Court refuses review of life sentence for manslaughter as new evidence was discoverable with due diligence.

THE COURT OF APPEAL

Sheehan J.

Mahon J.

Edwards J.

62 CPA /16

IN THE MATTER OF S. 2 OF THE CRIMINAL PROCEDURE ACT 1993

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

STEPHEN EGAN

Applicant

Judgment of the Court delivered 21st March 2017 by Mr. Justice Edwards.

Introduction

1. This is an application pursuant to s. 2 of the Criminal Procedure Act 1993 (“the Act of 1993”) brought by the applicant for the

purpose of seeking a review of a life sentence imposed upon him for the crime of manslaughter by the Central Criminal Court, and

subsequently upheld by the Court of Criminal Appeal, on the grounds that a new or newly discovered fact shows that the sentence

imposed was excessive.

Background to the application

2. In this case the applicant, who at the material time was a prisoner in Mountjoy prison, was charged with the murder of a co-

prisoner, one Gary Douch. The applicant had beaten and kicked Gary Douch to death in circumstances where he seemingly believed,

entirely incorrectly, that Mr. Douch was a sex offender and that he represented a threat to others. At his trial for the said alleged

murder before the Central Criminal Court a jury found him “Not guilty of murder but guilty of manslaughter by reason of diminished

responsibility”, pursuant to s. 6 of the Criminal Law (Insanity) Act, 2006 (the Act of 2006).

3. The evidence before the jury from a consultant psychiatrist, a Dr. Fahy, had been to the effect that the applicant was suffering

from a mental disorder within the meaning of the Act of 2006 at the material time, which was stated to be schizoaffective disorder on

a background of anti-social personality disorder, with his schizoaffective disorder exhibiting features both of psychosis and

disturbance of mood. Dr. Fahy had given it as his expert opinion that at the time of the killing the appellant had been experiencing

delusional beliefs due to his mental disorder, and that his responsibility for the killing of Gary Douch was diminished on account of this

“because, in his paranoid state, he – his judgment was impaired”.

4. On the 26th of June 2006 the applicant was sentenced to life imprisonment for the said manslaughter, the sentencing judge being

of the view that while the applicant’s responsibility was “significantly reduced” on account of his mental disorder it was not

eliminated. In the sentencing judge’s view the applicant’s responsibility, albeit significantly reduced, remained “a substantial one” in

the circumstances of the case. The sentencing judge referred specifically to Dr. Fahy’s evidence that the applicant had been

labouring under delusional beliefs, and he commented:

“In relation to those delusional beliefs, it must be said, clearly and unequivocally, that they are utterly and totally false

but it also has to be said that even if they were true, they could provide no explanation or justification for what

happened because the offence involved quite appalling levels of extreme violence. Not only was Mr. Douch the victim of

a savage assault, his attacker also set out to degrade and humiliate him.”

5. The sentencing judge explained in detail his reasons for imposing a life sentence. In summary, the sentencing judge was greatly

influenced by a perceived need to protect the public, and while acknowledging that a life sentence imposed purely for public

protection purposes would be a form of impermissible preventative detention, he felt, citing the judgment of Kearns J. in the Court of

Criminal Appeal in The People (Director of Public Prosecutions) v Crowe [2010] 1 I.R. 129 that the applicant’s case fell fairly and

squarely into the category of “special and exceptional cases” where a maximum sentence might legitimately be imposed

notwithstanding substantial mitigating factors. (We note in passing, though nothing turns on it, that the phrase actually used in the

Crowe judgment was “rare and exceptional cases”, and that it originated in fact in Kearns J’s earlier Supreme Court judgment in The

People (Director of Public Prosecutions) v R McC [2008] 2 I.R. 92 which he in turn quotes in the Crowe judgment).

6. The applicant appealed the severity of his sentence to the Court of Criminal Appeal, which heard the case on the 29th of October

2010. We have been provided with a full transcript of the appeal hearing and it is clear that the grounds upon which the appeal was

pursued included complaints both that the sentence imposed had failed to adequately reflect the jury’s finding, in accordance with

the Act of 2006, that the applicant’s responsibility for the killing of Gary Douch was “substantially diminished” on account of his

mental disorder; and further that it amounted to impermissible preventative detention.

7. In relation to the former complaint much reliance was placed upon an addendum report of Dr. Fahy, which had been before the

sentencing judge, in which he had criticised aspects of the medical management of the applicant’s mental illness in the weeks and

days leading up to the killing of Gary Douch. That report had stated (inter alia):

“The only significant point of possible criticism concerns the very short duration of Mr. Egan's first admission to hospital.

This is an unusually short treatment episode for a first episode of psychotic illness. There appears to have been a

degree of inappropriate uncertainty about the validity of Mr. Egan's reported symptoms despite the fact that these

symptoms could be traced back over several months and despite the absence of any obvious secondary gain to be

obtained from reporting of any such symptoms.”

8. After opening this quotation from the addendum report to the Court of Criminal Appeal, counsel for the applicant went on to

summarize its further contents as follows:

“ in any event what happened was that he was discharged back into Cloverhill from where he had come after that short

stay in the Central Mental Hospital and he was discharged on the basis that his medications, anti psychotic medication

ought to continue while in prison until otherwise prescribed and having returned to Cloverhill on the 14th with that

prescription he was then moved, for reasons which are not entirely clear, into the environment of Mountjoy and that

was on the 29th of July 2006, three days before the offence, and unfortunately when he was transferred he was not

transferred with his medication and the uncontested evidence was that between the 29th and the 1st of August he was

left without his Olanzapine, his anti psychotic medication and his condition quickly deteriorated culminating in this

appalling attack on his fellow prisoner in an overcrowded cell in the basement of Mountjoy Prison. And Professor Fahy

went on then, by way of chronology, to explain that he was then readmit he was admitted briefly to Cloverhill

immediately after the attack and very shortly thereafter, I think within the next 24 hours, readmitted to the Central

Mental Hospital.

MR. JUSTICE HARDIMAN: Yes.

MR. AYLMER: He was kept there for a further two months over August and most of September before he was ultimately

discharged back into the prison environment and Professor Fahy carefully reports, with reference to all of his notes, his

medical history notes, that he was entirely satisfied that throughout that period, two month period after the offence he

was slowly recovering from what he describes as an acute psychosis in the form of schizoaffective disorder. And having

been returned to the prison environment the situation has been ever since that he has remained on Olanzapine - -.”

9. The Court of Criminal Appeal rejected the applicant’s said complaints and dismissed his appeal in a judgment delivered ex-tempore

by Hardiman J, also on the 29th of October 2010. In the course of his said judgment Hardiman J. had remarked:

“Now, the sentencing remarks of the learned judge are quite lengthy and very impressive in the Court's view. He was

quite aware of the law and showed himself quite aware of the law in relation to sentencing generally and the extent to

which it might be applied, by analogy or otherwise, in this particular case. He first identified the case, as he was obliged

to do, as being at the very top end of cases of manslaughter. It is a notorious thing expounded by this court in the case

of DPP v. Kelly some years ago that manslaughter varies more than almost any other offence from the defendant doing

something that has just evolved, common assault, to something which is on very borders of murder and this the judge

found, this example, the judge found was at the very top of the scale and in the Court's opinion it's quite impossible to

disagree with that.

He then made the obvious but important point that the applicant had been convicted, not of murder, but of

manslaughter and not merely of manslaughter but of manslaughter on the specific ground of diminished responsibility.

He said that that was diminished responsibility. It didn't abolish the applicant's responsibility which he held was

substantial and Mr. Aylmer complains that there was no analysis of the degree of responsibility and the Court can't at all

agree with that. I propose to refer only to what I might describe as the uncontroversial parts of Professor Fahy's

reports. He said, I'm looking at page 40 of the report, "It is clear ..." that's based on Mr. Egan's own account of events

"It is clear that he was aware of the nature of his behaviour and that he made a decision to carry out an assault on Mr.

Douche. It is likely that he knew the assault was wrong, at least in legal terms. The assault, according to his account,

was carried out as a type of punishment." Again in deference to the late Mr. Douche I won't mention the full detail of

why that was. He says: "The assault identified a degree of calculation and involved a degree of calculation and

humiliation of the victim" and again the detail is given which it's unnecessary to rehearse.

Now, in those circumstances it doesn't seem possible to the Court to quarrel with or to go behind the learned trial

judge's finding that this man exhibited a substantial I think was the word used degree of responsibility for what was done

and that is undoubtedly so. And the learned trial judge then went into the options which were available and he did so

showing first of all that he was acquainted with the jurisprudence which is grown up with this matter in England and

secondly that he was fully aware of the absence of such jurisprudence in this country by reason of the statutory lacuna

which I've mentioned. The learned trial judge seriously considered, and said that he was seriously considering, a part

suspended sentence and that obviously would have some attractions but he rejected it for the reasons which he gave.

He then constructed a form of sentence which seemed to be based on his desire that the applicant should be subject to,

into the indefinite future, to a regime of supervision and he said that his re-entry into the community is going to involve

rigorous supervision and it seems to be also that it's going to have to be supervision which will be backed by this

sanction of indefinite re incarceration if he doesn't comply. Now, that procedure after, once identified, could only be

achieved by imposing a life sentence. He recognised in these remarks that the sentence would eventually be such as

would lead to his release into the community.

He referred to the case of Crowe and other cases which have said that while it's possible to impose a maximum

sentence in the face of a plea of guilty, and this is effectively what it was here, a plea of guilty, has to explain why it has

taken that course, the Court must explain, and in this court's view the learned judge over some five or six pages

explained meticulously and in great detail why he was taking the course he did. Now, we must also say that the phrase

"preventive detention" has been much mentioned and it is an important point in Irish constitutional law that our system

has set its face completely against preventive detention. Preventive detention, as Mr. Gillane points out, is denounced,

not too strong a word, in the O'Callaghan case but plainly as meaning a form of detention of a person who has not been

convicted of a crime. That is not what's in question here.”

10. Hardiman J, subsequently added:

“In the Court's opinion the learned trial judge approached this matter correctly and not merely correctly but thoughtfully

and even ingeniously and attempted to work out a system or a sanction, a type of sanction to be imposed on this

applicant which is very much in his interest as well as the interest of the community as a whole. We see absolutely no

ground to consider the sentence wrong in principle … .”

11. Following the killing of Mr. Gary Douch a Commission of Investigation was established on the 2nd of May 2007 by Order of the

Government made under s. 3 of the Commissions of Investigations Act 2004 which was tasked with enquiring into the circumstances

surrounding the death of Mr. Douch. On the 8th of June 2007 Ms Grainne McMorrow S.C. was appointed as Sole Member of that

Commission of Investigation.

12. Because the criminal proceedings concerning the applicant were ongoing up until the Court of Criminal Appeal had delivered its

judgment on the 29th of October 2010 the Commission of Investigation was not in a position to conduct much of its work and to

produce its report until after that date, lest to do so would prejudice those proceedings. In April 2012 the Commission of Investigation

circulated a draft report for commentary by interested parties, and then on the 1st of May 2014 it published its finalised report

entitled Report of the Commission of Investigation into the Death of Gary Douch.

13. This report is exhibited with an affidavit of the applicant’s solicitor, John M Quinn, sworn in support of the present application and

certain of its findings are said to constitute the new or newly discovered facts upon which the applicant now seeks to rely.

14. Those findings of the said report which are particularly relied upon as constituting new, or newly discovered, facts are set forth at

paragraphs 26 to 32 of Mr. John M Quinn’s said affidavit as follows:

“26. The psychiatric evidence before the Commission was that the applicant was in an ‘acute psychotic state’ on 26th

July, 2006 and that ‘the only place for him was Dundrum’ (p. 161 of the Report). The applicant was transferred from prison

to the Central Mental Hospital in Dundrum where he remained from 5th July, 2006 to 14th July, 2006 before being

discharged to Cloverhill Prison.

27. The conclusions of the Commission included the following:

‘Given the complexity of Mr. Egan's history and presentation, and the lack of information concerning his mental

health state between February and June 2006, the Commission considers he should not have been discharged from

the Central Mental Hospital back to the prison system on 14th July 2006, nine days after admission.’ (p. 188 of the

Report)

28. Elaborating on this finding, the Commission stated:

‘The Commission also agrees with the view expressed by Dr. Lelliott that, although Stephen Egan posed a risk of

violence towards others which was independent of his mental health, there were some risk factors for violence

towards others which were or may have been related to his mental illness, and warranted a longer period of

observation than nine days. These factors as listed by Dr. Lelliott were:

• Paranoid delusions about plots against him by individuals with whom he will have contact (other

prisoners, psychiatric staff and prison staff)...

• Auditory hallucinations directed at him by others.

• A previous history of at least one act of violent behaviour (setting fire to his cell on 18th December

2005) apparently in response to symptoms of mental illness.

• Agitated behaviour when actively considering his delusional beliefs.

• History of poor compliance with medication.’

29. The Commission makes a series of further findings in relation to the mishandling of my client's transfer from the Central

Mental Hospital to Cloverhill Prison. These include:

• ‘The Central Mental Hospital did not inform Cloverhill or Mountjoy Prisons that Stephen Egan was being discharged

solely on the basis that he was going to Cloverhill Prison only or in particular to D2 at Cloverhill Prison.’ (p. 189 of

the Report)

• ‘The Central Mental Hospital discharged Stephen Egan to Cloverhill Prison in the full knowledge that once

discharged back to prison, in the absence of any specific guidance or instruction to the prison authorities regarding

accommodation and management, he could be placed in the general prison population or transferred to another

prison at any time, without reference to the CMH or to the Psychiatric In-reach Service at Cloverhill.’ (p. 190 of the

Report)

• ‘No meaningful consultation appears to have taken place with the Minister for Justice (or his representative) as

required by section 18 of the Criminal Law (Insanity) Act 2006. in relation to Stephen Egan's proposed transfer to

prison from the Central Mental Hospital on 14th July 2006.’ (p. 191 of the Report)

• ‘Notwithstanding his recent return from the Central Mental Hospital, Stephen Egan's management at Cloverhill

Prison from 14th—29th July 2006 was governed primarily by his reputation as a potential security problem, rather

than as a vulnerable prisoner with a psychiatric illness.’ (p. 193 of the Report)

30. In relation to the finding mentioned above from p. 190 of the Report, the Commission elaborates on this, inter alia, as

follows:

"Under s.18 of the Criminal Law (Insanity) Act 2006, a prisoner can only be discharged from the CMH if the Clinical

Director forms the opinion that they no longer require in-patient care or treatment. Two possible scenarios arise:

(i) a prisoner no longer requires psychiatric care or treatment of any kind

(ii) a prisoner still requires some psychiatric care and treatment, but of a kind which can be

administered in a setting outside of the Central Mental Hospital

The evidence of Professor Kennedy to the Commission is that on 14th July 2006, Stephen Egan fell into the latter

category only insofar as there was a place - D2 Wing at Cloverhill Prison - which had the necessary resources to

ensure that Mr. Egan would continue to receive medication and would be kept under appropriate review. This implies

that if Stephen Egan could only have been discharged to Mountjoy Prison, the absence of such resources would

have meant that Professor Kennedy could not have formed the opinion necessary to discharge him."

31. My client was transferred to Mountjoy Prison on 29th July, 2006. In relation to my client's transfer, the Commission

made, inter alia, the following findings:

"It was not necessary for Stephen Egan to be transferred from Cloverhill to Mountjoy Prison on 29th July 2006."

(p. 195 of the Report)

"It was not in the best interests of Stephen Egan to be transferred from Cloverhill to Mountjoy Prison on 29th

July 2006." (p. 196 of the Report)

"The transfer of Stephen Egan on 29th July 2006 does not appear to have been directly related to the transfer of

four other prisoners from Mountjoy to Cloverhill on the same day. Even if it had been, Cloverhill Prison had the

capacity to accept those additional prisoners without having to transfer Stephen Egan." (p. 199 of the Report)

"There were fundamental systemic failures in every aspect of Stephen Egan's transfer from Cloverhill Prison to

Mountjoy on the 29th July 2006." (p. 201 of the Report)

"The Governors of both Mountjoy Prison and Cloverhill Prison at the time of Stephen Egan's transfer on 29th July

2006 failed to ensure delivery of acceptablc standards of prisoner management, health, and safety." (p. 201 of the

Report)

"The decision to transfer Stephen Egan to Mountjoy on 29th July 2006 was arrived at without any regard to his

on-going need for psychiatric care and treatment as set out in the Discharge Summary from the Central Mental

Hospital." (p. 202 of the Report)

"The fact that Stephen Egan's transfer to Mountjoy took place on a weekend increased the risk that he would

not receive appropriate medical and psychiatric attention." (p. 202 of the Report)

"Mountjoy Prison management should not have agreed to accept Stephen Egan on 29th July 2006." (p. 202 of the

Report)

"There was inadequate oversight by the Irish Prison Service of the transfers which took place on 29th July 2006."

(p. 204 of the Report)

"The management at Cloverhill Prison exhibited what this Commission regards as a reckless disregard for the

health and safety of Stephen Egan in transferring him to Mountjoy Prison without any consultation with his Doctors

or with the Psychiatric In-Reach Service. This was not helped by the transfer taking place on a weekend when staff

complement might reasonably have been expected to be reduced." (p. 205 of the Report)

"In selecting Stephen Egan for transfer, Cloverhill also exhibited a reckless disregard for the health and safety of

staff and prisoners at Mountjoy Prison, which they knew was under severe pressure from overcrowding. He was

wholly unsuitable for transfer, given that he was a prisoner with known violent history, still under psychiatric care

and on anti-psychotic medication. The transfer also involved moving him from the safety of a high observation

single cell on Cloverhill's D2 wing to Mountjoy, where they must have known he could not be accommodated in

anything approximating the facilities available in D2." (p. 205 of the Report).

32. The Commission also found that ‘Stephen Egan was not given a proper medical assessment on arrival at Mountjoy

Prison on 29th July 2006. There were evident deficits in management, decision-making, record-keeping and communication

in this regard.’ (p. 255 of the Report)”

15. At the oral hearing of the present application counsel for the applicant evinced the intention, in the event of being able to satisfy

us that the said material does indeed constitute new or newly discovered facts, to seek to re-ventilate, in the light of that material,

both of the complaints that were previously rejected by the Court of Criminal Appeal, and to again argue that the life sentence that

was imposed upon the applicant was unduly severe. It follows, and counsel for the applicant accepts, that any entitlement to do this

must be contingent upon satisfying this Court on the preliminary issue, which is contested by the respondent, as to whether the

material upon which he relies does in fact disclose a new or newly discovered fact or facts within the meaning of s. 2 of the Act of

1993. If he fails to do so, that is the end of the matter. Proceeding on this understanding, we have allowed him to make his

arguments both on the preliminary issue, and also de bene esse on the substantive issues.

16. Accordingly, in this judgment we will proceed in the first instance to deal with the preliminary issue, and whether or not we then

proceed to address the substantive issues that the applicant has raised will depend upon what we have decided in respect of the

preliminary issue.

The relevant legislation

17. Section 2 of the Act of 1993 provides:

2.—(1) A person—

(a) who has been convicted of an offence either—

(i) on indictment, or

(ii) after signing a plea of guilty and being sent forward for sentence under section 13 (2) (b) of the

Criminal Procedure Act, 1967 , and

who, after appeal to the Court including an application for leave to appeal, and any subsequent re-trial, stands

convicted of an offence to which this paragraph applies, and

(b) who alleges that a new or newly-discovered fact shows that there has been a miscarriage of justice in relation

to the conviction or that the sentence imposed is excessive,

may, if no further proceedings are pending in relation to the appeal, apply to the Court for an order quashing the

conviction or reviewing the sentence.

(2) An application under subsection (1) shall be treated for all purposes as an appeal to the Court against the conviction

or sentence.

(3) In subsection (1) (b) the reference to a new fact is to a fact known to the convicted person at the time of the trial

or appeal proceedings the significance of which was appreciated by him, where he alleges that there is a reasonable

explanation for his failure to adduce evidence of that fact.

(4) The reference in subsection (1) (b) to a newly-discovered fact is to a fact discovered by or coming to the notice of

the convicted person after the relevant appeal proceedings have been finally determined or a fact the significance of

which was not appreciated by the convicted person or his advisers during the trial or appeal proceedings.

(5) Where—

(a) after an application by a convicted person under subsection (1) and any subsequent re-trial the person stands

convicted of an offence, and

(b) the person alleges that a fact discovered by him or coming to his notice after the hearing of the application and

any subsequent re-trial or a fact the significance of which was not appreciated by him or his advisers during the

hearing of the application and any subsequent re-trial shows that there has been a miscarriage of justice in relation

to the conviction, or that the sentence was excessive,

he may apply to the Court for an order quashing the conviction or reviewing the sentence and his application shall be

treated as if it were an application under that subsection.”

Jurisprudence relevant to s.2 of the Act of 1993

18. It was accepted by both sides that the principal authorities on the correct application of s. 2 of the Act of 1993 are The People

(Director of Public Prosecutions) v. Willoughby [2005] IECCA 4 (unreported, Court of Criminal Appeal, 18th February, 2005) and the

subsequent decision of the Supreme Court in The People (Director of Public Prosecutions) v. O’Regan [2007] 3 I.R. 805, which

approved of, and followed, the approach previously commended in Willoughby’s case.

19. In The People (Director of Public Prosecutions) v. Willoughby the Court of Criminal Appeal, having considered the relevant Irish

jurisprudence up to that point in time, as well as a number of English authorities, formulated a number of principles which it considered

to be appropriate to an application to introduce new or fresh evidence in the Court of Criminal Appeal. The Court stated (at pp 21 and

22):

"(a) Given that the public interest requires that a defendant bring forward his entire case at trial, exceptional

circumstances must be established before the court should allow further evidence to be called. That onus is particularly

heavy in the case of expert testimony, having regard to the availability generally of expertise from multiple sources.

(b) The evidence must not have been known at the time of the trial and must be such that it could not reasonably have

been known or acquired at the time of the trial.

(c) It must be evidence which is credible and which might have a material and important influence on the result of the

case.

(d) The assessment of credibility or materiality must be conducted by reference to the other evidence at the trial and

not in isolation."

20. The leading judgment in The People (Director of Public Prosecutions) v. O’Regan was delivered by Kearns J. (with whom Murray

C.J., Geoghegan J, Fennelly J. and Macken J. all expressed agreement). Referring to the so-called “Willoughby principles” , Kearns J.

stated (at paras 71 & 72):

“71 The court sees no reason to substitute for the principles enunciated in The People (Director of Public Prosecutions)

v. Willoughby [2005] IECCA 4, (Unreported, Court of Criminal Appeal, 18th February, 2005) those which are contained in

the English Criminal Appeal Act 1968, as amended. Counsel for the accused has, wrongly in the opinion of the court,

characterised the " Willoughby principles" as rigid and inflexible preconditions to the making of an application for the

admission of new evidence. In the view of the court, the "saver" for exceptional circumstances defeats this submission.

While the requirement for "exceptional circumstances" may be seen as setting the bar at a fairly high level, the policy

considerations to which reference has already been made demand no less. The entire criminal justice system would be

incapable of functioning if every trial was subject to a re-run on new grounds or new evidence in an appellate court.

Thus it is entirely reasonable to insist upon a "due diligence" test in respect of evidence which was known to exist, or

which could reasonably have been obtained at the time of trial but was not. Equally, it can only be seen as entirely

reasonable and proportionate to incorporate in the principles a requirement that the proposed new evidence is credible

and, if admitted, that it might have a material or important, though not necessarily decisive, influence on the result on

the case. The court is also satisfied that any consideration of materiality must be conducted by reference to all the

other evidence at the trial and not be considered in isolation.

72 The application of these principles should not be seen as displacing or negativing in any way the overarching

requirement that justice be seen to be done having regard to all the circumstances and facts of the particular case. In

this regard, the court is again satisfied that the "saver" contained in the first of the stated principles is adequate to

safeguard that particular requirement. No statement of principle enunciated in The People (Director of Public

Prosecutions) v. Willoughby [2005] IECCA 4, (Unreported, Court of Criminal Appeal, 18th February, 2005) is to be seen or

understood as abrogating that requirement.”

21. Counsel for the appellant has drawn our attention to three further cases in his written submissions, namely The People (Director

of Public Prosecutions) v. Johnston 1998 WJSC-CCA 5579 (unreported, Court of Criminal Appeal, Blayney J, 1st of July 1996); The

People (Director of Public Prosecutions) v. Gannon [1997] 1 I.R. 40 and The People (Director of Public Prosecutions) v. Kelly [2008] 3

I.R. 697, which he suggests may be relevant to the issues that we have to consider; while counsel for the respondent has also drawn

our attention to the Kelly decision as being relevant, but in a different respect.

22. The Johnson case, which was one of the earliest arising under s. 2 of the Act of 1993, had concerned an applicant who had been

sentenced to penal servitude for life in respect of manslaughter. A co-accused had received a sentence of four years penal servitude

for manslaughter before a different Judge. On appeal, the Court of Criminal Appeal had reduced the applicant’s sentence to one of 15

years and 5 months penal servitude. The Court of Criminal Appeal was aware of the sentences imposed on the applicant’s co-accused

but had proceeded on the misunderstanding that the co-accused had not been convicted of manslaughter. The applicant and his co-

accused had had the same counsel and so it was accepted that the court had been misinformed by inadvertence. On an application

pursuant to s.2 of the Act of 1993 for a review of the sentence of 15 years and 5 months penal servitude imposed by the Court of

Criminal Appeal, the court held that this was a newly-discovered fact giving it jurisdiction to entertain an application for a review of

sentence.

23. The Gannon case involved an appeal to the Supreme Court pursuant to s. 29 of the Courts of Justice Act 1924 arising out of a

review of a conviction by the Court of Criminal Appeal under s. 2 of the Act of 1993. Although the Court of Criminal Appeal had

concluded that there was indeed a newly discovered fact, it had found that the newly discovered fact did not render the conviction

unsafe and unsatisfactory, and it had confirmed the conviction. However, the court certified that the decision involved a point of law

of exceptional public importance, namely, whether the material that became available after the conviction of the applicant rendered

the conviction unsafe and unsatisfactory, having regard to the course that the defence took at trial or otherwise. The Supreme Court

dismissed the appeal and answered the point of law certified in the negative. The leading judgment was given by Blayney J, (with

which Denham J, Barrington J, Murphy J, and Lynch J. all agreed) who stated (inter alia):

“The real issue here, it seems to me, is whether the Court of Criminal Appeal, in considering the effect of a newly-

discovered fact, is entitled to hold that, because of the manner in which the defence was conducted at the trial, no

reliance would have been placed on the newly-discovered fact, had it been available. In other words, is the court

entitled to say: in the light of what the transcript discloses of the course taken by the defence at trial, we are satisfied

that the newly-discovered material would not have resulted in any change in the manner in which the defence was

conducted and accordingly the newly-discovered material did not render the conviction unsafe and unsatisfactory. In my

opinion, the court would not be entitled to approach the issue in this way. The court could not conclude for certain that

the advent of the newly-discovered material would have no effect on the manner in which the defence was conducted.

The furthest one could go would be to say that it is possible that it might not have had any effect and this would not

relieve the court from examining what the position would have been if the defence had availed of the newly-discovered

material and altered its strategy accordingly.

In my opinion, the answer to the first part of the question should be that the question of whether a newly-discovered

fact has rendered a conviction unsafe and unsatisfactory, cannot be determined by having regard to the course taken

by the defence at the trial. What the Court is required to do is to carry out an objective evaluation of the newly-

discovered fact with a view to determining in the light of it, whether the applicant's conviction was unsafe and

unsatisfactory. The Court cannot have regard solely to the course taken by the defence at the trial.”

24. The approach commended by Blayney J. in Gannon was reiterated and further nuanced in the Kelly case, where Kearns J. (giving

judgment for the Court of Criminal Appeal) stated (at paras 91 and 92):

“91 Thus what the court is required to do is to carry out an objective evaluation of the newly discovered fact with a

view to determining in the light of it whether the applicant's conviction was unsafe and unsatisfactory in the context of

what the legal advisors might have done with the material if it had been available to them. The court can not simply

have regard only to the course actually taken by the defence at trial.

92 The court must therefore evaluate the evidence in relation to the newly discovered fact, firstly to ascertain if the

evidence establishes the newly discovered fact, secondly to assess the weight and credibility of such evidence by

reference to an objective standard to determine whether defence counsel could have utilised the newly discovered

material in such a way as to raise a reasonable doubt in the minds of the jury about a significant element in the

prosecution case.”

25. The Kelly case had been concerned with an attempt to have a conviction overturned on the basis of alleged newly discovered

facts comprising several newly commissioned expert reports questioning evidence that had been given at the trial. In particular there

was a report questioning the pathology evidence, an expert report on the origin of a fire and a report disputing the voluntary nature

of the inculpatory statement made by the applicant to gardaí before his trial based on a CUSUM (cumulative sum) analysis, a

technique not available at the time of trial. Moreover, during the preparation of the application, the solicitor for the applicant Kelly

received from the Chief Prosecution Solicitor a booklet of photographs taken during the post mortem examination of the victim that

had not been disclosed to defence at the time of trial. A further expert report was produced that addressed these photographs.

26. The Court of Criminal Appeal held, inter alia, that while the photographs of the post mortem that had not been disclosed to the

defence and the CUSUM analysis were capable of being newly discovered facts within the meaning of the Act of 1993, the newly

commissioned expert opinions were not. Counsel for the respondent in the present case refers us with particularity to that part of the

judgment of Kearns J. in which he deals with this issue, and contends that it may be relevant to the issue which we must decide

concerning whether the findings of the Commission of Investigation, which counsel submits amounts to no more than a legally sterile

“opinion”, and which would not be admissible under normal rules of evidence, can constitute a new or newly disclosed fact or facts.

Kearns J. stated (at para 41):

“In ruling on the present application, the court is strongly of the view that opinion evidence, subject to the qualification

hereinafter expressed, should not constitute a newly discovered fact within the terms of the Act of 1993. Firstly, to so

interpret opinion evidence would be to give a meaning to the word "fact" which is quite different from its ordinary and

natural meaning. Secondly, it would have the effect of rendering virtually every conviction, even one upheld by this

Court following an appeal, open to later challenge if a further or new expert could be found to offer an opinion which

went further than a defence expert had done at trial, or which tended to contradict or undermine experts called on

behalf of the prosecution at trial. It would open the door to the introduction of additional evidence in circumstances

which were plainly contra-indicated by this Court in The People (Director of Public Prosecutions) v. Willoughby [2005]

IECCA 4, (Unreported, Court of Criminal Appeal, 18th February, 2005).”

27. Having proceeded at that point to set out the Willoughby principles, Kearns J. then continued (at paras 42 to 44):

“42 This approach to the admissibility of new evidence on appeal was expressly endorsed by the Supreme Court in The

People (Director of Public Prosecutions) v. O' Regan [2007] IESC 38, [2007] 3 I.R. 805 and must now be seen as settled

law in this respect.

43 It would in my view be altogether impermissible for this Court to adopt an approach to opinion evidence which both

ignores the express terminology of s. 2 of the Act of 1993 and also, by implication at least, goes totally against the

thrust of the two decisions to which I have just referred.

44 That is not to say that opinion evidence is in all circumstances inadmissible, as the court's present ruling will make

clear. There may be cases where a state of scientific knowledge as of the date of trial may be invalidated or thrown into

significant uncertainty by newly developed science. There may also be cases where the opinion of an expert at trial may

later be shown to have been tainted by dishonesty, incompetence or bias to such a degree as to render his evidence

worthless or unreliable. Once such "facts" are established, expert opinion evidence must clearly then be admissible so

that such new "facts" can be properly interpreted.”

Submissions on the Preliminary Issue

28. The applicant has submitted that the findings of the Commission of Investigation represent established “facts”, and that moreover

they are new facts or newly discovered facts.

29. Counsel for the applicant accepts in his written submissions that the law on the admissibility of new evidence on appeal is as set

out in The People (Director of Public Prosecutions) v. Willoughby [2005] IECCA 4 (unreported, Court of Criminal Appeal, 18th February,

2005), subsequently endorsed by the Supreme Court in The People (Director of Public Prosecutions) v. O’Regan [2007] 3 I.R. 805.

30. In purporting to addressing the four “Willoughby” principles, counsel for the appellant have submitted in their written submissions,

and re-iterated in oral argument, that:

“(a) The matters set out in the Gary Douch report indicate that the circumstances of this case are exceptional.

(b) The report was published on the 1st of May, 2014 and post-dates in time the applicant's trial and also his appeal to

the Court of Criminal Appeal.

(c) The newly discovered evidence is credible and could well have had a material and important influence on Birmingham

J's deliberations on the question of sentence.

(d) It is proper to assess the materiality of the newly discovered facts by reference to the other evidence at trial.

Adopting that course, it is submitted that the newly discovered material and findings made by the sole member are

significant and of core relevance to the question of the applicant's level of culpability, and therefore his responsibility, for

the offence charged.”

31. Responding to counsel for the applicant’s said submissions, counsel for the respondent make two main points. First, they submit

that the Report of the Commission of Investigation into the death of Gary Douch cannot constitute “evidence” as its findings are

sterile of legal effect. Secondly, they submit, the findings of the Commission do not in any event amount to new or newly discovered

facts such as come within the statutory framework of S.2 of the Act of 1993.

32. In support of the first point, this Court was referred to the judgment of McCarthy J. in the Supreme Court in Goodman

International & anr v Hamilton, Ireland & the Attorney General [1992] 2 I.R. 542 at 608 where he cited with approval the following

passage from the judgment of Brennan J. in the Australian case of Victoria v. Australian Building Construction Employees’ and Building

Labourers’ Federation (1982) 152 C.L.R. 25:

"What the common law and the early statutes forbade to the executive was the assumption of any judicial function or

interference with the judicial process. A commission of mere inquiry and report - affecting no rights, privileges or

immunities, imposing no liabilities, exposing to no new legal disadvantage - cannot be (unless the circumstances are

exceptional) either an authority for the assumption of judicial functions or an interference with the judicial process. Even

if a commissioner be directed to inquire into and report upon a contravention of the law, the inquiry and report are sterile

of legal effect.”

33. In further support of this contention we were also referred to the late Hardiman J’s judgment in Murphy v. Flood [2010] 3 I.R. 136,

where he said (at 186):

“In the words of Costello J., or in the words of the judicial authorities cited with approval by him, the tribunal of inquiry is

‘not imposing any liabilities or affecting any rights’ (at p. 557); its conclusions have merely the status of opinion and ‘this

opinion is devoid of legal consequences’ (at p. 557), its findings are ‘sterile of legal effect’ and its purpose is ‘merely’ to

inquire and report (at p. 562). A tribunal of inquiry is ‘a simple fact finding operation’ according to Finlay C.J. (at p. 588).

The tribunal has no power to inflict a penalty and its determinations cannot ‘form any basis for the punishment by any

other authority of that person’ at p. 588. Its function is to ‘make a finding of fact, in effect, in vacuo , and to report it to

the legislature’ (at p. 590).

34. It was submitted on behalf of the respondent that the findings by the single member in the Douch Inquiry are of no legal effect

and cannot impact upon the judicial process in this case, in particular on the sentence imposed (as well as the appeal of that

sentence – which appeal was dismissed) for the applicant’s unlawful killing of the deceased. The respondent submits that this Court

should be extremely hesitant in acceding to a submission that the report of the Commission, or any aspect of its findings, could

amount to admissible evidence in these proceedings.

35. It was further submitted that that report is the culmination of an inquiry which was conducted separately and distinctly from the

criminal process and which was confined to its own terms of reference, which included matters of public importance such as the

future management of the State’s prisons. However, it was no part of the Commission’s function to address, inquire into or consider

issues which would interfere (or which would be relied upon to seek to interfere) with either the verdict or the affirmed sentence in

the criminal proceedings against the applicant. Indeed, the respondent points out, it is clear from the report itself, at page vii thereof,

that the sole member understood that she could not complete her report “until all criminal proceedings and appeals had been dealt

with.” (emphasis added).

36. In support of the respondent’s second point, it was submitted that a new or newly discovered fact is one that is defined in the

legislation as set out at s.2(3) and s.2(4) of the Act of 1993. In a consideration of these provisions in The People (Director of Public

Prosecutions) v Kelly the Court of Criminal Appeal, per Kearns J., held;

“It is a basic principle of statutory interpretation that words be given their natural and ordinary meaning. The Concise

Oxford English Dictionary contains the following useful definition of the word "fact": "a thing that is indisputably the

case"; "the truth about events as opposed to interpretation". The word "opinion" on the other hand is defined as: "a

view or judgment not necessarily based on fact or knowledge".

37. Counsel for the respondent argues that the findings of the Commission amount to the member’s opinion or interpretation as to

events and thus do not constitute “facts” as understood in light of Kelly.

38. It was further submitted that even if we were to hold that the Commission’s findings amounted to the truth about the events

which occurred surrounding the lead up to the applicant’s fatal assault on Mr. Douch in the holding cell in Mountjoy Prison, (and thus

constituting “facts”) there is nothing intrinsically new in the findings as published. At their height the findings of the Commission relate

to systemic failures within the prison system in terms of the transfer and management of a violent prisoner with a mental condition. It

was submitted that on its own that is not a legitimate basis for requesting this Court to review the sentence pursuant to the

provisions of s.2. Failures of the system cannot impact on the criminal culpability of the offender for which he falls to be sentenced.

39. Counsel for the respondent goes on to make an even more fundamental submission, namely that the matters upon which it is now

sought to place reliance as constituting new or newly discovered facts were issues that were in fact ventilated before the sentencing

judge and of which he was entirely cognisant prior to pronouncing sentence.

40. He submits that an analysis of the transcripts in the case reveal the following:-

1. As a consequence of the evidence from Professor Fahy both vive voce at trial and in his report which was handed into

court on the date of sentencing Birmingham J. was fully apprised of the following:

• The applicant was in an acute psychotic state at the time of his transfer to the Central Mental Hospital in July

2006.

• At the time of his transfer from the Central Mental Hospital to Cloverhill Prison (after only 9 days) the applicant

was still suffering residual psychiatric symptoms in that he remained paranoid and unwell, despite being medicated.

• He was transferred to Mountjoy Prison after only a further 15 days with no medical review and without his anti

psychotic medications.

• Professor Fahy was critical of the decision to discharge the applicant from the Central Mental Hospital to Cloverhill

Prision on 14 July 2006.

• It was likely that the disruption in his treatment was one of the factors leading to the exacerbation of his

psychotic symptoms, namely the deprivation of anti-psychotic medication was one of the factors leading to the

exacerbation of psychotic symptoms that culminated in the killing of the deceased – a matter of greater significance

that the fact that the applicant was in an over-crowded prison holding cell.

2. In his plea in mitigation on behalf of the applicant defence counsel referred the court to the fact that Mr. Michael

Dempsey, a Senior Clinical Psychologist, had interviewed the applicant in Cloverhill Prison just some days prior to his

transfer and had concerns about his delusional and paranoid beliefs together, significantly, with his potential for

aggression. Counsel also reiterated the fact that the medication had not been continued and the relevance of that fact

to Professor Fahy’s opinion that the applicant perhaps ought not to have been discharged from the Central Mental

Hospital after only some 9 days.

3. Crucially, submissions were advanced on behalf of the applicant at the sentence hearing relating to his non-treatment

whilst in Mountjoy Prison in the days leading up to the offence. Specifically, reference was made to a prisoner’s right to

medical care and the Executive’s duty to protect the health of those in custody. Concerns were also expressed about the

applicant’s Convention Rights and counsel criticised the alleged failure to properly vindicate the applicant’s right to proper

care in a custodial setting. It was submitted to Birmingham J. that the fact that he was unfit to be discharged from the

Central Mental Hospital was further evidence of failure by the State to vindicate his rights. In concluding his plea in

mitigation counsel specifically suggested that the deprivation of the antipsychotic medication exposed the applicant to

the opportunity of committing this offence.

41. Counsel for the respondent submits that it is therefore manifest that the core issues which were the subject matter of the

findings of the Commission – and which essentially related to the confluence of factors which preceded the applicant being in the

holding cell with the unfortunate Mr. Douch – were fully ventilated before the sentencing judge. He was, it was submitted, entirely

cognisant of those factual issues which underpin the findings of the Commission in terms of systemic failures and was specifically

addressed on same through the evidence adduced on behalf of the prosecution via Professor Fahy, as well as from the plea in

mitigation advanced on behalf of the applicant.

42. It was further submitted that whilst it is true to say that the sentencing judge indicated that… “the circumstances in which the

accused and the deceased came to be in the cell together are circumstances that have given rise to concern and an inquiry has

been established under the Commission of Inquiries Act chaired by Ms Grainne McMorrow SC and given that an inquiry is pending I

think it’s proper that I should be careful to avoid expressing any views on how that situation came to arise.” ….nevertheless his

caution about interfering with Commission findings is not indicative of blindness on his part to the core background facts and which

form the basis of the applicant’s submission.

43. It was submitted that on no reasonable interpretation could the findings of the Commission be deemed to be “new” or “newly

discovered” facts either unavailable to or unavailed of by the defence at the original sentence hearing. On the contrary, Birmingham J.

was fully apprised of the existence of these factors, albeit not in the in-depth nature in which they were subsequently examined by

the Commission of Investigation, However, it was submitted, they were manifestly before him as part of the sentencing process and

were matters to which he could properly have had regard and to which, it was submitted, he did have regard.

44. It was submitted that it cannot therefore be said that the applicant has met the Willoughby test, in particular, limb (b) thereof,

i.e:-

“(b) The evidence must not have been known at the time of the trial and must be such that it could not reasonably

have been known or acquired at the time of the trial.”

Analysis and Decision

45. We wish to state at the outset that we find ourselves in ready agreement with the last of the respondent’s submissions, in

particular. Neither the written submissions filed on behalf of the applicant, nor the oral arguments put forward by his counsel at the

appeal hearing, have sought to substantively address the issue as to how the findings of the Commission, if facts they be, represent

“new” or “newly discovered” facts.

46. In considering this issue we will assume for the moment, just for the purposes of the argument, that the respondent’s further

contentions (i) concerning the sterility of the findings in terms of their legal effect, and (ii) that they constitute “opinions” rather than

facts, could be overcome.

47. The only matter put forward by the applicant to suggest that the facts on which he now wishes to rely are “new” or “newly

discovered” is the circumstance that the Commission’s Report post-dates in time the applicant’s trial and also his appeal to the Court

of Criminal Appeal. In our judgment that is simply not enough in the circumstances of this case.

48. If one refers back to the matters listed at paragraph’s 26 to 32 of Mr. John M Quinn’s affidavit (quoted above at paragraph 14 of

this judgment), all of the evidence underpinning those findings was available, or certainly was discoverable and obtainable with

reasonable due diligence, at the time of the applicant’s trial and sentencing. Relevant psychiatric evidence was clearly obtainable

concerning the assessment and treatment of the applicant, both from those directly involved, and in terms of an independent peer

review had it been sought. Professor Kennedy was available to be subpoenaed and examined in his capacity as Clinical Director of the

Central Mental Hospital, concerning the management of the applicant while he was a patient there and the circumstances of his

discharge to Cloverhill Prison. Relevant personnel from the Prison Service were also available to be subpoenaed and examined

concerning their management and care of the applicant, concerning his various transfers, and concerning prisoner management and

care generally in both Cloverhill and Mountjoy Prisons, respectively. No piece of evidence has been identified as having been examined

by the Commission that was either unavailable, or not discoverable with reasonable due diligence, at the time of the applicant’s trial

and sentencing.

49. Far from it, in fact. As the respondent identifies, many of the core issues which were the subject matter of the findings of the

Commission were in fact ventilated before the sentencing judge, albeit that they may not have been delved into in the same depth.

The critical matter, however, is that they could have been, and all the necessary underlying evidence was known about and available,

or discoverable with reasonable due diligence, at the material time.

50. We therefore agree that the applicant has failed to satisfy limb (b) of the Willoughby test and the application to adduce the

findings of the Commission as evidence of new or newly discovered facts must be refused on that account.

51. We have already alluded to the further, serious, legal issues raised by the respondent. He argues that the findings of the

Commission ought not to be regarded as evidence capable of being admitted pursuant to s.2 of the Act of 1993 both on account of

being sterile of legal effect, and on account of being “opinions”, rather than facts. Notwithstanding these ostensibly strong arguments

we consider that, in circumstances where even if these issues were to be resolved in the applicant’s favour, he would not in any

event be able to satisfy the Willoughby principles, and in particular limb (b) thereof, it is unnecessary for us to rule definitively on

them and we therefore will not do so.

Conclusions

52. In the circumstances the application for leave to rely on further evidence is refused. That being the case, the applicant has no

basis for seeking to re-open his appeal against the severity of his sentence, and the Court will not permit him to do so. The

application under s. 2 of the Act of 1993 is refused.