Court held accused guilty of non-fatal offences despite psychiatric history, as insanity plea rests on defence.

THE SUPREME COURT

No. 160/04

Denham J.

Geoghegan J.

Fennelly J.

Kearns J.

Macken J.

IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT, 1947

IN THE MATTER OF A CONSULTATIVE CASE STATED FROM WESTERN CIRCUIT, COUNTY OF MAYO

IN THE MATTER OF A CRIMINAL PROSECUTION ENTITLED:-

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

v

SEAN REDMOND

Accused

JUDGMENT of MR JUSTICE FENNELLY delivered on the 6th day of April, 2006.

1. This is a Case Stated from His Honour Judge, now Mr Justice Haugh, when sitting in Westport as judge for the Castlebar Circuit

Criminal Court.

2. The accused stood charged with one offence, namely that on 20th November 2002 at Castlebar he intentionally or maliciously

caused harm to one Liam Humber contrary to section 4 of the Non-Fatal Offences Against the Person Act 1997.

3. The accused was arraigned on 1st July 2003 before His Honour Judge Kenny and pleaded guilty. The matter was adjourned for

sentencing. The accused was remanded in custody. The matter came on before Judge Haugh in December 2003. The facts of the

offence, as given in evidence were summarised in the Case Stated as follows:

"Around 9.30am on the 20th November, 2002 the accused attacked the victim with a knife and caused him serious injuries.

The attach was an unprovoked attack in the vicinity of St Mary's Psychiatric Hospital in Castlebar and was witnessed by a

number of individuals. The accused has a psychiatric history and was attending the hospital on the morning in question for an

appointment with his Psychiatrist, Dr John Connolly. The victim was an in-patient of St Mary's Psychiatric Hospital. Following

the stabbing the accused went into an office in the Psychiatric Hospital. He told a person in the office that he had stabbed

somebody and he told them where the knife was. No rational motive or discernable reason was established for the attack. The

accused apparently told Dr O'Rourke [Psychiatrist] when examined on the day of the incident that he had heard voices telling

him to "get them" and that his attack was in response to the voices."

4. The case stated also records that certain psychiatric reports were, by agreement, placed before the court. The book of evidence

contained reports in the form of statements of intended evidence from two other psychiatrists. Clearly, however, there was no

hearing or determination as to what the mental state of the accused was, either at the time of the commission of the alleged offence

or at the date of the various hearings in the Circuit Court.

5. The learned judge raised with counsel a question as to whether he had any jurisdiction “to raise an issue in relation to the plea of

guilty by the accused if, having considered the evidence, [he] had substantial grounds for believing that the accused may have been

insane at the time of commission of the acts alleged to constitute the offence and in substitution to enter on his behalf a plea of not

guilty.”

6. Following adjournments and further consideration, counsel for the accused proposed and counsel for the prosecution did not

oppose the judge stating a consultative case stated to this Court. The learned judge then expressed his position as follows:

"In light of the evidence before me, I am of the opinion that there are substantial grounds for believing that the accused may

have been insane in law at the time of the commission of the alleged offence and that a defence plea of "not guilty" may be a

more appropriate plea than a plea of guilty. As I understand the law, it is that a person who is found not guilty by reason of

insanity is deserving of treatment not punishment whereas a person who pleads guilty or who is found guilty is deserving of

punishment. I am informed that the plea of the accused in this instance is motivated by practical considerations - i.e. he

would prefer to have a definite sentence rather than a situation whereby he would be detained at the pleasure of the

government in the Central Mental Hospital."

7. The learned judge, in stating a case for his Court pursuant to section 16 of the Courts of Justice Act 1947, explained that he

required the assistance of the Supreme Court and answers to the following question:

"Have I the power/duty or should I decline to act on a plea of guilty if, on the evidence before me, I am satisfied that I have

substantial grounds for believing that the accused was insane at the time he committed the acts alleged to constitute the

offence. Should I in those circumstances decline to accept a plea of guilty, enter a plea of "not guilty" on behalf of the

accused and seek to ensure that the issue of his insanity is fully investigated in the course of his trial?"

8. Since he signed the Case Stated, the learned judge has been appointed to be a judge of the High Court. He has agreed, at the

request of the Presidents of the Circuit Court and of the High Court, pursuant to section 6A of the Courts (Establishment and

Constitution) Act, 1961, inserted by section 12 of the Courts and Court Officers Act, 2002, to complete the hearing of the case of

the accused, following the completion of this case stated.

9. The point raise is a novel one. The researches of counsel have produced no authority for the proposition that a trial judge may

reject a plea of guilty in the circumstances outlined.

10. Counsel for the accused, Ms Grainne McMorrow, Senior Counsel, submitted that the accused was entitled to plead guilty. She

acknowledged that the accused had a significant psychiatric history and that he would have been entitled to raise the defence of

insanity, but he does not wish to do so. She informed the Court that, although the defence had initially raised an issue of fitness to

plead, there is now no outstanding issue on that point. In fact, the accused wishes to maintain his plea of guilty, because he wishes

to have a definitive outcome, in the form of a sentence of the court.

11. Mr Maurice Gaffney, Senior Counsel, on behalf of the Director of Public Prosecutions (“the DPP”) accepted that an accused person

is normally entitled to choose how he wishes to plead, but queried whether this is so in all cases. The learned judge had jurisdiction to

refuse a plea of guilty. If he sentenced a person in the position of the accused, he would be sentencing a person who is in law

innocent. He is entitled to protect the process of the law from abuse.

12. Mr George Bermingham, Senior Counsel, for the Attorney General supported the submissions of the DPP. The question in the case

stated should be answered in the affirmative. While unwilling to go so far as suggesting that the plea of guilty by the accused

amounted to an abuse of process, he did suggest that it might be “a deception and a sham.” The sentencing judge would be bound

to take into account the psychiatric background of the accused and to conclude that he was less responsible for his acts than others

might have been, but he had to start from the proposition that he was dealing with a self-confessed criminal. The difficulty for the

Circuit Judge was that he was not actually satisfied of this fact.

13. There is no denying the real dilemma with which the learned judge which confronted the learned judge. There was, as recited in

the statement of facts of the case, no “rational motive or discernible reason” for the attack. Nonetheless, a serious assault had been

committed. The accused, according to his counsel, does not remember attacking the injured party, though he is recorded as telling

someone in the office of the hospital that he had stabbed someone.

14. Yet, the sentencing difficulty is not what is now before the court. Nor is there any question as to the content of the rules

regarding insanity, although the case stated refers to a discussion of the absence of a defence of “diminished responsibility” and the

decision of this Court in People (Director of Public Prosecutions) v O’Mahony [1985] I.R. 517.

15. The key point is that insanity is a matter of defence. It is true that the Court of Criminal Appeal, in People(Attorney General) v

Messitt [1972 I.R. 204 stated, per Kenny J, at page 213 that it is “the duty of the prosecution to give any evidence which they have

on which the jury might reasonably come to the conclusion that the accused was insane.” This statement was made in the context

of an acknowledgement that “the onus of establishing insanity……rests on the accused.” This proposition has been long established.

The second of the M'Naghten Rules is that:

“Every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes until the

contrary be proved.”

16. It has always been the law that a person is presumed to be sane and responsible for his acts and, by corollary, that any person

asserting the contrary must prove it. This matter is fully discussed in Criminal Liability by professor Finbarr McAuley and professor J.

Paul McCutcheon, (Round Hall Sweet & Maxwell Dublin 2000 Chapter 14.15), where the authors state:

“It is clear from Rule 2 of the M’Naughten Rules that the judges intended to put the onus of proving insanity on the accused,

and there is a long line of authority supporting this conclusion.”

17. It suffices to refer to the authority of the judgment of Kennedy C.J. for the Court of Criminal Appeal in Attorney General v O’Brien

1936 I.R. 263, at 270 to show that this statement is correct and has been applied by our courts. Counsel for the DPP has, however,

referred to a dictum of Lord Denning, sitting in the House of Lords, in Bratty v Attorney General for Northern Ireland [1963 AC 386, at

page 411:

“When it is asserted that the accused did an involuntary act in a state of automatism, the defence necessarily puts in issue

the state of mind of the accused man: and thereupon it is open to the prosecution to show what his true state of mind was.

The old notion that only the defence can raise a defence of insanity is now gone. The prosecution are entitled to raise it and it

is their duty to do so rather than allow a dangerous person to be at large. The Trial of Lunatics Act, 1883, says that where "it

is given in evidence" that the person was insane, the jury shall return a verdict of guilty but insane.”

18. Lord Denning was alone in expressing this view. The issue before the House of Lords was a defence of automatism, not insanity.

The latter defence had been rejected by the jury at trial. Viscount Kilmuir. L.C., speaking for the majority, at page 402, mentioned

that the Court of Appeal (in Northern Ireland) had treated the onus as “being on the defence to show on a preponderance of

probability that the necessary constituents of the M'Naughten formula were present……,” though, in the circumstances of the case,

he did not himself have to comment on that proposition.

19. I believe that it remains the law that the onus of proof of insanity rests on the defence.

20. I do not think it can be consistent with the foregoing proposition that a judge may substitute a plea of “not guilty” in a case such

as the present. What would be the consequence of his doing so? The trial would have to proceed. The prosecution would have the

burden of proving every element of the case against the accused, but he would be presumed to be sane. The burden of proving the

contrary would rest on the accused. He is entitled to decide whether to raise the defence. Where he decides not to raise it and the

facts are proved to the satisfaction of the jury beyond reasonable doubt, he will be convicted.

21. I believe that an accused person, who is sane at the time he makes the plea, is entitled to choose whether to raise the defence

that he was not sane at the time he committed the criminal acts with which he is charged. It is important to make this qualification.

If he appears not to be fit to plead, the prosecution has the right to raise the issue, in which it appears—it is not necessary to decide

that in this case—have to prove it beyond reasonable doubt. This fact is a corrective to the fear that a grossly insane person can

avoid the detention that is the consequence of a finding of insanity by pleading guilty.

22. Before concluding, I would observe, that the Court must not, at this stage, enter into considerations of sentencing. That will be a

matter for the learned judge when he comes to impose sentence. It suffices to say that the accused, whatever weight the court

decides to assign to his psychiatric history, will not be treated as an insane person, but as a person who has pleaded guilty to a

criminal offence.

23. I have read in advance the judgment delivered today by Geoghegan J and agree that the question posed in the case stated

should be answered as he proposes.