Supreme Court dismisses appeal where psychiatric evidence on witness reliability was not adduced at trial.

THE SUPREME COURT

[Supreme Court Appeal No. 60/2015]

[Court of Appeal No: 256/07]

[Central Criminal Court Record No: CC86/06]

Clarke C.J.

O’Donnell J.

McKechnie J.

Dunne J.

O’Malley J.

BETWEEN:

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

GARY CAMPION

APPELLANT

Judgment of Ms. Justice Iseult O’Malley delivered the 30th day of July 2018

Introduction

1. In October and November 2007 the appellant stood trial along with three co-accused (Desmond Dundon, John Dundon and Anthony

Kelly) on the charge of murdering Mr. Brian Fitzgerald in Limerick on the 29th November 2002. The appellant was the only person

convicted.

2. It is agreed between the parties that, while there was some other evidence relied upon by the prosecution as implicating the

appellant in the murder, the primary evidence against him came from a Mr. James Martin Cahill. That witness had previously pleaded

guilty to the murder and had been sentenced to life imprisonment, having admitted to being the person who actually shot Mr.

Fitzgerald.

3. It is clear that the case that the prosecution expected to make out against all of the accused was based almost entirely on Mr.

Cahill’s evidence. In his opening speech to the jury, counsel for the prosecution said that Mr. Cahill would give an account of his

movements for the days prior to the 29th November 2002. This involved travelling to various places and having discussions about the

murder with various people. He would say that on the 27th November he met with a Mr. LM (who was not available for trial at that

time, and whose name was not reported during the trial), who offered him €10,000 to carry out the murder. As far as the persons

before the court were concerned, Mr. Cahill would say that on the 28th November Anthony Kelly gave him a gun and bullets. He would

describe meeting with Desmond Dundon and John Dundon later that day. Another man was meant to provide a motorcycle that

evening, but he reported that it was not in working order. Gary Campion, the appellant, was then contacted. He agreed to provide

and drive a motorcycle.

4. Counsel anticipated that Mr. Cahill would say that he went with these three individuals, and another man not before the court, to

look at the estate where Brian Fitzgerald lived, and that John Dundon pointed out a place where they could hide. They then drove to

the nightclub where Mr. Fitzgerald worked as a bouncer, dropping John Dundon off on the way. Mr. Cahill would say that as they went

past the nightclub, at about 11 o’clock or 12 midnight, Desmond Dundon pointed out Mr. Fitzgerald and said that he would call Mr.

Cahill when Mr. Fitzgerald left for home.

5. Mr. Cahill would say that he and the appellant lay in wait for Mr. Fitzgerald in the place indicated by John Dundon and that

Desmond Dundon rang him about two hours later to tell him that Mr. Fitzgerald was on the way. When he arrived Mr. Cahill shot him

dead. He would say that he then searched Mr. Fitzgerald’s car and found a small handgun. He left the scene, with the appellant, on

the motor cycle provided by the appellant.

6. It was further expected that Mr. Cahill would say that he left this jurisdiction and met up with LM and John Dundon in Belfast. They

subsequently went to Manchester and met with Anthony Kelly. All of them conversed about the murder.

7. In the event, Mr. Cahill’s evidence did not go entirely as anticipated by the prosecution. This led to a direction in John Dundon’s

case. The other two co-accused were acquitted by the jury. However, Mr. Cahill’s evidence in respect of the appellant was largely as

expected – he said that he was sent for when the first motor cycle did not work, was unable to fix it, agreed to get and drive another

one and did in fact provide and drive a motor cycle to transport Mr. Cahill to and from the murder scene. Evidence assessed by the

trial judge as being capable of corroboration of this account included clips of CCTV showing the appellant in particular places at

material times, and the evidence of a taxi driver who picked up a passenger nearby the site where the motor cycle was burned and

drove him to the road where the appellant lived. It should also be emphasised that it was never suggested that Mr. Cahill did not in

fact commit the murder, and that the eyewitness evidence of Mr. Fitzgerald’s wife established that two men were present at the

shooting.

8. The issues in the appeal arise from the appellant’s contention that Mr. Cahill’s reliability as a witness may have been impaired by

reason of mental illness. An application for facilities to have him psychiatrically examined on behalf of the various defendants before

he gave evidence did not succeed, and nor did the application made on behalf of the appellant for a direction at the close of the

prosecution case.

9. In summary, the appellant now argues, firstly, that in the absence of the requested examination the trial judge should not have

permitted the trial to proceed. Secondly, having heard the evidence the trial judge should have directed an acquittal on the ground

that Mr. Cahill’s evidence could not be relied upon. Questions as to the admissibility of certain expert evidence arise in this context.

10. An appeal to the Court of Appeal was dismissed (see The People (Director of Public Prosecutions) v. Campion [2015] IECA 190).

Supreme Court Determination

11. In granting leave to appeal from the decision of the Court of Appeal ([2016] IESCDET 147), the Court framed the issues in the

following way:

(i) In a criminal trial, is expert evidence admissible in relation to (a) the competence and (b) the credibility of a witness

if there is material before the court indicating a real possibility that the reliability of that witness’s testimony may be

affected by mental illness?

(ii) If the answer to Question (i) is Yes, and the witness refuses to undergo examination, or is for some other reason

unavailable for examination by the parties, should the trial judge stop the trial?

(iii) If the answer to Question (ii) is No, is it a matter to be taken into account by the trial judge in considering an

application for a direction?

(iv) If no expert evidence has been adduced, is an appellate court entitled to review the decision of the trial judge to

permit the case to go to the jury on the basis of his own assessment of the reliability of the witness?

12. The first two issues arise from applications made to the trial judge at an early stage in the trial, while the latter two relate to the

ruling on the applications for a direction.

The initial application to the trial judge

13. This trial was adjourned from May 2007 to October of that year because disclosure was not complete. Even so, there was

considerable time spent before the trial proper began in dealing with issues concerning disclosure. On foot of the material thereby

obtained, including Mr. Cahill’s prison medical records, a number of expert reports were commissioned on behalf of the defence.

14. It must be noted here that, unfortunately, the reports do not appear to have been put before the trial court with any degree of

formality, still less adduced in evidence and made exhibits – indeed, counsel do not all appear to have necessarily envisaged that the

trial judge would read them as opposed to hearing counsel’s summary of their contents. It further appears that copies were not

shared amongst the co-accused. This aspect caused difficulties when this Court sought copies of the reports for the purposes of this

appeal – neither the appellant nor the Director of Public Prosecutions had a complete set and they were not on the court file. Three

reports sought by defence solicitors, and one furnished to them by way of disclosure, have been procured but it has proved

impossible to obtain a further report believed by the appellant’s representatives to have been before the trial judge. In fact, it may

well be that this report was never actually furnished. The confusion in this regard may be partly attributable to a change in the legal

representation of the appellant.

15. Conversely, it seems at least possible that one of the reports made available to this Court (that of Dr. O’Mahony) was referred to

in submissions but not furnished to the trial judge.

16. The argument made on behalf of the appellant involves the implication that the trial judge erred in his rulings having regard to the

evidential material before him. Given the nature of the appeal it is necessary to examine closely the contents of the expert reports. In

such circumstances, an appellate court should be able to feel entirely confident that it has all of the material seen by the trial judge.

The reports

17. Mr. Cahill had been in custody since 2001 and the defence expert reports (with the exception of that of Dr. O’Mahony, who also

had an opportunity to interview him) were largely based on the notes, made available from the prison medical services, which covered

all of the intervening years.

18. Dr. O’Mahony’s report appears to have been provided by way of disclosure. It does not appear to have been available until after

the initial application and it is not clear to me that the trial judge ever saw it. I refer to it here simply for the sake of completeness,

and lest it should be thought that it contained material of significance.

19. Dr. Desmond O’Mahony, a consultant forensic psychologist, prepared the report at the request of solicitors acting for Mr. Cahill in

an unrelated court hearing in 2006. It was based on an interview with Mr. Cahill, his prison medical file and the book of evidence from

that case. He found that Mr. Cahill’s mental health status was “greatly affected” by his ongoing cooperation with the Gardaí in

relation to the murder of Mr. Fitzgerald. He had a reasonably founded fear that his life was at risk, rendering him highly suspicious

about the people around him. He was being treated for anxiety and hyper-alertness. However, he was displaying no symptoms of

major mental illness and was not suffering from psychosis or depression.

20. Dr. O’Mahony noted a history of deliberate self-harm of a minor nature. This behaviour was, he considered, indicative of personal

distress in his present circumstances. He further observed that Mr. Cahill’s fear that he would be killed had rendered him obsessed

with the accuracy of the details of his account. He was “pressured (from within himself)” to talk about this incessantly.

21. In his conclusion Dr. O’Mahony opined that Mr. Cahill’s history indicated a psychopathic personality.

Dr. Bownes

22. Dr. Bownes’s report, provided on the 21st October 2007, reviewed the prison medical records dating from 2001 up to September

2007 (that is, just under a month before the commencement of the trial).

23. He noted that the earliest record of a psychological complaint, or of any clinically significant disturbances of Mr. Cahill’s mood,

mental state or behaviour, came in August 2004 when he requested sleeping tablets and a prescription was given.

24. The notes recorded incidents of threats by Mr. Cahill to harm himself and others. He was at one stage described as “battling with

anxiety, aggression”. At an examination by a psychiatrist in August 2005Mr Cahill’s main complaint was of nightmares about the

murder victim. It was concluded that no evidence was apparent of active mental illness. This assessment appears to have been

carried out by Dr. O’Connell of the Central Mental Hospital, and is referred to in greater detail in the report of Dr. Kennedy (discussed

below).

25. The records from September 2005 referred to an incident described as “an acute panic attack”. Later that month Mr. Cahill was

recorded as saying that someone was trying to kill him, that he had barricaded his door during the night and that he was reluctant to

eat his dinner until a prison officer sampled it. He was seen by a psychiatrist and reported worries about his personal safety and that

of his family. However, he also said that he now felt safe after discussing his worries with prison staff. He denied any unusual

perceptual experiences, and it was concluded that no evidence was apparent of active mental illness.

26. A further psychiatric assessment was requested because of Mr. Cahill’s “anxious, aroused and paranoid” behaviour. (According to

Dr. Kennedy’s report, below, he had again asked a staff member to taste his food.) An interview in October 2005 terminated because

of Mr. Cahill’s behaviour. It was noted that staff considered him to be “attention seeking” but also that he was “very anxious”.

Medication with antidepressant and anxiety lowering effects was recommended but it appeared that he refused to take it.

27. According to Dr. Bownes this assessment concluded that there was no categorical evidence of active psychotic illness, but there

was a clinical picture consistent with an adjustment disorder resulting from a psychological reaction to the stress of his situation,

coupled with severe anxiety. According to Dr. Kennedy the psychiatrist reported that it remained unclear to her if there was a

psychotic process.

28. In October 2005 there were incidents involving an attempt to set a fire in his cell, a threat to go on hunger strike and an assault

on a staff member. In December 2005 he was placed in a seclusion “strip cell” at his own request. He was interviewed around that

time in relation to an assault on a prison officer, and it was noted that he gave a “logically organised account” that was consistent

with witness statements. He described his own behaviour as impulsive and unprovoked, stating that he had just “freaked out” and

“snapped”. There was no reference to any unusual perceptual experiences.

29. In January 2006 Mr. Cahill was seen by Dr. O’Connell who noted that he had not been taking his medication. He smiled when asked

about symptoms of psychosis and denied hearing any voices. Dr. O’Connell concluded that no objective evidence was apparent that

Mr. Cahill was suffering from mental illness, either from his presentation at interview or from the prison medical records. However, his

behaviour was inappropriate, predatory and aggressive, and Dr O’Connell thought it likely that he had an antisocial personality

disorder.

30. In January 2007, Mr. Cahill was reported as expressing violent and homicidal thoughts towards staff. He had described hearing

“screaming voices in his head”, “constant urges of self-harm”, disturbed sleep, anxiety related to thinking about giving evidence,

“intrusive recollections of violent memories” and “occasional tearfulness and feelings of anger”. These had become more intense since

he had been notified of the trial date. He also described subjective feelings of anxiety for himself and his family, reporting some

benefit from the counselling he had been receiving for this but not from the psychotropic medication prescribed to him. It was

concluded that the increased stress associated with the trial was taxing his personal resources and coping strategies.

31. However, when Dr. O’Connell reviewed Mr. Cahill on the 30th January 2007 he considered that there was no record of objective

evidence of disturbance of mood or mental state indicative of psychotic illness. Antidepressant medication was prescribed.

32. Dr. O’Connell saw Mr. Cahill again in February 2007. He described a “clear benefit in a number of domains” from the antidepressant

medication, with a “marked reduction in the intensity of an internal experience of screaming thoughts”. His concentration had

improved and his outlook was more positive. Dr. O’Connell considered the extent of the improvement to be “quite remarkable”.

33. Mr. Cahill was again reviewed in May of 2007. Meanwhile, the trial date had been adjourned until October. He complained of

“multiple hallucinatory voices in external space” talking to him about things he had done and giving him instructions from time to time.

He described feeling very stressed. It was concluded that he was “markedly distressed” by these symptoms and was “moderately”

depressed. However, he was not “overtly paranoid” and had denied any paranoid or persecutory ideas towards prison staff. He

subsequently reported that he was able to distance himself from the voices.

34. In July 2007 Mr. Cahill requested to be placed in the strip cell, reporting that he felt suicidal and was stressed at the prospect of

giving evidence for the prosecution. He denied ongoing psychotic symptomology, saying that the voices had ceased that week.

35. Dr. O’Connell again reviewed Mr. Cahill on the 18th September 2007 and noted increasing anxiety as the trial date approached. Mr.

Cahill said that he had found that disclosing his involvement in a number of offences had been helpful, and linked this to a reduction in

the experience of “screaming in his thoughts”. Dr. O’Connell noted that there were significant stressors including Mr. Cahill’s isolation

and the daunting prospect of life imprisonment, as well as the coming trial. He also noted that Mr. Cahill’s prescription for anxiety-

lowering and antidepressant medication was “robust” and left little room for increase.

36. Having completed this review of the records, Dr. Bownes stated that there was no evidence that Mr. Cahill suffered from “mental

illness of a nature indicating categorically that he would be incapable of providing valid and reliable evidence” in the trial. However he

appeared to be an individual with a low tolerance for situational stress, reflecting significant underlying personality problems. He had

repeatedly presented evidence of anxiety symptoms associated with psychological distress and agitation of a nature requiring

treatment with relatively high dosages of medication. Dr. Bownes considered that Mr. Cahill’s mental wellbeing was likely to deteriorate

in conjunction with the stressors of giving evidence. It was conceivable that the pressure of giving evidence in court would increase

his levels of agitation and anxiety to the point that his concentration and his capacity to register information would be impaired. In

such circumstances he might be considered as liable to respond to questions in whatever fashion he perceived would most rapidly and

effectively reduce his levels of anxiety and psychological distress.

37. Dr. Bownes noted that a diagnosis of personality disorder had previously been considered such a diagnosis “could be considered as

relevant” to his reliability as a witness. The records indicated evidence of personality traits with psychopathic features including

attention-seeking and manipulative behaviour, impulsivity, volatility and aggressivity.

38. Dr Bownes advised (so far as is relevant here) that a psychiatric examination and opinion should be sought regarding Mr. Cahill’s

fitness to provide evidence in court when the legal proceedings had commenced.

Dr. Kennedy

39. Dr. Harry Kennedy, Clinical Director of the Central Mental Hospital, provided a report on behalf of Anthony Kelly. He stated that he

had been asked to advise on Mr. Cahill’s psychiatric history as revealed by the prison medical records, and had also been asked to

comment in particular “on his capacity as a witness”. He had not been able to interview Mr. Cahill, and therefore any opinions offered

in the report must be regarded as “preliminary and tentative”.

“The most that can be gleaned from reading notes which cover a limited period of a person’s life time without in addition

interviewing that person is some indication of whether or not further investigation might be useful.”

40. It is not necessary to repeat the incidents recorded in the notes that have already been described in the summary of Dr.

Bownes’s report. However, it is relevant to observe that Dr. Kennedy picked out a number of occasions when Mr. Cahill had

complained of physical ailments, and indicated a view that these might have been incidents of malingering or fabrication.

41. On the 2nd February 2006Dr. O’Connell had reported to Dr. Kennedy on his assessment in the following terms:

“Mr. Cahill’s presentation at the Midlands Prison from September 2005 does not support a diagnosis of major mental

illness. It may be that some of his behaviour in the latter part of 2005 represented decompensation as part of an acute

adjustment reaction in the circumstances of a murder trial and his credible belief that erstwhile comrades may harbour

homicidal intent towards him.”

42. Dr. Kennedy described Mr. Cahill as having presented at various times with symptoms of anxiety, post-traumatic stress disorder

and at times persecutory ideas and hallucinations. Symptoms of anxiety were entirely understandable given his situation.

43. There was a suggestion, arising from some incidents recorded in the notes, of a tendency to exaggerate or fabricate some

symptoms in order to achieve personal advantage. There were numerous minor complaints which might have led to visits to outside

hospitals, for example two occasions on which he had claimed to have glass in his eye. This again indicated exaggeration and raised

the possibility of fabrication. On one occasion he had attempted to abscond when brought to hospital – again, this suggested a

tendency to fabricate symptoms for some desirable goal.

44. Commenting on the “screaming” voices, which Mr. Cahill said addressed him only in the second person, Dr. Kennedy said:

“‘Screaming’ voices are unusual in schizophrenia and ‘voices’ in the second person only are not characteristic of or

diagnostic of schizophrenia or similar psychoses. Those psychiatrically assessing Mr. Cahill (Dr. O’Connell and his team)

were not convinced and did not make a diagnosis of a psychosis, instead referring to ‘adjustment reaction’ in response

to circumstances. Once again, the probability of fabrication or malingering symptoms arises.”

45. Addressing the specific question whether there was anything arising from Mr. Cahill’s condition that made him “inherently more

unreliable than someone not suffering from that condition”, Dr. Kennedy said that the evidence of exaggeration, fabrication and

malingering might suggest that Mr. Cahill was not reliable – however, he considered that this went to credibility and was a matter for

the court rather than for psychiatric expertise.

46. While emphasising that he was giving a “limited opinion based on the limited information available”, he said that there was nothing

in the notes to suggest that Mr. Cahill was abnormally suggestible or unreliable due to any lack of mental capacity or mental illness.

47. Having said that, Dr. Kennedy went on:

“If Mr. Cahill is found to be suffering from a psychosis such as schizophrenia, with true persecutory delusions, then Mr.

Cahill’s capacity to be a reliable witness might be significantly impaired while ill, but less so when recovered. In this case,

Mr. Cahill’s reliability would be impaired because of a tendency towards over sensitivity (perceiving threats, slights and

persecution where none exist) and over-systematised thinking i.e. believing that many unconnected events or persons

are in fact connected by some underlying conspiracy.”

48. Asked specifically what effect, if any, Mr. Cahill’s “auditory delusions” had on his reliability Dr. Kennedy said:

“Mr. Cahill is more likely to have pseudo-hallucinations than true auditory hallucinations. Neither are of any relevance to

reliability in themselves, except in so far as they might point towards a diagnosis.”

49. Finally, there was a specific question as to whether “such symptoms” were likely to have existed in or around May 2005, when Mr.

Cahill made “lengthy and detailed” statements to the Gardaí about the murder of Mr. Fitzgerald. Dr. Kennedy responded that there

were examples of what appeared to be demanding and aggressive behaviour and use of symptoms in attempts to obtain

benzodiazepines, but no complaints of persecutory/possibly delusional beliefs or abnormal experiences /possible hallucinations. The

earliest reference to having persecutory beliefs was in September 2005.

50. Dr. Kennedy concluded that it was not possible to take the assessment further without Mr. Cahill’s cooperation with a psychiatric

assessment.

51. In a supplementary report a week later Dr. Kennedy discussed the notes disclosed in relation to counselling sessions Mr. Cahill had

had with a clinical psychologist. He commented specifically on a description by Mr. Cahill, in November 2006, of screaming noises in his

head, saying that this was a description of a pseudo-hallucination and not a true hallucination. Dr. Kennedy stated that this material

added nothing new to the notes he had already seen and it did not alter his opinion. He added that counselling notes were not

verbatim records; that it was in the nature of such sessions that a patient could embroider and elaborate without being subject to

external validation, and that Mr. Cahill appeared to have increased his account of his symptoms in order to gain resumed contact with

the therapist after a hiatus. For these reasons he considered that the notes were of limited value.

52. It may be noted here that it is clear that Dr. Kennedy meant that these notes were of limited value as a diagnostic aid. They

were, of course, very useful in terms of material for cross-examination.

The application for an examination

53. On the basis of the reports, counsel for the defence applied for facilities to be made available for them to carry out a medical

examination. Counsel for the prosecution, although contending that there was nothing to suggest that Mr. Cahill was incapable of

giving evidence, raised no objection if the witness was agreeable to an examination. However, it was ultimately conveyed to the

Court that Mr. Cahill would consent only if there was a court order. It is unclear at this stage whether that was in fact Mr. Cahill’s

position, or whether it was the prison authorities who considered an order to be necessary. During cross-examination Mr. Cahill said

he had agreed to be assessed but the prison governor had suggested that an order should be required. The governor had also told

him that he could take legal advice.

54. The trial judge indicated that he was concerned about the admissibility of expert psychiatric evidence on the question of the

reliability of a witness, referring to Director of Public Prosecutions v Kehoe [1951] I.R. 70 and Toohey v The Metropolitan Police

Commissioner [1965] A.C. 595. He was also concerned about the lack of any authority for the suggestion that a court could make an

order that a witness be psychiatrically examined. His thinking at that stage was that, while the defence were entitled to call relevant

evidence, the jury were there to consider the matter on the basis of common sense rather than having to assess competing

psychiatric evidence.

55. The various counsel acting for the accused took slightly different approaches to the issue. Nothing turns on this and I am

prepared to assume that each accused was supporting all of the arguments made. Counsel for Desmond Dundon submitted that, given

that Mr. Cahill was prepared to consent, an order could be made and it could be explained to him that it was not “compulsive” –

meaning, presumably, that he would not be forced to comply. His credibility was the central issue in the trial, and anything that

assisted the jury in assessing his credibility was relevant and should be admitted. Counsel referred to the decision of the Court of

Criminal Appeal in Director of Public Prosecutions v Abdi [2005] 1 I.L.R.M. 382, where psychiatric evidence as to the motivation of the

accused was held to have been admissible. The judgment itself does not appear to have been provided to the trial judge. Counsel

submitted that the jury would need expert evidence as to the potential effects of the psychotropic medication prescribed to Mr.

Cahill.

56. Counsel for Anthony Kelly stated that Dr. Kennedy had come to a tentative conclusion that Mr. Cahill “was found to be suffering

from a psychosis such as schizophrenia”, and had said that for his opinion to be of any relevance he would need an interview. (In my

view this summary does not accurately reflect the contents of the report.) In those circumstances an interview was necessary.

Counsel based his submission on the right to a fair trial, which includes the right to prepare effectively for cross-examination of the

witness. He stated that his focus was not, at that point, on the admissibility of evidence to contradict anything said by the witness.

Dr. Kennedy had made certain observations about whether Mr. Cahill might have been fabricating or malingering, suggesting that Mr.

Cahill might not be reliable. Counsel accepted that this went to credibility and was a matter for the court. However, expert evidence

would have a bearing on the effect on reliability of a psychosis such as schizophrenia, and on the assessment of Mr. Cahill’s behaviour

as recorded in the medical notes. Counsel referred in some detail to J.F. v. DPP [2005] 2 I.R. 174and submitted that the same principle

applied. If the court considered that it was not within its power to order an examination, then it should exercise its inherent

jurisdiction to stop the trial.

57. Counsel for John Dundon said that his application was, in the first instance, for a ruling as to the competence of the witness. This

was a matter to be determined by the trial judge, with the burden of proving competence on the party tendering the witness.

Secondly, counsel referred to McGrath on Evidence (1st ed., Dublin, 2004) for the proposition that a jury should be warned as to the

possible danger of convicting on the testimony of a person suffering from a mental disability. He relied on Toohey in relation to the

admissibility of medical evidence to show that a witness suffers from “some disease or defect or abnormality of mind that affects the

reliability of his evidence”. Counsel submitted that the question to be determined was whether or not the witness’s reliability was

undermined by reason of his disorder, and that this was a question beyond the common experience of the jury. The examination was

sought on the basis of the principle of equality of arms, on the basis that the prosecution would be in a position to call evidence from

experts who had examined the witness. Although it was accepted that the prosecution did not, at that stage, intend to call evidence

to establish Mr. Cahill’s reliability, they would probably do so if the court inquired into the issue.

58. Counsel for this appellant acknowledged the issues causing concern to the trial judge and suggested that the appropriate course

of action was for the judge to hear evidence from Dr. Kennedy, in the first instance, and await seeing the demeanour of Mr. Cahill

while giving evidence. He referred to the decision of the UK Court of Appeal in R v. MacKenney (1983) 76 Cr. App. R. 271where

Toohey was cited, and submitted that it would not be apparent whether the expert evidence would be admissible until the two steps

he had suggested had been taken.

The authorities

59. I think it will be helpful to refer to the authorities on the admissibility of expert evidence on mental illness before going on to

summarise the ruling of the trial judge.

60. It may be necessary to emphasise that the issue here is not quite the same as in a case where the sanity or diminished

responsibility of the accused is in question, where there is no doubt as to the admissibility of such evidence. Rather, the problem

before the Court is whether the evidence can be admitted with a view to aiding (or influencing) the jury in its assessment of the

credibility and reliability of witness testimony.

61. The question of competency is a related, but separate issue. Per Dr. Walsh on Criminal Procedure (2nd ed., Dublin, 2016), a

witness is said to be competent if he or she has the capacity to offer admissible evidence pertaining to an issue in the trial. The test

for “capacity” is generally satisfied if the witness is capable of understanding the oath and can convey his or her evidence in a

manner which enables the jury and all concerned to follow it.

62. It is for the judge alone to determine, in cases of doubt, whether the witness has such capacity. The Court has been referred to

a report of a ruling given by Maguire J. in the course of a trial in the Central Criminal Court in The People (Attorney General) v. Kehoe

[1951] I.R. 70. The accused was charged, pursuant to s. 4 of the Criminal Law Amendment Act 1935, with having unlawful carnal

knowledge of a “feeble-minded” woman. In a brief ruling, the judge directed that counsel for the prosecution should call the witness

to demonstrate her competency. Counsel for the accused would then be permitted to cross-examine her and to call evidence on the

issue if he thought proper.

63. The question of competence, therefore, is one for the judge. In contrast, questions concerning the credibility or reliability of a

competent witness are within the remit of the jury. The issue to be determined here is whether expert evidence is admissible to assist

the jury in their task.

English and Commonwealth authorities

64. In the United Kingdom, the modern line of authority begins with Toohey v Metropolitan Police Commissioner [1965] A.C. 595. The

defence to a charge of assault with intent to rob was that the victim’s account was a hysterical invention. The accused wished to

rely on the opinion evidence of a police doctor, to the effect that the alleged victim had been in a state of hysteria shortly after the

incident and that alcohol might have played a part. He had said that “normal” people did not present in that fashion and that anyone

who did would be prone to that sort of thing and would be unstable. The trial judge refused to admit the evidence.

65. The House of Lords held that, in the first instance, medical evidence was relevant to the question whether the episode had

created the hysteria or, if the alleged victim was unstable and hysterical by nature, the hysteria created the episode. The wider

question was whether medical evidence of the witness’s hysterical and unstable nature could be used to impeach his credibility. Lord

Pearce (with whom the other members of the Court agreed) considered that the jury should have “the best opportunity of arriving at

the truth” and that the medical evidence regarding the witness’s credibility should be before them.

“Human evidence shares the frailties of those who give it. It is subject to many cross-currents such as partiality,

prejudice, self-interest and, above all, imagination and inaccuracy. Those are matters with which the jury, helped by

cross-examination and common sense, must do their best. But when a witness through physical (in which I include

mental) disease or abnormality is not capable of giving a true or reliable account to the jury, it must surely be allowable

for medical science to reveal this vital hidden fact to them… [it must be] allowable to call medical evidence of mental

illness which makes a witness incapable of giving reliable evidence, whether through the existence of delusions or

otherwise…

…Medical evidence is admissible to show that a witness suffers from some disease or defect or abnormality of mind that

affects the reliability of his evidence. Such evidence is not confined to a general opinion of the unreliability of the witness

but may give all the matters necessary to show, not only the foundation of and reasons for the diagnosis, but also the

extent to which the credibility of the witness is affected.”

66. Lord Pearce said that the only argument that he could see against the admission of such evidence was that there might be a

conflict between the doctors, necessitating a trial within a trial. However, he thought that such cases would be rare.

67. Toohey was relied upon in argument before the Court of Appeal in R. v Turner [1975] Q.B. 834 but is not mentioned in the

judgment. This concerned a murder charge, where the defence was provocation. On the facts of the case, the disputed evidence

would have been that the accused was not mentally ill, but that his relationship with his girlfriend made him particularly vulnerable to

being provoked by her behaviour. The Court took the view that this was not within the bounds of the admissibility of expert opinion

evidence, the purpose of which was to furnish the court with scientific information that was likely to be outside the experience and

knowledge of a judge or jury. Jurors did not need psychiatrists to tell them how “ordinary folk who are not suffering from any mental

illness” were likely to react to the stresses and strains of life. Similarly, the evidence was not admissible for the purpose of explaining

the defendant’s credibility – he had to be judged as someone who was not mentally disordered, and that was “what juries are

empanelled to do”.

68. In 1977 the Ontario Court of Appeal delivered its judgment in French v R. The trial judge had refused to admit the evidence of a

psychiatrist who had formed the opinion that the main prosecution witness was sociopathic and had a “character disorder” and was

quite capable of lying on the stand. In a voir dire on the admissibility issue he accepted that what he had observed could also be

observed by lay people, and that the difference made by his qualifications and experience was “just a matter of degree”.

69. Giving the judgment of the Court of Appeal, MacKinnon J. noted that many of the witnesses in the case had displayed a similar

form of sociopathic behaviour. One could envisage psychiatrists being called on both sides to evaluate the reliability and evidence of

each such witness, with the possible consequence that the jury could be overwhelmed and diverted from its task of assessing

credibility on the basis of its own observations. He continued:

“To receive such evidence might, indeed, open a Pandora’s box, from which there could be no resiling, of confusion and

usurpation of function. It does trouble me that the case against the appellant should rest on the evidence of one such

as Nadine Deveau, but the members of the jury, properly instructed, are the ones to make the assessment of such a

witness when her contradictions are obvious. The Courts must be chary of limiting or usurping the jury’s duty and

function in this area.”

70. A different view was expressed by the High Court of Australia in Murphy v The Queen (1989) 167 C.L.R. 94. Mason C.J. said of the

decision in Turner:

“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.”

71. In R. v. O’Brien [2000] Crim. L.R. 676, the Court quashed a number of convictions where the reliability of confessions had been

put in doubt by psychiatric evidence relating to the persons concerned. Citing the well-known case of Judith Ward (R. v Ward [1993]

1 W.L.R. 619) the Court thereby acknowledged an extension of the admissibility of expert evidence of this kind beyond the category

identified in Turner, to include cases where there was “some form of abnormality relevant to the reliability of a defendant’s confession

or evidence”.

72. In R. v. MacKenney and Others (1981) 72 Cr. App. R. 78a man named Childs had pleaded guilty to a number of murders and gave

evidence against several men alleged by him to have been involved. They sought disclosure of two psychiatric reports in relation to

him, and requested access to him for the purpose of a psychiatric examination. The trial judge ordered that facilities should be made

available if Childs consented, but he did not. The judge refused to disclose the reports because, having read them, he concluded that

they did not support any view that Childs was suffering from any mental disorder, defect or abnormality of mind that might affect the

reliability of his testimony. Later in the trial, the defence sought to call a social psychologist who had watched Childs give evidence,

to say that his behaviour indicated that he was a psychopath whose reliability would be in doubt. Further, the witness would have

said that because of the nature of Childs’ personality and characteristic responses to social situations, including the task of

responding to cross-examination, the jury were deprived of many of the normal methods by which lay observers judged credibility. The

trial judge refused to admit this evidence. The jury acquitted some of the accused but convicted Pinfold and MacKenney.

73. The original appeal, in 1983, was dismissed by the Court of Appeal ((1983) 76 Cr. App. R. 271). It considered that the trial judge

was correct in his assessments of the reports. He was also right to exclude the proposed evidence. The proposed witness did not

have medical qualifications. Further, his proposed evidence did not come within the formulation in Toohey. Speaking for the Court,

Lord Justice Ackner said (at p. 276):

“We agree with the learned judge that if a witness is suffering from a mental disability it may, in a proper case, well be

permissible to call psychiatric evidence to show that the witness is incapable of giving reliable evidence. We are prepared

to accept that the mental illness need not be such as to make the witness totally incapable of giving accurate evidence,

but it must substantially affect the witness's capacity to give reliable evidence. But this is very different from calling

psychiatric evidence with a view to warning a jury about a witness who is capable of giving reliable evidence, but who

may well choose not to do so. If the witness is mentally capable of giving reliable evidence, it is for the jury, with all the

warnings from counsel and the court which the law requires to decide whether or not that witness is giving reliable

evidence.”74. The convictions of Pinfold and MacKenney were therefore upheld. However, their cases were subsequently

referred back to the Court of Appeal by the Criminal Cases Review Commission, and the convictions were quashed (see

R. v. Pinfold; R. v. MacKenney [2004] 2 Cr. App. R. 5).At that stage, Childs had made a number of statements in which

he retracted his allegations against the two men.

75. In the intervening years the Court of Appeal had expanded the category of admissibility beyond that permitted by the decision in

Turner, in the case of R. v O’Brien. It had concluded that expert evidence could be admissible, if the abnormal disorder in question

was of the type that might render a confession or evidence unreliable and showed a very significant deviation from the norm. There

must also be a history, pre-dating the making of the confession or the giving of the evidence, which was not based solely on the

history given by the subject, and which pointed to or explained the abnormality.

76. In the light of that analysis the Court in Pinfold and MacKenney considered that the psychologist’s proposed evidence would today

be regarded as admissible and relevant. It should be noted that the Court also had available to it the opinion of an eminent forensic

psychiatrist, who had reviewed the evidence and concluded that there was a very much higher risk of fabrication with Childs than

with ordinary people, and that he would not react in the same way as others when under pressure. It would therefore be very difficult

for either a lay person or a professional to determine whether or not he was lying.

The Irish authorities

77. The appropriate course of action to take in respect of a prosecution witness suffering from a form of mental disorder was the

subject of the appeal in Director of Public Prosecutions v Gillane (Unreported, Court of Criminal Appeal, 14th December 1998). The

appellant had been convicted of soliciting two men to murder his wife. The men were both homeless and were described in the

judgment of the Court of Criminal Appeal as “down and out”. While under cross-examination, one of them volunteered the information

that he had had a microchip inserted in his head in the course of a hospital operation, that it was connected to his mouth and that

people could read his mind.

78. The Court of Criminal Appeal held that the fact that the witness had “very strange ideas” about what had been done in the

operation did not mean that he was incapable of giving evidence. His understanding of the operation was inaccurate and impossible

but he had been a positive, clear and forceful witness in relation to the events concerning the appellant. The evidence about the

operation was “totally peripheral and irrelevant”, and was not a ground for withdrawing the case from the jury. His testimony had to

be given the same attention and respect as the testimony of the more comfortably circumstanced.

79. The admissibility of a psychiatric opinion as to the motivation, as opposed to mental illness, of the accused was squarely in issue

in DPP v Abdi [2005] 1 I.L.R.M. 382. The accused had killed his infant son. At the time he was separated from the child’s mother. He

put forward a defence of insanity in answer to a charge of murder, claiming that he had acted at the behest of voices telling him to

beat the child. The psychiatrist called on behalf of the prosecution was permitted by the trial judge to give evidence, not merely of

his opinion that the accused was not legally insane, but that he had been motivated by the inability to accept that he would not be

able to rear his child in his own faith and might lose custody of him. The defence contended that this evidence was inadmissible, as

the psychiatrist was in no better a position to express a view on motive than anyone else.

80. Giving the judgment of the Court of Criminal Appeal, Hardiman J. referred to R. v Turner [1975] Q.B. 834 and Director of Public

Prosecutions v. Kehoe [1992] I.L.R.M. 481. Both of these were cases where the defence had sought to adduce psychiatric evidence

to support a defence of provocation. In Kehoe the evidence was adduced, but was the subject of adverse comment by the trial judge

in charging the jury. The conviction in Kehoe was upheld, with the Court of Criminal Appeal ruling that the doctor could not give any

relevant, admissible evidence as to the state of mind of the accused that the accused could not give himself. The Court also stressed

that the defence should have canvassed the views of the trial judge as to whether the evidence was properly admissible.

81. Hardiman J. observed that the question of provocation, where it was raised as a defence, was “plainly a matter for the jury and

beyond the proper reach of expert testimony”. By contrast, where insanity was positively alleged, and the defence had called expert

evidence, the prosecution was “plainly” entitled to counter it. The evidence given by the psychiatrists called by the defence in the

case necessarily implied that a “normal” person could not have carried out the act in question. The prosecution expert was clearly

entitled to counter that evidence by reference to a sane, if perverted, attitude on the part of the accused.

82. Having determined that, on the facts of the case, the evidence was admissible in principle, Hardiman J. went on to state that the

Court was aware that there was a body of law suggesting a broader role for psychiatric evidence than that described in Turner. He

cited in particular the judgments of the English Court of Appeal and the Australian High Court in R. v O’Brien and Murphy v The Queen.

83. Hardiman J. noted that it was not necessary, in the circumstances of Abdi, to address comprehensively the circumstances in

which psychiatric evidence might be admissible, but observed that the cases quoted might be influential in another case with different

facts. However, he went on:

“We wish to emphasise, however, the central role of the jury on the issue of insanity…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.”

84. In DPP v Kavanagh [2008] IECCA 100 the Court of Criminal Appeal considered the question whether a psychologist’s evidence

should have been admitted to support the credibility of evidence given by the accused that she was subject to panic attacks and

would not have reacted as a normal person would to a particular situation. The purpose was to explain why she would have found it

difficult to refuse to obey the instructions of the co-accused.

85. The Court found that the proposed evidence would not have been relevant to the guilt or innocence of the appellant. With

reference to Kehoe and Turner, it pointed out that the evidence did not raise a question of mental illness. In any event, the

appellant’s evidence had not been that her will had been overborne but that she had been unaware of either the plan to commit the

offence or that it had been committed.

The trial judge’s ruling on the initial application

86. Having considered the submissions and the reports of Dr. Bownes and Dr. Kennedy, the trial judge stated on the following day

that he could not compel any person to undergo a medical or psychiatric examination. It is common case that this part of the ruling

was correct. The judge went on to express alarm at the possibility that the Court could end up with a situation where psychiatrists

on either side would be called to give evidence on the central issue in the case – the credibility of Mr. Cahill. He cited the judgment of

MacKinnon J in French, with particular reference to the “Pandora’s box” concept.

87. The trial judge considered whether the range of powers available to him to ensure the fairness of the trial, and uphold the

constitutional rights of the accused, required him to make the order sought. He determined that his function as a judge was to weigh

and balance the rules of evidence, which were a matter for the legislature. He concluded that he did not have the power contended

for. However, that was by no means the end of the ruling.

88. Citing Lord Pearce in Toohey and Lord Justice Ackner in MacKenney, (the 1983 decision) the trial judge acknowledged that

psychiatric evidence could be admissible to show that a witness was incapable of giving reliable evidence because of mental disability,

or that his capacity to give reliable evidence was substantially affected. He continued:

“My view in relation to this, having read the medical reports that have been helpfully furnished by the defence in support

of this argument, is that there is no evidence suggesting that Mr. Cahill is suffering from a major mental illness such as

schizophrenia or manic depression. Let us suppose that there were such evidence. In a hypothetical case a person, who

is a schizophrenic let’s say, coming from treatment in a mental hospital is attacked by somebody in a street. In those

circumstances the law is there to protect that person, as it would be in similar circumstances to protect their attacker.

But it would not be wrong in those circumstances of the defence to bring out in cross-examination that the witness who

is identifying the accused as her attacker had a major mental illness. Nor would it be wrong for the defence to call in aid

of their defence a psychiatrist treating that person, provided that evidence was relevant in relation to their ability to

perceive events and to relate events accurately later on.

In those circumstances and in the light of the observations to which I have referred I am not stopping the defence

from, for instance, if they wish to, calling any of the treating doctors in relation to Mr. Cahill. I am not stopping them

from asking questions which are relevant to the test laid down in MacKenney and in Toohey. That is a matter for them.

But I caution one thing, and it seems to me to be necessary to do it, having read the medical reports which I will not

read out now in open court because they are headed that I am not supposed to do so without the permission of the

relevant psychiatrists. It seems to me that an awful lot of what Mr. Cahill is suffering from is related to two things.

Firstly, his anxiety at having been involved in an utterly brutal and callous murder. He describes in that regard things

that seem like flashbacks, things that seem like nightmares, he describes voices in that regard but which are unusual or

not typical of schizophrenia. And secondly …

…Obviously Mr. Cahill should answer the questions that he is asked and it is not for me to circumscribe the defence.

Questions in short that are relevant to his mental condition in terms of him being a reliable, in psychiatric terms,

historian of events are relevant. Whether they are asked or not is a matter for the defence. Whether some portion of

the psychiatric evidence that is already available, that seems to be abundantly available, is called by the defence again

is a matter for them…

… calling evidence in relation to the test laid down in MacKenney and Toohey is a matter clearly within the competence

of the defence and something they would be entitled to do.”

89. In response to an inquiry from counsel, the trial judge made it clear that the defence could call evidence from persons who had

examined Mr. Cahill. He was not stopping them attempting to call evidence from persons who had examined Mr. Cahill’s file and had an

opinion to give, subject to a ruling from himself on any objection raised by the prosecution.

The second application

90. Defence counsel then applied for a ruling that a fair trial was not possible unless Mr. Cahill was prepared to undergo an

examination, on the basis of equality of arms. The prosecution were putting him forward as a witness who could be believed, and the

defence would seek to call evidence that he could not. The prosecution would be able to call witnesses on the issue who had

examined him. The submission in relation to the right to prepare an effective cross-examination was repeated.

91. The trial judge held that equality of arms was not an issue in the case as the prosecution had not proposed to call evidence to

say that Mr. Cahill was psychiatrically reliable. As far as cross-examination was concerned, he was not stopping anyone from seeking

to use the material in the medical reports, or by seeking their own psychiatric advice based on the notes of the treating doctors.

The witness

92. Mr. Cahill was cross-examined at length by defence counsel for each of the four accused men, and it would be fair to say that his

credibility, both generally and with regard to specific issues, was hugely damaged by the end of his evidence.

93. In addition to admitting the murder of Mr. Fitzgerald, Mr. Cahill said that he had been involved in a number of other murder plots

(although not actual killings) in Ireland and England. He admitted, among many other things, to being a habitual and violent criminal

from an early age, a pervert, a child abuser and a liar who had previously told lies on oath. He agreed that while in prison he had

pretended to be ill in order to be brought to hospital, and had pretended to be threatened by other prisoners in order to be moved. He

accepted that he was good at giving a false impression of himself as quiet and gently-spoken, while in fact he could be aggressive

and threatening.

94. A large number of serious inconsistencies and contradictions in his evidence were pointed out by reference to previous statements

made by him to the Gardaí, notes made by the psychologist who had counselled him and a document written by Mr. Cahill himself

about his criminal life. Other difficulties with his account were highlighted by reference to the alleged impossibility, or implausibility, of

parts of his accounts of his movements and meetings over the days before and after the murder, including the circumstances in which

he acquired the gun. Particular damage was done, by way of such cross-examination, to his evidence insofar as it had implicated the

Dundons and Anthony Kelly. However, his account of the appellant’s involvement had always been and remained brief – the appellant

had become involved at quite a late stage of the plan, and the story of his involvement was simple. There was, as a result, far less

material to go on in his case.

95. It is true that under pressure of cross-examination Mr. Cahill frequently said that he had a bad memory, or could not be sure

about details. However, he also frequently said that he had made mistakes in his earlier statements because there had been voices

screaming at him at that time. This was clearly a source of some frustration for cross-examining counsel.

96. Mr. Cahill’s mental health was put in question in the cross-examination and the contents of medical notes and records discovered

to the defence were (entirely properly) utilised to impugn his credibility. In answer to various questions, he agreed that he was

disturbed and sometimes deranged and mentally unstable. He had thought that he was going mad with the voices screaming about

the things that he had done. He agreed with the suggestion that he had been suffering from paranoid delusions during the time that

he was making his statements to the Gardaí and that he had sometimes thought that the prison guards wanted to kill him.

97. Asked about the voices, Mr. Cahill said that it was like screaming inside his head. However he agreed that sometimes he also

heard voices that appeared to be outside his head, a person in the room speaking to him. He would talk back to the voices. He would

also talk to his television, and thought that it was speaking back to him.

98. It has to be pointed out that the evidence referred to in the last two paragraphs is not borne out by the medical notes discussed

earlier.

99. At one point Mr. Cahill admitted that he had lied about finding a handgun in Mr. Fitzgerald’s car. He stated, in a rather confusing

exchange, that he had believed that one of the gardaí was speaking to him through the television, and thought that the garda

wanted him to say that Mr. Fitzgerald had his own protection. He denied ever having thought that it was true. Subsequently a

different counsel put it to him that it was a deliberate lie intended to leave a cloud of suspicion over Mr. Fitzgerald, rather than the

result of the television speaking to him. Mr. Cahill did not deny this and said that he was sorry.

100. Mr. Cahill said that the voices were still talking inside his head but that they no longer screamed.

101. The appellant lays emphasis on the fact that Mr. Cahill, having previously claimed that LM had asked him to carry out the

murder, stated in evidence that this was not in fact the case. He did continue to maintain that LM had paid him €10,000 after the

murder.

102. Under cross-examination Mr. Cahill had wavered somewhat on the issue of John Dundon’s involvement. On day 8 he expressed

uncertainty. On day 9 he said he was sure John Dundon had been present when Mr. Fitzgerald was pointed out to him. At the start of

the morning of day 10, he said that he was “getting the voices back again.” He did not want “to convict somebody in the wrong” and

he was not sure that John Dundon had been present either at the nightclub or at Mr. Fitzgerald’s home. He also said that he did not

remember the appellant being at the nightclub.

103. A few minutes later he said that he did not currently have the voices, and did not get them when he was speaking.

104. It is noticeable that although the issue of mental health was a significant feature, each of the counsel involved decided, to a

greater or lesser extent, to cross-examine on the basis that Mr. Cahill was a liar who fell back on the “screaming” when he could not

explain contradictions or inconsistencies in his evidence. He had never referred to the voices while speaking with the Gardaí.

105. At the end of the prosecution case the trial judge directed a verdict of not guilty in respect of John Dundon, on the basis that

the jury could not rely on the evidence about his presence at the nightclub after the witness had said that it was mistaken, and such

other evidence as there was did not amount to proof of his involvement.

106. An application for a direction was also made in respect of the appellant and the other two remaining co-accused. Counsel for the

appellant accepted that he could not do so on the same basis as applied to John Dundon, since Mr. Cahill had given evidence that he

had taken him to and from the murder scene. He relied upon the second limb of the well-known Galbraith test (R v. Galbraith [1981] 1

W.L.R. 1039), submitting that Mr. Cahill was a witness of a kind that was impossible to pin down or expose as a liar, and who was

outside the normal experience expected to be possessed by the jury. He was not a credible person, he had or had had mental health

difficulties and he had given contradictory evidence.

107. The trial judge considered that he was bound to follow the authorities and made particular reference to DPP v. Gillane and DPP v.

Leacy (Unreported, Court of Criminal Appeal, 3rd July, 2002, dealing with the applicability of the Galbraith test in this jurisdiction). He

declined to adopt a view as to the credibility of Mr. Cahill, stating that it was not a matter for him.

108. Referring specifically to the case against the appellant, he concluded that the evidence given implicated him saying:

“As regards Gary Campion it is clear that he is the person who is alleged to have been riding a motor cycle. In Mr.

Campion’s case there may be corroboration, I am not deciding that yet, as to the movements at the time, and that he

brought him to the scene of the killing, egged him on in terms of the murder, although he doesn’t say that he is in any

way less responsible in consequence of that, and then removed him from the scene. Those elements are clear.”

109. The trial judge continued:

“In addition to that I am much influenced by that fact that any time it seems to me there was anything which the main

witness thought was incorrect about this case, he took trouble to explain it, and to bring himself back to a point where

he felt in evidence that he was telling the truth, and nothing but the truth, as to whether he was or not is not a matter

for me.”

110. He referred to Mr. Cahill’s statement that he was not sure about John Dundon as an example of this, and concluded that the

assessment of Mr. Cahill’s credibility was a matter for the jury.

“At the end of cross-examinations, of course it may be said correctly that James Martin Cahill is a child abuser, a sexual

offender, a sexual pervert, has had a history of paranoia, has had a history of making incorrect statements. But at the

end of all that have, these matters are matters which the jury is well capable of deciding, and as to whether his moral

character is such that the matter can’t go before the jury it seems to me that it is extraordinarily dangerous for any

judge to make such a decision. In the context of contract killing, one doesn’t go to the Arcachon fraternity of the holy

family, and ask them whether or not they have a member who may be suitable to carry out the murder of let us say a

garda in Kilrush, you go to somebody like James Martin Cahill, and it is a matter for the jury to assess his credibility.

That is my ruling on that.”

111. In his charge to the jury the trial judge warned of the dangers of relying on the uncorroborated evidence of an accomplice. He

instructed the jury that there was no corroborating evidence in respect of Desmond Dundon and Anthony Kelly. In the case of the

appellant, the trial judge directed the jury that specified evidence was capable of being interpreted as corroboration. He emphasised

that it was up to the jury to ultimately decide whether or not it was so. The jury was also given a warning in relation to reliance on

the visual identification evidence that was put forward as part of the potentially corroborating evidence in respect of the appellant.

112. Following requisitions by counsel the trial judge recharged the jury on a number of matters including a discrete warning in relation

to the evidence of Mr. Cahill in the following terms:

“[I]n relation to James Martin Cahill he has suffered a mental affliction in the past and that has continued. And so I think

you should be careful in relation to his evidence as to whether what he is saying comes from a realisation of the truth,

in other words a recollection of reality, or whether it comes from a mental affliction. And you should bear that in mind

and I think we have had it in mind all the way through in the various examinations that have taken place.”

113. The jury returned not guilty verdicts in respect of Desmond Dundon and Anthony Kelly. They returned a unanimous guilty verdict

in respect of the appellant.

The Court of Appeal

114. The evidence of Mr. Cahill was, naturally, central to the appellant’s case on appeal. The grounds argued included contentions to

the effect that the trial judge had erred in failing to rule upon Mr. Cahill’s fitness to give evidence; in allowing the trial to continue in

circumstances where Mr. Cahill had not submitted to a psychiatric assessment; in failing to reconsider his decision as to the

continuation of the trial without a psychiatric assessment after he started to give evidence and his grave psychiatric problems

became manifestly obvious; and in failing to accede to a defence submission of no case to answer. The key features relied upon

were:

(i) Mr. Cahill’s repeated resiling from his witness statement.

(ii) Mr. Cahill’s exculpation in the witness box of LM as the person who ordered the murder despite making him the central

figure in his statement.

(iii) Mr. Cahill’s admission to having lied previously under oath.

(iv) Mr. Cahill’s admission that he is a habitual liar.

(v) Mr. Cahill’s admission that there was no gun found in the deceased’s vehicle, contrary to his statement, and provision

of a completely unintelligible answer when cross examined on the point.

(vi) Mr. Cahill’s incessant reliance upon “voices”, “screaming in his head” and instructions from his television as excuses

for inconsistencies between his statement and his oral evidence.

115. The Court, having considered the submissions made on both sides, made the following general observation about accomplice

evidence in murder cases:

“In the nature of things it is unlikely that those who come forward to admit involvement in a crime as serious as

premeditated and pre-planned murder will be pillars of society. Those who would decide to become involved in such an

enterprise are very likely to have a chequered past. Most normal people would never contemplate becoming involved in

such an incident. Those who do become centrally involved are, in a sense, abnormal, i.e. in the sense of apart from the

norm. In part it is in recognition of that fact that has seen the law traditionally require that juries should be warned, and

others charged with the deciding the facts should warn themselves, about the dangers involved in acting on such

evidence.”

116. In a key passage the Court went on:

“However under our system of justice which involves a trial by judge and jury, where it is for the jury to decide the

facts, it is for a jury properly and carefully directed to assess the evidence of such a witness and to decide whether to

place reliance on such a witness. The scope for expert professional evidence on whether a witness is reliable or indeed

capable of telling the truth will be very limited. The decision making process will normally not be enhanced by the

prospect of professional witnesses intervening and offering conflicting and competing opinions on a matter that is so

quintessentially one for a jury. The situation may well be different in cases involving disputed confessions where

appropriate professionals may be able to offer assistance on issues such as whether an individual is particularly prone to

succumb to psychological pressure, is unusually compliant or particularly suggestible, or more dramatically still, on

issues such as whether an individual suffers from a syndrome involving a compulsion to make false confessions.”

117. The submissions made by the appellant were seen by the Court as coming down to a single question – whether this was a case

in which there should have been a directed verdict of not guilty. Concerning the application to withdraw the case from the jury, the

Court referred to R. v Galbraith [1981] 1 W.L.R. 1039 and R v. Shippey [1988] Crim. L.R. 767. The issue was whether this was a case,

where although there was some evidence, the evidence was of an unsatisfactory nature, was inherently weak, or was inconsistent

with other evidence.

“Is it the case that the state of the evidence at the close of the prosecution case was such that no jury properly

directed could convict? Was it the case that to focus on the fact that Mr. Cahill had not resiled in any way from the

allegations that he was making against Mr. Campion was a case of picking the plums and leaving the duff?”

118. The Court of Appeal found that the appellant’s submissions on these questions amounted to an invitation to it to substitute its

views for those of the trial judge on matters of primary fact, contrary to the established jurisprudence of appellate courts. While Mr.

Cahill presented particular difficulties as a witness, the trial judge was best positioned to determine whether or not to let the case go

to the jury.

“A judge who has observed a witness such as Mr. Cahill give his direct evidence, and then be subjected to several

lengthy cross examinations is particularly well positioned to decide whether the evidence is so unreliable that the case

should be withdrawn from the jury or whether the evidence of the witness, together with all the other evidence in the

case should be left to the jury for consideration. Certainly, a judge who has observed the witness and in particular an

unusual witness as Mr. Cahill undoubtedly was, is better positioned than is an Appeal Court dependent on the arid pages

of a transcript.”

119. The Court concluded that having been warned of the dangers of acting on Mr Cahill’s evidence in the absence of corroboration,

and having heeded that warning in returning verdicts of not guilty for two of the co-accused, the jury were fully entitled to decide

whether the evidence as a whole was sufficient to satisfy them beyond a reasonable doubt that the appellant was guilty of murder. It

expressed the view that the appellant’s case differed from that of the co-accused in that there was significant evidence capable of

amounting to corroboration.

The submissions in the appeal

120. The appellant submits that the findings of the Court of Appeal on the admissibility of expert evidence (see para. 32 of the

judgment) represents an unduly restrictive position and that a broader approach should be taken. Reliance is placed upon Toohey v.

Metropolitan Police Commissioner [1965] A.C. 595, R v. Pinfold and Mackenney [2004] 2 Cr. App. R. 5, and R v O’Brien [2000] Crim

L.R. 676. It is submitted that the decision in O’Brien, as well as the decision of the High Court of Australia in Murphy v The Queen

(1989) 167 C.L.R 94, were cited with approval in this jurisdiction by the Court of Criminal Appeal in DPP v. Abdi [2005] 1 I.L.R.M. 382.

121. In a situation where a witness refuses to undergo an examination, or is for some other reason unavailable, counsel submits that

the trial judge may stop the trial – on the facts of this case, it is argued that he should have. It is submitted that while the issue

could potentially be dealt with under the Galbraith rubric, the matters under consideration here were broader than a general

sufficiency of evidence enquiry due to the mental health issues. Counsel seeks to rely on the appellant’s right to a trial in due course

of law under Article 38.1 of the Constitution, and the Court is referred to the dicta of the Court of Criminal Appeal in The People (DPP)

v. M (Unreported, Court of Criminal Appeal, 15th February, 2001) in this regard. Although that Court rejected the argument that the

trial in question should have been stopped due to inconsistencies in the prosecution’s case, it is submitted that the judgment

contemplated a discretion on the part of a trial judge to stop the trial, upon a submission of no case to answer, if it would be “unfair”

to allow it to proceed. In this case, the trial judge should have found the evidence to be inherently unreliable.

122. It is contended that the evidence of Mr. Cahill became unreliable to an unquantifiable extent. Where there is material which

indicates a disorder of the mind or mental illness capable of affecting the reliability of the evidence, but the nature and extent of that

illness cannot be ascertained due to a refusal to be medically examined, it may be appropriate to stop the trial - counsel cites the

decision of the Supreme Court of South Australia in R. v. Bilick (1984) 36 S.A.S.R 321, which cited with approval the judgment of the

Privy Council in Haw Tua Tua v. Public Prosecutor [1982] A.C. 136 as authority for this proposition.

123. Reliance is also placed on the decision of this Court in J.F. v DPP [2005] 2 I.R. 174. This concerned the right of an accused

person to have a complainant examined for the purposes of a hearing into the reasons for delay in making the complaint. Without the

benefit of such an examination, it is contended that a fundamentally unfair situation arose in the trial which the jury were not

equipped to assess and which afforded Mr. Cahill a shield from effective cross-examination (thereby infringing the appellant’s fair trial

rights).

124. Counsel submits that the question of whether there is a case to answer is a question of law, and that it is always open to an

appellate court to review a trial judge’s ruling on a matter of law. The argument is made that the statement of principle in The

S.S.Gairloch [1899] 2 IR 1 is not an absolute prohibition on the appellate court reviewing the decision of a trial judge, but contains a

number of caveats, which applied correctly to the facts of this case would permit the Court to review the decision of the trial judge

and arrive at a different conclusion

125. The respondent accepts that the rationale of Toohey applies in this jurisdiction in an appropriate case. It is also accepted that

fair trial issues can arise in cases of this nature. The defence was entitled to investigate the questions about Mr. Cahill’s mental

health, the prosecution was obliged to make disclosure and there would have been serious consequences in the event of non-

disclosure.

126. However, counsel submits that it does not follow that the defence was unfairly prejudiced by the lack of an opportunity to have

the witness examined. The disclosure obligation had been complied with, and the appellant thus had access to materials on Mr. Cahill’s

mental state and was not prohibited from calling evidence to give an expert opinion on such materials or from cross-examining Mr.

Cahill by reference to them. They could also have had a psychiatrist in court to observe Mr. Cahill’s evidence. Such a witness could

not legitimately have been asked whether Mr. Cahill was telling the truth, but could have been asked whether this was a case where

the ordinary person’s ability to assess truthfulness would not have been sufficient. Expert evidence is admissible only in relation to a

mental illness which affects a witness’s ability to give evidence, calling for an expertise not possessed by the tribunal considering the

issues. This is said to follow from the judgments in People (DPP) v. Kehoe [1992] I.L.R.M. 481, People (DPP) v. Gillane (Unreported,

Court of Criminal Appeal, 14 December, 1998) and People (DPP) v. Kavanagh [2008] IECCA 100. It is emphasised that the ruling of the

trial judge did not prevent the defence from calling the treating doctors or other medical evidence within that formulation.

127. On the question of credibility it is submitted that the role of the jury should not be usurped. The court should not allow expert

evidence to be placed before the jury unless it reveals a medical abnormality by reason of which the evidence of a potential witness

is unreliable. Counsel contends that the Court of Appeal was correct in taking a restrained approach, and that permitting such

evidence in every case where a witness has a mental illness is not warranted by authority. Reference is made to the observation of

Leveson P. in R v. H. [2014] EWCA Crim 1555 that “in many cases, the diagnosis of a psychiatric condition may be entirely distinct

and free standing from any fact in issue in a criminal case”. It is also argued that in some cases expert evidence may be unnecessary

as the jury may be as well-placed as any expert to see the witness’s difficulties and evaluate whether such difficulties render any

evidence given unreliable. The respondent thus contends that the approach taken in Kehoe and Gillane remains good law.

128. Arising from J.F. it is acknowledged that if the respondent was to adduce expert evidence in relation to the witness, the accused

person in question should be afforded the opportunity to have their own expert examine the witness. It is emphasised that that

scenario did not arise here as the respondent did not call evidence about Mr. Cahill’s mental health. In those circumstances, the

fundamental test to be applied is whether the refusal to be examined created a real risk of an unfair trial.

129. It is submitted that the absence of medical evidence going to credibility or reliability is subsumed into the Galbraith test, as part

of the trial judge’s assessment of whether there is a sufficient case upon which it would be safe for a jury to convict. Counsel

accepts that a trial judge could withdraw a case from the jury because of the unreliability of a witness, but only if it would be

perverse to convict on that witness’s evidence. Here the Court of Appeal considered that the trial judge had been best placed to

decide whether or not to withdraw the case from the jury. That accorded with the normal application of the Galbraith principles, as

applied in this jurisdiction in People (DPP) v. Leacy (Unreported, Court of Criminal Appeal, 3rd July, 2002) and People (DPP) v. Barnwell

(Unreported, Central Criminal Court, 24th January, 1997).

130. The respondent accepts that an appellate court can review the decision of the trial judge in accordance with the well-

established principles set out in The SS Gairloch [1899] 2 I.R. 1; People v. Madden [1977] I.R. 336 and Hay v. O’Grady [1992] 1 I.R.

210. No alteration of those rules is required to deal with the issue in the present case. Counsel refers the Court to the decision in

People (DPP) v. Egan [1990] I.L.R.M. 780 where this Court held that the Court of Appeal could not substitute its own subjective view

of the evidence for that held by the jury, if there was credible evidence to support the latter. It is submitted that the trial judge is

always best placed to make assessments as to credibility and reliability for the purposes of a direction application and that an

appropriate margin of appreciation must be afforded in deciding those matters.

Discussion

131. There is no real disagreement between the parties as to the procedure and criteria by which the competency of a witness is to

be assessed. It is a matter for the trial judge to determine, and expert evidence is admissible on the issue.

132. In this case the trial judge did not accede to the application for a determination of competency. Indeed, the application seems

to have become subsumed to a large extent into the debate about the application to have the witness examined. In any event, I

cannot see that such a procedure would have been warranted. The threshold for competency is low – an ability to understand

questions and give intelligible answers on matters relevant to the issues in the trial. It is not the case that a party is entitled simply

to put a witness’s competency in issue by way of formal challenge, and thereby become entitled to a full hearing on the issue. Some

foundation must be laid, whether by way of formal evidence or the presentation of other material, that gives rise to a genuine

question for the trial judge to resolve. There was nothing in this case to indicate any doubt as to whether Mr. Cahill could pass the

threshold test.

133. Again, there is agreement between the parties that the ruling in respect of the examination of the witness was correct. A trial

judge does not have power to compel any individual to undergo an examination.

134. This did not, in my view, create a situation akin to that in J.F. v DPP. The context of that judgment was the procedure in use at

the time of the case (but no longer considered appropriate) for the resolution of judicial reviews based on allegations of complainant

delay in sexual cases. For some years it was considered necessary to inquire into the reasons for such delay in each case. That

inquiry usually necessitated an expert evaluation of the complainant and his or her history with a view to determining whether, for

example, he or she had been psychologically dominated by the accused person and could not have made the complaint earlier. If

accepted by the court, such evidence would excuse delay. If not, the accused might succeed in obtaining an order of prohibition.

Thus, the psychological evidence intended to be utilised related to the central issue to be determined by the court. The prosecution

authorities would inevitably present expert evidence to support their case, and to deny the accused the opportunity to get his own

expert assessment was manifestly to deny him the opportunity to engage with the issue to be determined by the court.

135. The Court has been referred to the decision of the New Zealand Court of Appeal in R. v Griffin [2002] 1 L.R.C 503. In that case

the appellant had been charged with the offence of having unlawful intercourse with a “severely subnormal” woman contrary to the

relevant statutory provision. The prosecution were in a position to call a psychiatrist and a psychologist who had assessed the

alleged victim, in order to establish that she was severely subnormal. However her parents refused to consent to a further

examination by an expert appointed on behalf of the defence, and the Court refused to order her to attend for such examination. The

defence did not seek to stay the trial or exclude any portion of the evidence, and called an expert to comment on the complainant’s

evidence and that of the prosecution experts.

136. On appeal, the Court focussed on the right of an accused person to have adequate access to evidence required to present a

defence. The judgment of the majority notes the importance of being aware of the possibility that requests for examination might be

made for tactical or intimidatory reasons, but considered that a balance must be struck between the interests of the accused and the

interests of the complainant. There was no power to order an examination, and if a complainant refused to submit to one, then the

avenues open to the court were to either exclude such prosecution evidence as the defence could not adequately answer or to make

an order staying the proceedings either generally or until the complainant consented to an examination. The defence would be

entitled to such an order only if the court was satisfied that, without the requested examination, the trial would be unfair. In order to

demonstrate that, it would be incumbent on the defence to start by showing, if necessary by appropriate evidence, that the issue in

respect of which the examination was sought was capable of bona fide argument. The court should not intervene unless the accused

had shown that without the examination he would be so handicapped in the preparation of his case that a fair trial would not be

possible. On the facts of the case, the appeal was allowed.

137. The reliability of Mr. Cahill has been described as the central issue in this case. However, that is true only in the sense that, as a

matter of practicality, it was the central issue to be confronted by the accused and their legal representatives. The trial was about

the guilt or innocence of the accused, not about the mental health of the witness. A case of this sort, therefore, differs from one

where the issue is the mental state of the accused or, (as in JF or Griffin), where the issue to be determined requires proof of the

mental state of another person. The general rule is that expert evidence about the credibility of a witness would, far from being an

essential proof in the case, be inadmissible. The question in this case is whether, or to what extent, the Court should consider that it

comes within an exception to the general principle.

138. For similar reasons, I do not see that the concept of equality of arms is of assistance. Again, if evidence on the issue of the

mental health of a witness was to be put forward by the prosecution on an issue to be determined by the trial judge, or as something

to be taken into account by a jury, it would be necessary to ensure that the defence had a fair opportunity to counter it with

evidence of their own. That is not the scenario in this case.

139. The right to prepare adequately for cross-examination is undoubtedly part of the right to a fair trial, but I do not think that it

has been established that it was in issue in this case. If, hypothetically, an examination by a psychiatrist revealed evidence to the

effect that Mr. Cahill was mentally ill and that his capacity as a witness was adversely affected, it would be that evidence that

mattered rather than any question put to Mr. Cahill as to his own view of his mental health.

140. The real question here, in my view, is in the first instance whether the refusal of the witness to undergo an examination in the

absence of a court order created the risk of an unfair trial, such that the judge should have stopped the trial at that point. It is clear

that such an order is available to a trial judge if he or she considers it necessary, to prevent unfairness and protect the process of

the court from abuse. In DPP v P O’C [2006] 3 I.R. 238 Denham J. expressed the principle in the following terms:

“Thus, in the course of the trial matters may arise, evidence may be given, which renders a trial unfair, or the process

unfair. In these circumstances the trial judge retains the jurisdiction to prevent the trial from proceeding.”141. Of

course, in most situations some measure falling short of a permanent stay will be adequate to deal with whatever

problem has arisen, but if a trial judge were to take the view that a fair trial was not and would not become possible by

means of any order that could lawfully be made, it might be that a permanent stay would be the only solution. In other

cases, it might be that a stay until such time as the witness agreed to an examination would be appropriate. On this

aspect, I agree with the views expressed and the analysis of the New Zealand Court of Appeal in R. v Griffin– it would not

be the case that such an order would be made simply because of the refusal.

142. Whether such an order would be appropriate in a particular case must depend on the facts as they are presented to the trial

judge. In this case, the evidential material put before the judge was contained in the reports of Dr. Bownes and Dr. Kennedy (and

possibly the report of Dr. O’Mahony). The judge took the view that they did not disclose any evidence that Mr. Cahill suffered from a

major mental illness such as schizophrenia or manic depression. In reaching that conclusion he was undoubtedly correct.

143. Mr. Cahill had certainly displayed symptoms of, amongst other issues, acute distress and anxiety over the six years covered by

the prison medical records, but no doctor had diagnosed him as having a mental illness and his condition was never seen as

warranting a transfer to the Central Mental Hospital. Allowing for the limitations under which both Dr. Bownes and Dr. Kennedy

produced their reports, neither was prepared to say that the records gave them cause for concern that there was an undiagnosed

illness.

144. Dr. Bownes found no evidence that Mr. Cahill suffered from a mental illness of a nature rendering him incapable of giving reliable

evidence. The furthest he was prepared to go was to say that Mr. Cahill seemed to be an individual with a low tolerance for stress

who might, under the pressure of giving evidence, alter his answers to questions with a view to reducing his levels of stress and

anxiety. Many people find the experience of giving evidence stressful, and in Mr. Cahill’s circumstances it must have been acutely so.

However, it is difficult to see how, on the basis of Dr. Bownes’ report, the requirements of a fair trial could have been seen as

necessitating a further examination of Mr. Cahill in the interests of the defence, as opposed to the interests of his own welfare.

145. It seems likely that Br. Bownes’ view was correct, and Mr. Cahill certainly did alter his version of events in many respects.

However, as I have already noted, his tendency to explain the alterations by reference to “screaming” at the time he was giving his

account to the Gardaí did not correlate with the medical notes. Further, the process was entirely visible to the jury in the course of

the various cross-examinations. I do not see any instance where the alteration occurred to the disadvantage of the defence.

146. Dr. Kennedy did not, contrary to counsel’s impression as conveyed to the trial judge, reach a tentative diagnosis of

schizophrenia. Having said that the most that could be gleaned from reading the notes was an indication of whether or not further

investigation might be useful, he did not say that he had found such an indication. He specifically stated that the “voices” reported

by Mr. Cahill did not support a diagnosis of schizophrenia and, no matter what the explanation for them, were not relevant to any

question of reliability. He further stated that there was nothing in the notes to suggest that Mr. Cahill was abnormally suggestible or

unreliable due to any lack of mental capacity or mental illness. The indications of fabrication or malingering could, Dr. Kennedy noted,

be relevant to that issue, but, as he said, that was not a matter for which expert evidence would be appropriate. Indeed, counsel for

the defence made extensive and effective use of that material in cross-examination, and Mr. Cahill admitted having told a great many

lies about his health.

147. Having found, on the material put before him on behalf of the defence, that there was no evidence before him that Mr. Cahill

suffered from mental illness, the trial judge would have had no basis upon which to stop the trial because of the failure of Mr. Cahill to

submit to an examination. It might have been otherwise if the experts had expressed a view that the records raised a real possibility

of the presence of an illness or disorder capable of affecting his ability to give evidence.

148. The next issue, then, is whether or not the trial judge should have granted a direction to the appellant at the close of the

prosecution case, on the grounds of the alleged “inherent unreliability” of Mr. Cahill. The particular complaints made by the appellant

are summarised above (at paras. 121-124).

149. There is no doubt but that, as already noted, counsel had done enormous damage to Mr. Cahill’s credibility by that stage, by

reference to the features now emphasised on behalf of the appellant. However, I consider that the Court of Appeal was correct in

holding that, where the assessment of the viability of the prosecution case depended to such an extent on the issue of the witness’s

credibility, it was a matter within the trial judge’s remit to determine whether the jury could, if properly directed and given the

appropriate warnings, rely upon the evidence. In its ruling on this aspect, the Court of Appeal applied the principles established in The

People v Madden [1977] I.R. 336, The SS Gairloch [1899] 2 I.R. 1, Hay v O’Grady [1992] 1 I.R. 210and Doyle v Banville[2012] IESC 25.

150. The appellant says that certain caveats apply in relation to these principles – that the appellate court is only bound to defer to

a trial judge’s conclusions on specific and definite findings of fact; that the decision of a trial judge may be overturned if it is so

clearly against the weight of the testimony as to amount to a manifest defeat of justice; that the principles apply with less force to

inferences of fact, and that the ability of the appellate court to assess the evidence is a relevant consideration. Here, it is argued

that the finding that Mr. Cahill was reliable was an inference rather than a specific finding of fact, and that it was so clearly against

the weight of the evidence as to amount to a manifest defeat of justice.

151. In my view this submission fails to appreciate the function of a judge in deciding whether or not a case should go to the jury. In

that process, the judge is not deciding whether or not the witness is reliable or truthful – he or she is determining, in accordance with

the principles set out in Galbraith and Leacy, whether or not there is a case upon which a properly instructed jury could convict. The

decision whether a witness is to be believed, or whether a reasonable doubt remains, is a matter for the jury unless a guilty verdict

would be considered perverse.

152. Finally, there is the question whether, the direction having been refused, the defence could have called psychiatric evidence

and, if so, to what purpose and within what constraints. The legal representatives now acting on behalf of the appellant have, in my

view, misinterpreted the ruling given by the trial judge in relation to the first and second defence applications. The application for

leave to appeal to this Court stated baldly that the defence had been “prohibited” from calling Dr. Bownes as a witness. That is

manifestly incorrect. The trial judge made it clear that, despite his concerns about the “Pandora’s box” scenario, it was open to the

defence to make such use of the medical evidence and witnesses available to them as they wished, within the test established in

MacKenney and Toohey. He expressly stated that the defence would be entitled to call evidence relevant to Mr. Cahill’s mental

condition in terms of his reliability as a historian. Insofar as criticism has been made of his failure to advert to the 2003 decision in

MacKenney, or to the judgment of the Court of Criminal Appeal in Abdi, it must be pointed out that these were not opened to him.

153. In the event, neither Dr. Bownes nor Dr. Kennedy was called. This Court cannot say whether or not counsel then acting for the

appellant believed that the ruling had the effect that they could not be called but in any event, having regard to the contents of

their reports, it is perhaps not surprising that they were not. They would not, on the face of it, have been in a position to assist the

jury by way of giving them information that was not already apparent to them. It might be thought that they could usefully have

been called to explain the limitations of the assistance they could give, having regard to the refusal of Mr. Cahill to be examined

without a court order. However, it is apparent that counsel did not choose to take that route. Only one of them asked Mr. Cahill why

he had said he wanted a court order, and that counsel did not inquire as to whether he was willing to change his mind.

154. The appellant has criticised the judgment of the Court of Appeal as setting too narrow a test for the admissibility of expert

psychiatric evidence. This might seem to raise a moot point in the circumstances, given that no attempt was made to call evidence in

the trial. However, I think it desirable to make some comment on the judgment.

155. The judgment of the Court of Appeal does not refer to the previous Irish decisions on this issue in Kehoe, Abdi or Kavanagh or to

the line of authority from the United Kingdom. It may be that they were not fully dealt with in argument. It seems to me that the

analysis of the Court in this case is capable of being interpreted as disagreeing with the acceptance in the Irish authorities of, at the

least, the Toohey and MacKenney formulation in respect of the admissibility of psychiatric evidence in particular circumstances. There

is no doubt but that the Court of Criminal Appeal in Abdi also expressed some degree of approval of, or interest in, the comments in

Murphy and O’Brien about the restrictive approach taken in Turner, and envisaged that those comments might be influential in future

cases (subject, of course, to the centrality of the jury’s role). The 2003 judgment in Pinfold and MacKenney demonstrates that the

law in the United Kingdom has moved on beyond Turner. Whether those developments should be followed here is a matter for a case

in which the issue properly arises, but the core principles are well established.

156. The Court of Appeal’s views, as expressed in paragraph 116 above, might be read as reflecting a narrower view than Turner,

allowing “very limited scope” for such evidence other than in cases of disputed confessions. If this analysis of the judgment is

correct, it would mean that that Court considered that the trial judge was wrong to consider that evidence as to reliability could be

admissible, and that the Director is wrong in the submissions summarised in paragraph 126 above as to the circumstances in which the

evidence could have been called. I would view that conclusion as incorrect, and would be concerned that the Court of Appeal had

reached it without discussion of the authorities. However, it may that in referring to the “very limited scope” for such evidence, the

Court did in fact have the circumstances considered in the case-law in mind.

157. In any event, it is clear that the trial judge was prepared to consider the admission of appropriate expert evidence bearing upon

the mental condition of the witness insofar as it affected his reliability, but that no such evidence was proffered. It seems to me that

in those circumstances the Court should not attempt to resolve the question of the parameters of the admissibility of evidence of this

nature, and that it should be left to a case where the issue truly arises.

158. In the circumstances I would dismiss the appeal.