Supreme Court allows trial judge to reject guilty plea if accused is likely insane at the time of the offence.

THE SUPREME COURT

[S.C. No: 160 of 2004]

Denham J.

Geoghegan J.

Fennelly J.

Kearns J.

Macken J.

Between/

The People at the suit of the Director of Public Prosecutions

Prosecutor

v.

Sean Redmond

Accused

Judgment delivered on the 6th day of April, 2006 by Denham J.

1. This is a consultative case stated pursuant to s.16 of the Courts of Justice Act, 1947 from His Honour Judge Kevin Haugh S.C. (as

he was then) who was sitting on a trial on indictment at Castlebar Circuit Criminal Court. Subsequently the trial judge has become a

judge of the High Court. The President of the High Court and the President of the Circuit Court, pursuant to s. 12 of the Courts and

Court Officers Act, 2002, requested Haugh J., who in turn agreed, to retain seisin of this case and to sit as a Circuit Court judge for

the purpose of this case.

2. The question asked of this Court is:

“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?”

3. On the 1st July, 2003 Sean Redmond, the accused, was before Castlebar Circuit Criminal Court on a single count of causing serious

harm, contrary to s.4(1) of the Non-Fatal Offences Against the Person Act, 1997. It was alleged that on the 20th November, 2002 at

Castlebar he intentionally or recklessly caused serious harm to Liam Humber.

4. Defence counsel applied to the trial court for a jury to be empanelled to determine the issue as to whether or not the accused was

fit to plead. This application was subsequently withdrawn.

5. When arraigned before Castlebar Circuit Criminal Court on the 1st July, 2003 before Judge Kenny the accused pleaded guilty. The

matter was then adjourned to the following term for sentence. The accused was remanded in custody.

6. The matter was listed before Judge Haugh (as he then was) at Castlebar Circuit Criminal Court on the 9th December, 2003, and the

13th December, 2003 was fixed for the sentence hearing.

7. On the 12th December, 2003 Detective Garda R.J. Lawlor gave evidence in relation to the offence and the background

circumstances.

8. The facts were found by the Circuit Court as follows:

“Around 9.30 a.m. on the 20th 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 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.”

9. By agreement with the prosecution the defence submitted medical reports as follows: (a) from Dr. Charles Smith, Consultant

Psychiatrist, Central Mental Hospital, and (b) from Dr. Seamus Geraghty, Consultant Psychiatrist; the Book of Evidence contained (c)

a statement of evidence from Dr. John Connolly, Consultant Psychiatrist; and (d) a statement of evidence from Dr. O’Rourke,

Consultant Psychiatrist.

The trial judge attached the reports to the consultative case stated. No finding of fact was made specifically on the reports other

than what may be inferred from the question to this Court where the learned judge states ‘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’. In general it

is more appropriate if findings of fact are made in the body of the case stated.

10. The trial judge raised the point with counsel that there was no defence of diminished responsibility in Irish law, and reference was

made to The People (D.P.P.) v. O’Mahony [1985] I.R. 517.

11. The trial judge stated, in the consultative case stated:

“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 that 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.”

In these circumstances the learned judge sought the assistance of this Court.

12. Submissions were made to the Court on behalf of the accused, the Director of Public Prosecutions, and the Attorney General.

12.1 On behalf of the Attorney General it was submitted that there is sufficient case law and established practice and procedure

which would enable the trial judge to vacate the guilty plea which was proffered before the court on 1st July, 2003. It was submitted

that the court should not facilitate a sham or should not facilitate what appears to be an avoidance of proper principles and law

concerning the whole issue of insanity and fitness to plead. It was submitted that the trial judge has a duty to ensure that there is a

basic fairness of procedures between the accused, the prosecution and the public at large.

12.2 On behalf of the Director of Public Prosecutions it was submitted that the court has inherent jurisdiction so that it may give

directions to enable it to fulfil its function of administering justice. It was submitted that the court may reject the plea of an accused

if the court is of the opinion that it is based on a misunderstanding of the offence charged. Reference was made to case law, in none

of which cases was the issue of insanity raised by the prosecution. It was submitted that if in this case the trial judge were to refuse

to accept a plea of guilty and direct that a plea of not guilty be entered it is possible that the accused might refuse to offer any

evidence to the jury. In such an event a necessity would arise for the Director of Public Prosecutions to put all the available and

relevant facts bearing on the issue of guilt and also all available facts bearing on the issue of the absence of guilt by reason of

insanity before the jury. The problems relating to the onus of proof were canvassed, and I shall return to this matter later in the

judgment. It was submitted that if this Court is satisfied that the learned judge has an inherent jurisdiction and a duty in the interests

of justice to follow procedures which respect truth and have proper regard for the dignity and best interests of the accused and of

the public then it may be concluded that the trial judge is entitled to refuse to accept the plea of guilty offered by the accused and

to direct the trial of the issue as to his guilt to proceed and that the Director of Public Prosecutions present such evidence as is

available to him as well in relation to the acts offered in proof of the act constituting the offence charged as to the facts, acts, and

opinions from experts, necessary for the jury to consider and determine whether the accused was guilty of the offence charged or

not guilty by reason of insanity.

12.3 On behalf of the accused it was submitted that, the accused having been assessed by his medical team as fit to plead, he is

entitled to decide how he will exercise his right to plead and should not be obstructed in entering the plea he wishes. It was

submitted that the trial judge does not have the power to go behind the plea entered by the accused. It was submitted that in

hearing the full nature of the case and the obvious mitigation for the accused arising from his psychiatric history those factors can be

taken into account in sentencing.

Counsel submitted that this case exposes limitations in statutory law and that there is a need for the introduction of alternative

pleas, such as those of diminished responsibility and irresistible impulse. It was submitted that where there is a psychiatric dimension

to a case that the State should have some duty to legislate to create a process for assessment, prior to the decision being made to

prosecute an offender, and perhaps to divert the person away from the criminal justice system entirely into a care and treatment

setting

13. Several fundamental principles arise in this case. I shall consider them in turn.

14. Crime

The accused stands indicted before the Circuit Criminal Court of the crime of causing serious harm, contrary to s.4(1) of the Non-

Fatal Offences Against the Person Act, 1997. The criminal law is founded upon the concept that the State should punish people for

blameworthy conduct. Certain blameworthy conduct is defined by the State as criminal. In general, apart from such exceptions as

offences of strict liability, crimes consist of an act, an actus reus, and a mental element, mens rea. Liability for the crime is

dependent on an accused committing the acts relevant to the crime and having the mental element appropriate to the crime. There is

a mental element in the crime of which the accused stands indicted. The mental element is a constituent part of the crime.

A person who is convicted of a crime is stigmatised by such a conviction and is punished, by penalties such as prison and/or a fine.

Our procedure by which a person is tried and convicted is an adversarial system, not inquisitorial. It has the benefit of a jury of the

people to determine the facts and a judge to make decisions on law. There is a danger that in an adversarial system there would be

an element of gamesmanship. While no system of law is perfect, and legal processes need to be established, I believe that the legal

system should aspire to truth and justice. As part of such aspiration I do not believe people should be punished if they are not guilty

of a crime, if they did not have the mental element necessary to commit the crime. Such a person should have the benefit of medical

treatment, restorative treatment, and he belongs in the care of the medical rather than the penal institutions of the State. Society

recognises that psychiatric treatment for mental conditions may on occasion be prolonged and with an uncertain date of discharge.

Cases

There is no precedent for this case. There is no case law on point. The question has to be considered from first principles. The cases

opened to the Court related to tangential issues. Thus People v. Messitt [1972] I.R. 204 addressed the issue where an accused

becomes unfit to follow procedures during the course of the trial. Reference was made to the duty to put evidence before a jury on

the issue of the insanity of an accused. Kenny J. stated, at p. 213:

“If the accused or his advisers are not prepared to make the case that he is insane, the duty of putting such evidence as is

available on the topic before the jury rests on the People, if the Attorney General is of opinion that the evidence is such that

the jury might reasonably conclude that the accused was insane.”

While this is not the situation in this case, it does by inference refer to a duty on the People, and thus their representatives, the

Attorney General and the Director of Public Prosecutions, to put before a court the issue of the insanity of an accused even if it is

not raised by an accused or his legal advisers.

Again, in Bratty v. Attorney General for Northern Ireland [1963 A.C. 386] Lord Denning stated, at p. 411:

“My Lords, I think that Devlin J. was quite right in Kemp's case (1957 1 QB 399) in putting the question of insanity to the jury,

even though it had not been raised by the defence. 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.”

Thus, applying that principle, I am satisfied that both the defence and the prosecution may raise the issue of insanity. Indeed,

depending on the circumstances, as well as there being a duty on the prosecution to raise the issue of insanity, there is a duty on

the trial judge to raise the issue.

15. A Plea

I am satisfied that in general an accused has a right to choose whether or not he will enter a plea of guilty. Such a right is enhanced

if the accused has the benefit of legal advice, as in this case. It would only be in exceptional circumstances that a court would

intervene in such a decision. The right to enter a plea is not an absolute right. The court retains a discretion at all times to ensure

that there are fair procedures and due process.

Thus, for example, if an accused was not legally represented and had entered a plea, a judge, on hearing more of the circumstances

might, correctly, determine that the justice of the situation was best met by the accused not entering a plea, but pleading not guilty.

The judge takes such steps to ensure the administration of justice.

There are many factors which may influence an accused in his decision to plead. I stress that once a plea is entered, in general, it is

not a matter for the court to inquire into. However, the court at all times retains an inherent jurisdiction, and indeed a duty, to

protect the fairness of the proceedings, to protect a fair trial process. This is a constitutional duty of judges of all jurisdictions.

16. Presumed sane

A person is presumed sane and responsible for his actions. However, in this case the learned trial judge has substantial grounds for

believing that the accused was insane at the time he committed the acts alleged to constitute the crime. While usually the issue of

insanity is a matter to be raised by the defence, it is also an issue which may be raised by the prosecution, especially if the situation

is one relating to a dangerous man in the community. In this case the court has evidence before it so as to raise a doubt as to the

sanity of the accused at the time of the alleged crime.

In such circumstances I am satisfied that the matter should be decided by a jury - before whom all the facts may be placed by the

accused and the prosecution.

17. Integrity of the process

In addition to an inherent jurisdiction and indeed a duty to protect fair procedures, the court has a duty to protect the integrity of

the court process. Inherent in the judicial process is the right of the judge, and indeed duty in certain circumstances, to ensure that

there is an administration of justice in court.

18. Unusual factors

A critical, and unusual, factor in this case is that the learned judge has been informed of the motive for the plea, which itself is

unusual. This motive is to avoid an indefinite detention which would arise if it were determined that the accused was insane. In

addition, the other unusual factor is that, on the evidence before him, the learned trial judge is satisfied that he has substantial

grounds for believing that the accused was insane at the time of the acts alleged to constitute the offence.

The fact that the accused is now found fit to plead does not negate these unusual factors. Nor does the accused’s fitness to plead

abrogate the duty and discretion of the court.

The motive of the accused to plead is that he wishes a definite sentence, a certain sentence, which would be the consequence of a

prison sentence on conviction. He favours this over his being placed in a mental institution which would be for an indeterminate period

of time.

While there is a rationality to such a wish, it vitiates the basis of criminal law - the criminal mind, and criminal intent.

This brings me to the next unusual factor, which is that the trial judge has substantial grounds for believing that the accused was

insane at the time he committed the acts alleged to constitute the crime. Thus the trial judge has substantial grounds for believing

that the accused was incapable of having the necessary mental element to constitute the crime. The judge is being asked to collude

in a situation where he has substantial grounds for believing that there was no crime. The judge is being asked to support a sham.

A judge has duties, and they are not only to an accused. A judge also has duties in relation to the people of the State, the common

good, and the prosecution.

An important right is the right to have a fair trial, to have a trial in due course of law. These are rights for an accused. But they are

rights also for the people of Ireland. It is important that the people have confidence that the courts conduct trials in a fair and just

manner. The integrity of the justice system is a fundamental aspect of the State.

The trial court has an inherent jurisdiction from its nature as a court to administer justice. In exercising such jurisdiction a judge may

take such steps necessary to, for example, prevent a sham of court proceedings.

It is a sad reflection on society if persons, who are mentally ill, or who have committed acts without the mental element necessary

for a crime, are detained in prison rather than in appropriate medical institutions.

The question is whether it is appropriate for the learned trial judge to treat as a criminal, to categorise as a criminal, and sentence as

a criminal, a person who he has substantial grounds for believing is not a criminal.

The dignity of a person is also relevant. A person who is found not guilty by reason of insanity does not have the status of a

convicted person. As Finlay C.J. stated in The People v. O’Mahony [1985] I.R. 517 at p. 522:

“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.”

The law in Ireland has not advanced significantly in relation to mental illness and the criminal responsibility of persons who are

mentally ill. I understand that it is planned to bring in new legislation. However, this case must be decided in the bleak landscape of

the current law, in the expectation of future appropriate developments, which, however, are not applicable to the accused.

If the trial judge did not have jurisdiction to intervene and he had to proceed on the plea, then he would have to proceed to

sentence. However, in sentencing a judge has to, amongst other matters, consider the crime committed and make the sentence

proportionate to the specific crime. This trial judge has information such that he does not believe a crime has been committed. So

how could he assess the nature of the crime? Further, the sentencing judge would have to assess the particular person who

committed the crime, the accused, and render a sentence proportionate to that person. The motive, and circumstances around

criminal intent, would be relevant. Yet it appears that in this case the trial judge considers there are substantial grounds for believing

there was no criminal intent. How could he assess a proportionate sentence for such a situation? He could not, as he would be

sentencing where he has substantial grounds for believing that there was no crime.

At issue is the mental state of the accused at the time of the alleged crime. In the circumstances it is accepted that the accused is

now fit to plead. Any issue as to the constitutionality of a judicial power to direct indefinite detention of a person in the Central

Mental Hospital, on the basis that he has been accused of a criminal offence and is not fit to plead, does not arise.

19. Legislation

The court applies the law as it stands, and submissions as to a need for the introduction of alternative pleas, such as that of

diminished responsibility and irresistible impulse, are matters for the legislature. Also, an alternative system, a type of restorative

justice, is a matter for the Oireachtas.

20. Decision

It is an injustice if a person is convicted and sentenced for a crime which he has not committed - even if he pleaded to the charge.

It is a matter of concern if a legal system permits the conviction of a person in the circumstances of this case.

I am satisfied that the learned Circuit Court judge has an inherent jurisdiction, and indeed a duty, to act to ensure the due process of

law, which includes the concepts of justice, the dignity of a person, and the public interest in the integrity of the justice system.

Such inherent jurisdiction may arise in relation to the plea given by an accused.

Intervention by a judge would happen only in exceptional circumstances. It appears to me that the circumstances of this case,

including the two factors referred to previously, constitute exceptional circumstances so as to warrant intervention by the trial judge.

Consequently I would answer the question in the affirmative.

I am satisfied that (a) the court has an inherent discretion to intervene in a plea, (b) that this would only be exercised in exceptional

circumstances, and (c) that the circumstances of this case are exceptional in that the accused is pleading guilty, not because he

admits to committing the crime but because he wishes to avoid detention in a mental institution which would be for an indefinite

length of time, he wishes to obtain a definite sentence from the Court, and, most importantly, the judge has been informed of this

situation and consequently would be proceeding to sentence for something which he has substantial grounds for believing is not a

crime.

It is open to the trial judge to vacate the plea of guilty by the accused and have a jury determine whether at the time of the

commission of the actions alleged the accused was sane or not. This approach best serves the interests of justice and the integrity

of the judicial system. I do accept that there is a likely consequence that the accused will be detained in a medical institution for

whatever period of time is necessary to treat a dangerous psychiatric condition and that such detention may be indefinite.

However, it appears to me that there is a balance of rights to be achieved - the right to enter a plea does not cap the right to a fair

trial, the right to due process, the community’s right to fair administration of justice, and the people’s right to the protection of the

integrity of the judicial system.

21. Conclusion

Consequently, for the reasons given, I would answer the question posed in the affirmative. I am satisfied that in the circumstances

the learned trial judge is entitled to decline to accept the plea of guilty offered by the accused in this case, enter a plea of not guilty

on behalf of the accused, and seek to ensure that the issue of his sanity is fully investigated in the course of his trial.