Court of Criminal Appeal dismisses appeal regarding admissibility of psychiatric evidence in murder trial.

THE COURT OF CRIMINAL APPEAL

Kearns J.

Irvine J.

Edwards J.

[C.C.A. No. 17 of 2008]

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

ANTON MULDER

APPLICANT

JUDGMENT of the Court delivered on the 27th day of April, 2009 by Kearns J.

On 14th January, 2008 the applicant pleaded not guilty to the murder by strangulation of his wife at their family home in Dunshaughlin, County Meath on

17th December, 2004. Following a trial in the Central Criminal Court, the applicant was convicted of murder by the jury on 25th January, 2008 and received

a sentence of life imprisonment.

This was the second occasion upon which the applicant had been tried for this offence. In a previous trial in May, 2006, the applicant was also convicted of

the same offence, but that conviction was set aside by this Court because a brother of the deceased had spoken to a member of the jury outside the

courtroom. At the time of the second trial, there had been a change in the law by virtue of the enactment of the Criminal Law (Insanity) Act, 2006, which

introduced into Irish law the concept of diminished responsibility. On arraignment, however, the applicant simply pleaded “not guilty” to the offence of

murder.

Section 6 of the Criminal Law (Insanity) Act, 2006 provides as follows:-

“(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 –

(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.

(2) Subject to section 5(4), where a person is tried for the offence specified in subsection 1, it shall be for the defence to establish that the person

is, by virtue of this section, not liable to be convicted of that offence…”

As the onus of proof in respect of this issue fell on the applicant, the defence led evidence as to the mental state of the applicant from Dr. Harry Kennedy,

who first examined the applicant on 20th December, 2004, some three days after the offence. The main defence psychiatrist, however, was Dr. Conor

O’Neill who interviewed the applicant at Wheatfield Prison in a series of interviews commencing in May, 2006. The defence also sought to call another

psychiatrist, Dr. Sally Lenihan, who first assessed the applicant in August, 2007. It was frankly conceded on behalf of the applicant that the sole purpose in

calling Dr. Lenihan was to give evidence as to the mental condition of the applicant at the time of trial.

In making the application to the trial judge, Mr. Roderick O’Hanlon, senior counsel for the applicant, told the court in express terms that Doctor Lenihan

would not express an opinion as to the cause of any depression suffered by the applicant, but rather would confirm as a result of the history she obtained

that the applicant had been continued on anti-depressant medication. Mr. O’Hanlon informed the Court that the purpose of calling this evidence was to

support the evidence to be given by the two psychiatrists who he intended to call as witnesses in the case. The prosecution objected to the admission of

the evidence of Dr. Lenihan on the basis that it was irrelevant and could say nothing to the mental state of the applicant at the time of the offence. In ruling

on the application, the learned trial judge indicated that he would not admit the evidence de bene esse but would defer any final decision until a proper

basis for the introduction of such evidence had been laid by the other psychiatrists intended to be called by the applicant.

Dr. Harry Kennedy is a Consultant Forensic Psychiatrist and Clinical Director of the Central Mental Hospital. He was the first witness called by the defence

and gave evidence which was effectively confined to a recital of his notes on the case. He interviewed the applicant on 20th December, 2004 in Cloverhill

Prison and saw him on a second occasion on 6th April, 2005 at the same location. His notes recorded that at the conclusion of the first interview he

prescribed 10mg. of Olanzapine at night for the applicant. When he saw the applicant on the second occasion he was already taking both this medication

and 20 mg. of Citalopram, an anti-depressant drug. Dr. Kennedy clarified that the latter medication was an anti-psychotic drug which was taken in low

dosage and was commonly used to reduce agitation, anxiety and a range of related symptoms. Dr. Kennedy formed the view on the occasion of his second

assessment that the applicant should come off Citalopram and move onto a different anti-depressant, Mirtazapine. Dr. Kennedy confirmed in cross-

examination that the applicant was not and never had been a patient in a mental hospital. He accepted that the applicant had been referred to him by his

general practitioner because of the suicide risk which might arise by virtue of the fact that the applicant had been charged with the death of his wife. He

stated that there was a raised risk of self-harm within the first few days of being in custody. Dr. Kennedy accepted that the fact that one had been charged

with such a serious offence would in its own right put a person into a “depressed mode”.

Dr. Conor O’Neill is a Consultant Forensic Psychiatrist at the Central Mental Hospital in Dundrum. He was also called by the defence and was their main

witness. His assessment of the applicant was based on a series of interviews with the applicant at Wheatfield Prison since May, 2006. For this purpose,

Dr. O’Neill accessed the Book of Evidence, the applicant’s medical notes, and the video tapes of the garda interviews. He also spoke with the applicant’s

mother in South Africa. He accepted that there was very little in the family history of relevance and that there was no history of mental illness in the family.

He told the Court that the applicant himself had described a history of depressed mood in the two years prior to the offence, particularly over the five months

preceding the offence, when his wife had suffered a miscarriage. He described a number of biological features of depression during that period, including

loss of appetite and significant weight loss. He also described feelings of distress in the context of the deteriorating relationship with his wife. Having

examined Dr. Kennedy’s notes, Dr. O’Neill was of the view that Mr. Mulder had described symptoms which “could be” compatible with a depressive illness

prior to the alleged offence. He formed the view that the applicant was suffering from a mild to moderate (closer to moderate) depressive episode with

somatic symptoms at the time of the offence and that this condition had been present for a period of several months prior to the offence. He offered his

opinion that this condition would come under the definition of ‘mental disorder’ as described in s. 1 of the Criminal Law (Insanity) Act 2006.

In cross-examination, Dr. O’Neill contested any suggestion that the applicant was either cunning or deceitful in the course of interview with him. He

dismissed as unlikely the suggestion made by counsel for the prosecution that the applicant’s weight loss was due to the fact that the applicant’s wife had

returned to Northern Ireland and that he was not eating properly. Dr. O’Neill accepted that the applicant had been depressed since his incarceration. He

accepted that incarceration could explain depression and that “it is certainly a very difficult situation to be in prison” but nonetheless maintained that

symptoms of depression had appeared in the case of the applicant some months prior to the offence.

By way of rebuttal evidence, the prosecution led evidence from Dr. Paul O’Connell, who is also a Consultant Forensic Psychiatrist based in the Central

Mental Hospital in Dundrum. He first saw the applicant on 13th January, 2008 in a five hour interview which took place at Wheatfield Prison. He also viewed

the videos of the applicant’s interviews with the gardai and reviewed the Book of Evidence. He disagreed with Dr. O’Neill’s view that the applicant was

suffering from a mild to moderate depression at the time of the offence. Dr. O’Connell expressed the view that a person in the applicant’s position, with the

“enormity of the sentence he had received” was likely to suffer from a depressive adjustment reaction to the enormity of his situation. He did not find the

applicant’s account of historical events to be believable or consistent. In his opinion the applicant was a cunning, deceitful and manipulative person. He

accepted that the applicant’s lifestyle underwent a significant change in the month or so before the death of his wife in that he became physically much

busier caring for the various needs of his family. That in itself may have had an impact on his weight loss simply by reason of heightened physical activity. It

was put to Dr. O’Connell that a number of witnesses had described how in the months prior to the offence the applicant appeared to have changed and to

have actually become more pleasant and agreeable. Dr. O’Connell felt that such evidence was inconsistent with the diagnosis of major mental illness or

depression.

Mr. O’Hanlon’s sole grounds of appeal relate to the manner in which the application to introduce the evidence of Dr. Lenihan was dealt with by the trial

judge and to certain evidence given by Dr. O’Connell. In written submissions he contends that the applicant should have been allowed to call Dr. Lenihan to

give evidence as to the current mental condition of the applicant. He submitted that such evidence would give weight and support to the opinion given by Dr.

O’Neill as to the mental condition of the applicant at the time of the offence.

This ground of appeal may be quickly disposed of. Firstly, the learned trial judge did not rule out altogether the possibility that the evidence of Dr. Lenihan

might be given at some stage. His ruling simply was to the effect that he would not accept such evidence de bene esse until a proper foundation for the

leading of such evidence had been laid. Having adduced the evidence of Dr. Kennedy and Dr. O’Neill, the defence made no further application thereafter to

call Dr. Lenihan as a witness in the case. Quite apart from that, the Court is strongly of the view that such evidence would have been entirely irrelevant,

confined as it was to the mental state of the applicant at the time of his second trial. It could offer nothing by way of evidence to the mental state of the

applicant at the time of the offence. In this context, the Court particularly bears in mind that the applicant was in custody from the time of the offence until

the time of both his first and subsequent trial, a fact which both Dr. O’Neill and Dr. O’Connell underlined could of itself explain symptoms of depression

evident at time of trial. The Court is thus satisfied that no incorrect ruling of any nature was made on this aspect of the case.

Mr. O’Hanlon’s other complaints relate to the manner in which Dr. O’Connell gave his evidence. He correctly points out that Dr. O’Connell gave evidence

that the appellant had received a prison sentence following the first trial. He had stated “Now, I would have contact with the prisoner in a custodial setting

like this with the enormity of the sentence he had received …”

Mr. O’Hanlon claimed that this evidence was prejudicial to the applicant, that he had no advance notice of it, and that the trial judge should have withdrawn

the case from the jury for that reason. The Court does not agree. The applicant’s own psychiatrist, Dr. O’Neill, as already indicated, made reference to the

fact of the applicant’s incarceration prior to the second trial. Any meaningful evaluation of the applicant’s mental condition could not have been conducted

without reference to the incarceration having regard to the very obvious fact that incarceration could be the complete, or partial, explanation of any

symptoms of depression found by Dr. O’Neill. It would have been an exercise in total unreality to try and evaluate a condition of depression some years

after the offence without factoring in the incarceration. In an effort to be scrupulously fair, the trial judge nonetheless offered to give the jury any direction

which the defence considered appropriate to remedy this supposed ‘mischief’, but this offer was not availed of by the defence. The Court is satisfied that

this point is also one without merit or substance.

Finally, Mr. O’Hanlon raised objection to the comments offered by Dr. O’Connell to the effect that the applicant was “cunning, deceitful, manipulative and

plausible”. He submitted that this evidence was prejudicial and had no probative value. He submitted that it was not true psychiatric evidence.

However, the Court is satisfied that the comments in question arose necessarily from the obligation on the part of Dr. O’Connell to give a frank opinion as to

whether the applicant was in fact suffering from depression at the time of the offence and to offer an opinion having regard to his assessment and the

materials and notes which he examined. Dr. O’Connell was, in the opinion of the Court, offering this view in part explanation for his conclusion that the

applicant was not suffering from depression. He gave his reasons for that conclusion and was fully cross-examined in respect thereof. There was no

application made to discharge the jury by reason of anything said by Dr. O’Connell and the Court is also satisfied that this ground of appeal must fail. The

Court is further satisfied that the defence was not put, as suggested by Mr. O’Hanlon, at any disadvantage at any stage of the trial by reason of the manner

in which the learned trial judge dealt with the admissibility of the psychiatric evidence.

In all the circumstances, the Court will dismiss the appeal.