Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Irish Court of Criminal Appeal
You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> DPP -v- Cecil Tomkins [2012] IECCA 82 (16 October 2012)
URL: http://www.bailii.org/ie/cases/IECCA/2012/C82.html
Cite as: [2012] IECCA 82
[New search] [Help]
Judgment Title: DPP -v- Cecil Tomkins Neutral Citation: [2012] IECCA 82 Court of Criminal Appeal Record Number: Date of Delivery: 16/10/2012 Court: Court of Criminal Appeal Composition of Court: MacMenamin J., Moriarty J., Hogan J. Judgment by: MacMenamin J. Status of Judgment: Approved
Outcome: Quash Conviction Direct Retrial | ||||||||||||
THE COURT OF CRIMINAL APPEAL [C.C.A. No: 139/12] MacMenamin J.
Between/ The People (at the suit of the Director of Public Prosecutions) Prosecutor and Cecil Tomkins Appellant Judgment of the Court delivered on the 16th day of October, 2012, by MacMenamin J.
1. On the 16th March, 2012, the appellant was convicted in the Central Criminal Court of the murder of his brother, Walter Tomkins, on the 1st July, 2010, at the family home at Cronelea, Shillelagh, Co. Wicklow. This followed a trial in the Central Criminal Court, before Sheehan J. and a jury, between the 8th and 16th March, 2012. While a number of issues, are raised in this appeal, it will be seen that the ultimate basis of this judgment is based on narrow grounds. However in view of the points raised in the wide range and nature of the appeal, it is necessary to outline the evidence in more detail than would be usual. 2. The appellant is now in his early sixties. He did not testify in the trial. He is suffering from advancing Parkinson's syndrome. He is wheelchair-bound, and now cannot feed himself. He is by now incapable of independent living. Brain damage, which is part of the syndrome, has affected his personality. He is unable to concentrate for any lengthy period of time. The question of the appellant's mental condition, and its possible effect on him at the time of the offence, lies at the centre of this appeal. These issues of law and medicine are later considered under a number of headings, but specifically in the context of the partial defence of diminished responsibility as defined in s.6 of the Criminal Law (Insanity) Act, 2006. This defence has been raised in a number of trials, but has not been considered in any reported judgment save in the context of sentences for manslaughter where the defence was relied on (The People (at the suit of the D.P.P.) v. Leigh Crowe [2010] 1 IR 129) The basis of the appeal 3. A number of the grounds of appeal are unusual. They are also framed broadly. Counsel for the appellant argues that the verdict of the jury was against the evidence and the weight of the evidence; and that the jury verdict thus was perverse. It is said the accused was incapable of forming a criminal intent by reason of his medical condition. It is contended that the learned trial judge erred in failing to put to the jury the case advanced, or to explain in sufficient detail the possible verdicts which were open to them. It is contended the conviction is unsafe in light of the fact that the only evidence on the issue of diminished responsibility was that of a defence witness, Dr. Paul O'Connell Consultant Forensic Psychiatrist, which was to the effect that, at the time of the offence, the appellant had been suffering from diminished responsibility. All these points are considered later in the judgment. To assess whether the verdict was perverse, it is necessary to go through the substance of the evidence, and the case as it was put to the jury by counsel and in the judge's charge Background 4. Substantial parts of the evidence are undisputed. Both the appellant and his deceased brother were reared and lived on the family farm at Cronelea, Shillelagh, Co. Wicklow. The victim, Walter, was the eldest of three brothers. The appellant was the middle brother. Both he and the victim were bachelor farmers. The youngest brother, Charles Tomkins, also a farmer, married Ivy Tomkins and they have a family. When they were alive, the brothers’ parents, Joseph and Isabella (otherwise Bella) Tomkins, also lived in the family home. When the father, Joseph, died in 1999, the farm property was divided equally between his three sons. The elder two, Walter and Cecil, continued on at home with their mother. Walter Tomkins kept his farming and business activities separate from that of Cecil and Charles, the two younger brothers, who both cooperated in running their respective farms. Charles had not spoken to Walter for a number of years. Although under one roof, Walter and Cecil had a strained relationship. They spoke infrequently. But nonetheless, in later years as the appellant’s incapacity worsened, Walter each day brought dinner home from a local hotel in Shillelagh to his younger brother. 5. The evidence as to deceased’s character was conflicting. Some family members and friends testified he tended to dominate the appellant. However, other evidence portrayed him as being both generous and easygoing. He was described as being a powerful man, sometimes prone to anger. The evidence was that the appellant was, normally, a person of gentle disposition. 6. When the father Joseph died in 1999, he was buried locally at Aghowle, Shillelagh, Co. Wicklow. Bella lived on until 2010, a further eleven years. Towards the end of her life, she was invalided and confined to bed. She had made clear that she did not wish to be buried with her husband. Nine years before her death, in the year 2001, she had arranged for Charles's wife, Ivy Tomkins, to bring her down to Gorey where her own family were interred to pick out a place for herself in a graveyard there. Bella identified and reserved a suitable burial plot for herself. She offered to pay there and then for the grave but this was not deemed necessary. The fact that, at the time of her death, the payment for the burial plot was still outstanding, has a bearing on the events. The grave remained available for Bella at the time of her death. 7. Later, Bella Tomkins told her niece in law Ivy Tomkins that she was leaving a letter for the appellant setting out her wishes for her own funeral and burial. She also told the appellant that she was going to write down these wishes in the letter, which she would leave in a china cabinet in the family home. She said the letter was not to be opened until after her death. 8. Well before Bella Tomkins died on the 26th June, 2010, the appellant had been suffering from features of Parkinson's syndrome, although it took time for these to be fully diagnosed. He became increasingly incapacitated, and therefore unable to carry out his farm work. He had been a very active man; his fifty acre holding was his main interest in life. He did little socialising. He carried out his work about the farm, and occasionally went to the mart. With the onset of his illness, the younger brother, Charles took over Cecil's stock, and saw to the maintenance on both farms. The appellant found it difficult to walk for any distance. He used a tractor to get about. 9. In the year 2010, the appellant had a number of falls. In May of that year, he was referred to Dr. Raymond Murphy, Consultant Neurologist at Tallaght Hospital, and was admitted for investigation. He had been sent to Dr. Murphy five years earlier, in 2006, but the doctor had not been able to arrive at a definitive diagnosis then. 10. By May, 2010 however, Dr. Murphy was able to find objective organic evidence allowing him to make a diagnosis. An MRI scan confirmed widespread shrinkage of the appellant’s brain in the frontal lobe area. The consultant concluded that the appellant was suffering from a form of Parkinsonian known as Multiple Systems Atrophy. As a result of the brain damage, his balance was poor, and he was unable to sit without support. He tended to fall backwards when he sat on a bed. He was suffering from "alien hand" syndrome, a condition where his arm raised itself involuntarily. The appellant had been discharged from hospital on medication a short time before Bella Tomkins died in a nursing home in Naas. Even at the time of the events in question, therefore, the appellant was quite seriously incapacitated, and was apparently slow in carrying out even normal day to day functions, such as dressing himself. 11. The evidence was that when Bella died, Walter did not consult the appellant about the funeral or burial. The elder brother took all this on himself. He did not follow his mother's wishes. Rather than burying her in Gorey as she had wanted, he decided that she was to be interred near the family home in Aghowle. The uncontroverted evidence was that the appellant was deeply disturbed and distressed that his mother's wishes had been ignored. Rev. Orr, the local minister, testified that the appellant explained to him that he did not attend the funeral, both because he was too ill, but also because he was so angry and distressed by his brother’s conduct. 12. The funeral took place at Aghowle on Monday 28th June, 2010. Rev. Orr testified that Walter identified to him some of the hymns which were to be sung at the service. The appellant strongly, and, as it transpired correctly, believed that Walter had removed Bella Tomkins' note from the china cabinet. In one of the statements which he subsequently furnished to An Garda Síochána, he made remarks which require some explanation. He told the Gardai that Walter "had known the numbers of the hymns". By this, he was seeking to convey that Walter could only have known which hymns were to be sung by their numbers in the Church of Ireland hymn book which she had identified in the note in the china cabinet. When Rev Orr called to the house the appellant told him that his mother should have been buried with her own people in Gorey. Charles's wife, Ivy Tomkins, testified that the day, after the funeral, the appellant was very annoyed when he could not find the envelope in the china cabinet. What then passed between the brothers largely relies on the appellant’s admissions in statements to the Garda Síochána. 13. Three days later, on the early evening of the 1st July, 2010, the appellant drove his tractor down to one of the fields behind the family home. Charles's son, Alan Tomkins, was working there with his cousin, John Chamney. The appellant told Alan Tomkins that he had shot Walter. Alan Tomkins phoned his own house and told his parents. He and his cousin went to the family home, where they found Walter lying dead at the end of the hallway. His body was cold. The appellant arrived back at the family home on the tractor, met Charles there, and asked whether Walter was badly hurt. Charles called the Garda Síochána. He found the appellant’s shotgun in the house. For safety, he threw it into the briars in the garden. The ballistics testimony indicated that the gun was very neglected, held together by wire, but could be fired either by pulling the trigger, or by releasing the hammer, once it was cocked. 14. The appellant was described as calm when the Gardaí arrived. Garda Christopher Murray testified that the appellant told him:-
15. Later, the appellant admitted to Garda Murray that he had used his shotgun to shoot Walter once, in the hallway of the house. He made no mention of there having been an "accident" with the shotgun. The appellant said that there had been a serious disagreement between the himself and the deceased. He never denied in any statement he had intended to shoot Walter, indeed the contrary is true. 16. It is necessary now to go forward a number of months. At the trial in 2011, Charles Tomkins testified that, on 26th September 2010, he was in the process of clearing out Walter's personal property from his bedroom in the old family home. There was a wardrobe there. In it, Charles Tomkins found a tin box containing a number of his mother's personal items. Among those items was a note written in Bella's handwriting in saying:-
On the outside of the envelope was written:- "The money in this envelope is to pay for the grave in Gorey." Charles did not find any money with the envelope. On this evidence, the jury could reasonably have inferred that the appellant had been correct in his supposition that Walter had removed the envelope from the china cabinet. The role of the Court of Criminal Appeal 18. In response to that contention it is necessary to make clear that the argument made in this appeal is that the verdict was perverse, this court has repeatedly emphasised that it has no power to substitute its own subjective view of a case for that of the jury. While the passage which follows is well known, it is necessary to reiterate the apposite remarks of McCarthy J. in the Supreme Court in People (D.P.P.) v. Egan [1990] I.L.R.M. 780, where he pointed out that the Court of Criminal Appeal may not substitute its own subjective view of the evidence in place of the jury’s verdict. A decision that a verdict was perverse is a very exceptional one as he pointed out in the following terms:-
21. Thus, this court will be very slow to intervene where it is satisfied that a judge has placed all relevant matters before the jury, and has fully and properly instructed them as to the burden and standard of proof. However, an appeal court may intervene if the judge's direction to the jury is inadequate either concerning witness credibility, or some matter of law. This is entirely distinct however, from finding fault with the verdict of the jury (see O'Malley, The Criminal Process, Roundhall 2009 para 23.12 and 23.13). This court will only quash a decision as being perverse where there are very serious doubts about the credibility of evidence which was central to the charge, or where a guilty verdict, even by a properly instructed jury was against the weight of the evidence. (See DPP v Quinn 23 March 1998 CCA; DPP v Morrissey CCA 10 July 1998). In assessing this point the court will look at all the evidence which was before the jury, not selected portions of that evidence. 22. In this appeal, Counsel for the appellant submitted that the medical testimony on the question of the appellant's diminished responsibility at the time of the offence "went one way", that it had not been controverted at the trial, and that consequently, the jury was perverse in convicting of murder. To assess the validity of this argument and the other points made it is necessary to turn next to the evidence and the judge’s charge to the jury. 23. At the outset, it is important to emphasise that the defences themselves were unusual, it might be thought the fact that they were all put up by the defences to the jury itself gave rise to difficulty. There is no suggestion whatever in this appeal that the learned trial judge's charge to the jury was anything other than entirely objective. The gravamen of the appeal is, rather, that the jury were insufficiently instructed on the law regarding each of the available defences. This would have been a formidable task. It was a situation where the judge should have received every assistance from counsel, including, where necessary, reference to relevant English authorities and case law. There is now the additional problem that, at the conclusion of the charge to the jury, counsel for the accused made no requisitions. In fact, the sole requisition made was by counsel for the Director, who proposed that, were the jury to consider a verdict of manslaughter was warranted, they should be asked whether their decision had been on the basis of provocation, or, rather, of diminished responsibility, as either finding might bear on the question of sentence. The judge decided that to make this requirement would further add to the complexity of the jury's task. 24. The case now made is that the verdict was perverse in relation to each of the defences. Three of the defences may be dealt with quite briefly. These were: (a) that what had occurred was an accident; (b) the question of insanity; (c) the contention of lack of requisite intent to commit a criminal offence. It will be more convenient to deal later with the defences of provocation (d)(i) and, and finally, that of diminished responsibility (d)(ii). The court must assess whether the jury verdict was perverse under each of these headings. Then, it is necessary to assess whether there was some deficiency in the judge’s charge such as would warrant quashing of the conviction for murder. We turn first to the defence of accident.
26. However, there was no evidence at all that what occurred was an accident. When the appellant spoke to his nephew Alan Tomkins, and later, Garda Christopher Murray, he did not suggest that he had accidentally discharged the gun. Moreover, in later statements to An Garda Síochána, the appellant admitted that he was very annoyed at his brother for what had happened regarding the funeral and burial, and that he had, at the least, intended to injure his brother by discharging the firearm. The appellant never suggested, even implicitly, that what had occurred was an accident, either when speaking or later to Garda Christopher Murray who arrived on the scene, or, later still to any of the other gardaí to whom he subsequently gave statements. There was simply no evidence that what occurred was accidental. It cannot be said then that this decision of the jury was perverse or unsafe. The verdict on this point was not based on "tenuous" or "non credible material". There was evidence before the jury from which it could have concluded that what had occurred, was, at the very least, not accidental. There is no suggestion made of error in the judge’s charge on this point in the appeal.
29. By way of illustration of intent, the prosecution adduced evidence that in a cautioned interview which commenced on the late evening of the 2nd July, 2010 the following exchange took place:-
A. I'd wound him or something he'd badly injured anyway. I'd have to get help quick. Q. Did you have enough of him? A. Yes, probably alright." 30. The prosecution case on this point went further, and suggested that such disappointment as the appellant expressed at Walter's death was selfish. The appellant in fact did say to the gardaí that his life had "surely diminished because Walter is dead" and went on to say:-
32. But on intent, after referring to the defence evidence, the judge stated:-
There is no criticism of this part of the charge. It was a fair and objective assessment of the law and the evidence. 33. Moreover, the question of whether the requisite intent had been proved, was, in fact purely a matter of fact for the jury to determine. There was evidence before the jury which led them to be satisfied beyond reasonable doubt that the accused did have the requisite mens rea to commit the offence of murder. The court does not consider that the decision of the jury on this question was perverse, or that the learned trial judge erred in his summation of the evidence in his charge to the jury on this point.
(i) Provocation 35. The defence of provocation may be relied upon where the accused suffers a sudden and temporary loss of self control in response to the conduct of the victim such that he is unable to prevent himself from committing a homicide. Whether the defence is made out relies on a subjective test (The People (D.P.P.) v. Kelly [2000] 2 I.R). The question for the jury was whether there was evidence of provocation; the duty of the judge was to fully charge the jury on the evidence and the law. This must now be considered. 36. In his second interview with An Garda Síochána, which commenced on the 2nd July, 2010, the appellant was asked what had happened at home. He explained that it was: "All over my mother", and that she had: "left instructions in a glass case in the sitting room"; that the glass case was locked; and that he had concluded that the deceased had been unable to find the key and had prised open the glass case. The appellant said in interview: "how I know this is because he knew all the numbers of the hymns". 37. The appellant was asked at interview:- "Did you have words about it? A. I quizzed him about it and he laughed it off. He went down to the bathroom then and I followed him down the hall. I had the loaded gun but I was slow going down. He was well out of the bathroom. He was coming back up the hall. I pulled him and left one shot off about chest high." 38. In the same interview he said: "I thought it would only wound him". He was asked how he had held the shotgun, to which he answered:- "I was successful at that. I was able to hold it up to my shoulder and sort of aim it, pull back the hammer and let fly, as slow as I was going out of my door he was nearly up to me and staggered back to where he was found". 39. In a later interview on the 2nd July 2010, the appellant told the gardaí:- "… I usually use a no. 4 cartridge. On Thursday night I would have used a no. 4. I put the wire on it to keep the trigger guard in place. I knew it was firing alright… I used it to fire off a cartridge at a target, my brother Walter". 40. The prosecution relied on these, and other similar statements, as indicative of the proposition that the appellant had acted in a cold, detached and calculated fashion on the evening of the offence. 41. The defence case, at the trial, was that the deceased who was big and powerful, could be short tempered, aggressive, and inclined to bully his younger brother. The thrust of that case, on provocation, was that the appellant, having been unable to stand up to his brother on the question as to where their mother was to be buried, found the only protest he could muster was to refuse to attend the funeral; that he became very upset at the deceased's conduct, and at his own failure to ensure his mother's wishes had been carried out, that in one response to An Garda Síochána on the evening of the murder he had described the deceased having laughed at him when he raised the issue of the note; and that the deceased had denied to him any knowledge of the mother’s letter of wishes. It was said Walter was abusive to him, told him to "fuck off", and had said that that the appellant was: "always like that, shutting the stable door after the horse had bolted". In one garda interviews the appellant said on a number of occasions that the shooting was a "spur of the moment thing". He also said that his “life had surely diminished because Walter is dead it was spur of the moment. I snapped". 42. It is necessary also to consider the run of the entire case. In what follows, no criticism of prosecution counsel's conduct is in any way suggested. But in order to negative the defence of provocation in his closing address, counsel for the Director relied on an analysis of events seeking to establish that the appellant had afterwards been clinical and detached in his description of the events, and that at interview he described what occurred clearly and cogently. Counsel put it to the jury there was no evidence of any loss of control when the appellant was seen at the scene by members of An Garda Síochána or members of his own family; and that his declarations of remorse were self-serving and selfish. Counsel submitted that in the light of his physical incapacity the appellant's preparation could have taken considerable time. He submitted there had been evidence that the appellant was evasive his account of what happened, and cited an instance when the appellant was asked why he used a cartridge with a stronger charge, to which he simply replied that he had already covered that issue "fairly well". But when asked whether it was his intention to injure his brother the appellant replied "oh it was, yeah". Counsel referred to the appellant's claims that the deceased had assaulted him other occasions, but that he had been ashamed to admit this or make any complaint of it. On this, the prosecution submitted out that there was no independent evidence of previous assaults, nor that the deceased had engaged in any conduct on the evening which would have posed an immediate threat to the appellant such as would constitute provocation. In summary therefore, the thrust of the prosecution case on prosecution was that the crime was premeditated, and that later, in the interviews, the appellant had been making up excuses for what he had done. 43. In turn Counsel for the appellant submitted that the circumstances of the case, taken in conjunction with evidence from Dr. Raymond Murphy, Consultant Neurologist and Dr. Paul O'Connell, Consultant Psychiatrist, indicated that the appellant's ability to make balanced decisions was such that the jury should make a finding of manslaughter based on provocation. 44. In this appeal Counsel for the appellant submitted there was evidence of a significant degree of frontal lobe atrophy to the brain and that that the burden of proof was on the prosecution to disprove provocation beyond reasonable doubt. He contended this defence evidence should have been coercive. He submitted that all the elements of the provocation defence were present and that the subjective nature of the test to be applied was particularly important where there was evidence that the appellant was suffering from dementia. 45. It is true that Dr. O'Connell, did testify at the trial that the appellant suffered from a degree of dementia, and that his life had been lived within narrow confines where there had previously been few substantially stressful events. His testimony was that one could imagine there had been nothing as stressful in the appellant’s life as losing his mother to whom he was close. The consultant testified too, that the appellant might have had no-one outside his immediate social sphere with whom he had a close attachment, so that his emotional response to his mother's death was likely to have been felt intensely, and internalised. He said that this was to be seen in the context of the appellant's previous tensions with his brother which pre-dated the event. His testimony was that his dementia could have impaired the threshold for the release of aggression and statements attributed to the deceased were to be seen against this overall background and thus could have been what precipitated the event. 46. Against this however, there had been other evidence that the deceased was a generous man, and easy enough to get on with. Three witnesses, Marty Stamp, Keith Harris and Christy Noone, all testified to this effect. Furthermore, the appellant accepted in interview that he never argued that much with the deceased who used to bring him up dinner every day, and make sure that he had tea in the evening. 47. In one statement, the appellant told the gardaí that he had challenged the deceased on the Thursday after the burial which had been on the previous Monday. He denied that he wanted to do away with Walter since the Monday:
"Only a few seconds, or you know the way I am; it took more than a few seconds or a minute or two and before I got back up he was nearly at the wide door". 49. All this evidence has been outlined in order to show that, in fact, there was evidence before the jury from which they might have concluded that the appellant had not been provoked on the day in question, but, rather, had engaged in a series of calculated or pre-meditated actions which may have taken some considerable time. For the verdict to be perverse, the evidence would have to be tenuous or incredible; here it came largely from the accused’s own admitted statements. This observation as the case of all others in this judgment is far from saying that the jury were obliged to reach a murder conviction. 50. But two questions emerge. The first question is, was there evidence from which the jury might, reasonably, have concluded that there had been provocation? The learned trial judge correctly concluded that was enough evidence for this issue to go to the jury. No criticism whatever is made of this decision, nor or as to the manner in which the learned trial judge charged the jury in relation to the defence of provocation. 51. A second question is whether there was evidence upon which, the jury, having been properly and fully charged as to provocation, could have rejected the defence case? The answer to this question must be that there was such evidence. In the light of evidence as to the appellant's overall conduct, the jury rejected the defence case of provocation. 52. However, a consideration of the evidence generally shows that the verdict was not perverse. It was not based on tenuous or non credible testimony (again see the passage by O’Flaherty J. in DPP v Egan, quoted earlier). The finding was “manifestly within the province of the jury” as Murray J. observed in The People (DPP) v CP. It is necessary then to address the next issue, that of diminished responsibility.
6. "Where a person is tried for murder and the jury finds that the person—
(b) was at the time suffering from a mental disorder, and (c) the mental disorder was not such as to justify finding him or her not guilty by reason of insanity, but was such as to diminish substantially his or her responsibility for the act, the jury or the court as the case maybe shall find the person not guilty of that offence but guilty of manslaughter on the ground of diminished responsibility. (2) It shall be for the defence to establish that the person is, by virtue of this section, not liable to be convicted of the offence." [Emphasis added] 54. In order for the defence of diminished responsibility to succeed, it is necessary, first, that the jury find that the person in question carried out the act in question; second, it must be established that the accused was, at the relevant time, suffering from a mental disorder, but that such disorder was not such as to justify a finding of not guilty by reason of insanity, but would be such so as to diminish responsibility for the act. 55. The term "mental disorder" is, itself, defined in the Criminal Law (Insanity) Act, 2006 as including "mental illness, mental disability, dementia or any disease of the mind but does not include intoxication". To afford a defence under S.6, the mental disorder must be substantial; clearly that is something more than trivial or minimal, though ultimately the test must be one of common sense which lies within the province of the jury. As to how this should be put in the charge, may assist in English authority analysing application in practice of the defence, bearing in mind the distinction between “abnormality of the mind’ from the term "mental disorder" in our law. (See for an example, of the application of this formulation R v. Sanders [1991] 93 Cr App R 249-50). The question is whether the mental disorder substantially diminished responsibility for the act. This is a jury question. 56. Would a jury verdict of murder on the evidence before it have been perverse provided it was clear that the jury had been properly charged? Here the appellant contends, in rather general terms, that the trial judge failed to explain to the jury the nature and distinction between the defences which were open to the accused. As will now be explained one clear issue arises does arise. As pointed out earlier there is an important distinction between provocation and diminished responsibility. Evidence of premeditation may negative provocation; but such evidence is not necessarily inconsistent with the defence of diminished responsibility. Should the charge in this case have addressed this point? It is necessary first to further analyse the evidence. The medical evidence in the case 57. The evidence before the jury was that, in general, damage to the frontal lobes affects human behaviour. Dr. Murphy testified that the frontal lobe was very important in social interaction and in making persons behave in a socially acceptable sort of way. He stated that it was important in inhibiting individuals from doing “impulsive types of things”. He contrasted the disinhibited conduct of a child compared to what is socially acceptable in adults. He emphasised the role of the frontal lobes in creating and achieving normally socially acceptable conduct. 58. Dr. Paul O'Connell, Consultant Clinical Psychologist at the Central Mental Hospital also carried out an assessment of the appellant, albeit, eighteen months later, in 2011. He described the effect of the damage to the frontal lobe in this way: "The frontal lobes in normal functioning are involved in forward planning, forming balanced decisions and inhibiting or resisting impulsive behaviour. Where you have damage involving the frontal lobes where performance is as poor as is now the case with Mr. Tomkins one would expect substantial difficulty in forming balanced decisions, in making plans for the future, or even conducting activities of daily living without nursing support and resisting impulsive behaviour." His finding was there were signs indicating there was marked impairment of the appellant's frontal lobes or higher executive functions. He found evidence of dementia. 59. Dr. O'Connell's evidence, and Dr. Murphy's findings, were not contradicted. No medical evidence was adduced by the prosecution to suggest that Dr. Connell’s opinion was an unreliable one. The appellant himself had stated at interview that there had been a row in the kitchen about 7.00 pm over the burial. He said that he asked his brother where the letter was and that the deceased had told him to "fuck off". He thought that was "fairly smart" and that he "wasn't real pleased". 60. Dr. O'Connell testified that it was possible that the tension surrounding the disagreement over his mother's funeral corresponded with a lucid interval with heightened emotional arousal, bringing various grievances to a head. He testified that in his view at the time of the offence, "in view of the evidence of dementia, in my opinion Mr. Tomkins had a mental disorder at the material time as defined in the Criminal Law (Insanity) Act, 2006". Referring explicitly to the terms of the Act of 2006, his evidence was that this was a mental disorder, defined as including mental illness, mental disability, dementia or any disease of the mind that does not include intoxication. He testified that the available evidence showed that Mr. Tomkins knew the nature and quality of his actions, but it was probable that his moral reasoning was impaired by the effect of his dementia at the material time so that his anger at the circumstances of his mother's funeral was abnormal. He dismissed any possibility of insanity, but accepted the appellant’s cognitive decline as dementia. He added "In light of the evidence of a mental disorder namely dementia, which in my opinion in all probability impaired his judgment and emotional regulation at the material time a defence of diminished responsibility is available." This form of atrophy is sometimes called "Parkinson's Plus" reflecting the rapid course the condition takes compared to other Parkinson's diseases or disorders. The trial judge fully and properly outlined all this material to the jury. 61. It is true of course, that the prosecution had called Dr. Conor O'Neill, a Consultant Forensic Psychiatrist based in the Central Mental Hospital, who carried out an assessment on the appellant on the 23rd July, 2010, only weeks after the event. Dr. O'Neill accepted that the appellant, even at the time of his examination, was exhibiting the signs of Parkinsonism, but he carried out a "mini mental state examination" where the appellant scored well, and did not detect any gross abnormality. He concluded that the time that the appellant did not suffer from any psychiatric or psychotic disorder. However, he also accepted that his focus was solely on whether or not the appellant was fit to be tried or processed through the court system by reason of insanity. In cross examination he accepted that when the frontal lobe is impaired as in Parkinsonism, it could affect inhibitory behaviour. It was put to him the appellant had been unable to carry out certain intellectual tasks put to him in Dr. O’Connell’s tests. Dr. O’Neill accepted this failure would be consistent with impaired ability to forward plan, to form balanced decisions, or to resist impulsive behaviour. He accepted that the signs "all indicated marked impairment of his frontal lobes or higher executive function", although he had not had the opportunity of prior consideration of Dr. O’Connell’s evidence. Other than this however, there was no other psychiatric evidence on the question of effect of the appellant's condition on his actions. 62. It is true therefore that the evidence of Dr. O'Connell and Dr. Murphy was uncontradicted on the specific question of diminished responsibility. In hindsight, Dr. O'Connell's phraseology that, the defence of diminished responsibility was "available", may have created a difficulty in the jury’s eyes. It may be that he was seeking to avoid trespassing on the domain of the jury. The trial judge set all the evidence out fully. 63. But did the evidence go “all one way”? As the English authorities point out, a jury is entitled to have regard to all the circumstances of the case. A jury is not necessarily bound by even unchallenged and uncontradicted medical evidence, but it may only properly reject it if there is some rational basis for so doing. (See R v Bailey [1978] Cr App Rep 31, R v Saunders [1991] 93 Cr App Rep 245. 64. Here the jury, which deliberated for some five hours, concluded that the circumstances of this offence negatived the defence submission of diminished responsibility. It is not the function of this court to supplant its subjective view for that of the jury. The question which does arise however, is whether the jury was charged as to the distinction between the two defences. Did the charge deal with premeditation in the context of diminished responsibility 65. In his charge, the judge dealt with the defence of diminished responsibility in this way. "I do however now come to the final matter, the final defence raised which is the issue of diminished responsibility. … Dr. O'Neil the Consultant Forensic Psychiatrist who first met Cecil Tomkins was not asked to address this issue. Dr. Tobin was not prepared to comment again as I said about Cecil Tomkins state of mind in 2010. So what you are left with is the evidence of Dr. O'Connell who very clearly told us that the partial defence of diminished responsibility was available to the defence. Again as I say the defence is obliged to establish this as a matter of probability. So the defence that you had of a consultant psychiatrist was that of Dr. O'Connell, he seems to be the only consultant psychiatrist who addressed this issue and he said it was available …" Thereafter the judge recited the provisions of s.6 of the Act of 2006 and added: "And you have heard all the evidence about dementia. As I said you heard the evidence of Dr. Paul O'Connell that the mental disorder at the time of the event was dementia. The dementia did not justify according to Dr. O'Connell a finding of insanity, but was such as to diminish(d) [sic] substantially Cecil Tomkins responsibility for the act." It is unnecessary here to address any wider issues as to the nature of the defence of diminished responsibility which must await an appropriate case, based on appropriate trial evidence. One point which does emerge clearly is that the charge did not deal with the point that premeditation is not necessarily inconsistent with diminished responsibility. This must be seen in the context that the prosecution had laid great emphasis on the question of premeditation in the context of the provocation defence. Specifically, it had been put to the jury that each step taken by the accused prior to the shooting must have been taken considerable time by reason of the accused's disability, and that consequently there could not be a close connection between the conduct of the deceased and the acts of the appellant so as to allow for provocation as a defence. Pre-meditation 66. In R. v. Leonard John Sanders [1991] 93 Cr. App R at p.245 on a charge of murder the defence of diminished responsibility was raised. The medical evidence was unequivocal and uncontradicted. The Court of Appeal held that in such a case the trial judge should direct the jury to accept such evidence, if there were no other circumstances to consider. Where however, such other circumstances exist, that medical evidence should be assessed in the light of those other circumstances. However, the Appeal Court also emphasised the point that pre-meditation is not necessarily inconsistent with diminished responsibility. 67. In the instant case there may have been facts or circumstances which, in the eyes of the jury could displace or throw doubt on the evidence regarding diminished responsibility. But in such a circumstance, this court considers the charge should have addressed specifically the point that evidence of pre-meditation was not necessarily inconsistent with diminished responsibility. In R. v. Matheson [1958] 42 Cr. App. R 145 [1958] 2 All ER 87) Goddard L.C.J., referring to the English definition of “abnormality of the mind” observed:- "Here it is said there was evidence of premeditation and undoubtedly there was, but an abnormal mind is as capable of forming an intention and desire to kill as one that is normal; it is just what an abnormal mind might do." 68. In Sanders, too, referred to earlier, one complaint made on appeal was that the charge to the jury the judge had made no reference to premeditation being not necessarily inconsistent with diminished responsibility. The submission was rejected because the judge had in fact made, not one, but a number of specific references to the point. 69. There is no doubt here that the charge was both fair and objective. However, the question of premeditation in the context of diminished responsibility was a relevant point in the case. The jury were not specifically charged that premeditation is not necessarily inconsistent with diminished responsibility. It was this evidence upon which the prosecution relied in order to rebut Dr. O’Connell’s testimony on provocation, but such evidence would not necessarily have negatived diminished responsibility. The charge therefore, contained an error in law. This does not conclude matters however. Was the point raised at trial? 70. The function of the Court of Criminal Appeal is to decide whether a trial was carried out in a satisfactory manner. Thus the appellants and their counsel will generally be confined to raising points which they considered to be important at the time of the trial, rather than on an ex post facto basis. As the court pointed in The People (D.P.P.) v. Moloney (unreported Court of Criminal Appeal 2nd March 1992), the duty of counsel is to bring to the attention of the trial judge any inadequacies which they perceive in his directions to the jury. If an appeal is brought before the Court of Criminal Appeal on a point that has not been canvassed at the trial, this court will regard any person making such new point as having an obligation to explain why it was sought to be made on appeal when not made at the trial. However, as the court pointed out in Moloney's case: "that is not to say that if the essential justice of the case calls for intervention we have an obligation to intervene". 71. In People (D.P.P.) v. Boyce [2005] IECCA 143, Murray C.J., speaking in the Court of Criminal Appeal observed: "The inclusion in grounds of appeal matters calling in question a trial judge's charge to the jury which were not the subject of requisitions has been a subject of observations and statements by this court in its case law over the decades. When considering a trial judge's charge to the jury at a distance and out of context of the trial itself it may be too easy or simply facile to suggest that some matters should have been dealt with more fully or with greater emphasis or less so. A trial judge has a delicate balance to strike in giving a summary of the evidence and directing the jury on the law in the context and immediacy of the trial having regard to the evidence, the course of the trial, the issues which were of primary controversy, the speeches of counsel and the context of the case as a whole. Counsel for both sides, and in particular the defence, in that immediacy of the context of the trial, are in a special position, at the conclusion of the charge to identify any matters stated by the judge which could have a material effect on the fairness or balance of the charge and which might require the jury to be redirected. It is in that context that the points of real importance fundamental to the fairness of the trial can be best identified. The court leans against points of issue with the charge being identified very much later, out of the context of the trial, sometimes where persons who had no connection with the trial, but only after a "trawl" through the transcript unless of course the points identified are substantial and of fundamental importance to the fairness of the trial. It is necessary also to re-emphasise the observations of Kearns J., speaking in the Supreme Court in D.P.P. v. Cronin No.2 [2006] 4 1 I.R. 329 at 346, that some: "error or oversight of substance, sufficient to ground an apprehension that a real injustice has occurred must be demonstrated before the court should allow a point not taken at trial to be argued on appeal. There must in addition be some sort of explanation tendered to explain why the particular point was not taken…" 72. It is clear a number of the issues which arose in this case were novel, at least in this jurisdiction. The defences chose to advance a number of different lines of attack at the trial. It was necessary to explain those in some detail. On the facts just adverted to between the two defence, was of ‘substantial and fundamental’ importance to the fairness of the trial. Evidence which might negative provocation may not necessarily be inconsistent with diminished responsibilities. The charge should therefore have included a clear explanation on the nature of the defence of diminished responsibility, and on the question of premeditation. 73. The paramount duty of this court is to ensure that justice is done. Under statute, (s.12 Courts (Supplemental Provisions) Act, 1961, this court has jurisdiction to determine any questions necessary to be determined for the purpose of doing justice in the case before it." Counsel has fairly accepted the fact that there was an inadvertent omission to deal with these issues at the trial; specifically in submission to the judge or at the requisite days. 74. One of the grounds of appeal, although broadly stated, is in fact, that the trial judge did not sufficiently explain the distinction between the defences to the jury. It might be said that the exact point now in issue should have been raised more explicitly. Grounds of appeal should not be "broad brush". There were issues here which should have been addressed to the learned trial judge. It is the duty of counsel to ensure that matters of importance to their client are properly and fully canvassed at the trial. The judge cannot in that sense be faulted if this duty is not discharged. But there is no indication that the point which arises here derives from a retrospective "trawl" through the transcript. This Court has a fundamental duty to ensure that justice is done. It is the considered view of this Court that the defence of diminished responsibility, and not such alternative contentions as were with few realistic prospects of success canvassed at the hearing, went to the very essence of the trial. In the context of a number of alternative defences, being run in somewhat uneasy co-existence, it is readily understandable that the learned trial judge omitted to charge the jury that premeditation of itself was not necessarily inconsistent with a diminished responsibility finding in the exercise of a disordered mind. Nonetheless, the absence of such a direction, in the light of all the evidence is viewed by us as having been of substantial and fundamental importance to the fairness of the trial, and reasonably likely to have left the jury with an incomplete and erroneous view of the law applicable to diminished responsibility. In the light of these exceptional circumstances, the Court will quash the conviction and direct a retrial.
| ||||||||||||