DPP -v- Cecil Tomkins, [2012] IECCA 82 (2012)

Docket Number:Date of Delivery:
Party Name:DPP, Cecil Tomkins
Judge:MacMenamin J.
 
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THE COURT OF CRIMINAL APPEAL [C.C.A. No: 139/12] MacMenamin J.Moriarty J.Hogan J.Between/The People (at the suit of the Director of Public Prosecutions)ProsecutorandCecil TomkinsAppellant Judgment of the Court delivered on the 16th day of October, 2012, by MacMenamin J. 1. On the 16th March, 2012, the appellant was convicted in the Central Criminal Court of the murder of his brother, Walter Tomkins, on the 1st July, 2010, at the family home at Cronelea, Shillelagh, Co. Wicklow. This followed a trial in the Central Criminal Court, before Sheehan J. and a jury, between the 8th and 16th March, 2012. While a number of issues, are raised in this appeal, it will be seen that the ultimate basis of this judgment is based on narrow grounds. However in view of the points raised in the wide range and nature of the appeal, it is necessary to outline the evidence in more detail than would be usual.2. The appellant is now in his early sixties. He did not testify in the trial. He is suffering from advancing Parkinson's syndrome. He is wheelchair-bound, and now cannot feed himself. He is by now incapable of independent living. Brain damage, which is part of the syndrome, has affected his personality. He is unable to concentrate for any lengthy period of time. The question of the appellant's mental condition, and its possible effect on him at the time of the offence, lies at the centre of this appeal. These issues of law and medicine are later considered under a number of headings, but specifically in the context of the partial defence of diminished responsibility as defined in s.6 of the Criminal Law (Insanity) Act, 2006. This defence has been raised in a number of trials, but has not been considered in any reported judgment save in the context of sentences for manslaughter where the defence was relied on (The People (at the suit of the D.P.P.) v. Leigh Crowe [2010] 1 I.R. 129)The basis of the appeal3. A number of the grounds of appeal are unusual. They are also framed broadly. Counsel for the appellant argues that the verdict of the jury was against the evidence and the weight of the evidence; and that the jury verdict thus was perverse. It is said the accused was incapable of forming a criminal intent by reason of his medical condition. It is contended that the learned trial judge erred in failing to put to the jury the case advanced, or to explain in sufficient detail the possible verdicts which were open to them. It is contended the conviction is unsafe in light of the fact that the only evidence on the issue of diminished responsibility was that of a defence witness, Dr. Paul O'Connell Consultant Forensic Psychiatrist, which was to the effect that, at the time of the offence, the appellant had been suffering from diminished responsibility. All these points are considered later in the judgment. To assess whether the verdict was perverse, it is necessary to go through the substance of the evidence, and the case as it was put to the jury by counsel and in the judge's chargeBackground4. Substantial parts of the evidence are undisputed. Both the appellant and his deceased brother were reared and lived on the family farm at Cronelea, Shillelagh, Co. Wicklow. The victim, Walter, was the eldest of three brothers. The appellant was the middle brother. Both he and the victim were bachelor farmers. The youngest brother, Charles Tomkins, also a farmer, married Ivy Tomkins and they have a family. When they were alive, the brothers’ parents, Joseph and Isabella (otherwise Bella) Tomkins, also lived in the family home. When the father, Joseph, died in 1999, the farm property was divided equally between his three sons. The elder two, Walter and Cecil, continued on at home with their mother. Walter Tomkins kept his farming and business activities separate from that of Cecil and Charles, the two younger brothers, who both cooperated in running their respective farms. Charles had not spoken to Walter for a number of years. Although under one roof, Walter and Cecil had a strained relationship. They spoke infrequently. But nonetheless, in later years as the appellant’s incapacity worsened, Walter each day brought dinner home from a local hotel in Shillelagh to his younger brother.5. The evidence as to deceased’s character was conflicting. Some family members and friends testified he tended to dominate the appellant. However, other evidence portrayed him as being both generous and easygoing. He was described as being a powerful man, sometimes prone to anger. The evidence was that the appellant was, normally, a person of gentle disposition.6. When the father Joseph died in 1999, he was buried locally at Aghowle, Shillelagh, Co. Wicklow. Bella lived on until 2010, a further eleven years. Towards the end of her life, she was invalided and confined to bed. She had made clear that she did not wish to be buried with her husband. Nine years before her death, in the year 2001, she had arranged for Charles's wife, Ivy Tomkins, to bring her down to Gorey where her own family were interred to pick out a place for herself in a graveyard there. Bella identified and reserved a suitable burial plot for herself. She offered to pay there and then for the grave but this was not deemed necessary. The fact that, at the time of her death, the payment for the burial plot was still outstanding, has a bearing on the events. The grave remained available for Bella at the time of her death.7. Later, Bella Tomkins told her niece in law Ivy Tomkins that she was leaving a letter for the appellant setting out her wishes for her own funeral and burial. She also told the appellant that she was going to write down these wishes in the letter, which she would leave in a china cabinet in the family home. She said the letter was not to be opened until after her death.8. Well before Bella Tomkins died on the 26th June, 2010, the appellant had been suffering from features of Parkinson's syndrome, although it took time for these to be fully diagnosed. He became increasingly incapacitated, and therefore unable to carry out his farm work. He had been a very active man; his fifty acre holding was his main interest in life. He did little socialising. He carried out his work about the farm, and occasionally went to the mart. With the onset of his illness, the younger brother, Charles took over Cecil's stock, and saw to the maintenance on both farms. The appellant found it difficult to walk for any distance. He used a tractor to get about.9. In the year 2010, the appellant had a number of falls. In May of that year, he was referred to Dr. Raymond Murphy, Consultant Neurologist at Tallaght Hospital, and was admitted for investigation. He had been sent to Dr. Murphy five years earlier, in 2006, but the doctor had not been able to arrive at a definitive diagnosis then.10. By May, 2010 however, Dr. Murphy was able to find objective organic evidence allowing him to make a diagnosis. An MRI scan confirmed widespread shrinkage of the appellant’s brain in the frontal lobe area. The consultant concluded that the appellant was suffering from a form of Parkinsonian known as Multiple Systems Atrophy. As a result of the brain damage, his balance was poor, and he was unable to sit without support. He tended to fall backwards when he sat on a bed. He was suffering from "alien hand" syndrome, a condition where his arm raised itself involuntarily. The appellant had been discharged from hospital on medication a short time before Bella Tomkins died in a nursing home in Naas. Even at the time of the events in question, therefore, the appellant was quite seriously incapacitated, and was apparently slow in carrying out even normal day to day functions, such as dressing himself.11. The evidence was that when Bella died, Walter did not consult the appellant about the funeral or burial. The elder brother took all this on himself. He did not follow his mother's wishes. Rather than burying her in Gorey as she had wanted, he decided that she was to be interred near the family home in Aghowle. The uncontroverted evidence was that the appellant was deeply disturbed and distressed that his mother's wishes had been ignored. Rev. Orr, the local minister, testified that the appellant explained to him that he did not attend the funeral, both because he was too ill, but also because he was so angry and distressed by his brother’s conduct.12. The funeral took place at Aghowle on Monday 28th June, 2010. Rev. Orr testified that Walter identified to him some of the hymns which were to be sung at the service. The appellant strongly, and, as it transpired correctly, believed that Walter had removed Bella Tomkins' note from the china cabinet. In one of the statements which he subsequently furnished to An Garda Síochána, he made remarks which require some explanation. He told the Gardai that Walter "had known the numbers of the hymns". By this, he was seeking to convey that Walter could only have known which hymns were to be sung by their numbers in the Church of Ireland hymn book which she had identified in the note in the china cabinet. When Rev Orr called to the house the appellant told him that his mother should have been buried with her own people in Gorey. Charles's wife, Ivy Tomkins, testified that the day, after the funeral, the appellant was very annoyed when he could not find the envelope in the china cabinet. What then passed between the brothers largely relies on the appellant’s admissions in statements to the Garda Síochána.13. Three days later, on the early evening of the 1st July, 2010, the appellant drove his tractor down to one of the fields behind the family home. Charles's son, Alan Tomkins, was working there with his cousin, John Chamney. The appellant told Alan Tomkins that he had shot Walter. Alan Tomkins phoned his own house and told his parents. He and his cousin went to the family home, where they found Walter lying dead at the end of the hallway. His body was cold. The appellant arrived back at the family...

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