Court of Criminal Appeal dismisses appeal on murder conviction where expert psychiatric evidence on motive was properly admitted.

[2004] IECCA 47

THE COURT OF CRIMINAL APPEAL

96/03

Hardiman J.

Murphy J.

Herbert J.

THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

YUSIF ALI ABDI

Defendant/Appellant

JUDGMENT of the Court delivered the 6th day of December, 2004 by Hardiman J.

1. This is the defendant’s application for leave to appeal against his conviction for murder. On the 28th May, 2003, he was convicted

of the murder of his infant son, Nathan, who died on the 17th April, 2001. Nathan was the child of the applicant and his wife Amanda

Bailey and was 20 months old at the time of his death.

2. The only issue at the trial concerned the plea of insanity: the defendant alleged that he was legally insane at the time he

admittedly killed Nathan. The manner of the child’s death was an extremely violent and this fact was itself of considerable significance

at the trial, especially in the minds of the psychiatrists called on behalf of the defendant. According to Professor John Harbison, the

former State Pathologist:

“[Nathan] died from gross brain damage, which was severe laceration or tearing type injury, verging on disruption or

fragmentation of his brain associated with multiple fractures of the vault, that is the top, and the base of his skull… The

degree of destruction of the skull was both very extensive and very severe with fragmentation of both the vault or upper

part and the base into many pieces. Not only was this tearing apart of the constituent bones of the skull a tearing apart,

but there was fracturing of the bones with further fragmentation. These internal head injuries were quire consistent with

severe and violent impact of his head against a hard surfaces or surfaces, causing therefore extensive and severe

fractures of the skull… possible separate scalp impact points could be discerned about and behind the left ear and at the

pole or the back of the head. The bruising under the scalp however was virtually confluent, that is merged one into

another, although it was distributed chiefly towards the back of the head.”

The grounds of appeal.

3. The grounds of appeal were very confined. They are as follows:

“(1) The Central Criminal Court erred in law in permitting Dr. Mohan, a Consultant Psychiatrist, to give evidence of his

opinion as to the applicant’s motive in killing his son.

(2) The learned trial judge erred in law in repeating in his charge to the Jury Dr. Mohan’s opinion as to the applicant’s

motive in killing his son.”

A third ground was not pursued.

The issues.

4. As noted above, the sole matter at issue in the trial was whether the defendant was or was not legally sane at the time of the

killing of the child. There was a sharp conflict of medical opinion on this topic, notably between Dr. Brian McCaffrey and Dr. Bourke,

both psychiatrists, who were called on behalf of the defence and Dr. Damien Mohan, a consultant psychiatrist on the staff of the

Central Mental Hospital, called on behalf of the prosecution. The defence, of course, bore the onus of proof on the issue of insanity.

5. The defence case was that the killing occurred while the defendant was legally insane due to psychosis. He and the child’s mother

were separated but she and Nathan were visiting the defendant at his residence in Co. Kildare at the time of the killing. The child was

sleeping with his mother but the defendant took him from her bed and brought him to a room where he himself had been sleeping. He

locked the door of this room and inflicted the fatal injuries on the child, apparently by swinging him or otherwise striking his head

against the wall. His eventual account of what occurred, used to ground the claim of insanity, was that he did what he did in

obedience to voices addressing him in his native Somalian language telling him to beat the child. The major issue in the conflict of

psychiatric evidence was as to whether this claim was believable.

6. The defendant had been in Ireland since 1997 and had achieved asylum here in the year 2000. At various stages during his

residence in the jurisdiction he had consulted doctors about a number of physical and nervous symptoms. There was little in the way

of agreement as to the significance of these previous medical consultations: for example, there is no doubt that he was prescribed

Larium after his return from a trip he took to Africa and the action of this drug was part of the material relied upon by the defence.

The prescribing doctor said he had prescribed it at the defendant’s insistence while the defendant said that he had simply taken what

the doctor advised.

7. Dr. Mohan had prepared a report a copy of which the defence were given. The report was based on a single interview with the

applicant on the 19th January, 2003, on the Book of Evidence, on inmate records at Cloverhill Prison and on clinical psychiatric case

notes at the Central Mental Hospital. He was of the opinion, on reading through the memos of the interviews at the Garda Station,

that there was nothing which would suggest that the applicant was acutely psychotic or suffering from hallucinations at the time of

the interviews which were immediately after the alleged offence. (Paragraph 11.2 of the report).

8. The overall impression following the initial assessment was that he appeared depressed. On physical examination no abnormality

was found. (Paragraph 13.1).

9. In the last three paragraphs of this report the following material occurs:-

“16.7. I am of the opinion that Mr. Ali does not fulfil the McNaughton criteria for legal insanity. All the evidence suggests

that he knew the nature and quality of his act and that he was aware that what he was doing was wrong. There is no

evidence that his actions were as a result of an irresistible impulse thereby ruling out third limb insanity. In summary Mr.

Ali was not legally insane at the material time.

16.8. I believe that Mr. Ali’s alleged actions were motivated by his inability to accept that he would be unable to rear his

child in his own religious faith coupled by the threat of losing custody of the child. Mr. Ali’s strong religious conviction is

consistent throughout his history and on the night of the alleged killing he was subjected to taunts of racial abuse.

16.9. As stated above I do not believe that Mr. Ali fulfils the criteria for a guilty but insane verdict. Even if there were an

option of diminished responsibility available to the jury I am firmly of the opinion that his responsibility was not diminished”.

The disputed evidence.

10. The disputed evidence is entirely along the lines indicated in the report, and in particular at paragraph 16.8 thereof. Having given

evidence substantially along the lines of paragraph 16.7 Dr. Mohan continued:

“I believe that his actions were motivated by his inability to accept that he would be unable to….”

11. Counsel for the defendant intervened at this point. Objection was taken on the ground that the material was not relevant, was

comment and, was “an opinion on motivation and we are not concerned about that.” In making this objection, of course, counsel was

aware from the report of what Dr. Mohan was about to say. The learned trial judge overruled the objection and the doctor continued:

“I believe that Mr. Abdi’s alleged actions were motivated by his inability to accept that he would be unable to rear his

child in his own religious faith, coupled by the threat of losing custody of the child. Mr. Abdi’s strong religious conviction is

consistent throughout the history and on the night of the alleged killing he was subjected to taunts of racial abuse which

would further have exacerbated the fear that he had. So, in summary, I do not believe that he was legally insane at the

material time.”

12. Objection was also taken to the learned trial judge having repeated this evidence in charging the jury. The judge did repeat the

evidence, but without emphasis or comment. He was requisitioned on the basis that:

“I will ask your Lordship to point out to the jury firstly that that opinion of Dr. Mohan’s is not supported by the evidence

and furthermore that Dr. Mohan as an expert witness in relation to matters of psychiatry is in no better position to assess

motive than the jury are.”

13. In response to this the prosecution said:

“As regards Dr. Mohan’s opinion as to motive, I would ask your Lordship not to state that there is no evidence upon which

to base that. Clearly there was evidence upon which Dr. Mohan could have inferred his opinion or drawn his opinion. I

would accept that as a psychiatrist he is in no better position….”.

14. Counsel was then interrupted by the learned trial judge who proceeded to recharge the jury on this issue. He said it had been

submitted that Dr. Mohan’s opinion was not supported by evidence, and that was a matter for the jury. He further said that Dr.

Mohan’s status was as an expert was in the area of psychiatry and therefore in relation to motive he was in no better position to

express an opinion than anybody else.

Submissions of the applicant.

15. On behalf of the applicant it was submitted by Mr. Thomas O’Connell S.C. that the sole function of a psychiatrist is to offer an

expert opinion as to whether the accused was insane or not at the time of the killing and no more. He said that questions of intent

and motive are matters peculiarly for the jury, being matters of ordinary human experience. He further submitted that it was a vital

part of the preservation of the constitutional right to trial by jury that the exclusive domain of the jury be protected from improper

intrusion. He cited in support of this proposition DPP v. Kehoe [1992] ILRM 485 and DPP v. Egan [1991] ILRM 780. Mr. O’Connell

submitted that psychiatric evidence should not be permitted in matters which are exclusively for the jury to determine and which are

within ordinary human experience, citing the cases already mentioned and R v. Turner [1975] QB 834. He relied on the latter case for

the further proposition that if such evidence is admitted and repeated to the jury by the judge, the jury may attach undue weight to

it. He said that the evidence to which he objected was potentially vital because at the previous trial the jury had disagreed and had

brought in a verdict by a majority of ten to two.

16. In the course of argument on the appeal Mr. O’Connell agreed that the opinion expressed by Dr. Mohan was relevant to the issue,

but, for the reasons set out in Kehoe, submitted that it was outside the scope of Dr. Mohan’s expertise as a psychiatrist and was a

matter of ordinary human experience exclusively for the jury. He accepted, however, that there was evidence on which a jury could

have come to the same conclusion as Dr. Mohan. Asked whether the question of motivation was ever relevant to an insanity issue Mr.

O’Connell said that in principle it was not ever relevant, though he went on to concede that a strong rational motive, however

perverted, might if established affect the credibility of an account which explained the killing in terms of obeying voices heard by the

defendant inside his head.

17. On behalf of the prosecution, Mr. John Aylmer S.C. said that Dr. Mohan had been entitled to express an opinion in relation to

motive in the context of an insanity issue. He pointed out that neither Turner nor Kehoe were insanity cases whereas in the instant

case insanity was specifically pleaded as a defence and a long medical history relied on in support of this plea. He relied on the case

of R. v. O’Brien and Ors. [2000] EWCA Crim. a decision of the English Court of Appeal, Criminal Division, which will be discussed below.

18. Mr. Aylmer also submitted that, quite separately, the evidence was admissible by virtue of certain opinions offered by the defence

psychiatrists to the effect that the extreme brutality of the crime was inconsistent with its having been committed by a person in a

normal state of mental health. He further submitted that Dr. Mohan’s opinions were firmly based on facts established in evidence at

the trial and notably in the evidence of Ms. Bailey.

Decision.

(a) Admissibility of Dr. Mohan’s opinion.

19. The applicant relied heavily upon R. v. Turner in support of his submissions in this area and in particular the robustly expressed

judgment of Lawton L.J. in that case. This was a case where the defendant was charged with murdering his girlfriend with a hammer

and pleaded provocation by certain remarks of hers. The defence sought to call a psychiatrist to give his opinion, based on

information from medical records and other sources that the defendant was not suffering from a mental illness but that his personality

was such that he could have been provoked in the circumstances and was likely to be telling the truth. The prosecution objected to

the evidence and the judge excluded it. Lawton L.J. said:

“What, in plain English, was the psychiatrist in this case intending to say? First that the defendant was not showing and

never had shown any evidence of mental illness as defined by the Mental Health Act, 1959, and did not require any

psychiatric treatment: secondly. that he had had a deep emotional relationship with a girl which is likely to have caused

an explosive release of blind rage when she confessed her wantonness to him; thirdly, that after he had killed her he

behaved like someone suffering from profound grief. The first part of his opinion was within his expert province and outside

the experience of the jury but was of no relevance in the circumstances of this case. The second and third points dealt

with matters which are well within ordinary human experience. We all know that both men and women who are deeply in

love can, and sometimes do, have outbursts of blind rage when discovering unexpected wantonness on the part of their

loved ones; the wife taken in adultery is the classic example of the application of the defence of provocation; and when

death or serious injury results profound grief usually follows. Jurors do not need psychiatrists to tell them how ordinary

folk who are not suffering from any mental illness are likely to react to the stresses and strains of life. It follows that the

proposed evidence was not admissible to establish that the defendant was likely to have been provoked.”

20. In Kehoe, also cited above, the accused was charged with killing his former best friend after the latter had an affair with the

accused’s girlfriend by whom the accused had a child. He went into a bedroom in the girlfriend’s house expecting to find the child

there. Instead he found the friend and killed him. Here, the defence actually called a psychiatrist in evidence in support of the

provocation plea. The trial judge was scathing about this evidence and did not summarise it to the jury. The conviction for murder

was upheld in the Court of Criminal Appeal on the basis that the doctor “could not in this case give any relevant admissible evidence

in relation to the state of mind, the temperament and those other matters that are referred to that the accused could not give

himself.” The judgment went on to cite portion of the passage cited above from the decision in Turner and to conclude “It seems to

the Court that the law in Ireland is the same.”

21. It will be noted that in neither of these cases was insanity either established or alleged. On the contrary, they were both cases

where it was sought to establish that the accused had been provoked (as that term is understood in law) and thereby suddenly and

totally deprived of his self control, so that the killing would not be murder but manslaughter. Whether this had occurred or not was

plainly a matter for the jury and beyond the proper reach of expert testimony. The case is quite different. Insanity was positively

alleged and the defence had called expert evidence to establish it. The prosecution was plainly entitled to counter this with expert

testimony of their own and did so.

22. In the course of the insanity case made on behalf of the defendant both Dr. McCaffrey and Dr. Bourke relied on the brutal

circumstances of the killing as indicating, in itself, uniquely, a state of insanity in the killer. Dr. McCaffrey described the voices which

the defendant said he heard urging him to beat the child and went on:

“Yusif… When he was doing this, the words he got were, ‘Take him, take him’. I actually got a translation from his own

language independently (as) ‘beat him, beat him’ But this wasn’t what he was doing. This wasn’t what he was doing. He

wasn’t beating, he was actually using so much force, I am going now by Dr. Harbison’s report that that could only be

done by somebody who was grossly psychotic in an acute psychotic state bearing in mind, and like Dr. Bourke, I have had

to exclude personality disorders, psychopathic behaviours, all that, all excluded, so all we are left with is this grossly

violent act by a man who is seriously mentally ill and not fully realising.” (Transcript E 111 515).

23. Dr. Avery Washington Bourke is an English psychiatrist. He said that he himself was of Jamaican origin and his professional life was

largely devoted to looking at psychiatric issues related to people of African and Caribbean backgrounds. Giving his opinion he said:

“The act itself is dreadful, is dreadful, and I don’t really take the view that a normal person could have carried out this

act unless there was a very considerable degree of malice or personality disturbance or psychopathic tendency. .It’s a

dreadful, tragic act. I don’t think it was carried out by a normal man.”

24. Accordingly, the defence evidence plainly states, in the case of Dr. Bourke, and necessarily implies, in the case of Dr. McCaffrey,

an opinion as to whether a “normal” person, seen as one who was not in the grip of a very considerable degree of malice or

personality disturbance or psychiatric illness, could have performed the act in question. That opinion having been given, it seems to

us that Dr. Mohan was clearly entitled to counter it. Dr. McCaffrey said only a person in an acute psychotic state could perform the

crime; Dr. Bourke said that only a person who is psychiatrically ill or in the grip of a very considerable degree of malice could perform

the act. These things having been said and relied on, Dr. Mohan gave evidence to the contrary. He opined as to the existence of a

sane if perverted attitude on the part of the accused, capable of constituting malice of the sort Dr. Bourke referred to, as a

causation other than insanity, and in Dr. Mohan’s view more probable than insanity, for the crime.

25. We will therefore consider that Dr. Mohan’s evidence was in principle admissible.

(b) Evidential support for the disputed opinion

26. It was submitted in the alternative that even if the disputed evidence were admissible, Dr. Mohan laid no factual basis for it.

27. The most fundamental clash between Dr. Mohan and his colleagues who gave evidence for the defence was in relation to the

degree of credibility they attached to the proposition that the defendant had killed the child because he heard voices telling him to do

so. All of the doctors were agreed that delusional voices were a psychotic symptom. But Drs. McCaffrey and Bourke were prepared to

accept the applicant’s history of hearing voices as both honest and accurate. Dr. Mohan was extremely sceptical on the subject.

28. It was, of course, for the jury and not for the doctors, the learned trial judge, or this court on appeal, to decide in the end upon

this issue. But it cannot, in our view, be said that Dr. Mohan lacked a factual basis for his opinion. He had prepared a very detailed

nineteen page report which was available to both sides. He formed the view that the applicant was “an unreliable historian, with many

inconsistencies in the history that he gave me and furthermore his account is at odds with others that I have read in the witness

statements.” He referred to the report of Dr. Ivor Shortts, a clinical psychologist, which concluded that:

“Mr. Abdi’s performance suggests the possibility that he may be exaggerating some of his psychiatric symptoms. This

indicates that his self report may be unreliable and thus he may be an unreliable informant regarding the nature and

extent of his actual symptomatology. This does not mean of course that he may not be experiencing some psycho

pathology, only that he may feel the need to exaggerate various aspects of it, such as its actual nature, severity or the

generality or possibly even the need to manufacture some features. His results in part may also possibly represent a cry

for help and/or may be to some extent contributed to by low self evaluation, severe depression as well as a high level of

apprehension regarding the legal consequences for him.”

29. Dr. Mohan described in his report, and repeated in evidence, many indications which, to him, suggested unreliability notably the

lateness of the accused’s claim of “hearing voices”; and the lack of complaint of this problem at earlier times, back to 1998, when it is

now alleged to have been present.

30. Dr. Mohan identified a considerable number of other inconsistencies and improbabilities in the applicant’s account of events,

specifically with regard to hearing voices. He pointed out that the applicant had simply denied any recall of an assault perpetrated by

him on Ms. Bailey but subsequently amended this to claim that he had assaulted her in response to the voices. His claim in regard to

his action in locking the door of the downstairs room into which he took the child was that he always did this in any room he found

himself in, but this is not supported by other observations in the Book of Evidence. He had contradicted himself on the question of the

language in which the voices addressed him. Most significant, perhaps, are the different accounts he gave of how the child came by

his injuries. Firstly he said that the child fell. Later he adopted the position that he was unable to remember the incident. While in

prison he claimed that he had been sleepwalking at the time of the fatality. After his transfer to the psychiatric hospital he claimed

that he acted in response to the voices.

31. Specifically in relation to disputes about the upbringing of the child and in particular his religious formation, Dr. Mohan noted that

on interview the applicant denied that there were arguments or disputes on these topics but later said that Ms. Bailey was seeking a

separation. In this connection the jury were fully entitled to accept the evidence of Ms. Bailey herself, given at Books A and B of the

transcript which, if accepted, would provide support for Dr. Mohan’s view.

32. Firstly, Ms. Bailey’s evidence was to the effect that she had decided, and told the applicant that she had decided, that she would

not leave Nathan with him. She said:

“I had no problem with him spending time with Nathan but if I had left Nathan with him I was afraid that maybe he would

try to take him to the U.K. or something I told him that if he wanted to have Nathan by himself he would have to get a

court order.”

33. Although, on the evidence, the applicant resented his inability to be in sole charge of Nathan at any time, and although he was

for other reasons in touch with various professional people, including a solicitor, there is no evidence that he ever contemplated

applying to court in this connection.

34. Secondly, there appeared to be tension about religion. According to Ms. Bailey:

“Yusif said that I should be able to see – he is Muslim – that I should be able to see everything about Islam in front of me.

He has always known that I never had any interest in Islam. I respect it as a religion, but it is not my choice of religion…

He thought that I should be – when he said that I should be able to see everything in front of me it meant that I should

wish myself to convert.”

35. Thirdly, Ms. Bailey gave evidence that the day before Nathan’s death she and the applicant had discussed the child’s custody.

She said:

“Yusif said, asked why did I have the right to have Nathan with me all the time, and he said he wanted to see more of him

meaning that I would leave him [there]. I had no problem with him seeing Nathan, but I wasn’t going to have him, leave

him, there, because I didn’t know what he would do. I was afraid that he might take him out of the country.”

36. In summary, therefore, we consider that Dr. Mohan’s evidence was admissible in principle and sufficiently grounded in fact to allow

the jury to reach a conclusion on it. We have come to the first of these decisions solely on the facts of this case. We are aware that

there is a body of law, notably R. v. O’Brien [2000] EWCA Crim. and the decision of the High Court of Australia in Murphy v. The

Queen [1989] 86 ALR 35, which suggests a broader role for psychiatric evidence than that which commended itself to Lawton L.J. In

the High Court of Australia Mason C.J. said at page 47 of the latter case, speaking of the penultimate sentence of the extract from

Lawton L.J.’s judgment quoted above:

“There are difficulties with such a statement. To begin with it assumes that ‘ordinary’ or ‘normal’ has some clearly

understood meaning and, as a corollary, that the distinction between normal and abnormal is well recognised. Further, it

assumes that the commonsense of jurors is an adequate guide to the conduct of people who are ‘normal’ even though

they may suffer from some relevant disability. And it assumes that the expertise of psychiatrists (or in the present case

psychologists) extends only to those who are ‘abnormal’. None of these assumptions will stand close scrutiny.”

37. In O’Brien the question was the reliability of a statement of a man who was “a person having traits in his personality of the kind

associated with those who make false confessions.” In quashing certain convictions the Court of Appeal (Criminal Division) added a

“postscript”:

“At one time the law was thought to be that expert evidence of the kind that we have heard could only be admitted if

that evidence showed a recognised mental illness, this being the interpretation placed upon R. v. Turner. It has now been

accepted that expert evidence is admissible if it demonstrates some form of abnormality relevant to the reliability of a

defendant’s confession or evidence, see for example R. v. Ward [1993] 96 Crim. App. R1.”

38. Although it is unnecessary in the circumstances of this case to address comprehensively the circumstances in which psychiatric

evidence may be admissible, the cases quoted may be influential in another case with different facts.

39. We wish to emphasise, however the central role of the jury on the issue of insanity. Many cases where insanity is pleaded do not

in fact give rise to a great deal of controversy but, due to the difficulties and uncertainties attending on this particular area of

medical science, there will always be those that do. But whether controversial or not, it is essential that every such decision be taken

by a properly informed jury in a public forum. Equally it is important that where a person does not suffer a criminal conviction on the

ground of insanity, such insanity should be clearly and publicly established to the satisfaction of the general public as represented by

the jury. The role of the expert witness is not to supplant the tribunal of fact, be it judge or jury, but to inform that tribunal so that it

may come to its own decision. Where there is a conflict of expert evidence it is to be resolved by the jury or by the judge, if sitting

without a jury, having regard to the onus of proof and the standard of proof applicable in the particular circumstances. Expert opinion

should not be expressed in a form which suggests that the expert is trying to subvert the role of the finder of fact.

40. But there was no question of any such thing in Dr. Mohan’s evidence. The disputed opinion he offered was indistinguishable in

nature (though different in content) from the opinion which the defence had led their own doctors to express. Moreover Dr. Mohan’s

evidence was fully and amply supported by closely reasoned arguments and properly drawn inferences, and was presented with a

minimum of technicality and such technicality as there was, was comprehensively explained.

41. The jury could have preferred the expert evidence called by the defence or that called by the prosecution and were fully entitled

to prefer Dr. Mohan’s expert opinion.

42. Dr. Mohan, like the other experts who gave evidence, is a very reputable and highly qualified psychiatrist. He is presently a

consultant attached to the Central Mental Hospital and was formerly a consultant on the staff of Broadmoor Hospital in England. He

was also a visiting psychiatrist to a number of major prisons in England. His evidence could not have come as a surprise to the

defence and was cogently supported in a report of manifestly high intellectual calibre. In these circumstances some rather

personalised and strongly worded aspects of the cross-examination to which he was subjected were quite unnecessary and are to be

regretted.

43. The Court will dismiss the application for leave to appeal.