Denis O'Callaghan v DPP

JudgeMr. Justice Hardiman,Mr. Justice Fennelly
Judgment Date22 July 2011
Neutral Citation[2011] IESC 30
CourtSupreme Court
Docket Number[S.C. No. 382 of 2009]
Date22 July 2011

[2011] IESC 30


Murray C.J.

Denham J.

Hardiman J.

Fennelly J.

Finnegan J.

O'Callaghan v DPP







Fitness to be tried - Criminal trial - Prohibition - Accused found unfit to be tried - Litigious advantage - Whether issue of fitness to be tried could be re-entered - Whether finding that accused unfit to be tried was litigious advantage - Nolle prosequi - Whether nolle prosequi could discharge previous finding that accused unfit to be tried - Whether accused deprived of benefit of previous determination - Whether significantly unfair - Eviston v Director of Public Prosecutions [2002] 3 IR 260 and The State (O'Callaghan) v Ó hUadhaigh [1977] IR 42 approved - Criminal Law (Insanity) Act 2006 (No 11), s 4 - Applicant's appeal allowed (382/2009 - SC - 22/7/2011) [2011] IESC 30

O'Callaghan v Director of Public Prosecutions

Facts: The Circuit Court had held that the applicant was not fit to plead in proceedings relating to allegations of burglary and indecent assault. A nolle prosecqui was then entered and the applicant was subsequently brought before the District Court and charged with the same offences relating to which the nolle had been entered and returned for trial before the Circuit Court. The State had obtained a medical opinion that the accused was fit to be tried but the medical opinion evidence was not called at the Circuit Court hearing. The applicant sought relief by way of judicial review and the application was dismissed by the High Court. The Supreme Court considered the application of the Criminal Law (Insanity) Act 2006.

Held by the Supreme Court per Hardiman J. (Murray CJ., Denham, Hardiman, Fennelly, Finnegan JJ. concurring), that the Court would grant an order restraining the prosecution from further prosecuting the applicant upon the new charges. The prosecution could not without any judicial process discharge such an order and then proceed afresh as though it had never been made merely by the entry of a nolle prosequi. The finding that the applicant was unfit to be tried was a judicial finding entrusted by statute to a judge and constituted an administration of justice. It had a status which could only be replaced by a judicial determination. Fennelly J: that there was a significant error in the way in which the matter proceeded. The DPP had misapplied the operation of the legislation. The appellant was deprived of the benefit of the existing determination. The appeal would be allowed and an order be made restraining the further prosecution of the appellant.

Reporter: E.F.


JUDGMENT of Mr. Justice Hardiman delivered the 22nd day of July, 2011.


Judgment delivered by Hardiman J. & Fennelly J. - with Murray C.J., Denham J. & Finnegan J. concurring


This appeal arises out of the disposition of a criminal case against the applicant in the Cork Circuit Court in the year 2006. It involved allegations of burglary and indecent assault. The question of the applicant's fitness to be tried was raised by his solicitor and counsel. This issue was somewhat a fraught one and there was professional psychiatric evidence on both sides. A Dr. Dunne, Consultant Psychiatrist, called on behalf of the applicant concluded that he was not fit to be tried and a Dr. Morgan, Consultant Psychiatrist called by the State, came to the opposite conclusion. The latter however concluded his report as follows:

"May I take the unusual step of suggesting that his sister Mary should sit by him during the trial if he is not pleading to the offences and should he be found fit to plead, she could explain to him what is going on. He himself is capable of then making the decisions".


The learned Circuit Judge gave his ruling on the issue on the 6 th July, 2006 as follows:

"I have had the benefit of the evidence of Dr. Dunne and of Dr. Morgan. Dr. Dunne's evidence is very clear. He says he [the applicant] has a language difficulty and because of that he has difficulty understanding. He says he could be autistic. Dr. Morgan thinks he could plead, accepts, he generally agrees with Dr. Dunne's findings, but thinks he could plead thinks he could be assisted. The standard of proof is on the balance of probability as to whether he is fit to plead or not and in view of what Dr. Dunne said to me, with a qualified qualification by Dr. Morgan, I take the view that I should be concerned about this, therefore on the balance of probability I take the view that he is not fit to plead".


The Court's formal order to this effect was subsequently taken up and is exhibited in the present proceedings.


In the same Order, apparently as a consequence of the finding about fitness to be tried, the Court adjourned the case to the 18 th July, 2006. It was further adjourned on multiple occasions.


By the 26 th July, 2006, the prosecution came into possession of a further medical report from a third psychiatrist, Dr. Harry Kennedy, Director of the Central Mental Hospital. The statutory context of this report, and its contents, will be discussed below. According to the State Solicitor's affidavit, the effect of the report was to make the prosecution wish to re-enter the proceedings upon the basis that they could convince the Court that the applicant was no longer unfit to plead. The State Solicitor, Mr. Boohig says that the defence were notified at least as early as November, 2006 of this desire on the part of the prosecution. On the 13 th November, 2006, the matter was adjourned on that basis until February, 2007. The case was then adjourned on a considerable number of occasions as follows:


From October, 2006, to the 13 th November, 2006, and thence to 30 th November


From 30 th November, 2006, to the 13 th February, 2007


From 13 th February, 2007, to the 8 th March, 2007 'for legal argument'


From 8 th March, 2007, to the Easter sessions 'due to the ill health of the applicant'


From the 23 rd May, 2007, to the 19 th June, 2007 "as Dr. Kennedy was not available to give evidence".


From the 19 th June, 2007, to the 25 th June, 2007, to hear Dr. Kennedy's evidence.


From the 25 th June, 2007, to the 31 st October, 2007, because Dr. Kennedy was not available.


According to the State Solicitor's affidavit, the case was listed in the Cork Circuit Criminal Court on the 31 st October, 2007 "for the purpose of hearing the State's application to re-enter the matter and for the Court to hear the necessary evidence from Professor Kennedy". The matter was however then adjourned to the 22 nd November. On that date, again according to the State Solicitor:

"... a lengthy discussion took place between myself, the prosecution counsel, and Professor Kennedy as to whether or not the Circuit Judge could make any further order in the matter. It was felt that no further order could be made at that point in time. Section 4(5)(c) of the Act could not apply based on Professor Kennedy's findings as to the state of the accused. Accordingly the view was taken that it would be appropriate to enter a nolle prosequi to the charges and I believe that no further discussion took place before the Court".


This discussion was between the State lawyers and their expert witness, and took place in private.


The nolle was then entered. About five months later, on the 25 th March, 2008, the D.P.P. had the respondent brought before the District Court and charged with precisely the same offences as those in relation to which the nolle had been entered and he was subsequently returned for trial on those same charges to the sitting of the Cork Circuit Court on the 15 th April, 2008.


The applicant then sought relief by way of judicial review. His application was dismissed in the High Court. He now appeals.

Legal context of the above.

The principal legal context in which the above events took place is that of the Criminal Law (Insanity) Act, 2006. This Act deals with a number of topics in relation to persons of doubtful mental capacity involved with the criminal justice system, whether at trial or after conviction, and in particular amends the law in relation to unfitness to be tried. This is done in the main by Section 4 and Section 13 of the Act. Like many modern statutes the Act is not very clearly or logically drafted but its purport in relation to the matters at issue here seems clear enough.


By virtue of s.4(2) an accused person shall be deemed "unfit to be tried" if he is "unable by reason of mental disorder" to understand the nature or course of the proceedings so as to:


a "(a) Plead to the charge,


(b) Instruct a legal representative,


(c) In the case of an indictable offence which may be tried summarily, elect for trial by jury,


(d) Make a proffered defence,


(e) In the case of a trial by jury challenge a juror to whom he may wish to object or


(f) Understand the evidence.


The concept of unfitness to be tried thus includes, but is broader than, the concept of unfitness to plead.


In the case of an indictable offence, the issue of unfitness to be tried, when raised by the defence,...

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