Court holds plea of guilty remains valid even if accused was insane at time of offence.

THE SUPREME COURT

160/2004

Denham J.

Geoghegan J.

Fennelly J.

Kearns J.

Macken J.

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

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

IN THE MATTER OF A CRIMINAL PROSECUTION ENTITLED:-

AN POBAL AN AGRA AN STIURTHEORA IONCHUISEAMH POIBLI

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

v.

SEAN REDMOND

Accused

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

1. This is a consultative Case Stated sent forward to this court by His Honour Judge Kevin Haugh, S.C. (as he then was) sitting in

Castlebar Circuit Court as trial judge in an indictable prosecution for causing serious harm contrary to section 4(1) of the Non-Fatal

Offences against the Person Act, 1997. Since the signing of the Case Stated, Judge Haugh has been appointed a judge of the High

Court. Under the relevant statutory provisions however the President of the High Court, the President of the Circuit Court and Haugh

J. (as he now is) have all agreed that Haugh J. should complete this case as a judge of the Circuit Court.

2. I think it important to set out the Case Stated in full. It reads as follows:

“Case Stated

1. On the 1st July 2003 the above named accused was before Castlebar Circuit Criminal Court [sitting at the courthouse

in Westport] on a count of causing serious harm contrary to section 4(1) of the Non-Fatal Offences against the Person

Act, 1997. The particulars of the offence alleged that the accused did on the 20th November, 2002 at Castlebar in the

county of Mayo intentionally or recklessly cause serious harm to one Liam Humbar.

2. Defence counsel (John F. Kiely B.L., instructed by Aidan Crowley, solicitor of Egan, Daughter and Company, solicitors,

Castlebar, Co. Mayo) applied to the court for a jury to be empanelled to determine the issue as to whether or not the

accused was fit to plead. This application was later withdrawn.

3. When arraigned before Castlebar Circuit Criminal Court (sitting at the courthouse in Westport) on the 1st July 2003

before Judge Harvey Kenny B.L., the accused pleaded guilty to the above count. The matter was then adjourned to the

following term for sentence. The accused was in custody on the charge and was remanded in custody.

4. The matter was listed before me at Castlebar Circuit Criminal Court (sitting at the courthouse in Westport) on the 9th

day of December 2003 and I fixed the 13th day of December 2003 for the sentence hearing.

5. On the 12th day of December 2003 Detective Garda R.J. Lawlor gave evidence before me in relation to the offence

and the background circumstances.

6. The facts are briefly as follows:-

Around 9.30 a.m. on the 20th November 2002 the accused attacked the victim with a knife and caused him serious

injuries. The attack was an unprovoked attack in the vicinity of St. Mary’s Psychiatric Hospital in Castlebar and was

witnessed by a number of individuals. The accused has a psychiatric history and was attending the hospital on the

morning in question for an appointment with his psychiatrist, Dr. John Connolly. The victim was an in-patient of St.

Mary’s Psychiatric Hospital. Following the stabbing the accused went into an office in the psychiatric hospital. He told a

person in the office that he had stabbed somebody and he told them where the knife was. No rational motive or

discernible reason was established for the attack. The accused apparently told Dr. O’Rourke (psychiatrist) when

examined on the day of the incident that he had heard voices telling him to “get them” and that his attack was in

response to the voices.

7. By agreement with the prosecution the defence submitted a medical report dated the 26th day of March 2003 from

Dr. Charles Smith (consultant psychiatrist in the Central Mental Hospital) and a medical report from Dr. Seamus

Geraghty (consultant psychiatrist) dated the 29th November 2003 in evidence. The book of evidence contained a

statement of evidence from Dr. John Connolly (consultant psychiatrist) and from Dr. D. O’Rourke (consultant

psychiatrist). I read these medical reports and witness statements. A copy of each is attached hereto.

8. At this point in the proceedings I discussed with the defence counsel and prosecution counsel the fact that there was

no defence of “diminished responsibility” in Irish law and I referred to the Supreme Court decision in The People (DPP) v.

O’Mahony [1985] I.R. 517.

9. I enquired as to whether or not I had any jurisdiction to raise an issue in relation to the plea of guilty by the accused

if, having considered the evidence, I had substantial grounds for believing that the accused may have been insane in law

at the time of the commission of acts alleged to constitute the offence and in substitution to enter on his behalf a plea

of “not guilty”.

10. The matter was then adjourned to the 18th day of December, 2003 so that counsel could consider the position and

make further submissions. On the 18th day of December, 2003 defence counsel indicated to the court that he would in

any event be seeking a case stated on this point. Prosecution counsel indicated that some further time was needed to

obtain instructions from the DPP. The matter was further adjourned to the 13th day of January 2004.

11. On the 13th day of January 2004 defence counsel reiterated that he was seeking a consultative case stated.

Prosecution counsel indicated that he was not opposing the application for a consultative case stated. The matter was

further adjourned for mention to the 23/1/04.

12. In light of the evidence before me, I am of the opinion that there are substantial grounds for believing that the

accused may have been insane in law at the time of the commission of the alleged offence and that a defence of “not

guilty” may be a more appropriate plea than a plea of “guilty”. As I understand the law, it is that a person who is found

not guilty by reason of insanity is deserving of treatment not punishment whereas a person who pleads guilty or who is

found guilty is deserving of punishment. I am informed that the plea of the accused in this instance is motivated by

practical considerations – i.e. he would prefer to have a definite sentence rather than a situation whereby he would be

detained at the pleasure of the Government in the Central Mental Hospital.

13. Transcripts of the sentence hearings are attached hereto.

In these circumstances I require the assistance of the Supreme Court and answers to the following questions:-

Have I the power/duty or should I decline to act on a plea of guilty if, on the evidence before me, I am satisfied that I have

substantial grounds for believing that the accused was insane at the time he committed the acts alleged to constitute the

offence. Should I in those circumstances decline to accept a plea of guilty, enter a plea of “not guilty” on behalf of the

accused and seek to ensure that the issue of his insanity is fully investigated in the course of his trial?”

3. It will be noted that the Case Stated annexes medical reports and the transcript of the sentencing hearing. Not only is this at first

sight unorthodox but it would not usually be permitted. Even in the normal situation however, it is not a simple question of the court

refusing to look at improperly annexed documentation. If the court considers that the Cast Stated itself might have been expanded in

some way if the judge had realised that he should not have annexed the documentation, the Case Stated would be sent back for

revision. There is no doubt that it has always been the law that a court answers the question from the Case Stated, though some

annexed documents to indicate what is actually meant by the findings of fact are often permitted.

4. This case does not fall within any normal category. In fact I think that it is quite unique. The judge is sending forward a Case

Stated on a question of whether he would be right or wrong in law in taking a particular step having regard not to particular facts

found by him (which would be the normal case) but rather having regard to apprehensions on his part and a particular view of the law

he is considering arising out of medical reports produced and dialogue between himself and counsel at the sentencing hearing. In this

unusual situation the medical reports produced and the exchanges with counsel form the factual matrix on which the legal question

arises. That is why, in my opinion, the learned judge annexed the reports and the transcript and I think that in the special

circumstances and for the reasons which I have given it was appropriate that he should have done so. Both the reports and the

discussion with counsel were freely referred to at the oral hearing of the Case Stated. I am quite satisfied that the court is entitled to

have regard to them since they are the basis of the learned sentencing judge’s concerns.

5. It is not in contest (even though unfortunately it seems to be omitted from the Case Stated) that the accused when he pleaded

guilty before Judge Harvey Kenny on the 1st July, 2003 was fit to plead. In considering how to answer the question posed by the

learned trial judge in the Case Stated this is the most important fact to be taken into account.

6. Issues of insanity whether in the context of fitness to plead or in the context of the commission of the alleged offence are issues

to be tried by juries and not by judges. The judge’s function is to explain to a jury what is meant by insanity in law which is not

necessarily the same as what is meant by insanity in ordinary parlance and the jury then makes the findings. An accused who is fit to

plead is perfectly entitled to be indignant at any suggestion that he was insane at the time of committing the alleged offence and to

argue otherwise to a jury. I am not forgetting that there was a tactical motive in relation to the plea in this case and I will return to

its relevance or lack of relevance later on in this judgment.

7. I intend to turn briefly to the law of insanity. I emphasize the word “briefly” because this Case Stated presents the court with a

wholly unsuitable context in which to review the law of insanity whether by way of departing to some extent from the M’Naghten

Rules or even interpreting them in the light of the occasional modern case such as Doyle v. Wicklow County Council [1974] I.R. 55.

8. There were reports before the court from four different psychiatrists, Dr. John Connolly, Dr. D. O’Rourke, Dr. Seamus Geraghty and

the well-known former director of the Central Mental Hospital, Dr. Charles Smith. These psychiatrists but particularly Dr. Smith would

be well versed in the traditional law of insanity. Their reports must be read in that light and cannot be treated as exclusively medical.

The exercise of the psychiatrists is neatly summed up in the second last paragraph of Dr. Smith’s letter to Egan, Daughter and

Company, solicitors, Castlebar, dated 26th March, 2003.

“We had to address obviously to the crucial factor of whether this man had a core psychiatric illness, which was activated by

alcohol and street drug usage or whether his paranoid illness was introduced by substance and alcohol use. The latter illness is

usually short-lived responding reasonably quickly to anti-psychotic medication. It is our view that his illness was drug or alcohol

induced and that while possibly explaining the assault does not excuse or mitigate it. As I understand it he would be held

responsible in law for the disorganisation that drugs and alcohol cause particularly with his experience of earlier similar

events.”

9. It is clear that the learned trial judge read and considered the various reports but his view of the law is well illustrated by some of

his interjections as appearing on the transcripts. In the transcript for the12th December, 2003, the learned judge made the following

observation during a discussion with Mr. Kiely, counsel for the accused.

“… is there a difference between psychiatric illness and psychiatric condition that is brought on by substance abuse. If there is

a difference, it seems to be based on a kind of judgmental attitude rather than the nature of the condition, and it would seem

the nature of the condition is the matter which should be given concern, rather than the cause of a condition. I mean, should

a person who is mentally incapacitated for reasons outside of their control be treated differently from people who may be said

to be the author of their own misfortune because they happen to have indulged excessively in drink or some other

substance?”

10. Mr. Kiely answered the judge’s question by suggesting that any element of diminished responsibility though not as such relevant

to conviction in Irish law could be fully taken into account at the sentencing stage. The judge was unimpressed by this suggestion

because he thought it was somewhat hypocritical that a court would ignore the diminished responsibility for the purposes of

considering whether the offence was a criminal act but take it into account when determining sentence. As it happens, I do not agree

with the learned judge in that view and I will return to it at a later stage. Keeping to the point at issue, the learned judge went on to

observe to Mr. Kiely that Dr. Smith seemed to suggest that as the man was suffering from a mental condition brought on by drink and

drugs that the law did not then excuse him from the consequences of his action. Later again the learned trial judge puts the position

quite pithily. He observed -

“There are two difficulties in this case: (1) is whether he is insane or not and (2) what is the Irish law in relation to insanity

brought on by substance abuse voluntarily undertaken.?

11. It was accepted that the Supreme Court in The People v. O’Mahony cited above had held that diminished responsibility was not a

defence in Irish criminal law.

12. The most that the trial judge has been able to say in the Case Stated is that he is of opinion “that there are substantial grounds

for believing that the accused may have been insane in law at the time of the commission of the alleged offence.” It is perfectly

clear from the interjections as contained in the transcript that the judge did not mean by that that the accused was insane in law on

foot of traditional interpretations of the M’Naghten Rules. If there was a case, where on a reading of the book of evidence it seemed

certain that there would have to be a verdict of insanity, it may well be that a judge in similar circumstances to these could force a

change of plea. I intend to leave that as an entirely open question because I do not believe it arises in this case and should not be

decided in those circumstances. The legal position in this case would have been wholly uncertain and while, having regard to modern

concepts of mental illness and indeed the points of principle mentioned by the judge, it is perfectly possible that a verdict of insanity

would be legally appropriate, that is as far as can be said. The accused has decided to plead guilty in the ordinary way. Nobody is

suggesting that he is not fit to plead nor is there any certainty or even near certainty that if the facts emerging from the book of

evidence are true he would have been insane at the time of the offences in the legal sense. In these circumstances, I find it difficult

to see how he can be forced to alter his plea. The only conceivable basis would be the fact that the judge apparently as a

consequence of questioning, elicited from counsel for the accused that the plea was tactical in that the accused did not want to be

sent to a mental hospital indefinitely rather than have a fixed short term prison sentence at most.

13. I have never heard of the motive of an accused for pleading in a particular way being investigated and it would be against all the

principles of the criminal law if it could be done unless of course an issue of duress had arisen. But that issue would be raised by the

accused himself. I am, of course, talking of “motive” in the strict sense. There have always been cases where a trial judge realises

that, say, an unrepresented accused has, without the benefit of legal advice, pleaded guilty when he clearly has a good defence.

That situation, however, bears no relationship to what has been suggested here.

14. One can imagine that Mr. Kiely would have advised the accused that there was a possibility of a finding of insanity but that

having regard to the terms of the medical reports that might not be so. In fact, I think it fair to say that Mr. Kiely assumed it would

not be so until the views of Haugh J. were expressed. An accused is entitled to have tactical reasons as to whether, for instance, he

pleads guilty rather than not guilty and I do not think his motive should ever be examined. From the accused’s point of view the

reason that he pleaded was a perfectly good one and I think that it would be harsh to accuse him of abusing the process of the court

by doing so nor do I think that it in any way was an abuse of the process of the court.

15. I now turn to the question of sentencing. It has been suggested that given that there is no defence in Irish law of diminished

responsibility the sentencing judge on the plea of guilty cannot take into account diminished responsibility. I would wholly reject this

proposition. If, for instance, in the past a person who suffered from psychiatric condition of some kind but did not qualify to come

within the rather narrow principles of the M’Naghten Rules was found guilty it could not have been the case, in my view, that the

sentencing judge could not take into account whatever lessening of responsibility there may have been. A sentencing judge can take

into account any factor at all whether physical or mental which might tend reasonably to either mitigate or aggravate a sentence. I,

therefore, believe that the learned trial judge’s concerns in this regard are ill-founded.

16. One of the illogical aspects of the whole process of dealing with cases where the defence of insanity has been raised is that the

relevant insanity is the insanity at the time the offence was committed. If there is a guilty but insane verdict, the accused has to be

kept in detention for a period at least even if he was sound in mind at the time of the trial and was fit to plead. That is one side of

the coin. On the other side, there is the problem that a sentencing judge who came to the conclusion that the person he was

sentencing was in fact of unsound mind and was dangerous on that account could not order detention in the Central Mental Hospital.

However, the entire law in this area is anomalous and requires reform and the court should not fashion any principles directly flowing

from the anomaly. In the scenario which I have depicted, there would be methods under the civil law under which such a person could

be certified and detained.

17. I do not consider that I should answer the precise question as put because as I have already indicated there may be other types

of cases where the powers of the judge may be different. A general answer would be unwise. I would answer the question in the

following manner:

“The particular grounds for leading the learned trial judge to believe that the accused was insane at the time he committed

the acts alleged to constitute the offence do not empower the judge to decline to accept the plea of guilty.”

18. By way of postscript, I would refer to paragraph 19-61 in Professor Dermot Walsh’s book on Criminal Procedure. Referring to the

fact that a verdict of guilty but insane is technically an acquittal he goes on to observe:

“In such a case the accused will be committed to the Central Mental Hospital where he will be kept in custody at the will and

pleasure of the Government. Accordingly, it is highly unlikely that the accused will raise a defence of insanity in any case apart

from murder. Even then it is rarely raised by the accused.”

19. Mr. Redmond would appear to be following the norm both in what he is doing and the motive for it.