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Irish Court of Criminal Appeal
You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P.-v- Yusif Ali Abdi [2004] IE CCA 47 (06 December 2004)
URL: http://www.bailii.org/ie/cases/IECCA/2004/47.html
Cite as: [2004] IE CCA 47
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Judgment Title: D.P.P.-v- Yusif Ali Abdi Composition of Court: Hardiman J., Murphy J., Herbert J. Judgment by: Hardiman J. Status of Judgment: Approved |
Judgments by | Result | Concurring | Dissenting | |
Hardiman J. | Dismiss application for leave to appeal | |||
Outcome: Dismiss
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THE COURT OF CRIMINAL APPEAL
Hardiman J. 96/03Murphy J.
Herbert J.
THE DIRECTOR OF PUBLIC PROSECUTIONS
v.
YUSIF ALI ABDI
JUDGMENT of the Court delivered the 6th day of December, 2004 by Hardiman J.
This is the defendant’s application for leave to appeal against his conviction for murder. On the 28th May, 2003, he was convicted of the murder of his infant son, Nathan, who died on the 17th April, 2001. Nathan was the child of the applicant and his wife Amanda Bailey and was 20 months old at the time of his death.
The only issue at the trial concerned the plea of insanity: the defendant alleged that he was legally insane at the time he admittedly killed Nathan. The manner of the child’s death was an extremely violent and this fact was itself of considerable significance at the trial, especially in the minds of the psychiatrists called on behalf of the defendant. According to Professor John Harbison, the former State Pathologist:
- “[Nathan] died from gross brain damage, which was severe laceration or tearing type injury, verging on disruption or fragmentation of his brain associated with multiple fractures of the vault, that is the top, and the base of his skull… The degree of destruction of the skull was both very extensive and very severe with fragmentation of both the vault or upper part and the base into many pieces. Not only was this tearing apart of the constituent bones of the skull a tearing apart, but there was fracturing of the bones with further fragmentation. These internal head injuries were quire consistent with severe and violent impact of his head against a hard surfaces or surfaces, causing therefore extensive and severe fractures of the skull… possible separate scalp impact points could be discerned about and behind the left ear and at the pole or the back of the head. The bruising under the scalp however was virtually confluent, that is merged one into another, although it was distributed chiefly towards the back of the head.”
The grounds of appeal were very confined. They are as follows:
“(1) The Central Criminal Court erred in law in permitting Dr. Mohan, a Consultant Psychiatrist, to give evidence of his opinion as to the applicant’s motive in killing his son.
(2) The learned trial judge erred in law in repeating in his charge to the Jury Dr. Mohan’s opinion as to the applicant’s motive in killing his son.”
A third ground was not pursued.
The issues.
As noted above, the sole matter at issue in the trial was whether the defendant was or was not legally sane at the time of the killing of the child. There was a sharp conflict of medical opinion on this topic, notably between Dr. Brian McCaffrey and Dr. Bourke, both psychiatrists, who were called on behalf of the defence and Dr. Damien Mohan, a consultant psychiatrist on the staff of the Central Mental Hospital, called on behalf of the prosecution. The defence, of course, bore the onus of proof on the issue of insanity.
The defence case was that the killing occurred while the defendant was legally insane due to psychosis. He and the child’s mother were separated but she and Nathan were visiting the defendant at his residence in Co. Kildare at the time of the killing. The child was sleeping with his mother but the defendant took him from her bed and brought him to a room where he himself had been sleeping. He locked the door of this room and inflicted the fatal injuries on the child, apparently by swinging him or otherwise striking his head against the wall. His eventual account of what occurred, used to ground the claim of insanity, was that he did what he did in obedience to voices addressing him in his native Somalian language telling him to beat the child. The major issue in the conflict of psychiatric evidence was as to whether this claim was believable.
The defendant had been in Ireland since 1997 and had achieved asylum here in the year 2000. At various stages during his residence in the jurisdiction he had consulted doctors about a number of physical and nervous symptoms. There was little in the way of agreement as to the significance of these previous medical consultations: for example, there is no doubt that he was prescribed Larium after his return from a trip he took to Africa and the action of this drug was part of the material relied upon by the defence. The prescribing doctor said he had prescribed it at the defendant’s insistence while the defendant said that he had simply taken what the doctor advised.
Dr. Mohan had prepared a report a copy of which the defence were given. The report was based on a single interview with the applicant on the 19th January, 2003, on the Book of Evidence, on inmate records at Cloverhill Prison and on clinical psychiatric case notes at the Central Mental Hospital. He was of the opinion, on reading through the memos of the interviews at the Garda Station, that there was nothing which would suggest that the applicant was acutely psychotic or suffering from hallucinations at the time of the interviews which were immediately after the alleged offence. (Paragraph 11.2 of the report).
The overall impression following the initial assessment was that he appeared depressed. On physical examination no abnormality was found. (Paragraph 13.1).
In the last three paragraphs of this report the following material occurs:-
“16.7. I am of the opinion that Mr. Ali does not fulfil the McNaughton criteria for legal insanity. All the evidence suggests that he knew the nature and quality of his act and that he was aware that what he was doing was wrong. There is no evidence that his actions were as a result of an irresistible impulse thereby ruling out third limb insanity. In summary Mr. Ali was not legally insane at the material time.
16.8. I believe that Mr. Ali’s alleged actions were motivated by his inability to accept that he would be unable to rear his child in his own religious faith coupled by the threat of losing custody of the child. Mr. Ali’s strong religious conviction is consistent throughout his history and on the night of the alleged killing he was subjected to taunts of racial abuse.
16.9. As stated above I do not believe that Mr. Ali fulfils the criteria for a guilty but insane verdict. Even if there were an option of diminished responsibility available to the jury I am firmly of the opinion that his responsibility was not diminished…”.
The disputed evidence.
The disputed evidence is entirely along the lines indicated in the report, and in particular at paragraph 16.8 thereof. Having given evidence substantially along the lines of paragraph 16.7 Dr. Mohan continued:
- “I believe that his actions were motivated by his inability to accept that he would be unable to…”
Counsel for the defendant intervened at this point. Objection was taken on the ground that the material was not relevant, was comment and, was “an opinion on motivation and we are not concerned about that.” In making this objection, of course, counsel was aware from the report of what Dr. Mohan was about to say. The learned trial judge overruled the objection and the doctor continued:
- “I believe that Mr. Abdi’s alleged actions were motivated by his inability to accept that he would be unable to rear his child in his own religious faith, coupled by the threat of losing custody of the child. Mr. Abdi’s strong religious conviction is consistent throughout the history and on the night of the alleged killing he was subjected to taunts of racial abuse which would further have exacerbated the fear that he had. So, in summary, I do not believe that he was legally insane at the material time.”
- “I will ask your Lordship to point out to the jury firstly that that opinion of Dr. Mohan’s is not supported by the evidence and furthermore that Dr. Mohan as an expert witness in relation to matters of psychiatry is in no better position to assess motive than the jury are.”
- “… As regards Dr. Mohan’s opinion as to motive, I would ask your Lordship not to state that there is no evidence upon which to base that. Clearly there was evidence upon which Dr. Mohan could have inferred his opinion or drawn his opinion. I would accept that as a psychiatrist he is in no better position…”.
Submissions of the applicant.
On behalf of the applicant it was submitted by Mr. Thomas O’Connell S.C. that the sole function of a psychiatrist is to offer an expert opinion as to whether the accused was insane or not at the time of the killing and no more. He said that questions of intent and motive are matters peculiarly for the jury, being matters of ordinary human experience. He further submitted that it was a vital part of the preservation of the constitutional right to trial by jury that the exclusive domain of the jury be protected from improper intrusion. He cited in support of this proposition DPP v. Kehoe [1992] ILRM 485 and
DPP v. Egan [1991] ILRM 780. Mr. O’Connell submitted that psychiatric evidence should not be permitted in matters which are exclusively for the jury to determine and which are within ordinary human experience, citing the cases already mentioned and R v. Turner [1975] QB 834. He relied on the latter case for the further proposition that if such evidence is admitted and repeated to the jury by the judge, the jury may attach undue weight to it. He said that the evidence to which he objected was potentially vital because at the previous trial the jury had disagreed and had brought in a verdict by a majority of ten to two.
In the course of argument on the appeal Mr. O’Connell agreed that the opinion expressed by Dr. Mohan was relevant to the issue, but, for the reasons set out in Kehoe, submitted that it was outside the scope of Dr. Mohan’s expertise as a psychiatrist and was a matter of ordinary human experience exclusively for the jury. He accepted, however, that there was evidence on which a jury could have come to the same conclusion as Dr. Mohan. Asked whether the question of motivation was ever relevant to an insanity issue Mr. O’Connell said that in principle it was not ever relevant, though he went on to concede that a strong rational motive, however perverted, might if established affect the credibility of an account which explained the killing in terms of obeying voices heard by the defendant inside his head.
On behalf of the prosecution, Mr. John Aylmer S.C. said that Dr. Mohan had been entitled to express an opinion in relation to motive in the context of an insanity issue. He pointed out that neither Turner nor Kehoe were insanity cases whereas in the instant case insanity was specifically pleaded as a defence and a long medical history relied on in support of this plea. He relied on the case of R. v. O’Brien and Ors. [2000] EWCA Crim. a decision of the English Court of Appeal, Criminal Division, which will be discussed below.
Mr. Aylmer also submitted that, quite separately, the evidence was admissible by virtue of certain opinions offered by the defence psychiatrists to the effect that the extreme brutality of the crime was inconsistent with its having been committed by a person in a normal state of mental health. He further submitted that Dr. Mohan’s opinions were firmly based on facts established in evidence at the trial and notably in the evidence of Ms. Bailey.
Decision.
(a) Admissibility of Dr. Mohan’s opinion.
The applicant relied heavily upon R. v. Turner in support of his submissions in this area and in particular the robustly expressed judgment of Lawton L.J. in that case. This was a case where the defendant was charged with murdering his girlfriend with a hammer and pleaded provocation by certain remarks of hers. The defence sought to call a psychiatrist to give his opinion, based on information from medical records and other sources that the defendant was not suffering from a mental illness but that his personality was such that he could have been provoked in the circumstances and was likely to be telling the truth. The prosecution objected to the evidence and the judge excluded it. Lawton L.J. said:- “What, in plain English, was the psychiatrist in this case intending to say? First that the defendant was not showing and never had shown any evidence of mental illness as defined by the Mental Health Act, 1959, and did not require any psychiatric treatment: secondly. that he had had a deep emotional relationship with a girl which is likely to have caused an explosive release of blind rage when she confessed her wantonness to him; thirdly, that after he had killed her he behaved like someone suffering from profound grief. The first part of his opinion was within his expert province and outside the experience of the jury but was of no relevance in the circumstances of this case. The second and third points dealt with matters which are well within ordinary human experience. We all know that both men and women who are deeply in love can, and sometimes do, have outbursts of blind rage when discovering unexpected wantonness on the part of their loved ones; the wife taken in adultery is the classic example of the application of the defence of provocation; and when death or serious injury results profound grief usually follows. Jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness are likely to react to the stresses and strains of life. It follows that the proposed evidence was not admissible to establish that the defendant was likely to have been provoked.”
It will be noted that in neither of these cases was insanity either established or alleged. On the contrary, they were both cases where it was sought to establish that the accused had been provoked (as that term is understood in law) and thereby suddenly and totally deprived of his self control, so that the killing would not be murder but manslaughter. Whether this had occurred or not was plainly a matter for the jury and beyond the proper reach of expert testimony. The case is quite different. Insanity was positively alleged and the defence had called expert evidence to establish it. The prosecution was plainly entitled to counter this with expert testimony of their own and did so.
In the course of the insanity case made on behalf of the defendant both Dr. McCaffrey and Dr. Bourke relied on the brutal circumstances of the killing as indicating, in itself, uniquely, a state of insanity in the killer. Dr. McCaffrey described the voices which the defendant said he heard urging him to beat the child and went on:
- “Yusif… When he was doing this, the words he got were, ‘Take him, take him’. I actually got a translation from his own language independently (as) ‘beat him, beat him’… But this wasn’t what he was doing. This wasn’t what he was doing. He wasn’t beating, he was actually using so much force, I am going now by Dr. Harbison’s report… that that could only be done by somebody who was grossly psychotic… in an acute psychotic state bearing in mind, and like Dr. Bourke, I have had to exclude personality disorders, psychopathic behaviours, all that, all excluded, so all we are left with is this grossly violent act by a man who is seriously mentally ill and not fully realising.” (Transcript E 111 515).
- “… The act itself is dreadful, is dreadful, and I don’t really take the view that a normal person could have carried out this act unless there was a very considerable degree of malice or personality disturbance or psychopathic tendency. It’s a dreadful, tragic act. I don’t think it was carried out by a normal man.”
We will therefore consider that Dr. Mohan’s evidence was in principle admissible.
(b) Evidential support for the disputed opinion
It was submitted in the alternative that even if the disputed evidence were admissible, Dr. Mohan laid no factual basis for it. The most fundamental clash between Dr. Mohan and his colleagues who gave evidence for the defence was in relation to the degree of credibility they attached to the proposition that the defendant had killed the child because he heard voices telling him to do so. All of the doctors were agreed that delusional voices were a psychotic symptom. But Drs. McCaffrey and Bourke were prepared to accept the applicant’s history of hearing voices as both honest and accurate. Dr. Mohan was extremely sceptical on the subject.
It was, of course, for the jury and not for the doctors, the learned trial judge, or this court on appeal, to decide in the end upon this issue. But it cannot, in our view, be said that Dr. Mohan lacked a factual basis for his opinion. He had prepared a very detailed nineteen page report which was available to both sides. He formed the view that the applicant was “an unreliable historian, with many inconsistencies in the history that he gave me and furthermore his account is at odds with others that I have read in the witness statements.” He referred to the report of Dr. Ivor Shortts, a clinical psychologist, which concluded that:
- “Mr. Abdi’s performance suggests the possibility that he may be exaggerating some of his psychiatric symptoms. This indicates that his self report may be unreliable and thus he may be an unreliable informant regarding the nature and extent of his actual symptomatology. This does not mean of course that he may not be experiencing some psycho pathology, only that he may feel the need to exaggerate various aspects of it, such as its actual nature, severity or the generality or possibly even the need to manufacture some features. His results in part may also possibly represent a cry for help and/or may be to some extent contributed to by low self evaluation, severe depression as well as a high level of apprehension regarding the legal consequences for him.”
Dr. Mohan described in his report, and repeated in evidence, many indications which, to him, suggested unreliability notably the lateness of the accused’s claim of “hearing voices”; and the lack of complaint of this problem at earlier times, back to 1998, when it is now alleged to have been present.
Dr. Mohan identified a considerable number of other inconsistencies and improbabilities in the applicant’s account of events, specifically with regard to hearing voices. He pointed out that the applicant had simply denied any recall of an assault perpetrated by him on Ms. Bailey but subsequently amended this to claim that he had assaulted her in response to the voices. His claim in regard to his action in locking the door of the downstairs room into which he took the child was that he always did this in any room he found himself in, but this is not supported by other observations in the Book of Evidence. He had contradicted himself on the question of the language in which the voices addressed him. Most significant, perhaps, are the different accounts he gave of how the child came by his injuries. Firstly he said that the child fell. Later he adopted the position that he was unable to remember the incident. While in prison he claimed that he had been sleepwalking at the time of the fatality. After his transfer to the psychiatric hospital he claimed that he acted in response to the voices.
Specifically in relation to disputes about the upbringing of the child and in particular his religious formation, Dr. Mohan noted that on interview the applicant denied that there were arguments or disputes on these topics but later said that Ms. Bailey was seeking a separation. In this connection the jury were fully entitled to accept the evidence of Ms. Bailey herself, given at Books A and B of the transcript which, if accepted, would provide support for Dr. Mohan’s view.
Firstly, Ms. Bailey’s evidence was to the effect that she had decided, and told the applicant that she had decided, that she would not leave Nathan with him. She said:
- “I had no problem with him spending time with Nathan but if I had left Nathan with him I was afraid that maybe he would try to take him to the U.K. or something… I told him that if he wanted to have Nathan by himself he would have to get a court order.”
Secondly, there appeared to be tension about religion. According to Ms. Bailey:
- “Yusif said that I should be able to see – he is
Muslim – that I should be able to see everything about Islam in front of me. He has always known that I never had any interest in Islam. I respect it as a religion, but it is not my choice of religion… He thought that I should be – when he said that I should be able to see everything in front of me it meant that I should wish myself to convert.”
- “Yusif said, asked why did I have the right to have Nathan with me all the time, and he said he wanted to see more of him meaning that I would leave him [there]. I had no problem with him seeing Nathan, but I wasn’t going to have him, leave him, there, because I didn’t know what he would do. I was afraid that he might take him out of the country.”
- “There are difficulties with such a statement. To begin with it assumes that ‘ordinary’ or ‘normal’ has some clearly understood meaning and, as a corollary, that the distinction between normal and abnormal is well recognised. Further, it assumes that the commonsense of jurors is an adequate guide to the conduct of people who are ‘normal’ even though they may suffer from some relevant disability. And it assumes that the expertise of psychiatrists (or in the present case psychologists) extends only to those who are ‘abnormal’. None of these assumptions will stand close scrutiny.”
- “At one time the law was thought to be that expert evidence of the kind that we have heard could only be admitted if that evidence showed a recognised mental illness, this being the interpretation placed upon R. v. Turner. It has now been accepted that expert evidence is admissible if it demonstrates some form of abnormality relevant to the reliability of a defendant’s confession or evidence, see for example R. v. Ward [1993] 96 Crim. App. R1.”
We wish to emphasise, however the central role of the jury on the issue of insanity. Many cases where insanity is pleaded do not in fact give rise to a great deal of controversy but, due to the difficulties and uncertainties attending on this particular area of medical science, there will always be those that do. But whether controversial or not, it is essential that every such decision be taken by a properly informed jury in a public forum. Equally it is important that where a person does not suffer a criminal conviction on the ground of insanity, such insanity should be clearly and publicly established to the satisfaction of the general public as represented by the jury. The role of the expert witness is not to supplant the tribunal of fact, be it judge or jury, but to inform that tribunal so that it may come to its own decision. Where there is a conflict of expert evidence it is to be resolved by the jury or by the judge, if sitting without a jury, having regard to the onus of proof and the standard of proof applicable in the particular circumstances. Expert opinion should not be expressed in a form which suggests that the expert is trying to subvert the role of the finder of fact.
But there was no question of any such thing in Dr. Mohan’s evidence. The disputed opinion he offered was indistinguishable in nature (though different in content) from the opinion which the defence had led their own doctors to express. Moreover Dr. Mohan’s evidence was fully and amply supported by closely reasoned arguments and properly drawn inferences, and was presented with a minimum of technicality and such technicality as there was, was comprehensively explained.
The jury could have preferred the expert evidence called by the defence or that called by the prosecution and were fully entitled to prefer Dr. Mohan’s expert opinion.
Dr. Mohan, like the other experts who gave evidence, is a very reputable and highly qualified psychiatrist. He is presently a consultant attached to the Central Mental Hospital and was formerly a consultant on the staff of Broadmoor Hospital in England. He was also a visiting psychiatrist to a number of major prisons in England. His evidence could not have come as a surprise to the defence and was cogently supported in a report of manifestly high intellectual calibre. In these circumstances some rather personalised and strongly worded aspects of the
cross-examination to which he was subjected were quite unnecessary and are to be regretted.
The Court will dismiss the application for leave to appeal.
DPP & Yusif Ali Abdi (1)