Attorney General (The People) v Fennell (No. 1)

• Jurisdiction: Ireland
• Judgment Date: 24 July 1940
• Date: 24 July 1940
• Court: Court of Appeal (Ireland)

Court of Criminal Appeal.

The People (Attorney-General) v. Fennell (No. 1).

THE PEOPLE (at the suit of the Attorney-General)

and

JAMES FENNELL (No. 1) (1)

Criminal law - Charge of murder - Defence of insanity - Onus of proof - Voluntary statement made before charge preferred - Admissibility on subsequent charge of murder - Power of Court of Criminal Appeal to set aside verdict of "guilty" and enter plea of "guilty but insane" - Courts of Justice Act, 1924, s. 35.

Appeal from an order of Maguire P. refusing a certificate under s. 31 of the Courts of Justice Act, 1924, for an appeal to the Court of Criminal Appeal.

The accused, James Fennell, a private soldier in the Defence Forces, was convicted at the Central Criminal Court, before Maguire P. and a jury, of the murder of Stephen Ryan, a Sergeant in the Defence Forces, and sentenced to death.

There was some doubt as to his sanity at the time of his arraignment, but the jury empanelled to try the issue found that he was sane, and an appeal to the Supreme Court against that finding was dismissed on the preliminary ground of want of jurisdiction. The decision of the Supreme Court on this point is reported post p. 453.

The following were the grounds of his appeal:—

(1) That the trial Judge wrongly admitted in evidence a statement made by the accused to Sergeant Maguire of the Civic Guard, and that the trial was thereby unsatisfactory.

(2) That the trial Judge misdirected the jury in law in his charge when he told them that "in order to entitle them to bring in a verdict of 'guilty but insane' the defence should satisfy the jury beyond reasonable doubt that the accused was insane at the time the act was committed."

(3) That the verdict was against the evidence and the weight of the evidence.

The relevant facts are fully set out in the judgment of the Court.

The accused, a private soldier in the Defence Forces, was found guilty of the murder of a fellow-soldier and sentenced to death. His defence was that when he committed the act he was insane, and was not responsible in law for his act. On appeal to the Court of Criminal Appeal, it was contended on his behalf that the trial Judge misdirected the jury as to the onus of proof which rests upon the accused who raises such a defence, andSodeman v. The King [1936] W. N. 190, was relied upon for the proposition that the onus of proof of insanity was no greater than the onus of proof upon a plaintiff or defendant in a civil action.

Held, that the onus of proof of insanity had been correctly stated by the trial Judge, following McNaghten's Case, 10 Cl. & F. 200; Woolmingtonv. Director of Public Prosecutions, [1935] A. C. 462, and Attorney-Generalv. Boylan, [1937] I. R. 449, as being that the accused must establish clearly his insanity to the satisfaction of the jury.

Dictum in Sodeman v. The King, [1936] W. N. 190, considered.

There is no definite form of words which must be used in directing the jury upon this matter so long as, in the opinion of the Court, considering the charge as a whole and the various phrases used by the Judge, the jury could not have been misled as to the fundamental principle upon which the onus is based.

A further ground of appeal was that the trial Judge wrongly admitted in evidence a statement made by the accused to a member of the Civic Guard while in military custody and at a time when the deceased man was still alive, on the ground that, as the charge of murder had not then been preferred against him, it was not admissible evidence upon his subsequent indictment for murder. In the statement the accused alleged that he shot the deceased man in self-defence.

Held, that there was no principle of law upon which the statement could have been excluded, inasmuch as the statement was made voluntarily, after the accused had been duly cautioned, at a time when he was not in civil custody and before any charge had been made against him.

It was further contended that the verdict was against the evidence and the weight of evidence, and that the Court of Criminal Appeal should exercise the power conferred upon it by...