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

Judgment Date01 January 1940
Date01 January 1940
CourtCourt of Criminal Appeal
The People (Attorney-General)
Fennell (No. 1)

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.

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, and Sodeman v. The KingUNK [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; Woolmington v. Director of Public ProsecutionsELR, [1935] A. C. 462, and Attorney-General v. BoylanIR, [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 KingUNK, [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...

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