[2024]_IECA_227 — [2024]_IECA_227 — Ireland courts

THE COURT OF APPEAL

Record Number: 18/2022

Bill Number: 89/2019

Kennedy J.

Burns J.

Ní Raifeartaigh J.

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC

PROSECUTIONS

RESPONDENT

-AND-

ALAN WARD

APPELLANT Judgment of the Court delivered on the 27th day of June 2024 by Ms. Justice Ní

Raifeartaigh

Introduction

1. This is an appeal against conviction. The appellant was convicted of three counts

following a jury trial, namely murder, threat to kill (contrary to section 5 of the Non-Fatal

Offences Against the Person Act, 1997), and attempted assault. The primary issue on appeal

is the interaction between the rule that a witness may not comment on the “ultimate issue”

falling for decision by a jury and the opinions of the prosecution and defence psychiatrists

with regard to the interaction between mental disorder and intoxication, and their impact on

the appellant’s mind at the time of the killing.

2. Other issues also arising are the judge’s treatment of the issue of intoxication in his

charge to the jury; comments made by the prosecution in the closing speech about the

appellant’s self-report to the psychiatrists of having endured a violent childhood; a ruling

that the defence could not put a particular question to a garda officer about a statement the

appellant had made during interview; and the refusal of the prosecution to call two witnesses

who had made statements but were not included in the Book of Evidence.

3. There was also a ground of appeal relating to the admissibility of a portion of a

psychologist’s report (Ground 2) but this was withdrawn at the oral hearing of the appeal

and is not dealt with in this judgment.

4. Section 6 of the Criminal Law (Insanity) Act, 2006 provides:

"(1) Where a person is tried for murder and the jury or, as the case may be, the Special

Criminal Court finds that the person-

2 (a) did the act alleged,

(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 court, as the case may be, shall find the person not guilty of that offence but

guilty of manslaughter on the ground of diminished responsibility."

5. Mental disorder is treated thus: “"mental disorder" includes mental illness, mental

disability, dementia or any disease of the mind but does not include intoxication” (emphasis

added).

Factual background and the evidence at the trial

6. The appellant was married to the deceased, Catherine Ward, for 23 years and had been

abusive and violent towards his wife during the marriage. He also had a long history of

alcohol abuse. Mrs. Ward had left with the children on a number of occasions during the

marriage. In 2017 the appellant had a stroke which left him with certain impairments

including of his ability to communicate.

7. On the 1st March 2019, the appellant fatally stabbed his wife upstairs in their family

home. On the night in question, she was heard by her sons screaming after she ran up the

stairs followed by the appellant. One of their sons saw the appellant standing over the body

in the immediate aftermath of what had happened, holding a knife. The appellant then

attempted to slash and lunge at one of his sons with the knife and made threats to kill him.

8. He told gardaí at the scene that his wife had hit him and that he “grabbed my knife

and I said to her if she did it again, I’d hit her with it.” He then said that he was sorry that

3 he had stabbed her, that he hoped she was not dead and that he did not “mean” to do it.

Admissions were also made at subsequent formal garda interview. During interview the

appellant also said “That’s not me” or “it’s not me” with regard to his stabbing and killing

of his wife.

9. At the trial, the appellant accepted that he had stabbed his wife and relied primarily on

the defence of diminished responsibility. It was argued in the alternative that he may not

have formed the requisite intent to be guilty of murder due to intoxication. There was limited

evidence of intoxication. The experts (as we shall see) agreed that the effect of intoxication

upon the appellant would have been greater than upon someone who did not have his

acquired brain injury. They were also agreed that the appellant suffered from a mental

disorder. The important subject of disagreement between the experts was whether the mental

disorder or the intoxication were operating on his mind at the time of the stabbing.

10. A neighbour with whom the appellant and the deceased got on well gave evidence that

on the 16th January 2019, the appellant told her he was distressed and at one point said to

her “You lovely woman but brain telling me to stab you”. On the same date, according to the

medical notes as reported by Dr. O’Connell, he had been taken by ambulance to A&E and

said he wanted to hurt himself and made stabbing motions to his own chest; and expressed

a fear of hurting others namely his wife and three sons.

The first issue: Expert Evidence and the “ultimate issue”

11. We will deal in the first instance with the issue which featured most prominently

during the appeal. This arises from Ground 6 of the Notice of Appeal, which says:

“The learned Trial Judge erred in law in allowing the prosecution to adduce the

opinion evidence of Dr. Smith on the ultimate issue for determination by the jury as

4 to whether diminished responsibility should reduce the crime from murder to

manslaughter.”

The issue as it was dealt with at the trial

12. During the trial, before expert evidence was adduced in front of the jury, legal

argument took place as to whether certain passages in the report of Dr. Smith, the

prosecution expert, could be given in evidence before the jury. The passages in question

were:

“16.5.8 Based on the evidence available to me, it is my opinion that Mr Ward was

suffering from a non-traumatic acquired brain injury at the time of the offence

charged, however in my view his actions at the material time were better explained by

acute intoxication with alcohol and hypnotic medication.

16.5.9 I base this opinion on evidence that Mr Ward had been physically violent

towards his deceased wife preceding his acquired brain injury during arguments while

intoxicated with alcohol and “tablets” (29th September 2002).

16.5.10 Additionally, I note from the Statement of Evidence to be given by his son Mr

Daniel Ward that he reported overhearing his parents argue immediately before the

alleged offending. This account was corroborated in the Statement of Evidence to be

given by Garda Elaine Maher.

16.5.11 I further note Statements of Evidence to be given by Garda Kerry Harman and

Garda Garrett Boyle, which reported that at the time of his arrest for the alleged index

offence, while outside his home, Mr Ward said he had a “row” with the deceased,

became angry after she assaulted him and threatened her with a knife before stabbing

her.

5 16.5.12 […] I was not satisfied however that the abnormality of mental functioning

caused by his acquired brain injury was sufficient to substantially impair his

responsibility at the material time, had he not been intoxicated with alcohol and

hypnotic medications.”

13. Counsel for the appellant submitted that Dr. Smith was purporting to offer opinion

evidence on the ultimate issue in the case when he said that the responsibility of the appellant

was not diminished by the mental disorder but was better explained by intoxication. It was

submitted that his was a matter for the jury to determine since it was necessary to balance

all the evidence and circumstances, including factors which were not within the

psychiatrist’s sphere of expertise, such as, for example, the history of violence in their

relationship. It was submitted that an important factor for consideration in this context was

the fact that the defence expert Dr. O’Connell did not offer an opinion on the ultimate issue

in his report. The application was opposed by the prosecution.

14. In his ruling, the trial judge noted that the issue fell to be decided by reference to the

words of the statute. He noted that Section 1 of the Criminal Law (Insanity) Act 2006

expressly provides that the term “mental disorder” does not include “intoxication” and said

that intoxication was an “obvious feature of the evidence” which would have to be

considered by the jury. Given that the jury would be required to consider whether the

appellant was subject to a mental disorder (from which intoxication was excluded), it was

“an entirely appropriate process that an expert qualified to opine on whether a person has a

mental disorder as defined by the Act should necessarily also be able to offer an expert view

on the applicability or the non-applicability of a specific statutory component of the concept

of mental disorder as defined by the Act”. He said that where there was a conflict of expert

evidence, such evidence was offered for the assistance of the jury in discharging their task

6 as ultimate fact finders, and they might well disagree with the prosecution expert’s opinion.

He said that it was equally open to the defence expert to offer his views on the interaction

between mental disorder and intoxication. He said that he believed the jury would be “rightly

surprised” if at the end of the case they did not have the assistance of both experts in the

case on all ingredients of the statutory definition of mental disorder and were left without

any expert opinion to guide them on the interaction and the distinctions specifically drawn

by the statutory provision in question. He concluded by saying that his reasoning was based

on the wording of the legislative provisions but noted that it appeared to be somewhat at

least in line with the “persuasive” observations of the Court of Appeal of England and Wales

in Regina v. Brennan [2015] 1 WLR 2060.

15. When he came to give evidence before the jury, the prosecution expert Dr. Smith

accepted that the appellant had a mental disorder at the time but went on to add that in his

view, intoxication was the “better” explanation for what had happened. He gave evidence

as follows:

“So, based on the evidence available to me, it is my opinion that Mr Ward was

suffering from an non-traumatic acquired brain injury caused by a stroke in January

2017 at the time of the offence charged. However, in my view, his actions at the

material time were better explained by acute intoxication with alcohol and hypnotic

medication or sleep medication. I based this opinion on evidence that Mr Ward had

been physically violent towards his deceased wife preceding the onset of the acquired

brain injury, during arguments while intoxicated with alcohol and tablets, namely on

the 29th of September 2002 when he was charged with assault causing harm. […] I

was not satisfied however that the abnormality of mental functioning caused by his

acquired brain injury was sufficient to substantially impair his responsibility at the

7 material time, had he not been intoxicated with alcohol and sleep medication. I

acknowledge however that the extent to which Mr Ward's responsibility may have been

substantially impaired or diminished at the material time, is a matter for the jury or

Court.”

16. Dr. O’Connell, the defence expert, said the appellant was labouring under a mental

disorder caused by a stroke, the consequences of this included extreme frustration arising

from receptive and expressive dysphasia, and also thought that this mental disorder was

likely to be combined with PTSD arising from childhood trauma. However, both of these

factors were complicated by alcohol misuse. Initially, he declined to go any further:

“Q: But obviously you're aware that Dr Smith's report actually offers an opinion on

the ultimate issue for consideration by the jury as to whether or not the mental disorder

substantially diminishes responsibility at the material time, and are you offering an

opinion on that ultimate issue yourself?

A: My difficulty in doing so is that I'm conscious that this is the ultimate issue.

It is the matter for which we have a jury empanelled to consider, and for me to say

what I think can be -- open to me to criticism for usurping the authority of the Court.

Although I may be given permission to do so, this is the area that I find quite difficult.

On the other hand, I do appreciate that this is an incredibly complicated exercise in

trying to balance out various strands of evidence. How much weight to place on the

different elements, alcohol intoxication, use of drugs like Zimovane, and the mental

disorder. There is objective compelling evidence that all of these factors were present

at the material time. The intoxication element is expressly excluded in the mental

disorder act, but the brain injury is permitted. It is a mental disorder, and we both

agree that it was present at the time. And I have reviewed the evidence and presented

8 my evidence in chief, citing evidence of Mr Ward's presentations to a number of

different settings, a number of doctors since the stroke, exhibiting features that I think

are consistent with his having a mental disorder. It then becomes a matter for the jury

to weigh these facts up and decide how they combine at the material time in the

circumstances that led to this awful tragedy. But I have to hand that over to the jury.”

17. However, when pressed, he expressed the opinion that the mental disorder had a

substantial impact on the Appellant’s conduct in killing the deceased:

“Q. Well, you have been given permission to express an opinion, and you don't want

to any further; is that it?

A. Well, I've tried to be as clear as possible. I do think this is the task of the

jury. And it's a very --

Q. Well, we all know that it's required for the jury. The issue is you have been

offered the opportunity. You don't wish to, yes?

A. Well, I may be put in a position where I'll express a view. It's incredibly

difficult. I think that, were alcohol not a factor, these circumstances very likely would

not have arisen. Also, if Mr Ward's mental disorder was not present, it is likely these

factors would not have arisen. How much weight you put on one-- can you exclude

both and separate them out? That's not possible. Both were factors at the material

time, and, in my view, each one had a substantial role to play. That includes the mental

disorder question.” (Emphasis added)

18. During a relatively lengthy explanation of diminished responsibility and the role of

the experts, the trial judge’s charge said inter alia:

9 “…At the end of the day under cross examination, Dr O'Connell expressed the

view that it was his opinion that the mental disorder and the intoxication were

both substantially operative at the time. That's one way of looking at the case.

Dr Smith expressed it differently, he said that a more likely explanation for what

happened here is that it was down to the intoxication. So there you have a

difference in views. It's your view on these matters that counts, because members

of the jury, they both in my view stop short of the ultimate decision… You might

come to the view that absolutely, I'm satisfied probability and beyond that this

was down to the mental disorder. Well, then it's a case of diminished

responsibility. You might at the other end of the scale take the view, this had

everything to do with drink and very little to do with the mental disorder. If that's

the case, well then, it's a murder verdict, members of the jury. But there's the

middle view, and I've tried to formulate it in the question.

You have to find the attribution, if you accept Dr O'Connell's view that they're

both substantial and if that coincides with your view, and that they're both

operative at the time, well then, it's a diminished responsibility manslaughter

verdict in those circumstances, members of the jury. That's my paraphrase of

what they ultimately came down to at the end of the day.

…..

…[M]embers of the jury, the experts are there to help you and to assist you with

opinion within their field of expertise. And I referred to you earlier and I make

no apologies for saying it again, opinions are irrelevant for most witnesses, …

ordinary witnesses aren't allowed, you decide what things mean, ordinary

witnesses can't give their opinion on what other people say. But experts can and

10 the reason why an expert is allowed to give expert opinion is because the field of

psychiatry is beyond your ken and I presume and mine… you're not there to

rubber stamp what an expert says, they're there to assist you in making your

decisions, the decisions you have to make. They are not there to usurp your

function and to make the decision for you. And in fairness to both of them, they

made that perfectly clear, it's your decision and when they go on beyond, and

because in my view allowed to give opinion on intoxication and mental disorder

and the effects there of, because it's all there in the Act. This is their area of

expertise, and they gave to a greater or lesser extent, they gave the opinions that

they wanted to give. But those opinions don't bind you and they told you,

members of the jury. They are there to assist you in coming to your view of what

the correct decision and outcome on this evidence should be, members of the

jury…” (Emphasis added)

The appellant’s submissions on this issue

19. The appellant acknowledges that, in essence, the trial judge told the jury that the

experts had disagreed on whether diminished responsibility applied and that the matter was

for the jury to decide. However he submits that allowing the experts to express a view on

whether the appellant fell within the statutory parameters of the defence of diminished

responsibility was wholly erroneous and infringed the ‘ultimate issue rule’.

20. He refers to People (DPP) v. Kehoe [1992] ILRM 481 where it was said (p.485):-

“The court is of the opinion that the accused's defence was properly to be considered

by the jury without such elaboration and that, further, in the course of his evidence it

11 is clear that Dr Behan overstepped the mark in saying that he believed the accused

did not have an intention to kill and that the accused was telling the truth. These are

clearly matters four-square within the jury's function and a witness no more than the

trial judge or anyone else is not entitled to trespass on what is the jury's function.”

(emphasis added)

21. The Appellant refers to McGrath, Evidence (3rd edn.; Round Hall, 2020), including

para 6-55 where it is stated:

“The Court of Appeal confirmed the continuing application of the ultimate issue rule

in People (DPP) v Ramzan, where it upheld the decision of the trial judge to exclude

the evidence of a psychologist in relation to the capacity of an accused to make

reasoned decisions at various times by reason of head injuries he had sustained in a

road traffic accident. The trial judge was not persuaded that the medical expert had

any relevant evidence to give, in circumstances where the appellant had described his

own injuries, treatment and sequelae and the expert had not been involved in the

treatment of the accused and, in any event, considered that the opinions he was

prepared to offer offended the ultimate issue rule and were liable, if stated before the

jury, to trespass on the jury’s function. This ruling was upheld as correct.”

22. He also refers to The People (DPP) v AC [2022] 2 I.R. 49:-

“Opinion evidence has been analysed as dangerous in the exposition of a witness since

it may undermine the duty of the court to reach its own conclusion of fact. The danger

arises in the usurpation of the role of fact finding where a witness opines on the

ultimate issue and this may be why strictures against opinion evidence developed;

Landon (1944) 60 LQR 201. An expert may come close to or cross over the line of the

12 ultimate issue. In psychiatrically defending a killer, for instance, it is impossible, as it

may be in other cases, not to give an opinion that because of a mental disorder the

accused did not know the nature and quality of a homicidal act; the very issue for the

jury. The law has always treated the approach to this with sense. Expert assistance

may be needed to inform a court or jury as to the proper approach to the ultimate

issue, provided an expert is not made into the 13th juror; The People (DPP) v Kehoe

[1992] ILRM 481. Opinion and fact are difficult to sort out from each other as defined

categories.”

23. He refers to the Supreme Court decision in O'Leary v Mercy University Hospital Cork

[2019] IESC 48, to the effect that the fundamental principle is that while expert evidence

may be adduced to assist the court, it is ultimately the trier of fact who must make the

decision (para. 17):

“In Flynn v. Bus Atha Cliath, Charleton J. in the High Court drew attention to the fact

that the entitlement of an expert to express an opinion was predicated upon informing

the court of the factors which made up that opinion, and supplying the court with the

elements of knowledge which study and experience had furnished, and which formed

the basis of the opinion, so that, in the circumstances, the court may be enabled to take

a different view to theirs. As Charleton J commented, experts are privileged by being

able to express a view relevant to the issue before the court because of the unusual

nature of their status and enables them to express a view; sometimes, but not in every

case, on and matters relevant to those upon which the case may turn. In short the role

of such witnesses can be of great importance in assisting a court determine the

outcome of any case; the more important the role the higher the duty of independence.

13 Ultimately the judge, and the judge alone, must make the decision.” [Emphasis added

by the appellant.]

24. He accepts that in Karen Millen Fashions Ltd v Dunnes Stores [2014] 1 I.R 10, the

following pragmatic reasons for abandoning the ultimate issue rule were identified by

O'Donnell J, at para. 23:

“For my own part, I can see how it is at least convenient to permit experts to give

evidence in general as to their conclusions, so long as it is very clearly understood

that what is important are the reasons leading the expert to that conclusion rather

than the fact of the conclusion itself. Anything else is somewhat artificial. It is a matter

of near certainty that the only expert witnesses called by either side will have formed

an opinion favourable to that side and their evidence can often be best understood

when both the reasons and conclusions are stated so long as it is understood and

appreciated that the reasons leading an expert to a particular conclusion are the

important matters for the court to consider.”

25. He points out that in that case, the expert witnesses were called to give assessments of

patterns on garments and the trial judge refused to allow evidence on the ultimate issue. The

Supreme Court upheld that refusal, and reaffirmed that a trial court was entitled to refuse to

receive evidence on the ultimate issue. The appellant submits that likewise here such an

opinion clearly was not necessary because the jury was given the factual background, they

were offered assistance from the experts on their proper area of expertise, and the relevant

matters for consideration from an expert point of view were highlighted to them. This was

enough, as in Karen Millen, to permit them, as triers of fact, to come to a conclusion.

Ultimately, the prosecution expert should not have been permitted to go further, because the

14 jury was given all of the requisite tools to determine the ultimate issue, in accordance with

its unique role.

26. He refers to People (DPP) v Abdi [2005] 1 I.L.R.M. 382, where Hardiman J. said at

p. 393, that:

“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.”

The prosecution submissions on the issue

27. The prosecution submits that the jury has to decide as a matter of fact if the accused

was suffering from a mental disability, which excludes alcohol, and if the expert was to

merely give an opinion that he did suffer from a mental disorder and did not qualify his view

with reference to the issue of intoxication, the jury would be left with a ‘loose end”. This

was not a trespass on the jury function because it was still a matter for the jury to decide

whether they accepted the expert’s view. They were told, on many occasions during the trial,

that matters of fact were exclusively within their province.

28. The appellant refers to Brennan where it was said, with reference to the phrase

“substantial impairment” in the equivalent English legislation:

" That does, we accept, involved a degree of evaluation potentially indicative of being

a jury question, what the phrase actually connotes has recently been the subject of

further discussion in Golds. But overall, by provision of section 2, as amended, we

15 are altogether significantly more structured than the former provisions, in particular

by reference to substantial impairment of mental responsibility as contained in the

original version of section 2 of the 1957 Act. As we see it, most if not all aspects of

the new provisions relate entirely to psychiatric matters. In our view, it is both

legitimate and helpful, given the structure of the new provisions, for an expert

psychiatrist to include in his or her evidence a view on all four stages, including a

view as to whether there was a substantial impairment. As Professor Ormerod

explains in his paper: 'Since the question of whether there is an impairment is a purely

psychiatric question, it would also seem appropriate for the expert to offer an opinion

on whether there is a substantial impairment.' We agree. Moreover, where the expert

is able to and does express a view on all four matters, we can see no legal or other

objection to such expert, if willing and prepared to do so, as here, making explicit in

evidence his or her opinion on what is called the ultimate issue, the more so when such

view will, in any event, probably have been implicit from his or her stated opinion on

the four matters. It is difficult to see how the expression by an expert of any such view

in a given case could contravene any principle of deference to the jury as the ultimate

decision makers." (Emphasis added by the Director)

29. The prosecution contends that it is difficult to understand how there was an unfairness

when the defence expert was also permitted to give his opinion on the same issue and to

comment specifically on the opinion of Dr. Smith.

Discussion and Conclusion on this issue

30. We are satisfied that allowing the experts to express the opinions they did in front of

the jury was permissible and appropriate. The defence of diminished responsibility involves

a number of ingredients: (i) the accused person must have been suffering from a mental

16 disorder (which does not include intoxication) at the time of the act (ii) the mental disorder

must be such as to “diminish substantially” the accused person’s responsibility for the act.

This requires a jury to consider the interaction between intoxication and mental disorder in

a case where there is evidence of both. We agree with the prosecution that if the expert had

merely opined as to the presence of a mental disorder without going on to offer a view on

the interaction between that mental disorder and the intoxication of which there was

evidence, this opinion would have been incomplete and, to use the language of O’Donnell J

(as he then was) in Karen Millen, “artificial”. Importantly: (i) the reasons for the conclusion

were set out; (ii) it was made clear by both the expert himself and the trial judge that it was

ultimately a matter for the jury; (iii) the defence expert was also allowed to express his

opinion, and it was a contrary opinion.

31. This is not at all akin to the situation in Kehoe where, it will be recalled, the expert

had expressed the view that he believed the accused did not have an intention to kill and that

he was telling the truth; matters which fall outside an expert’s area of expertise and upon

which the jury do not require assistance.

32. In Ramzan, a case involving drugs-related charges, the appellant’s counsel originally

planned to run an insanity defence but this was abandoned during the trial. The opinions of

a Dr. Pender, a neuro-psychologist, which it was sought to be adduced in evidence were as

follows:

“I suspect it would be very difficult for Mr Ramzan to resist any significant

pressure and to problem-solve his way out of a complex situation."

and -

17 "In my opinion, despite the fact that he understood the gravity of the situation,

he would have had great difficulty inhibiting his behaviours and putting into

place an alternative course of action. In my opinion, his serious brain injury

compromised his ability to make reasoned decisions and act appropriately,

especially in difficult or challenging circumstances

33. In a context where the insanity defence had been abandoned, the Court (judgment

delivered by Edwards J) was not persuaded that this evidence was in any way relevant:

“The trial judge engaged directly with the issue of potential relevance and was not

persuaded that Dr. Pender had in fact any relevant evidence to give, in circumstances

where the appellant had described his own injuries, treatment and sequelae, in

circumstances where Dr. Pender had not been involved in the appellant’s treatment, and

in circumstances where the opinions he was prepared to offer purportedly within the

scope of his expertise as a neuro-psychologist potentially offended the ultimate issue

rule and were liable, if stated before the jury, to trespass on the jury’s function. We find

no error in the trial judge’s approach in that regard, and we uphold his ruling on this

occasion as having been correct.”

The crucial point of distinction is that no defence of insanity or diminished responsibility

was before the jury in the Ramzan case, and the remarks of the Court have to be read in that

context. The situation was not at all on all fours with the present case, where the experts

were dealing with the individual ingredients of the statutory defence which was in issue.

34. Indeed, the present situation is much closer to the situation with regard to the insanity

defence where, as was pointed out in the A.C. case, “In psychiatrically defending a killer…

it is impossible, as it may be in other cases, not to give an opinion that because of a mental

disorder the accused did not know the nature and quality of a homicidal act; the very issue 18 for the jury.” Invariably in cases of insanity, the expert evidence will address the various

limbs of the insanity defence and will offer an opinion as to whether the accused person falls

within the definition of insanity. What is important is that they offer their reasons and that

the jury are clearly instructed that it is for them to decide the issue, which may involve

choosing between expert opinions. Indeed, it has been known for juries to come to a different

conclusion than the experts even where the experts are in agreement with each other.

35. In this case, both experts were extremely careful to emphasise that the question of

substantial diminution of responsibility was a matter for the jury, and the trial judge did so

likewise. Having regard to the statutory definition of the defence together with those two

circumstances, we are satisfied that the trial judge did not fall into any error in the manner

in which he dealt with the issue.

The second issue: Childhood trauma and the prosecution closing speech

36. This issue arises out of Ground of Appeal no. 7 which says:

“The trial was unsatisfactory and the verdicts are unsafe having regard to certain

comments made by prosecution counsel in the closing speech on which the

learned Trial Judge refused to give any direction to the jury. The said comments

included in particular, those to the effect that the Appellant’s claims that he had

been exposed to violence in his childhood were not credible in circumstances

where there was no evidence to support such comments; and where the

prosecution was in possession of a statement/affidavit of the Appellant’s brother

which corroborated such claims.”

37. The reference to an affidavit in the possession of the prosecution refers to an affidavit

purporting to appear to have been sworn by the appellant's brother which had been sent by

19 the appellant's solicitor to the experts without notice to the prosecution and which was not

disclosed to the prosecution until late in the trial. The deponent was not called as a witness

nor (of course) was the affidavit put before the jury. The affidavit referred to violence during

the appellant’s childhood.

38. Each of the experts said they were not in a position to make a diagnosis of post-

traumatic stress disorder (PTSD) and Dr. Smith referred to the absence of “collateral”

support for what the appellant had said concerning violence in the home. During the

extensive and meticulous examination and cross-examination of each of the two experts, the

issue of exposure to violence during childhood and consequent trauma (whether formally

diagnosed as PTSD or not) was canvassed at some length before the jury.

39. During his closing speech, prosecution counsel said the appellant had not been

diagnosed with post-traumatic stress disorder by either of the doctors. There were various

other references to the issue, including a reference to the fact that the appellant had not

mentioned any such violence in his first interview with Dr. O’Connell, and that “the tale

grew in the telling” over subsequent interviews with him. Counsel questioned “the extent to

which there is reliability in this account”. He said it was “self-reported” and that there was

no corroboration.

40. Defence counsel in his closing speech pointed out that the prosecution psychiatrist, or

indeed, the gardaí, could have made enquiries and sought documentation in relation to this

issue but did not appear to have done so.

41. Before the trial judge charged the jury, counsel for the appellant complained to the

judge that the prosecution had suggested to the jury that there was an issue as to the

credibility of the appellant’s account, whereas the prosecution had an affidavit from the

20 brother which corroborated the appellant’s account. The trial judge said that the prosecution

were entitled to make their case and he was not involving himself in this matter.

42. In his charge to the jury, the only reference to the issue appears to have been when he

said: “…you recall that there seemed to be a difference of opinion as to whether, or not,

there was this question of post traumatic stress disorder arising from childhood events in the

case” but that the “bottom line” was that both agreed that the appellant had a mental disorder.

43. The appellant complains that the trial judge gave no direction to the jury on the issue,

which would have mitigated the impact of prosecution counsel’s comments and that at a

minimum the judge should have told the jury that it was open to the prosecution to procure

and adduce evidence relevant to this matter and that they did not do so.

44. The DPP submits that it was perfectly appropriate for the prosecution to draw attention

to the self-reported nature of the information, the lack of any independent evidence, and the

manner in which the recounting developed during the various consultations. It was a matter

for the jury, as they were repeatedly instructed, to decide factual matters for themselves.

What the prosecution counsel said was merely a correct statement of the position on the

evidence. The appellant’s counsel then had an opportunity to address the jury on how he

thought the jury should address the evidence and he did so. He set out what investigative

steps could have been taken, but were not. It was a matter for the jury thereafter as to what

they made of the evidence.

45. The Court is not persuaded by the appellant’s argument on this ground of appeal. It is

simply a fact that there was no direct testimony before the jury about what the appellant may

have endured by way of violence when he was a child and that is, in effect, all that the

prosecution counsel said, albeit in robust language. Defence counsel had the opportunity to

reply to this in a closing speech just as he had in relation to other aspects of the evidence.

21 His point, that the prosecution could have investigated the matter further and did not do so,

might also be seen in the context that this was a matter upon which, for whatever reason, he

chose not to call any evidence and in a context where the affidavit of the brother was

apparently furnished to the prosecution at a late stage of a trial (although, to be fair, reference

to the childhood violence had featured indirectly in the expert reports).

46. Insofar as observing that the prosecution could but did not investigate it further was

a point worth making at all, it was indeed made by defence counsel to the jury, but we do

not consider it to be of such significance that it necessitated the trial judge drawing attention

to it. We are satisfied that the trial judge did not err in declining to do so and that there was

no procedural unfairness in connection with this issue and this ground of appeal fails.

The third issue: The trial judge’s charge on intoxication and intent

47. This issue arises out of Ground 8 of the Grounds of Appeal which says:

“The learned Trial Judge erred in refusing to recharge the jury in the context of intent

and intoxication, as to the agreement between the psychiatrists called by the defence

and prosecution, Dr. Smith and Dr. O’Connell that having regard to the brain injury

of the Appellant and other factors such as emotional dysregulation, the effects of

alcohol would be expected to be more pronounced on the Appellant than on other

persons not affected by such factors. Having regard to the manner in which the learned

Trial Judge had charged the jury on intent and intoxication, in particular by focusing

on the phrase “it’s not me”, the trial was unsatisfactory and the verdicts are unsafe.”

48. Both experts were in agreement that in light of the appellant’s history of a non-

traumatic acquired brain injury, he would have been affected more by intoxication than

22 someone without his brain injury, leading to an impaired ability to manage his emotions and

regulate his behaviour.

49. After the closing speeches, the trial judge invited submissions from counsel as to the

appropriate direction to the jury on the issue of intent and intoxication in the context of the

defence's contention as to the implications of the appellant saying to gardaí "That's not me".

Although it was made clear that intoxication was a secondary issue after the primary issue

of diminished responsibility, defence counsel asked the judge to direct the jury that the

expert evidence was that the effects of alcohol intoxication would be greater on the appellant

than on persons without the mental disorder.

50. The trial judge noted that the appellant had been unfit to be questioned on arrest due

to intoxication, and dealt with the legal issue of intoxication as follows:-

“There are of course other elements that [counsel for the defence] referred to that you

have to take into account. You are entitled, and must take into account Mr Ward, the

person that he was. He was intoxicated, members of the jury, intoxication, voluntarily

self-administered intoxication is not a defence in itself, members of the jury. Well, I

should say something about that. If there's a free standing situation of Mr Ward not

being in control of himself, if that situation came about through the voluntary

consumption of alcohol or other drugs, you have to look at the place of intoxication in

the criminal law. And by voluntary consumption of alcohol, I mean taking a drink,

when one chooses to take it and had a free choice of taking it or not. And this may be

contrasted with, for example, where somebody spikes your drink and you know, you're

not in control for that reason.

So the situation about drink is that intoxication is not a defence in the criminal law. It

is incapable of amounting to a defence, but it is material to the question of intent,

23 members of the jury. Intoxication could prevent the accused having the intent that is

necessary to sustain the crime of murder. So you have to look at the level of

intoxication, how the effect of the intoxication was and what the evidence is in relation

to that, members of the jury. And if it was so extreme that the person didn't have the

intent at the time they did the act, well then, you'd be dealing with returning a

manslaughter verdict, members of the jury”. (emphasis added)

51. In requisition, defence counsel requested the trial judge to draw attention to the fact

that the experts had agreed that the effects of alcohol were likely to be greater on him than

on persons without brain damage. The prosecution opposed this on the basis that it merely

sought to draw attention to a piece of evidence that was arguably favourable to the appellant,

and that if such a requisition was allowed, the prosecution ought to be afforded a similar

benefit. In other words, the prosecution submitted that the appellant was attempting to

"cherry pick" aspects of the expert evidence, and that highlighting certain portions in such a

manner would be "problematic".

52. The trial judge refused the requisition, stating that he did not wish to pick and choose

what aspects of the evidence to highlight, and furthermore, that the charge had dealt

sufficiently with the issue of intention and intoxication. He added:

“I specifically asked what the context and parameters of the intoxication/intention

issue were yesterday. And now I appear to be am (sic) being told after the fact that

it's something quite different and I am not going back there.”

53. The appellant complains that this was incorrect because the requisition was precisely

in accordance with what the defence had sought the previous day.

24 54. The appellant submits that although intoxication was a secondary issue, it was still an

extremely important matter on which the jury should have been appropriately directed, and

refers to People (DPP) v Eadon [2021] 1 I.R. 417 in this regard. He submits that the defence

had taken a risk in addressing the issue at all since the reference to alcohol intoxication

inevitably tended to undermine the defence of diminished responsibility. On the evidence,

the level of intoxication was not such as would ordinarily negative intent, and therefore it

was absolutely essential that the trial judge remind the jury of the expert evidence that the

effects of intoxication could have been amplified in the appellant’s case because of his brain

injury. In a complex case involving a cross-over of the issues of diminished responsibility

and intoxication, it was of the utmost importance that the trial judge specifically instruct the

jury as to a matter on which both experts agreed.

55. The appellant refers to The People (DPP) v PB [2022] IECA 111, a recent case in

which the conviction was set aside on the grounds that the trial judge had refused to direct

the jury as to particular evidence relevant to the crucial issue in the case, whether the

appellant in that case was awake or asleep when the physical act took place.

56. The DPP submits that the jury were correctly charged on the effect of intoxication on

intent and the consequences of a finding that he was so intoxicated that he could not form

intent which was in line with the correct principles set out in Eadon. It is also pointed out

that the trial judge referred not only to the level of intoxication but also the effect of it.

57. In the first instance, the appellant does not contend that the trial judge’s legal direction

on intoxication was in any way incorrect (unlike the situation in Eadon). Rather, the

complaint concerns the trial judge’s failure to mention a piece of evidence which was

arguably favourable to the appellant.

25 58. Secondly, this case is entirely distinguishable from P.B. where it was absolutely

central to the defence case whether or not the appellant was awake or asleep at the time of

the alleged acts, and the trial judge did not refer to this at all in charging the jury.

(Incidentally it may be noted that the accused in that case was convicted following a retrial,

and was unsuccessful in his second appeal to this Court: see judgment delivered by the

President dated the 13th day of November 2023). Here the possibility of intoxication

negativing intention had at all times been put forward by the defence as a secondary issue in

circumstances where diminished responsibility was the main defence.

59. It may have been preferable if the trial judge had mentioned this piece of evidence

which was favourable to the appellant, but the question is not whether this was preferable

but rather whether the trial was unfair by reason of the fact that he did not. Trial judges have

a range of discretion in terms of how much they wish to address the specifics of the evidence

when charging the jury. Bearing this in mind, and taking into account the whole “run” of the

case, we are not satisfied the trial was unfair by reason of this not having been mentioned

by the trial judge to the jury. Defence counsel referred to it in his closing speech. The primary

role of the trial judge is to ensure that the jury are properly instructed as to the law on relevant

matters and that role was impeccably fulfilled by the trial judge.

60. We therefore dismiss this ground of appeal also.

The fourth issue: The cross-examination of Detective Garda Eustace and the “it’s not

me” comment

61. This arises from Ground of Appeal No. 4 which says:

“The learned Trial Judge erred in restraining defence counsel in the cross-examination

of D/Garda Bernard Eustace as to his impression of what was said by the Appellant,

26 in circumstances where it was contended that the prosecution had adduced such

evidence, and in particular in preventing cross-examination as to the proposition that

in using phrases such as “it’s not me”, the Appellant had communicated to the Garda

that although he had physically carried out the actions that caused the death, he did

not do the killing in the sense that the actions were not his conscious or intentional

acts.”

62. During the cross-examination of Detective Garda Eustace by counsel for the appellant,

defence counsel sought to put to the witness that when the appellant had in garda interview

said things such as “it’s not me”, he was not denying the actions he had engaged in but

instead was denying that he “meant” those actions (which we take to mean a rough

approximation of denying that he intended them). The prosecution objected on the basis that

the witness’ view as to what the appellant intended to convey was not admissible. Defence

counsel argued that the line of questioning was simply an attempt to establish that the

appellant never positively asserted in interview that he did not do the actions in question,

and that as Detective Garda Eustace was present during the interview, it was appropriate to

question him as to his impression, taking the interview as a whole, of what the appellant

meant by saying what he said.

63. The trial judge rejected this argument, ruling that Detective Garda Eustace could not

give evidence of what he understood the appellant to mean; rather, it was a matter for the

jury itself to draw conclusions from what the appellant said in interview.

64. The appellant submits that cross-examination permits the use of leading questions and

that it can be far-ranging and robust and has cited various authorities for this proposition.

He submits that as Detective Garda Eustace was present for the interview of the appellant,

he ought to have been permitted to and, indeed, was well placed, to comment on what his

27 impression of what the appellant had stated was, particularly as he was dealing with an

individual who had extreme language/ communication difficulties and the communication

between them was extremely unusual and difficult.

65. The prosecution submits simply that the witness was being asked to interpret the

answers given by the appellant and that the trial judge correctly ruled that it was for the jury

to draw their conclusions from what he had said.

66. We have no hesitation in rejecting this ground of appeal. The witness was indeed being

asked to interpret the appellant’s answers and any answer by him would have been

inadmissible evidence. The fact that cross-examination can be wide-ranging, robust, and

involve the use of leading questions has nothing to do with the prohibition on inadmissible

evidence which still applies during cross-examination. It is not in dispute that cross-

examination may be robust and wide-ranging but there are parameters, relevance and

admissibility being the primary ones. We reject this ground of appeal.

The fifth issue: refusal of the prosecution to call two witnesses not on the Book of

Evidence

67. This arises from Ground of Appeal No. 3 which says:

“The learned Trial Judge erred in refusing to call to give evidence two witnesses, Joe

Flynn and Kathleen Flynn, who were neighbours of the Deceased and the Appellant,

in circumstances where the prosecution had refused to do so on the grounds that while

the Gardaí had interviewed them, their statements had not been included in the Book

of Evidence.”

68. The statement of evidence of Mr. Flynn was to the effect that he considered the

appellant and his wife to be “ideal neighbours” and that he had often seen the pair walking

28 down the road hand in hand. He said they had never been in each other’s houses but might

have a chat if they were out in the garden. Mrs. Flynn made a statement saying the couple

were always friendly to everyone. Each of them made reference to noise or commotion on

the night in question but that they thought nothing of it. Neither of the witnesses were on the

Book of Evidence.

69. During the trial, counsel for the appellants submitted that the two witnesses in question

(neighbours of the appellants) ought to have been called by the prosecution or that the court

itself should call them. He submitted that in the interests of justice, it should not be for the

defence to call these witnesses, as they would then be deprived of the ability to cross-

examine the witnesses.

70. Prosecution counsel submitted in response that the potential evidence of the two

witnesses in question was not relevant, and that it was a matter for the appellant if he wished

to call them to give evidence.

71. The trial judge ruled against the appellant, saying that the prosecution was entitled to

call whatever witnesses it saw fit, and that, in any event, the appellant himself was entitled

to call the witnesses to conduct examination-in-chief. If the witnesses proved hostile, there

would be scope for him to make relevant applications to cross-examine them. He was also

of the view that he was not required to exercise his discretion to call the witnesses of his

own motion in order to ensure a fair trial. He considered that the witnesses had “scant

relevance” given the extent of their knowledge of the appellant and his wife, which was “on

the basis of seeing people going up and down the road and living next door”. He pointed out

that one can have a limited view of one’s neighbours when one does not spend time in their

houses and does not know “what goes on behind closed doors”.

29 72. The appellant refers to R v Oliva [1965] 1 W.L.R. 1028, concerning the scope of the

prosecution discretion in calling witnesses whose names are “on the back of the indictment”

(the English equivalent of being on the Book of Evidence), discussed in People (DPP) v

Lacy [2005] 2 I.R. 241, and People (DPP) v DO [2006] 3 I.R. 57 and DPP v. Almasi [2020]

3 I.R. 85.

73. The appellant contends that the evidence was relevant in circumstances where the

prosecution was offering evidence of a negative relationship between the deceased and the

appellant. He submits that evidence as to the relationship between them and their conduct

and interactions around the family home was of significance, and it was relevant to put

evidence of a positive relationship also before the jury.

74. He submits further that in circumstances where the prosecution was refusing to

exercise its discretion to call the witnesses, the trial judge was obliged to intervene and

require the prosecution to exercise its discretion to call the witnesses, or indeed, to call the

witnesses of his own motion, although he acknowledges that this is a jurisdiction which

should be exercised sparingly (citing State (O'Connor) v Larkin [1968] I.R. 255, and

Maguire v O’Dea [1994] 1 I.L.R.M. 540, at p. 545). He submits that such an application

could have been supported by the prosecution if it was not minded to call the witness itself,

citing People (DPP) v McHugh [2018] IECA 92 where there was agreement between both

sides that it would be best if the trial judge called the witness (in circumstances where the

prosecution did not wish to call the witness as it did not accept that her account was full and

truthful). He also cites DPP v Quirke (No. 1) [2023] IESC 5 at para. 24.

75. The appellant contends that the two individuals had indicated to the appellant that they

were unavailable and unwilling to give evidence at trial and he was “effectively deprived of

the benefit of their evidence”.

30 76. The prosecution submits that the witnesses had no relevance in circumstances where

their knowledge was limited to seeing the appellant and his wife on the street or in the

garden. They submit that the factual position was entirely different in McHugh where the

prosecution had accepted that the individual in question would have been “an essential

witness” from the defence perspective.

77. The prosecution accepts that exceptionally a trial judge can exercise a discretion to

call a witness but stands over the trial judge’s ruling when he said that the discretion had to

be exercised for a reason and that he was reluctant to be seen to “enter the fray” by calling

the witnesses, who had made “mundane, banal type observations” to the garda; and when he

said that it was not apparent why they would need to be cross-examined and the ordinary

assumption would be that, having given statements freely to the gardaí, they would attend

court and give evidence if served with a subpoena.

78. The DPP contends that it is not correct to contend that in the circumstances “the

appellant was effectively deprived of the benefit of their evidence”. Witness summonses had

been served and the trial judge had already indicated that he would issue bench warrants if

necessary to secure their attendance at the request of the appellant, but once the judge had

ruled on the application, the appellant never pursued the matter of their attendance. They

were not ‘deprived’ of any opportunity; they simply chose not to call them.

79. In the Court’s view, it is not necessary to set out or discuss the authorities cited. The

position is simple. The prosecution did not consider the witness to have relevant evidence

to offer. The Court agrees. It was not in dispute during the trial that the appellant had

previously been violent to his wife, that he had an alcohol abuse problem, and that he had a

brain injury. It was not in dispute that he had stabbed his wife to death. The key issues in the

case concerned his precise state of mind at the time of the killing. All that the two witnesses

31 could offer was that he and his wife seemed like content, friendly neighbours; they were

indeed, as the trial judge said, mundane, banal observations. They had never been in the

house of the appellant and his wife, and were not even friends of theirs, let alone close friends

or confidantes. Their general impressions of the appellant and his wife from the street or

garden could not possibly have amounted to evidence of such relevance that it amounted to

a breach of duty on the part of the prosecution not to call them as witnesses, nor call into

play the exceptional jurisdiction of the trial judge to call the witnesses. It is also incorrect to

say that the defence were “deprived” of their evidence in circumstances where they chose

not to pursue their attendance, apparently abandoning the issue after the trial judge had ruled

against them as described. An accused person does not have a right to cross-examine a

witness who, objectively speaking, has no relevant evidence to offer.

80. We have no hesitation in rejecting this ground of appeal.

81. In all of the circumstances, none of the grounds of appeal having been successful, we

dismiss the appeal.

32