DPP v Abdi

• Jurisdiction: Ireland
• Judge: Hardiman J.
• Judgment Date: 06 December 2004
• Neutral Citation: [2004] IECCA 47
• Court: Court of Criminal Appeal
• Date: 06 December 2004

DPP v. ABDI

THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

YUSIF ALI ABDI

Defendant/Appellant

[2004] IECCA 47

Hardiman J.

Murphy J.

Herbert J.

96/03

THE COURT OF CRIMINAL APPEAL

Synopsis:

CRIMINAL LAW

Evidence

Expert opinion evidence - Admissibility - Psychiatric opinion on motive - Insanity plea - Whether evidential support for disputed opinion - Role of expert witness - Whether court erred in permitting psychiatrist to tender evidence of opinion as to applicant's motive - Leave to appeal refused (2003/96CCA - Court of Criminal Appeal - 6/12/2004) [2004] IECCA 47 - [2005] 1 ILRM 382

People (DPP) v Abdi

This was the defendant's application for leave to appeal against his conviction for the murder of his infant son. The only issue at the trial concerned the plea of insanity: the defendant alleged that he was legally insane at the time he admittedly killed the son. The grounds of appeal were that the trial judge erred: in permitting a consultant psychiatrist to give evidence of his opinion as to the applicant's motive in killing his son; and in repeating the consultant's opinion in his charge.

Held by the Court of Criminal Appeal in dismissing the application for leave to appeal that the consultant psychiatrist's evidence was admissible in principle and sufficiently grounded in fact to allow the jury to reach a conclusion on it.

Reporter: R.W.

Citations:

DPP V KEHOE 1992 ILRM 481

DPP V EGAN 1991 ILRM 780

R V TURNER 1975 QB 834

R V O'BRIEN & ORS 2000 CRIM LR 676

MURPHY V THE QUEEN 1989 86 ALR 35

1 JUDGMENT of the Court delivered the 6th day of December, 2004by Hardiman J.

2 This is the defendant's application for leave to appeal against his conviction for murder. On the 28 ^th May, 2003, he was convicted of the murder of his infant son, Nathan, who died on the17 ^th April, 2001. Nathan was the child of the applicant and his wife Amanda Bailey and was 20 months old at the time of hisdeath.

3 The only issue at the trial concerned the plea of insanity: the defendant alleged that he was legally insane at the time he admittedly killed Nathan. The manner of the child's death was an extremely violent and this fact was itself of considerable significance at the trial, especially in the minds of the psychiatrists called on behalf of the defendant. According to Professor John Harbison, the former StatePathologist:

"[Nathan] died from gross brain damage, which was severe laceration or tearing type injury, verging on disruption or fragmentation of his brain associated with multiple fractures of the vault, that is the top, and the base of his skull... The degree of destruction of the skull was both very extensive and very severe with fragmentation of both the vault or upper part and the base into many pieces. Not only was this tearing apart of the constituent bones of the skull a tearing apart, but there was fracturing of the bones with further fragmentation. These internal head injuries were quire consistent with severe and violent impact of his head against a hard surfaces or surfaces, causing therefore extensive and severe fractures of the skull... possible separate scalp impact points could be discerned about and behind the left ear and at the pole or the back of the head. The bruising under the scalp however was virtually confluent, that is merged one into another, although it was distributed chiefly towards the back of the head."

The grounds of appeal.

4 The grounds of appeal were very confined. They are as follows:

5 2 "(1) The Central Criminal Court erred in law in permitting Dr. Mohan, a Consultant Psychiatrist, to give evidence of his opinion as to the applicant's motive in killing his son.

6 (2) The learned trial judge erred in law in repeating in his charge to the Jury Dr. Mohan's opinion as to the applicant's motive in killing his son."

7 A third ground was not pursued.

The issues.

8 As noted above, the sole matter at issue in the trial was whether the defendant was or was not legally sane at the time of the killing of the child. There was a sharp conflict of medical opinion on this topic, notably between Dr. Brian McCaffrey and Dr. Bourke, both psychiatrists, who were called on behalf of the defence and Dr. Damien Mohan, a consultant psychiatrist on the staff of the Central Mental Hospital, called on behalf of the prosecution. The defence, of course, bore the onus of proof on the issue of insanity.

9 The defence case was that the killing occurred while the defendant was legally insane due to psychosis. He and the child's mother were separated but she and Nathan were visiting the defendant at hisresidencein Co. Kildare at the time of the killing. The child was sleeping with his mother but the defendant took him from her bed and brought him to a room where he himself had been sleeping. He locked the door of this room and inflicted the fatal injuries on the child, apparently by swinging him or otherwise striking his head against the wall. His eventual account of what occurred, used to ground the claim of insanity, was that he did what he did in obedience to voices addressing him in his native Somalian language telling him to beat the child. The major issue in the conflict of psychiatric evidence was as to whether this claim wasbelievable.

10 The defendant had been in Ireland since 1997 and had achieved asylum here in the year 2000. At various stages during his residence in the jurisdiction he had consulted doctors about a number of physical and nervous symptoms. There was little in the way of agreement as to the significance of these previous medical consultations: for example, there is no doubt that he was prescribed Larium after his return from a trip he took to Africa and the action of this drug was part of the material relied upon by the defence. The prescribing doctor said he had prescribed it at the defendant's insistence while the defendant said that he had simply taken what the doctor advised.

11 Dr. Mohan had prepared a report a copy of which the defence were given. The report was based on a single interview with the applicant on the19 ^th January, 2003, on the Book of Evidence, on inmate records at Cloverhill Prison and on clinical psychiatric case notes at the Central Mental Hospital. He was of the opinion, on reading through the memos of the interviews at the Garda Station, that there was nothing which would suggest that the applicant was acutely psychotic or suffering from hallucinations at the time of the interviews which were immediately after the alleged offence. (Paragraph 11.2 of thereport).

12 The overall impression following the initial assessment was that he appeared depressed. On physical examination no abnormality was found. (Paragraph 13.1).

13 In the last three paragraphs of this report the following materialoccurs:-

14 2 "16.7. I am of the opinion that Mr. Ali does not fulfil the McNaughton criteria for legal insanity. All the evidence suggests that he knew the nature and quality of his act and that he was aware that what he was doing was wrong. There is no evidence that his actions were as a result of an irresistible impulse thereby ruling out third limb insanity. In summary Mr. Ali was not legally insane at the materialtime.

15 3 16.8. I believe that Mr. Ali's alleged actions were motivated by his inability to accept that he would be unable to rear his child in his own religious faith coupled by the threat of losing custody of the child. Mr. Ali's strong religious conviction is consistentthroughout his history and on the night of the alleged killing he was subjected to taunts of racial abuse.

16 4 16.9. As stated above I do not believe that Mr. Ali fulfils the criteria for a guilty but insane verdict. Even if there were an option of diminished responsibility available to the jury I am firmly of the opinion that his responsibility was not diminished...".

The disputed evidence.

17 The disputed evidence is entirely along the lines indicated in the report, and in particular at paragraph 16.8 thereof. Having given evidence substantially along the lines of paragraph 16.7 Dr. Mohancontinued:

"I believe that his actions were motivated by his inability to accept that he would be unable to..."

18 Counsel for the defendant intervened at this point. Objection was taken on the ground that the material was not relevant, was comment and, was "an opinion on motivation and we are not concerned about that." In making this objection, of course, counsel was aware from the report of what Dr. Mohan was about to say. The learned trial judge overruled the objection and the doctor continued:

"I believe that Mr. Abdi's alleged actions were motivated by his inability to accept that he would be unable to rear his child in his own religious faith, coupled by the threat of losing custody of the child. Mr. Abdi's strong religious conviction is consistent throughout the history and on the night of the alleged killing he was subjected to taunts of racial abuse which would further have exacerbated the fearthat he had. So, in summary, I do not believe that he was legally insane at the material time."

19 Objection was also taken to the learned trial judge having repeated this evidence in charging the jury. The judge did repeat the evidence, but without emphasis or comment. He was requisitioned on the basisthat:

"I will ask your Lordship to point out to the jury firstly that that opinion of Dr. Mohan's is not supported by the evidence and furthermore that Dr. Mohan as an expert witness in relation to matters of psychiatry is in no better position to assess motive than the juryare."

20 In response to this the prosecution said:

"... As regards Dr. Mohan's opinion as to motive, I would ask your Lordship not to state that there is no evidence upon which to base that. Clearly there was evidence upon which Dr. Mohan could have inferred his opinion or drawn his opinion. I would accept that as a psychiatrist he is in no...