Supreme Court holds judges cannot set aside guilty pleas except in exceptional circumstances to protect fair trial rights.

Denham J.

Geoghegan J.

Fennelly J.

Kearns J.

Macken J.

THE SUPREME COURT

[160/2004]

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

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

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR

AND

SEAN REDMOND

ACCUSED

JUDGMENT of Mr. Justice Kearns delivered the 6th day of April, 2006

1. This is a consultative case stated by His Honour Judge Kevin Haugh, S.C. when sitting as a Circuit Court judge on the Western

Circuit in the County of Mayo. Since stating the case on the 31st March, 2004, Judge Haugh was elevated to the High Court and will

hereinafter be referred to as Haugh J. However, both the President of the High Court and the President of the Circuit Court agreed,

pursuant to s.12 of the Courts and Courts Officers Act, 2001, to request Haugh J. to sit as a Circuit Court judge for the purpose of

allowing this Court to respond to the questions raised. Haugh J. agreed to do so in consequence whereof this Court thereby acquired

jurisdiction to deal with the matter.

2. The case stated recites that, on the 1st July, 2003, the above named accused was before Castlebar Circuit Criminal Court on a

count of causing serious harm, contrary to s.4(1) of the Non-Fatal Offences Against the Person Act, 1997. The particulars of the

offence alleged are that the accused did on the 20th November, 2002, at Castlebar in the County of Mayo intentionally or recklessly

cause serious harm to one Liam Humber.

3. On the 1st July, 2003, the accused pleaded guilty before His Honour Judge Harvey Kenny S.C. to the above count. The matter was

then adjourned to the following term for sentence. The accused was remanded in custody from that date and remains in custody up

to the present time.

4. The matter came up for sentence before Haugh J. in Westport, Co. Mayo on the 12th December, 2003. On that date, Detective

Garda R.J. Lawlor gave evidence to the court in relation to the offence and the background circumstances.

5. The facts are stated as follows in the case stated:- Around 9:30am on the 20th of November, 2002, the accused attacked the

victim with a knife and caused him serious injuries. The attack 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 discernible reason was established

for the attack. The accused apparently told Dr. O’Rourke, a 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.

6. By agreement with the prosecution, the defence submitted a medical report dated the 26th March, 2003, from Dr. Charles Smith,

consultant psychiatrist in the Central Mental Hospital and a medical report from Dr. Seamus Geraghty, consultant psychiatrist, dated

the 29th November, 2003, in evidence. The Book of Evidence contained a statement of intended evidence from Dr. John Connolly,

consultant psychiatrist and from Dr. D. O’Rourke, consultant psychiatrist. The case stated records that Haugh J. read these medical

reports and witness statements.

7. Having done so, Haugh J. records as follows in the case stated:-

“At this point in the proceedings I discussed with the defence counsel and prosecution counsel the fact that there was no

defence of ‘diminished responsibility’ in Irish law and I referred to the Supreme Court decision in The People (D.P.P.) v.

O’Mahony [1985] I.R. 517. I enquired as to whether or not I had any jurisdiction to raise an issue in relation to the plea of

guilty by the accused if, having considered the evidence, I had substantial grounds for believing that the accused may have

been insane in law at the time of the commission of acts alleged to constitute the offence and in substitution to enter on his

behalf a plea of ‘not guilty’.”

8. The matter was then adjourned to the 18th December, 2003, so that counsel could consider the position and make further

submissions. On the 18th December, 2003, defence counsel indicated to the court that he would in any event be seeking a case

stated on this point. Prosecution counsel indicated that some further time was needed to obtain instructions from the Director of

Public Prosecutions. The matter was further adjourned until the 23rd January, 2004.

9. Haugh J. continues:-

“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 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 is found guilty is deserving of punishment. I

am informed that the plea of the accused in this instance in motivated by practical consideration – 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. In these circumstances I require the assistance of the Supreme Court in answers to the following

questions:-

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?”

10. In the hearing before this Court, submissions were made both by counsel for the accused and by counsel for the prosecutor and

the Attorney General. Common to all submissions was an acceptance that the accused was fit to plead in this case. Common also to

the submissions was an acceptance by all parties that an issue as to insanity, while normally raised as a matter of defence, may also

be raised by the prosecution in an appropriate case. It was also agreed that an accused person enjoys a presumption of sanity under

the M’Naghten Rules and that the onus of proof of establishing insanity when it rests on the defence is to the standard of the balance

of probabilities. It was further accepted however that the issue of possible insanity might be raised by a trial judge at any time during

a trial (R v. Podola [1960] 1 Q.B. 325). In the ordinary course, an inquiry as to an accused persons sanity takes place before a jury

empanelled specifically for that purpose and this would normally occur when the issue arises on arraignment.

11. It is quite clear that in the instant case Haugh J. was faced with a dilemma from the facts and more particularly from the

psychiatric evidence which began to emerge in the hearing before him which suggested to him that the accused had not or could not

have had the capacity to commit the crime with which he was charged. The learned Circuit Court judge was clearly conscious of the

observations in the case of The People v. O’Mahony [1985] I.R. 517 at p.523 where Finlay C.J. stated:-

“Under our law a person found not guilty by reason of insanity can only be detained so long as the court is satisfied that his

mental condition persists in a form and to the extent that his detention in an appropriate institution is necessary for the

protection of himself or of others. He is not, in the view of our law, a criminal nor has he been convicted of a crime. A person

charged with murder, on the other hand, in our law, and convicted of manslaughter may be sentenced to a period of

detention in prison whether long or short and must be released at the termination of that sentence. He is, of course, branded

as a criminal.l”

12. While it had been intimated by counsel that the accused wished to have “a number on his sentence”, Haugh J. clearly felt it

would be inappropriate to treat as a criminal a person in respect of whom there were indications that he was not a criminal because

he lacked the mental capacity at the time of the offence to be guilty of the particular wrongdoing.

13. In the hearing before this Court counsel for the accused accepted that a trial judge has an inherent jurisdiction to intervene to

vacate a plea of guilty in certain circumstances, but submitted that those circumstances must be ‘grave and exceptional’. However,

no Irish authority in support was cited nor does it appear that there is any such authority. Counsel was content to rely on the

inherent jurisdiction of the court as the basis for the view offered. Counsel for the Director went further, stating that the trial judge

had both the power and indeed the duty to intervene where the interests of justice and the best interests of the accused so

demanded in any case or situation where it became apparent to the trial judge that there was a genuine issue as to the sanity of the

accused. This, it was submitted, could arise at any stage of the trial procedure. Mr. Gaffney, counsel for the Director, argued strongly

that a fair trial under Article 38 of the Constitution precluded the trial judge from accepting a guilty plea in circumstances where it

was apparent that a ‘not guilty’ plea should be entered. Any other course would be tantamount to an abuse of process and contrary

to the public interest, because a citizen should never be punished as a criminal where he is innocent of any crime.

Decision

14. The Trial of Lunatics Act, 1883, s.2(1) contains the following provision:-

“Where in any indictment or information any act or omission is charged against any person as an offence, and it is given in

evidence on the trial of such person for that offence that he was insane, so as not to be responsible, according to law, for his

actions at the time when the act was done or omission made, then, if it appears to the jury before whom such person is tried

that he did the act or made the omission charged, but was insane as aforesaid at the time when he did or made the same,

the jury shall return a special verdict to the effect that the accused was guilty of the act or omission charged against him,

but was insane as aforesaid at the time when he did the act or made the omission.”

15. Subsection 2 of the said section provides:-

“Where such special verdict is found, the Court shall order the accused to be kept in custody as a criminal lunatic, in such

place and in such manner as the Court shall direct until the pleasure of the Lord Lieutenant shall be known…”

16. “Lord Lieutenant” in the above is adapted to mean the Government or the Minister for Justice.

17. Thus, a person against whom such special verdict is found can lawfully be kept in a mental hospital such as the Central Mental

Hospital in Dundrum. In the ordinary course, it is in his interest and in the interest of the public that he be kept there until he is no

longer at risk and the public are no longer at risk that he or the public may suffer as a result of injuries inflicted by him in

consequence of his mental condition.

18. Where insanity is raised as a plea in bar of trial, however, the question is whether the accused is insane at the time of trial. In

this regard s. 2 of the Criminal Lunatics Act 1800 provides:-

“…if any person indicted [in Ireland] for any offence shall be insane, and shall upon arraignment be found so to be by a jury

lawfully empanelled for that purpose, so that such person cannot be tried upon such indictment, or if upon the trial of any

person so indicted such person shall appear to the jury charged with such indictment to be insane, it shall be lawful for the

court before whom any such person shall be brought to be arraigned or tried as aforesaid to direct such finding to be

recorded, and thereupon to order such person to be kept in strict custody until [the pleasure of the Lord Lieutenant or other

Chief Governor] shall be known…”

19. I mention these provisions at the outset to emphasise the distinction between the concept of “fitness to plead” and an issue as

to insanity before a jury. The former involves an inquiry as a preliminary issue as to whether an accused is fit to stand trial. Although

this form of inquiry is into the sanity or otherwise of the accused, it is not a trial and the questions to be addressed are not those

addressed by the M’Naghten Rules, either in original form or as amended in this jurisdiction, but are rather those enunciated by O

Dalaigh C.J. in State (Coughlan) v Minister for Justice (1968) 102 I.L.T.R.177 at 185:-

“…stated in general terms the test to be applied is, has the prisoner sufficient intellect to comprehend the course of the

proceedings of the trial, so as to make a proper defence, to challenge a juror to whom he may wish to object, and to

understand the details of the evidence.”

20. This formula effectively adopts and approves the test as expressed many years previously in R. v Pritchard (1836) 7 C. & P. 303

in relation to the issue of fitness to plead.

21. It is important to consider the implications from a citizen’s point of view of an intervention by a trial judge the effect of which is

to override an ostensibly voluntary plea of guilty and to conduct instead an inquiry as to fitness to plead. To begin with, the

intervention must be seen as necessarily raising for determination by a jury of the issue of fitness to plead, given that the decision of

the accused can only be set aside on the basis that the accused may not have been so fit. It therefore follows that where such an

intervention is made an inquiry directed to that issue must precede any other development in the case.

22. It must be borne in mind that an intervention to set aside the plea of an accused person has a number of very significant

consequences. Firstly, such an intervention runs counter to an accused person’s right in the ordinary way to select his preferred line

of defence. This seems to me to be an integral part of the right to a fair trial which is guaranteed by Article 38 of the Constitution. In

this context I should say that I see nothing wrong or objectionable in a course of action whereby an accused person, adopting a

pragmatic approach to an upcoming trial in consultation with his legal and medical advisers and on their advice, would weigh up the

advantages of getting a reduced but finite sentence by pleading guilty instead of opting for a fully contested trial where the

prosecution or the court might introduce an issue of insanity with its concomitant risk of indefinite confinement in a prison for the

‘criminally insane’ in the wake of any jury finding of insanity. This ‘balancing approach’ in most instances will be a practical, common

sense course which in my opinion has much to commend it under the current legal regime and is an approach with which practitioners

in this area of law will be familiar.

23. Secondly, it is important to bear in mind that a person found to be unfit is put in the same position as a person found ‘guilty but

insane’ in that he is likely to be eligible for involuntary civil commitment to a mental hospital (See McAuley “Insanity, Psychiatry and

Criminal Responsibility”, Round Hall Press 1993, p 134). That is a powerful disincentive for any accused to raise the issue of fitness as

a plea in bar. Moreover in a case where the issue is raised by the judge it is far from clear where the onus of proof may lie.

24. Thirdly, an intervention of this nature by a judge has the potential, depending on the outcome of the inquiry, to deprive an

accused who in a different case wants to plead ‘not guilty’ of the opportunity of being acquitted on foot of a substantive defence

which might have been available if the trial had gone ahead.

25. Against this backdrop a judge would, in my view, require to be satisfied that very exceptional circumstances are demonstrated

and a very high threshold met before he actively intervenes to ‘second guess’ the accused, his legal and/or medical advisers who opt

to plead or conduct a defence in a particular way. As noted by Geoghegan J in his judgment herein an accused person may justifiably

be extremely indignant that his decision to plead in a particular way is being superseded by an inquiry as to his sanity. In my opinion

therefore, a judge should not intervene to set aside a guilty plea unless there are quite exceptional circumstances arising in the

particular case.

26. The Case Stated has not been couched in any such extreme terms and therefore the considerations outlined above persuade me

that the question raised in the Case Stated should be answered in the negative and in the manner suggested by Geoghegan J.