicated to the court that it was not in a position to consent to the s. 34 application. In the circumstances the court adjourned the substantive trial to a later date, and it directed that, in the interim, there should be a pre-trial hearing of the contested application for leave to adduce the proposed expert medical testimony under s. 34 of the Act of 2010. That hearing took place on the 28th of June, 2011.
(b) The arguments presented
13. It may be convenient at this point to set out the terms of s. 34 of the Act of 2010 (to the extent that they are relevant to this appeal):-

“34.— (1) An accused shall not call an expert witness or adduce expert evidence unless leave to do so has been granted under this section.
(2) Where the defence intends to call an expert witness or adduce expert evidence, whether or not in response to such evidence presented by the prosecution, notice of the intention shall be given to the prosecution at least 10 days prior to the scheduled date of the start of the trial.

(3) A notice under subsection (2) shall be in writing and shall include—

(a) the name and address of the expert witness, and
(b) any report prepared by the expert witness concerning a matter relevant to the case, including details of any analysis carried out by or on behalf of, or relied upon by, the expert witness, or a summary of the findings of the expert witness.

(4) [not relevant]
(5) The court shall grant leave under this section to call an expert witness or adduce expert evidence, on application by the defence, if it is satisfied that the expert evidence to be adduced satisfies the requirements of any enactment or rule of law relating to evidence and that—

(a) subsections (2) and (3) have been complied with,
(b) where notice was not given at least 10 days prior to the scheduled date of the start of the trial, it would not, in all the circumstances of the case, have been reasonably possible for the defence to have done so, or

(c) [not relevant].

(6) [not relevant].
(7) [not relevant].

(8) [not relevant].

(9) [not relevant].”

14. At the commencement of the s. 34 hearing, the court was told that it was accepted that all time limits had been complied with and that all required notices had been furnished. Moreover, as required by the section, the court had been furnished with a booklet of reports from the proposed expert medical witnesses. The court was informed by defence counsel that the reason for seeking to adduce the evidence in question was two-fold: firstly, it was intended to support the proposed defence of insanity; and, secondly, it would be relevant to the issue as to whether the jury could be satisfied beyond reasonable doubt that the accused man had had the required mens rea in order to be guilty of the offences with which he was charged. It was suggested that at that pre-trial hearing the court should only deal with the application to adduce the evidence for the first purpose, i.e., to support an insanity defence, and that the application to adduce the evidence for the second purpose, i.e., to negative mens rea, should be left over to be revisited in the course of the trial itself
15. The prosecution responded that it was objecting to the proposed expert medical testimony being adduced in support of a defence of insanity on the grounds that the proposed expert evidence did not satisfy the requirements of any enactment, particularly the Act of 2006 and specifically s. 5 thereof, which was the relevant enactment that was being relied upon. It was also the prosecution’s position that they intended to object to the proposed expert evidence being adduced for the suggested other purpose, on the grounds that it was not going to be relevant to any issue required to be determined by the jury and, further, on the grounds that (some of) it would in any case offend against the ultimate issue rule. However, the prosecution was agreeable to the suggestion that the court should, in the first instance, only proceed to determine the application to adduce the evidence to support an insanity defence, and that it should leave over to the trial the further application for the defence to be allowed to adduce the evidence to negative mens rea.

16. The specifics of the objection to the proposed reliance by the defence on the expert medical witnesses that they were seeking to call to support their client’s proposed insanity defence were based on s. 5(1) of the Act of 2006, which, counsel for the prosecution submitted, required that evidence to support such a defence should be adduced from a consultant psychiatrist. It was contended that the expression “consultant psychiatrist” as used in s. 5 of the Act of 2006 was a term of art referable to a specific restricted definition of “consultant psychiatrist” contained in s. 2 of the Mental Health Act 2001. In that regard, counsel for the prosecution expressly submitted “it is stated in the 2006 Act that a consultant psychiatrist is as defined in the 2001 Act”, and further contended that none of the proposed medical experts came within that restricted definition.

17. It may be useful at this point to set out, to the extent relevant, the terms of s. 5 of the Act of 2006 (as amended by the Criminal Law (Insanity) Act 2010):-

“5.— (1) Where an accused person is tried for an offence and, in the case of the District Court or Special Criminal Court, the court or, in any other case, the jury finds that the accused person committed the act alleged against him or her and, having heard evidence relating to the mental condition of the accused given by a consultant psychiatrist, finds that—

(a) the accused person was suffering at the time from a mental disorder, and
(b) the mental disorder was such that the accused person ought not to be held responsible for the act alleged by reason of the fact that he or she—

(i) did not know the nature and quality of the act, or
(ii) did not know that what he or she was doing was wrong, or

(iii) was unable to refrain from committing the act,

the court or the jury, as the case may be, shall return a special verdict to the effect that the accused person is not guilty by reason of insanity.
(2) If the court, having considered any report submitted to it in accordance with subsection (3) and such other evidence as may be adduced before it, is satisfied that an accused person found not guilty by reason of insanity pursuant to subsection (1) is suffering from a mental disorder (within the meaning of the Act of 2001) and is in need of in-patient care or treatment in a designated centre, the court shall commit that person to a specified designated centre until an order is made under section 13 or 13A.

(3) (a) For the purposes of subsection (2), if the court considers that an accused person found not guilty by reason of insanity pursuant to subsection (1) is suffering from a mental disorder (within the meaning of the Act of 2001) and may be in need of in-patient care or treatment in a designated centre, the court may commit that person to a specified designated centre for a period of not more than 14 days and direct that during such period he or she be examined by an approved medical officer at that centre.

(b) The court may, on application to it in that behalf by any party and, if it considers it appropriate to do so, after consultation with an approved medical officer, extend the period of committal under this subsection, but the period or the aggregate of the periods for which an accused person may be committed under this subsection shall not exceed 6 months.

(c) Within the period of committal authorised by the court under this subsection the approved medical officer concerned shall report to the court on whether in his or her opinion the accused person committed under paragraph (a) is suffering from a mental disorder (within the meaning of the Act of 2001) and is in need of in-patient care or treatment in a designated centre.

(4) [not relevant]”

18. The restricted definition of consultant psychiatrist contained in s. 2 of the Mental Health Act 2001 is as follows:-
“ ‘consultant psychiatrist’ means a consultant psychiatrist who is employed by a health board or by an approved centre or a person whose name is entered on the division of psychiatry or the division of child and adolescent psychiatry of the Register of Medical Specialists maintained by the Medical Council in Ireland”
19. The prosecution’s point was that neither Dr. Pender, nor Dr. Cooper, nor Dr. Priestley, nor Mr. Kumar were consultant psychiatrists, much less “consultant psychiatrists” as defined by s. 2 of the Act of 2001. Moreover, while it was not disputed that Dr. Soutzos was a consultant psychiatrist in the generally understood meaning of that term, he was not a consultant psychiatrist within the restricted definition of that term created by s. 2 of the Act of 2001.
20. Curiously, the transcript of the hearing on the 28th of June, 2001, reveals that there was no direct engagement by defence counsel with the suggestion that only a consultant psychiatrist as defined by s. 2 of the Act of 2001 could be called to give the evidence which s. 5 of the Act of 2006 says shall be given by a consultant psychiatrist. There appears to have been a tacit acceptance by him that that proposition was correct. The actual extent of defence counsel’s engagement with the prosecution’s objection was a suggestion that, having regard to the terms of Article 6 of the European Convention on Human Rights, a defendant who is seeking to set up a defence of insanity should not be limited to calling only the evidence of the consultant psychiatrist referred to in the section. It was suggested that an accused should be entitled to call all relevant and appropriate evidence. It was implicit from this submission that the defence were contending that, whether or not they came within the restricted definition, Dr. Pender, Dr. Cooper, Dr. Priestley, Mr. Kumar and Dr. Soutzos, respectively, all had relevant and appropriate evidence to give, and that the accused should be allowed to adduce that evidence. Defence counsel also sought to place reliance on the reference in s. 5(2) of the Act of 2006 to “such other evidence as may be adduced” as supporting his contention that other expert evidence in addition to the evidence of a consultant psychiatrist could be received in support of an insanity defence.
(c) The trial judge’s ruling
21. Having heard both sides the trial judge ruled as follows:-

“JUDGE: Well, the matter is before the Court today by way of preliminary supervision, so to speak, and application pursuant to section 34 of the Act. It’s agreed that this trial should proceed in the new term and that I should be the trial judge. The purpose of all of that is simply to enable pre-trial matters to be identified and dealt with in an expeditious way, so as to accommodate, ultimately, a fair and proper trial. A fair trial is clearly one that is the pursuit of any Court, but it must be fair to all parties involved and be subject to the law as it stands. Section 5 of the Criminal Law (Insanity) Act of 2006 is specific in what it says. It requires for the issue of not guilty by reason of insanity to be established at a trial, it must be based upon the evidence of a consultant psychiatrist. That is the explicit provision of section 5 of the Act in the first place. The reference that Mr. O’Hanlon has opened to the Court of subsection 2 is in regard to evidence that may be considered by a Court after a finding has been made under subsection 1 that an accused person is not guilty by reason of insanity, and there, yes, he’s correct in suggesting that there is reference to other evidence as may be adduced in pursuit of the onward orders that may be made by Court consequent upon a finding of not guilty by reason of insanity. The same wording does not appear in subsection 1, which would seem to suggest that the issue of insanity, or not guilty by reason of insanity, can and is only permitted to be raised in evidence, at trial, based upon the exclusive evidence of a consultant psychiatrist. The application today, insofar as it’s made, that the reports of the other professionals that are referred to in the booklet of documents refer to professionals who simply do not come within the restricted definition of a consultant psychiatrist under the legislation and Mr. O’Hanlon and the accused and his defence team recognise this and advise the Court that they are taking such necessary steps as to retain and involve a professional who comes within that very clear definition. For the purposes of this application, then, it would seem that I ought not to give, and cannot give, permission under subsection 34 of the Act to the calling of the evidence purported to be based upon the testimony of the witnesses referred to in the booklet of documents submitted by the Court. That would seem to arise from the provisions of subsection 5 of the Act, of the section 34 of the Criminal Procedure Act 2010, because it says there: “The Court shall grant leave under the section to call an expert witness, or adduce expert evidence, on application by the defence, if it is satisfied that the expert evidence to be adduced satisfies the requirements of any enactment or rule of law relating to evidence” and, as I say, at this juncture, the purported extract of evidence, based on the reports of these persons, would be simply coming from people who do not fit within the definition of evidence allowed to be called on the issue of insanity or not at trial. So, for these reasons, I don’t propose to grant permission as sought in respect of the witnesses referred to.
I accept the proposition that is advanced both by Mr. O’Hanlon and Ms Duffy that the issue of the calling of expert evidence at the trial in relation to the question of mens rea is one that would properly be left over to the hearing of the evidence at trial.

…

Finally then, that, as the defence have indicated that they propose to seek and rely upon the evidence of a consultant psychiatrist within the definition of the Act, I would invite them to consider and reapply to the Court, under section 34, when they’re in a position to do so”

(d) Discussion and analysis
22. Under s. 34 of the Act of 2010, an accused may not call an expert witness or adduce expert evidence unless leave to do so has been granted under the section. However, as Kearns P. has pointed out in Markey v The Minister for Justice and Ors [2012] 1 IR 62, the discretion conferred on the court is a very limited one. An accused is in effect presumptively entitled to such leave and, subject to there having been compliance with the notice requirements of the section, a court which is in receipt of an application for such leave must grant it if it is satisfied that the expert evidence to be adduced satisfies the requirements of any enactment or rule of law relating to evidence.
23. The circumstances of the present case require particular focus on what is meant by the phrase “the requirements of any enactment or rule of law relating to evidence” in section 34. There is no comma or other form of punctuation after the word “enactment” such as might suggest that the subsequent qualifier, i.e., “relating to evidence”, should not apply equally both to enactments and rules of law. Rather, the plain and ordinary meaning of the phrase is that it refers to “any enactment … relating to evidence” or any “rule of (the common) law relating to evidence” as alternatives. It is clearly concerned with ensuring that the proposed expert evidence will, quite apart from any other considerations, be legally admissible evidence.

24. We are reinforced in our view by commentary in two of the leading textbooks on the law of evidence in Ireland.

25. Mr. Declan McGrath, Barrister at Law, in his work entitled “Evidence” (2nd ed., 2014, Round Hall) comments at para. 6-65 that:-

“With regard to the first test for the grant of leave, it is apparent that the court must be satisfied that the evidence proposed to be adduced constitutes ‘expert evidence’ and is otherwise admissible.”
[This Court’s emphasis]

The author continues:-
“Thus, a court could refuse to grant leave if it is not satisfied that the proposed witness has the appropriate qualifications or experience about the matter to which the witness’s evidence relates so that he or she fails to satisfy the definition of expert witness in sub.(9). A court might also refuse leave if it formed the view that the expert evidence sought to be adduced was not relevant to the issues in the case or if it is inadmissible because it relates to a matter that is within the knowledge and experience of the tribunal of fact as was the case with regard to the psychiatric evidence in People (DPP) v Kehoe” [1992] I.L.R.M. 481.
26. Similarly, in their recent work entitled “Evidence in Criminal Trials” (1st ed., 2014, Bloomsbury Professional), Dr. Liz Heffernan and Ms. Úna Ní Raifeartaigh, S.C., remark at para. 6.39 that:-
“The expert evidence which the defence intends to adduce must be otherwise admissible in law.”
[Again, this Court’s emphasis]

27. While s. 5(1) of the Act of 2006 does specify that, before the relevant tribunal of fact can return the special verdict of not guilty by reason of insanity, it should have “heard evidence relating to the mental condition of the accused given by a consultant psychiatrist”, it begs the question as to whether it is correct, solely on that account, to characterise that subsection as being an enactment relating to evidence.
28. If, on the one hand, the effect of that sub-clause is to confine the capacity to give evidence relating to the mental condition of the accused to consultant psychiatrists alone (ignoring for the moment any issue as to whether such consultant psychiatrists must also come within the suggested restricted definition), then it certainly creates a rule of evidence relating to capacity.

29. If, on the other hand, the effect of it is to provide that, if an insanity defence is being contended for, then at least one witness called in support of that contention must be a consultant psychiatrist (again, ignoring for the moment any issue as to whether such consultant psychiatrist must also come within the suggested restricted definition), then it does not create a rule of evidence but rather merely sets a pre-condition which requires to be satisfied before the tribunal of fact can act on any evidence that it has heard by bringing in the special verdict.

30. The provision in question, while not a penal provision in the narrow sense of being a provision that creates a penalty, does undoubtedly operate to place on a statutory basis the existing common law defence of insanity, and to modify that defence in a number of respects. See this Court’s judgment in The People (Director of Public Prosecutions) v Heffernan [2015] IECA 310. In terms of the specific modifications effected by the sub-clause at issue, to the extent that two interpretations of it may be legitimately open, we consider that it ought in the circumstances to be construed in the manner most favourable to any party seeking to raise the defence.

31. We therefore consider that the correct interpretation of the sub-clause at issue is that it does not create a rule of evidence as to capacity. Rather, s. 5(1) of the Act of 2006, viewed as a whole, and further viewed within its context within the Act of 2006, can be said to be primarily concerned with specifying the substantive findings which a tribunal of fact must make before it may return the special verdict of not guilty by reason of insanity. The sub-clause previously mentioned is to be found embedded within that sub-section, and we are satisfied that it operates solely to set a pre-condition which must be satisfied before the special verdict can be returned, namely that the tribunal of fact should have heard evidence relating to the mental condition of the accused from a consultant psychiatrist. In other words, at least one of the witnesses called in support of a defence of insanity must be a consultant psychiatrist. However, there is nothing to stop the party seeking to establish an insanity defence from calling other witnesses, providing they have relevant evidence to give pertaining to an issue or issues of fact of which that party must satisfy the tribunal of fact to the required standard (the balance of probabilities -see, again, this Court’s decision in the Heffernan case), before it may bring in the special verdict.

32. It is not difficult to envisage how, in a great many cases, the relevant person’s general practitioner might have relevant evidence to give, in addition to that of the consultant psychiatrist, particularly in circumstances where an overview of the person’s general physical and mental health might provide important contextual information relevant to an assessment of that person’s mental condition at any particular time. It might also be the case that some non-consultant hospital doctor practicing in the field of psychiatric medicine, e.g., a senior registrar at a major psychiatric hospital who had been involved in treating the individual in the past, at the time of, or since the incident, could have relevant evidence to give. Equally, in a case where the subject person has a long-standing and known history of mental ill-health, a psychiatric nurse or a psychiatric social worker familiar with his case, or indeed members of the accused’s family familiar which his condition and its symptomatology (who may, for example, have observed how the person was during previous acute episodes), or for that matter any other person who had observed odd or bizarre behaviour by the subject person at a time proximate to the index offence, such as in the lead up to it, or shortly after it had been committed, or indeed during the actual commission the offence, might be able to provide important contextual information.

33. In other cases, there might be an underlying and related physical or mental condition, details of which might again constitute important contextual information of relevance. Could it seriously be contended that an accused suffering from psychotic symptoms by reason of having a brain tumour could not call his or her oncologist to describe the nature and extent of his or her tumour? To take another example, the definition of mental disorder in s. 2 of the Act of 2006 includes dementia. That being so, could it seriously be contended that an elderly accused suffering from dementia, with perhaps periods of lucidity, could not call his or her treating geriatrician to describe to the tribunal of fact the progress of his or her illness and response to treatment, if any? In yet other cases there might have been a head injury giving rise to subsequent cognitive deficits, or personality changes, or even psychosis secondary to traumatic brain injury. Again, it can be readily anticipated that medical professionals, other than psychiatrists, who have been involved in the treatment of such a head injury might be in a position to give relevant evidence concerning the mental condition of the accused.

34. In this case, the appellant had suffered a serious head injury in a road traffic accident prior to the index offence which, he was contending, had left him with relevant ongoing neurological and psychological sequelae. The appellant’s counsel, while seemingly accepting the suggestion that his client bore an onus to adduce, at a minimum, evidence from a consultant psychiatrist (and ostensibly also not demurring from the prosecution suggestion that any such consultant psychiatrist should be one that came within the aforementioned restricted definition) as to his client’s mental condition, contended that his proposed medical witnesses were all in a position to provide important contextual information which he should be allowed to adduce. However, it bears commenting upon that none of the proposed medical witnesses had been involved in the actual treatment of the appellant’s head injury. They had all assessed him solely for medico-legal purposes long after the fact of the accident in which the head injury was sustained and also long after the fact of the incident giving rise to the charges on the indictment.

35. To the extent that the trial judge treated s. 5 of the Act of 2006 as being, in effect, an enactment relating to evidence, he was incorrect. However, that is not to say that he was entitled to have no regard at all to the terms of s. 5 of the Act of 2006. That could not be so because the terms of s. 5 had direct implications for how the common law rule of evidence relating to relevance might apply in the circumstances of this case. As Hardiman J. emphasised in The People (Director of Public Prosecutions) v O’Callaghan [2001] 1 I.R. 584 and again in The People (Director of Public Prosecutions) v Shortt (No. 1) [2002] 2 I.R. 686, relevance is a precondition to admissibility. In the O’Callaghan case the late learned Supreme Court judge stated “relevance is the first and most basic requirement of admissibility”. In the Shortt case, he stated at p. 693:-

“All evidence must be relevant to a matter in issue as the first condition of admissibility. There are exceptions to the admissibility of relevant evidence, but irrelevant evidence is never admissible …”
36. We consider that providing the appellant could satisfy the court that he intended to call at least one consultant psychiatrist as specified by s. 5(1) of the Act of 2006 to give the relevant primary evidence, and providing he was further in a position to demonstrate the potential relevance of the other witnesses he proposed calling, he would have been entitled to be granted the leave that he was seeking in his s. 34 application.
37. It is necessary at this point to engage with the suggestion that a consultant psychiatrist as specified by s. 5(1) of the Act of 2006 requires to be a consultant psychiatrist conforming to the restricted definition provided for in s. 2 of the Mental Health Act 2001. Although counsel for the prosecution submitted at the trial, and was not challenged with respect to it, that “it is stated in the 2006 Act that a consultant psychiatrist is as defined in the 2001 Act”, a close examination of the Act reveals that that is not in fact the case, certainly in so far as the expression “consultant psychiatrist” which appears in s. 5 is concerned. The erroneous impression that it was so appears to have been formed because s. 2 of the Act of 2006 defines an “approved medical officer” for the purposes of the Act of 2006 as meaning “a consultant psychiatrist (within the meaning of the Mental Health Act 2001)”. However, s. 5(1) of the Act of 2006 does not require the tribunal of fact to hear evidence from “an approved medical officer”, merely from “a consultant psychiatrist”.

38. The concept of “an approved medical officer” only has relevance to applications in respect of fitness to be tried arising under s. 4 of the Act of 2006 or, alternatively, applications concerning what is to happen to an accused after a special verdict of not guilty by reason of insanity has been returned under s. 5(1) of the Act of 2006.

39. In the case of a fitness to be tried application under s. 4 of the Act of 2006, the court has power to commit the person concerned to a designated centre for a period of not more than 14 days and to direct that the accused person be examined at that designated centre by an approved medical officer, whose function it is to report to the court on the mental condition of the accused in accordance with the requirements of the section.

40. Similarly, after a special verdict has been returned, a court has power under s. 5(2) and s. 5(3) of the Act of 2006 to commit the person concerned to a designated centre for a period of not more than 14 days (which can be extended subject to a maximum aggregate period of 6 months) and to direct that the person be examined at that designated centre by an approved medical officer, whose function it is to report to the court on the mental condition of the person concerned, and his treatment needs, in accordance with the requirements of the Act.

41. An approved medical officer is not, however, required to give evidence in support of a claim of entitlement to the special verdict of not guilty by reason of insanity under s. 5(1). The only evidence expressly required is evidence “relating to the mental condition of the accused given by a consultant psychiatrist”. The expression consultant psychiatrist is to be given its normal and colloquial meaning of any medical doctor specialising in psychiatry and holding a consultancy post at a hospital or clinic.

42. In fairness to all concerned, it requires to be acknowledged that prosecuting counsel’s erroneous impression, which everybody in the case seemingly accepted as being correct, that s. 5(1) requires evidence from a consultant psychiatrist coming within the restricted definition, was one initially shared by this Court, as is apparent from a brief reference to there being such a requirement, made obiter dictum, in our earlier judgment in the Heffernan case, and which brief reference, it must now be accepted, was per incuriam.

43. It is clear that the proposed witness, Dr. Soutzos, albeit not coming within the restricted definition contained in s. 2 of the Act of 2001, would, in principle, have been a suitable main witness to give evidence as to the appellant’s mental condition for the purposes of s. 5(1), providing it could be established that his proposed evidence was relevant to the substantive requirements of the subsection. The difficulty from the appellant’s perspective is that the contents of the report of Dr. Soutzos, dated the 11th of April, 2007, indicated that the appellant could never be in a position to satisfy the substantive requirements of s. 5(1) of the Act of 2006. The “summary” at the end of his said report states:-

“This is a twenty nine year old man who is charged with criminal offences he is alleged to have committed one day after discharging himself from the Priory and one year after a severe head injury where he was in a coma for two weeks and did not recover memory for two months.
His personality has changed. He can no longer function effectively in his father’s business as he is easily led and unable to stand up for himself. He says he knew what he was doing and what he was doing was wrong but went along with it as he was afraid. Neuropsychiatric testing shows severe frontal lobe damage which will effect his judgment and planning ability. He also worryingly reports brief periods of lost time and disorientation to time and place suggestive of temporal lobe epilepsy.

There is no doubt his head injury has severely reduced his responsibility for his actions

Plan:

1. Urgent Neurological referral

2. Do not drive until he has had epilepsy ruled out, and I have advised notifying the DVLA if he has epilepsy

3. Neuropsychological testing

4. Brain injury rehabilitation

5. I need copies of his medical notes at the Priory in High Bank Bury, Lancashire.”

(The Court’s underlining for emphasis)

44. Even if it were to be presumed that Dr. Soutzos’s evidence would be sufficient to establish that the appellant was suffering from a mental disorder at the time of the offence, there is nothing in his report to suggest that that gave rise to any of the consequences specified in s. 5(1) that require to be demonstrated as having existed before he could be entitled to avail of the special verdict. The subsection requires that at least one of the following three consequences be demonstrated:-
“… that he or she—

(i) did not know the nature and quality of the act, or
(ii) did not know that what he or she was doing was wrong, or

(iii) was unable to refrain from committing the act.”

45. The report of Dr. Soutzos states expressly that the appellant reported that he did know the nature and quality of his act, and further that he knew that what he was doing was wrong. The final potential qualifying consequence, i.e., being unable to refrain from committing the act, relates to volitional insanity, otherwise sometimes referred to as “irresistible impulse” and which was recognised in Doyle v Wicklow County Council [1974] I.R. 55 as a third possible basis for securing an insanity verdict beyond the traditional two recognised by the M’Naghten Rules, which according to their traditional interpretation in the English common law only covered insane delusions. However, there is nothing in the report of Dr. Soutzos to suggest irresistible impulse or anything like it. On the contrary, the appellant told Dr. Soutzos that he had been motivated by fear. It is not necessary for the purposes of the present discussion to give any consideration as to whether the appellant might have been able to run a defence of duress. It is sufficient to state that, certainly on the basis of Dr. Soutzos’s report, he was not going to be able to give evidence in direct support of a defence of insanity.
46. That being the case, even if the appellant were to have managed to secure another psychiatrist to give the necessary primary evidence (and he later evinced a desire to call an Irish Consultant Psychiatrist, a Dr. Daly, and obtained leave to do so, but ultimately did not call him for reasons to be discussed later in this judgment), the high water mark of any relevant evidence that Dr. Soutzos might theoretically have given would have been contextual. However, as he had only seen the appellant for the purposes of a medico-legal assessment a considerable time after the offence, and had not actually been personally involved in the appellant’s treatment at the Priory Hospital, it is very doubtful if he would even have been in a position to offer relevant contextual evidence. Moreover, if he had been allowed to give evidence for that purpose, it is reasonable to assume the prosecution would in any event have sought to cross-examine him to elicit the matters that he had stated in his report.

47. To return then to the trial judge’s ruling on the s. 34 application. The trial judge was in error in believing that only an expert witness coming within the restricted definition of consultant psychiatrist was capable of testifying in support of an insanity defence under s. 5(1) of the Act of 2006. In principle, any consultant psychiatrist was capable of giving the relevant primary evidence. In addition, other medical experts were theoretically capable of giving relevant contextual evidence in support of the claimed entitlement to the special verdict. To the extent that the trial judge foreclosed on both of these things, he was incorrect and in error.

48. However, even if he had not so foreclosed, such issues were not going to be dispositive of the s. 34 issue in any event. Even if he had recognised Dr. Soutzos as being in principle a capable primary witness, and the other proposed witnesses as being in principle capable of giving supporting contextual evidence, the judge was not obliged to grant the appellant leave to call all, or indeed any, of those witnesses unless he was satisfied that they were in a position to give relevant evidence. As demonstrated earlier, Dr. Soutzos’s report which was before the court at the s. 34 hearing indicates that, if called as a witness, he was not going to be in a position to give the primary evidence which is required to be given by a consultant psychiatrist in support of a claimed entitlement to the special verdict of not guilty by reason of insanity. In truth, he had no relevant evidence to give. Moreover, in the absence of an identified consultant psychiatrist who was in a position to give the necessary primary evidence, there was no defence case of insanity for the other proposed experts to contextualise or otherwise support. The trial judge would have been obliged in any event to refuse the application being made at that point in time for leave to call the witnesses in question at the trial, on the grounds of a failure by the appellant to demonstrate potential relevance.

49. The trial judge’s ruling on the s. 34 issue was therefore correct in terms of the result, albeit that the correct result was arrived at for the wrong reasons. In circumstances where the ruling on the s. 34 application was correct and the appellant has not been prejudiced, this Court considers that there are no implications for the safety of the verdict arising from the ruling on the s. 34 application.
(2) The renewed s. 34 application on Day 3 of the trial.

(a) The circumstances in which the renewed application was made
50. During the trial itself, which commenced on the 16th day of January, 2012, the court was addressed by counsel for the defence at the close of the prosecution case on Day 3 and in advance of the defence opening its case . Counsel reiterated his client’s intention to seek to raise a defence of insanity and claim entitlement to the special verdict. The court was further informed that the accused was no longer persisting with the second aspect of his previously raised s. 34 application, namely his application for leave to call certain proposed medical experts for the purpose of seeking to negative mens rea.

51. In relation to the accused’s intention to seek to raise a defence of insanity and claim entitlement to the special verdict, it was indicated to the court by his counsel that the primary expert to be called on behalf of the accused on that issue would be a Dr. Daly, an Irish Consultant Psychiatrist (who was a person who came within the restricted definition), for whom he already had been granted leave to call as a witness. However, counsel stated, he wished to renew his application to be allowed to also call Dr. Pender on the issue.
(b) The arguments presented
52. In renewing the application for the accused to be allowed to call Dr. Pender, counsel for the defence conceded, in response to questioning from the trial judge, that Dr. Pender had not been part of his client’s treatment team. Rather, as counsel informed the court, he had reviewed the relevant medical records and had conducted an assessment of the appellant within the scope of his discipline as a clinical neuropsychologist. This gave rise to the following exchanges between the bench and counsel:-

“JUDGE: But what relevance do you say he could have then?
MR O’HANLON: As a neuropsychologist, he sets out the context in which the defendant, as a result of his accident —

JUDGE: So, on the —

MR O’HANLON: As a result of the road traffic accident, he was unconscious for a number of weeks and he had suffered a head injury which required surgery as far as I — a craniotomy which as I understand it is — he had suffered a fractured skull.

…

[That] … is part of the context in which the psychiatric evidence has to be considered, having regard to the fact that it’s — they’re not unrelated, the physical injury and the psychiatric injury, and while the psychiatric evidence is the evidence which the jury have to consider from the — for the purpose of whether the defence is established or not or whether it’s been rebutted beyond a reasonable doubt or not, if they’re satisfied it arises, it’s done — in my opinion, they’re entitled to the context in which the defendant will be giving that evidence.”

53. In responding to that application, counsel for the prosecution challenged the relevance of the proposed evidence. She expressed concern that Dr. Pender had not been one of the treating doctors. She also drew the court’s attention to a number of passages in Dr. Pender’s two reports, which – as previously stated – had been furnished to the court as potentially offending against the ultimate issue rule, as articulated in this jurisdiction by the Court of Criminal Appeal in The People (Director of Public Prosecutions) v Kehoe [1992] 1 I.L.R.M. 481.
54. Amongst the passages in Dr. Pender’s first report, which is dated 7th of May, 2009, and which prosecuting counsel was objecting to as overstepping the mark, were the following:-

“I suspect it would be very difficult for Mr Ramzan to resist any significant pressure and to problem-solve his way out of a complex situation.”
“In my opinion, despite the fact that he understood the gravity of the situation, he would have had great difficulty inhibiting his behaviours and putting into place an alternative course of action. In my opinion, his serious brain injury compromised his ability to make reasoned decisions and act appropriately, especially in difficult or challenging circumstances.”

55. Counsel for the prosecution concluded her submission by stating:-
“My concern is that — not that the defence not be in a position to contextualise the fact that there had been a brain injury, but that it is, I think, the psychiatrist who should be in a position to contextualise that, rather than seeking to put in a different expert who is seeking to claim different things and is seeking himself to make findings in relation to what he himself accepts is a difficult thing for him to do because of the efflux of time and because of the fact that he is making assumptions and reaching conclusions which he accepts he is not fully in a position to do, so that would be the concerns I’d have in relation to Dr. Pender. As I say, I don’t wish at the same time to put the accused in a position where he isn’t able to fully contextualise matters, but I wonder whether this would be something that could be put to the psychiatrist as to what the background had been, rather than to seek to adduce an additional expert … .”

(c) The trial judge’s ruling
56. The case was adjourned overnight to enable the trial judge to consider the submissions that had been made. On the following morning he ruled, stating (inter alia):-
“The defence propose to rely primarily in pursuit of this issue on the testimony of — or opinion of Dr. Daly, Dr. Robert C Daly, a consultant psychiatrist, and one of the first issues that emerged is that evidence in pursuit of this issue must under the legislation as has been previously ruled by the Court be given by a clinical or consultant psychiatrist registered for those purposes within the jurisdiction of this country, within the Republic, laid down in the Mental Health Act as referred to in the year 2001. For these reasons, in the pre-trial process arrangements were made for the accused man to be seen by Dr. Daly and then in turn the prosecution, on put on adequate notice have retained the services of Dr. Kennedy.
The proposition for the defence is that Dr. Pender, a neuropsychologist retained again by the defence over the last number of years is someone who can give evidence of the medical history and medical context that would assist and support ultimately the testimony both of the accused himself, his father, his wife and that of Dr. Daly. The first point that has to be made is that — and I do this with the greatest of respect — Dr. Pender is not a medical doctor, his grounding is in psychology, his fundamental originating degree is that of a Bachelor of Arts in psychology at UCD and thereafter he has built what is undoubtedly an illustrious career in that area of expertise and is employed, as he says, currently at Beaumont Hospital. Nonetheless, his area of expertise does not come within the realm of the issues that can or should be dealt with by way of professional evidence under section 5 of the Act of 2006. All of the evidence and all of the issues that he supports his opinion on are factual records related to him by secondary evidence, documents, reports the history of the accused and his own history as related to Dr. Pender.

Based on all of that that then he purports to express opinion and that opinion is in fact an opinion that ought not to be admissible on behalf of the accused from that source. It seems to me to be fully covered and dealt with in the opinion and view of Dr. Daly who is a recognised properly defined expert in this area as permitted under the legislation and as contemplated by the section. For that reason therefore I don’t propose to permit the calling of the testimony of Dr. Pender. I should also say that in this context I’m mindful of the judgment of Kehoe which Ms Duffy has provided for me and the onus upon me as judge of trial to ensure that the jury are advised that ultimately this issue is something to be decided by them on their view of the evidence and all of it and that it is not a matter to be determined simply by expert. That is the, as I understand it, the gravamen of the decision in Keogh (sic). For all of these reasons as I say therefore I do not propose to permit the calling of the evidence of Dr. Pender.”

(d) The appellant’s complaints about the trial judge’s ruling
57. Both in his grounds of appeal and in the written submissions filed in support of those grounds, the appellant complains that the trial judge’s said ruling not to allow Dr. Pender to give contextual evidence was wrong and constituted an error in principle. This point is made notwithstanding that the appellant ultimately withdrew his defence of insanity after he had given evidence himself, and did not call Dr. Daly. That occurred in the following circumstances.
58. Immediately after the trial judge’s said ruling, defence counsel opened the defence case to the jury. In the course of that opening, counsel informed the jury that his client was seeking to rely upon the defence of insanity and that they, the jury, would have to consider evidence relevant to that issue. Immediately after the opening of the defence case, the appellant was called as a witness. He gave evidence in chief in which he described his accident in October 2005, including the injuries that he sustained, the treatment he had received and the sequelae to those injuries, and in which he also described his recollection of the events of 14th of September, 2006, and claimed that because of ongoing sequelae arising from his head injury, he had not fully understood what was going on. He was then cross-examined by counsel for the prosecution.

59. In the course of that cross-examination, it was put to the appellant that he had not been admitted to the Priory Hospital at the instigation of his treating doctors, but rather had been so admitted at the instigation of a solicitor acting for him in connection with a civil action he was bringing arising out of his October, 2005 accident. This information came from the medical reports that had been furnished by the defence to the prosecution in connection with the appellant’s earlier unsuccessful applications pursuant to s. 34 of the Act of 2010.

60. Further, and later in the course of prosecuting counsel’s cross-examination of the appellant, the following exchanges occurred:-

“Q. Well, Mr Ramzan, are you saying to this Court that you didn’t understand what was happening that day?
A. Basically, yes.

Q. Well, why are you saying that, are you saying you didn’t understand because your brain wouldn’t allow you to understand or are you saying you didn’t understand because you were misled by the person you were with? I think you’re saying to this Court that you were misled; is that right?

A. I was — probably, yes, misled.

Q. So, I think what you’re saying to this Court and what you’re asking to this jury to believe is that you were in fact innocent up until the point that you were coming in towards Lusk and the lights were flashed, is that the version of events that you wish the jury to accept today?

A. Yes.

Q. And I think what you’re saying to the Court is that you understood what was going on but that your understanding of what was going on was based on somebody telling you a lie; is that right?

A. Yes.

Q. And I think what you’re saying to the Court is had you fully understood what was going on that your approach would have been very different; is that right?

A. Yes.

Q. And is that because you understand the nature of right and wrong, Mr Ramzan?

A. Yes.

Q. And you understood it then; isn’t that right?

A. No.

Q. You’re saying you didn’t understand the nature of right and wrong then?

A. Then, no, coming out of a head injury.

Q. Well, Mr Ramzan, I think you have already indicated that at the time if you had known what was going on that you should have gone to the gardaí and that you would have known that then; isn’t that right?

A. Probably misled. I was probably —

Q. Pardon?

A. I was misled probably.

Q. You were misled. Well, I have to say to you that the reason that you’re now putting the version of events you are, is that you don’t want to answer the charges that are here and that the version that you gave to the police is what actually happened, that you knew what you were doing driving to Dublin and that you certainly did understand what it was that was going on and I have to suggest that the jury can find that with confidence. Thank you, I’ve no further questions?”

61. Following the conclusion of the appellant’s evidence, the court adjourned until the following day, and in the absence of the jury the trial judge invited the defence counsel to reflect overnight upon the implications of the evidence that his client had given. When the trial resumed on the following day, the defence counsel informed the court that his client would no longer be seeking to rely upon a defence of insanity, and that he would not be calling Dr. Daly after all.
62. Counsel for the defence then renewed, yet again, his application to be allowed to call Dr. Pender. On this occasion, the rationale offered for doing so was that he merely wished him to testify “on the basic issue as to the injuries and the effect on the defendant”. The application was opposed on the basis that the jury already had the evidence of the accused himself concerning his injuries and that if Dr. Pender was to testify within the scope of his expertise, namely that of a neuropsychologist, “he would be trespassing into the territory of the jury’s function.”

63. The trial judge again refused the application for leave to call Dr. Pender, ruling on this occasion that:-

“I appreciate … that to some degree the trial has taken a very, very different course now by reason of the very clear evidence given by the accused of his account of what occurred. I’ve also had the opportunity again to consider yesterday, because it was an issue then and it is now being revisited by Mr O’Hanlon and he’s quite correct to do so, of the purported evidence of Dr. Pender. I have to say, in view of the very clear directions of the Court of Criminal Appeal in Keogh’s (sic) case, it would seem to me that it would not be relevant or permissible for me to allow Dr. Pender to be called at this remove and in this context where he would seek to comment upon the mind of the accused man and what was within or potentially within his mind. Looking at the headnote of Keogh (sic): “The question of whether the accused had the intention to kill …” in that case, a case of murder “… and was telling the truth were matters four square within the jury’s function and a witness, no more than the trial judge or anybody else, is not entitled to trespass on the jury’s function.” Mr Ramzan has given very clear evidence of events as [they] occurred and what was in his mind at the time as he understands it, and it would seem to me that the only purpose would be to call Dr. Pender to perhaps on the one hand support that. It’s already there in evidence, directly given by the accused without any ambiguity, or seek[ing] to qualify it, and that would be only could only be done upon a post event analysis interview and a hypothetical or opinionated basis. In those circumstances, I don’t believe it is relevant or permissible within the law and I won’t permit it.”
64. What happened next was that counsel for the defence then applied for a discharge of the jury on the basis that a fundamental unfairness had occurred in the trial, by virtue of the fact that the prosecution had been able to cross-examine the accused using the contents of a report or reports furnished by a witness or witnesses whom the defence had not been allowed to call. Counsel for the defence asserted that the matter put in cross-examination concerning the circumstances in which he had been admitted to the Priory Hospital should not have been put in circumstances where both sides had also been in possession of another medical report from a Consultant Neurologist, a Dr. David Neary, who had expressed the view that the accused had required formal neuro-rehabilitation (which the Priory Hospital was in a position to provide). It was submitted that the accused had been obliged to mitigate his losses in connection with his civil claim and that the seeking of neuro-rehabilitation at the Priory Hospital was in fact based on medical advice. Counsel for the defence had not sought leave to call Dr. Neary, believing that the first s. 34 ruling in the trial would have prevented him from doing so.
65. The trial judge refused to discharge the jury, ruling that there was no unfairness in what had occurred. He said, inter alia:-

“[T]o my mind the legislation of 2010 would seem, if anything, to be doing the opposite to what Mr O’Hanlon complains of, namely striking a balance of what existed before the legislation requiring of the defence to do no more than the prosecution is and always has been obliged to do, namely to give notice of purported evidence of a certain nature.”
66. The judge added moments later:-
“[Y]es, there has been comment made on the basis upon which Mr Ramzan ended up in The Priory and that I have to say is a matter of the cut and thrust of the criminal trial. I accept the observation made that Ms Duffy was somewhat sharp to rely upon it. Not sharp in the dishonest way but cutting well close to the bone.”
…

“That’s the cut and thrust of it. There’s no suggestion that the solicitors in England made a clinical assessment of their client and to the extent that it’s suggested that perhaps what they were doing was seeking to embellish a man’s position or claim, I doubt it, frankly. Now, I can say as much as that to the jury if Mr O’Hanlon wishes me to but I’d say he’s well able to say it himself.”

67. In this appeal the appellant complains that the trial judge was in error in not acceding to his third application to be allowed to call Dr. Pender, and also that the trial judge was in error in failing to discharge the jury when requested to do so.
(e) Discussion and analysis
68. There is no doubt that the trial judge was in error in his ruling on the second s. 34 application with respect to Dr. Pender, to the extent that he reiterated his belief that only a psychiatrist coming within the restricted definition could give relevant evidence in support of an insanity issue, and in his assertion that as Dr. Pender was not medically qualified he could have no relevant evidence to give. However, his further rulings that, in circumstances where Dr. Pender was relying on second hand information as to the actual injuries, and where the opinions expressed by Dr. Pender in his reports potentially offended the ultimate issue rule as expressed in The People (Director of Public Prosecutions) v Kehoe [1992] I.L.R.M. 481, it had not been demonstrated that he in fact had relevant evidence to give, were ostensibly correct.

69. Be all of that as it may, in circumstances where the appellant did not ultimately persist with his insanity defence, and opted not to call Dr. Daly, there was in any event nothing for Dr. Pender to have offered a context for. We are satisfied that in the circumstances there are no implications for the safety of the verdict arising from the ruling on the second s. 34 application with respect to Dr. Pender.

70. Next, it is necessary to consider whether the trial judge was correct in his ruling on the third application with respect to Dr. Pender. Even though the appellant was no longer relying on an insanity defence, and therefore it was no longer sought to call Dr. Pender to provide contextual information in support of such a defence, it remained incumbent on counsel for the appellant to demonstrate how his proposed evidence could be potentially relevant if the appellant proposed to call him to support some other aspect of the defence case.

71. The trial judge engaged directly with the issue of potential relevance and was not persuaded that Dr. Pender had in fact any relevant evidence to give, in circumstances where the appellant had described his own injuries, treatment and sequelae, in circumstances where Dr. Pender had not been involved in the appellant’s treatment, and in circumstances where the opinions he was prepared to offer purportedly within the scope of his expertise as a neuro-psychologist potentially offended the ultimate issue rule and were liable, if stated before the jury, to trespass on the jury’s function. We find no error in the trial judge’s approach in that regard, and we uphold his ruling on this occasion as having been correct.

72. Finally, we fully concur with the trial judge’s view that a discharge of the jury would not have been appropriate. We are satisfied that no fundamental unfairness occurred and that the issue raised was appropriately dealt with by the trial judge. We are also satisfied that there is no inherent unfairness in the s. 34 procedure. The prosecution were entitled to use the reports in question in cross-examination of the appellant, in the same way as the defence are entitled to use material furnished by the prosecution in the course of disclosure in cross-examining prosecution witnesses. The judge was correct in characterising the questions prompted by the material in controversy as being part of the cut and thrust of the trial.
The Lawfulness of the Appellant’s s. 4 Detention
73. The final point in this appeal that requires to be addressed is the appellant’s claim that admissions made by him while he was detained, purportedly pursuant to s. 4 of the Criminal Justice Act 1984 (the Act of 1984), were wrongly admitted. He says they were wrongly admitted because his said detention was in fact unlawful. The basis on which the appellant contends that he was in unlawful detention is as follows.

74. The power to detain pursuant to s. 4 of the Act of 1984 may only be exercised by the member in charge of the Garda Síochána station to which the arrested person is taken following his or her arrest. Further, subs. (1) of s. 7 of the Act of 1984 provides for the making of regulations providing for the treatment of persons in custody in Garda Síochána stations, and subs. (2) of the said s. 7 further provides that the regulations shall include provision for the assignment to the member of the Garda Síochána in charge of a Garda Síochána station, or to some other member, of responsibility for overseeing the application of the regulations at that station, without prejudice to the responsibilities and duties of any other member of the Garda Síochána.

75. Regulations were duly made under s. 7 of the Act of 1984, and these were The Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochána Stations) Regulations, 1987, S.I. 119/1987, (the 1987 Regulations).

76. Regulation 4 of the 1987 Regulations deals with the member in charge. It provides:-

“4. (1) In these Regulations “member in charge” means the member who is in charge of a station at a time when the member in charge of a station is required to do anything or cause anything to be done pursuant to these Regulations.
(2) The superintendent in charge of a district shall issue instructions in writing from time to time, either generally or by reference to particular members or members of particular ranks or to particular circumstances, as to who is to be the member in charge of each station in the district.

(3) As far as practicable, the member in charge shall not be a member who was involved in the arrest of a person for the offence in respect of which he is in custody in the station or in the investigation of that offence.

(4) The superintendent in charge of a district shall ensure that a written record is maintained in each station in his district containing the name and rank of the member in charge at any given time.”

77. The appellant’s case is that, having made no concession before or during the trial as to the lawfulness of his s. 4 detention, it was incumbent on the prosecution to prove beyond reasonable doubt that he was in fact lawfully detained. It was argued that such proof required evidence that the member of An Garda Siochána who purported to detain him upon his arrival at Balbriggan Garda Station on the 14th of September, 2006, who was a Garda Thomas Hartigan, was properly authorised to act as member in charge in accordance with instructions issued in writing by the superintendent in charge of the Garda district within which Balbriggan Garda Station is located.
78. The court of trial conducted a voir dire on Day 2 concerning this issue and heard evidence from Garda Hartigan. He testified that he had been attached to Balbriggan Garda Station for over 20 years and that, during that time, the standing instruction from the various superintendents who had been responsible for his district was that in Balbriggan the public officer was to act as member in charge. On the day in question, he was detailed to act as public officer. He was asked:-

“Q. MS DUFFY: So can you indicate what you understood authorised you to take up duty as member in charge?
A. As I was saying, the superintendent issued a written instruction and he normally —

Q. Did you see that written instruction?

A. I have seen written instructions. I would have seen that one because it was — it was a one-page instruction that was attached to — I believe it was attached to the station diary at the time, but it was something that was attached to one of the books in the station, and if you went to the front of it, you saw it there and you read it. And I’ve seen them been issued by various different superintendents throughout my time in Balbriggan, and I was in Balbriggan for over 20 years. So, they were issued by various different superintendents at that time.”

79. The prosecution were unable to produce the actual written instructions from the superintendent in charge of the relevant Garda District that would have been current at the time of the appellant’s arrest. However, they produced a similar document that had issued subsequently in 2008, and this was shown Garda Hartigan who was invited to comment upon it. He said:-
“A. It is a similar document. It would be — the public officer at that time was set out in what we call the duty detail as opposed to a station allocation book which was — which was a duty detail that was relevant in the Dublin Metropolitan District. We were part of Louth/Meath and what was known as a country system. But it was every day there was a single page which detailed each member as to what their duties were on that date, and, so, the public officer was detailed, generally speaking, two weeks in advance of arriving in the station. But he was detailed in this. And what the document then similarly as set out in the duty detail but that public officer, he was public officer and member in charge. And when I commenced duty, the public officer took up duty as public officer and member in charge of the station and that was — you took up in that position if you were public officer and you recorded that in the station diary. You also put on other members, you recorded other members as coming on or off duty in that station diary at that time and what their duties were. But it was the member in charge who put that into the diary.
Q. So, I think you’ve indicated that back in September of 2006 it was a station diary rather than perhaps a station allocation book as described in 2008; is that correct?

A. Yes.

Q. It was called a station diary?

A. A station diary, yes. You took up duty in the station diary as public officer and member in charge.

Q. And do I understand it correctly then, is the evidence that you’re giving that your memory of how it would have been in 2006 is that a document similar to this would have been adhered to the front of that station diary?

A. That’s correct.

Q. And when you took up duty as member in charge, where was your understanding of where your authority came so to do, or as public officer and member in charge?

A. It came from a general instruction from the superintendent who made a notice similar to this document here. and that was — he generally made that notice on a yearly basis at the start of the year, and it was attached to the front of the diary.”

80. The appellant sought to make the case that in circumstances where the actual written instruction from the superintendent that was in force at the time, designating who should act as member in charge, had not been produced, the prosecution had failed to prove beyond reasonable doubt that Garda Hartigan was properly authorised to act as member in charge so as to have validly detained the appellant under s. 4 of the Act of 1984.
81. The trial judge ruled as follows:-

“I respectfully disagree with Mr O’Hanlon when he says there is absolutely no evidence before the Court to support the proposition that Sergeant (sic) Hartigan was the member in charge on the day. The question is: is there sufficient evidence to enable me draw the firm conclusion beyond any reasonable doubt that that is so? Mr O’Hanlon’s submission, as I understand it, is that the failure of the prosecution to identify and to call the superintendent of the day and to support his testimony, direct testimony if given, or indeed that of Sergeant Hartigan as indirect testimony of the events and direct to the extent that it affects him, the failure to support that testimony, potential or otherwise, by documentary evidence is fatal to the proofs necessary.
I have direct evidence from Sergeant Hartigan that he was a member of An Garda Síochána on the day. He was a sergeant, he was on duty, he was the duty officer assigned and that he was of the understanding that the general practice and directive as issued on an annual basis, and in keeping with the specimen directive that has been produced to the Court, the member in charge under the directive of the superintendent of the day. That is direct evidence available to the Court. Am I placed in doubt because the record as kept and as, which Sergeant Hartigan said, did exist; the document was appended to the front of the diary and he would have written in, as is practice, the record of his doing so occurred.

The issue, it would seem to me then, is one of whether or not the Court would come to the conclusion that that testimony of Sergeant Hartigan amounts to nothing simply because the records are not available. I don’t believe that that is so. I’m satisfied that there is adequate evidence before the Court on his testimony to satisfy me that he was the member in charge and was properly appointed. I don’t believe that the submission made by Mr O’Hanlon that a Court cannot prove its own jurisdiction is appropriate to the argument or to his attack upon the evidence adduced by the prosecution. For that reason, I’m satisfied that there is ample evidence before me from the direct testimony of Sergeant Hartigan that he was the member in charge properly appointed on the day.”

82. The appellant has argued before this Court that the trial judge was wrong in his said ruling. We are not persuaded that that is the case. However, be that as it may, the trial judge in fact went on to say that even if he was wrong in his view that the evidence of compliance with the 1987 Regulations was sufficient, he would have been disposed in any event to admit the admissions in controversy having regard to s. 7(3) of the Act of 1984, which provides:-
“A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall not of itself render that person liable to any criminal or civil proceedings or of itself affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement made by him.”
83. We agree with the trial judge that he would have had discretion to admit the admissions in controversy under s. 7(3) of the Act of 1984 had he needed to do so, but we are firmly of the view that he did not in fact need to do so as his ruling had been correct.
84. We therefore dismiss this ground of appeal also.
Conclusion
85. In circumstances where this Court has not been disposed to uphold any of the appellant’s complaints, we must dismiss the appeal against his conviction.

 

 

The People v. O’Mahony

Finlay C.J. [1985] IR 517
S.C.

 

Finlay C.J.
4th July 1985

This is an appeal brought by the accused against his conviction for murder in the Central Criminal Court following a trial by jury presided over by Costello J. It is an appeal brought by the accused directly to the Supreme Court. On the 13th July, 1982, the appellant was convicted of the murder of Michael Casey, on a date unknown, between the 15th November, 1981, and the 18th November, 1981, in the County of Cork.
The only ground of appeal argued before this Court was that the learned trial judge had erred in law in refusing to permit the jury to consider what was stated to be a defence of diminished responsibility and on that basis to consider the alternative of entering a verdict of manslaughter instead of a verdict of murder.
The formula urged by Mr. Mackey on behalf of the appellant as constituting a definition of the defence of diminished responsibility, which, he submitted, was part of Irish law is that contained in the recommendation of the Report of the Committee on Mentally Abnormal Offenders in England in 1975 incorporating a definition of mental disorder contained in an English statute, being the Mental Health Act, 1959, and was in the following form:
“Where a person kills or is party to the killing of another, he shall not be convicted of murder if there is medical or other evidence that he was suffering from a form of mental disorder consisting of mental illness, arrested or incomplete development of mind, psychopathic disorder, or any other disorder or disability of mind, and if, in the opinion of the jury, the mental disorder was such as to be an extenuating circumstance which ought to reduce the offence to manslaughter.”
The Facts
The uncontested evidence of the circumstances surrounding the killing of Michael Casey, appearing from the transcript of the trial in the Central Criminal Court, may thus be summarised. The appellant and one Denis Callaghan went to the house of the deceased who lived on his own a short distance from the premises in which the appellant resided, outside Skibbereen, shortly after 11 p.m., on Sunday night, the 15th November, 1981. The appellant and the deceased were well known to each other and the appellant and Callaghan gained entry to the house by pretending that the appellant’s uncle had died and that they required to use the telephone to gam assistance.
Having gained entry, the appellant and Callaghan, after a struggle, eventually strangled the deceased with straps or belts which they had brought with them. They then searched the house and obtained some £200 or so in money and also a bottle of whiskey which they took with them. They also obtained a bank book. They remained for some time in the house drinking some of the whiskey which was there and left around 7 o’clock in the morning. The appellant then started the deceased’s car which was parked outside, drove it a short distance, but abandoned it further down the lane from the house to the road for fear of being observed in it. The appellant and Callaghan then went separately home and the deceased was not found until the following Wednesday.
Two different accounts of his part in this killing were in evidence before the jury from the appellant. The first in time was a lengthy written statement made by him on the 22nd November, 1981, to members of the Gardaí at Skibbereen Garda Station. In that he described meeting Callaghan in a public house in Skibbereen on the evening of the 15th November and planning the raid on Casey’s house in order to obtain money. He stated that it was in the public house that they decided to kill Michael Casey because they did not want him to report it to the guards that they had robbed him. He gave an account of bringing with him a strap off his motor bicycle by which he and Callaghan had travelled to Casey’s house in case a strap being carried by Callaghan would not suffice for the strangling. He then gave a detailed description of the killing of Michael Casey in which his part was to hold him whilst Callaghan carried out the actual strangling, attempting it first with the strap he had brought and finally completing it with the strap brought by the appellant. The second account was an account of the killing given by the appellant in evidence at the trial. He there stated that he made the arrangement to go and rob Michael Casey in the public house in Skibbereen but that it was his intention at that time merely to tie him up so as to carry out the robbery, that they arrived at the house and that after some time Callaghan placed a strap around the deceased’s neck and called on the appellant to assist by holding his hands, that he, the appellant, refused to assist, that Callaghan then produced a knife and that upon his so doing the appellant, out of fear, took part in the final killing and the deceased was strangled.
Evidence was also given by the appellant, and by an uncle of the appellant, of his background and upbringing, indicating that he had been left an orphan at a relatively early age and had a deprived background, being an infrequent and limited attender at school. Evidence was also given by these two witnesses of previous bouts of violent action on the part of the appellant which had led on two occasions to short periods of in-patient care in a local psychiatric hospital.
Medical evidence was given at the trial by Dr. McDaid, a Consultant Psychiatrist, who was the consultant involved with the admissions of the appellant to the psychiatric hospital prior to the killing of the deceased. He gave evidence of examining the appellant shortly after the killing and again at a date shortly before the trial. On both occasions the appellant gave to him an account of the killing, different from either the statement made to the Garda Siochana or to the evidence eventually given by him at the trial which, shortly, was that he and O’Callaghan, having entered the house for the purpose of stealing money, demanded money and, being told there was none on the premises, instead asked for alcohol and for some time drank alcohol given to them by the deceased. Subsequently the deceased left the room and O’Callaghan, thinking he was going to raise the alarm followed him downstairs and grappled with him. He was unable to overcome him, called for the assistance of the appellant, who went to his assistance, and the appellant was then caught by the hair of the head and assaulted the deceased in turn and that the strangling then took place.
Dr. McDaid expressed the view that the general mental condition of the appellant was that he was a borderline mental defective or borderline below average intelligence individual. By reason of his history and upbringing when involved in a violent situation he suffered from a condition of psychotic intensity which prevented him from stopping or withdrawing from violent acts, and he expressed a belief that this was what occurred on the occasion. He expressed this view, notwithstanding the evidence which had already been given of the account of the killing given by the appellant to the guards, which differed from that given by the appellant to him, Dr. McDaid, on which his original report and conclusions were based. Dr. McDaid gave evidence before the accused and was not recalled to give any evidence based on the third account given by the accused in sworn testimony before the jury. In his diagnosis both of the mental capacity of the appellant and of the conclusions he drew from the account the appellant gave him of the killing, Dr. McDaid was supported by the evidence of Professor McKenna, a psychologist.
Trial Judge’s Rulings
Costello J. in the course of the trial made the following rulings material to the issue arising on this appeal.
1. Upon counsel for the appellant stating at the trial that he had specific instructions not to raise the issue of insanity and upon counsel for the Director of Public Prosecutions refusing to raise the issue either, Costello J. decided that he should not leave the issue of insanity to the jury.
2. He refused to leave a defence of coercion to the jury based on the appellant’s evidence that he only took part in the killing after Callaghan had produced the knife and counsel on behalf of the appellant conceded that even if accepted by the jury this evidence could not constitute prima facieevidence of coercion.
3. He left to the jury an issue as to whether they were satisfied beyond a reasonable doubt, having regard to the medical and other evidence, that the accused was capable of forming the intent to kill or cause serious bodily injury and directed them that if they were not so satisfied that their verdict should be not guilty of murder but guilty of manslaughter.
4. He refused to leave to the jury a defence of diminished responsibility in the formula contended for by counsel on behalf of the appellant.
The Law
In short, the appellant’s submission was that there always had been a defence of diminished responsibility applicable at least to a charge of murder at common law, which forms part of our law, and that it should if necessary be expanded by the Court so as to equate with the formula proposed by him in the light of modern medical and psychiatric knowledge and expertise. This argument involved necessarily a suggestion that the Homicide Act, 1957, which introduced the defence of diminished responsibility into English law was declaratory only and not the introduction of a new legal principle.
The material provision of that Act is at s. 2, sub-s. 1, and reads as follows:
“Where a person kills or is a party to the killing of another he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.”
This sub-section was considered and interpreted by the Court of Criminal Appeal in England in Reg. v. Byrne [1960] 2 Q.B. 396. Delivering the judgment of the court, Lord Parker C.J., at p. 405, stated:
“The expression ‘mental responsibility for his acts’ points to a consideration of the extent to which the accused’s mind is answerable for his physical acts which must include a consideration of the extent of his ability to exercise will-power to control his physical acts.”
In the course of the judgment it is pointed out that having regard to the law of insanity still applied in England that a person could only escape liability for murder or for any other crime requiring mens rea if he could show that at the time of committing the acts of the crime he was labouring under such a defect of reason from disease of the mind as not to know the nature and quality of the act that he was doing, or if he did know it, that he did not know that what he was doing was wrong. It is in my view clear that the passing of the Act of 1957 was an attempt by the Legislature to liberalise or ameliorate the very rigid definition of insanity, applicable in the law of England, which involved following the M’Naghten Rules without expansion or extension and that the Act was not merely declaratory.
In the case of Reg. v. Byrne [1960] 2 Q.B. 396 the evidence of the medical experts which was not contradicted was that the appellant was a sexual psychopath who suffered from violent perverted sexual desires which he found it difficult or impossible to control, that this constituted an abnormality of mind and arose from a condition of arrested or retarded development of mind or from inherent causes.
Having regard to the definition of the defence of insanity laid down by this Court in Doyle v. Wicklow County Council [1974] I.R. 55, it is quite clear that the appellant in Reg. v. Byrne [1960] 2 Q.B. 396, if tried in accordance with the law of this country on the same facts, would have been properly found to be not guilty by reason of insanity.
In the instant case, if it were established, as a matter of probability, that due to an abnormality of mind consisting of a psychotic condition the appellant had been unable to control himself and to desist from carrying out the acts of violence leading to the death of the deceased, he would have also been entitled to a finding of not guilty by reason of insanity.
Under our law a person found not guilty by reason of insanity can only be detained so long as the court is satisfied that his mental condition persists in a form and to the extent that his detention in an appropriate institution is necessary for the protection of himself or of others. He is not, in the view of our law, a criminal nor has he been convicted of a crime. A person charged with murder, on the other hand, in our law, and convicted of manslaughter may be sentenced to a period of detention in prison whether long or short and must be released at the termination of that sentence. He is, of course, branded as a criminal.
It seems to me impossible that, having regard to these considerations, there could exist side by side with what is now the law in this country concerning a defence of insanity a defence of diminished responsibility such as has been contended for in this case which would, in effect, leave to an accused person and his advisers the choice as to whether to seek to have him branded as a criminal or whether to seek on the same facts the more humane and, in a sense, lenient decision, that he was not guilty of a crime by reason of insanity.
Furthermore, counsel on behalf of the appellant was unable to refer the Court to any decision of any criminal court, whether in England prior to the Act of 1957, or here at any time, in which a defence such as he contends for in this case, of diminished responsibility had been allowed to go to a jury.
The learned trial judge in the course of his charge to the jury carefully and correctly explained to them the provisions of the Criminal Justice Act, 1964, concerning the intent necessary to establish in a charge of murder. He informed them that whether the accused in the case before him had formed such an intent was one of the issues which they would have to determine. He put to them the medical and other evidence upon which the appellant in this Court relied to establish what was described by counsel as the defence of diminished responsibility as being evidence which was material to this issue.
By their verdict the jury decided that the accused had formed the intent necessary as a matter of law for the offence of murder and there was evidence which supported that verdict. In these circumstances, I am not satisfied that there was any error in law in the rulings and charge of the learned trial judge and I am satisfied that this appeal must be dismissed.

Walsh J.
I agree.

Griffin J.
I agree with the judgment of the Chief Justice for the reasons stated therein.

Hederman J.
I agree with the judgment of the Chief Justice.

McCarthy J.
I also agree.