DPP v Egan
| Jurisdiction | Ireland |
| Judge | O'Donnell J.,McKechnie J.,O'Malley J. |
| Judgment Date | 07 December 2017 |
| Neutral Citation | [2017] IESCDET 138 |
| Court | Supreme Court |
| Date | 07 December 2017 |
[2017] IESCDET 138
THE SUPREME COURT
DETERMINATION
O'Donnell J.
McKechnie J.
O'Malley J.
IN THE MATTER OF SECTION 2 OF THE CRIMINAL PROCEDURE ACT 1993
This determination relates to an application for leave to appeal to the Supreme Court from a judgment of the Court of Appeal (Sheehan, Mahon and Edwards JJ.) delivered on the 21st March, 2017, and from the resulting Order of that Court which was perfected on the 28th April, 2017.
Mr Stephen Egan, referred to in this Determination as ‘the accused’ or ‘the applicant’, moves this application for leave, which is opposed by the Director of Public Prosecutions, who is referred to as ‘the DPP’ or ‘the respondent’.
The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. As is clear from the terms of Article 34.5.3° thereof and from the many determinations made by this Court since the enactment of the Thirty-third Amendment, it is necessary, in order for this Court to grant leave to appeal from a decision of the Court of Appeal, that it be established by the applicant that the decision sought to be appealed involves a matter of general public importance, or that it is otherwise necessary in the interests of justice that there be an appeal to this Court.
Any ruling in a determination is a decision particular to that application and is final and conclusive only as far as the parties are concerned. The issue calling for consideration is whether the facts and legal issues as presented meet the constitutional criteria as above identified. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value relative to the substantive issues if and when such issue should further arise in a different case. Where leave is granted on any issue, that matter will in due course be disposed of in the substantive decision of the Court.
Background, Trial and Appeal
The full facts and background of the case are more fully recited in the judgment of the Court of Appeal and the parties' respective documents on this application for leave, and accordingly a summary version only is presented here.
The applicant was responsible for the brutal killing of Gary Douch at Mountjoy Prison in the early hours of the morning of the 1st August, 2006. Both men were in a holding cell in the prison, together with five others. He was indicted before the Central Criminal Court on a charge of murder. He offered a plea of guilty to manslaughter by reason of diminished responsibility but the DPP took the view that such verdict could only be returned by a jury. His trial therefore proceeded before a jury (Birmingham J. presiding) on the 20th and 21st April, 2009.
At trial Mr Egan made a number of formal admissions through counsel, including that he attacked Mr Douch by punching, kicking and stamping on him; that Mr Douch died as a result of this attack; and that this killing was unlawful. He further admitted that at the time of these acts he had formed views concerning the deceased (in particular his view that Mr Douch was a sex offender) which were illusory and without foundation, and offered his underlying psychotic illness as the reason for such views.
There was no dispute between the parties that Mr Egan was suffering from diminished responsibility at the time of the offence. The accused accepted the opinion and conclusion in the report of Professor Tom Fahy, psychiatrist, who also gave evidence at trial, that the accused's mental illness substantially impaired his responsibility for the said acts giving rise to the death of Mr Douch, and that he met the criteria for manslaughter on the grounds of diminished responsibility under the provisions of section 6 of the Criminal Law (Insanity) Act 2006 (‘the 2006 Act’). At trial, Professor Fahy testified that there was clear evidence of, inter alia, psychotic symptoms, auditory hallucinations, persecutory beliefs, and paranoid delusions. His diagnosis was that the applicant was suffering from schizoaffective disorder, which qualifies as a mental disorder for the purposes of the said section 6. In the witness's opinion, this illness diminished Mr Egan's responsibility for the killing. The jury, which obviously accepted this evidence, returned a verdict of not guilty of murder but guilty of manslaughter by reason of diminished responsibility.
Of pivotal importance to the within application is the sentence imposed by Birmingham J. on the 29th June, 2009. He accepted that the accused's responsibility was significantly diminished, but found nonetheless that it remained substantial. Even had his delusional beliefs been true, they would have offered no explanation or justification for the appalling violence visited on Mr Douch. The attack also involved a degree of calculation. Leaving aside the issue of diminished responsibility, this case was at the upper end of manslaughter cases.
In arriving at the appropriate sentence, the learned judge, having referred to the question of the protection of the public, consciously voiced a concern that the same could potentially merge into an impermissible form of preventative detention. He referred to Mr Egan's mental disorder and his history of medication, as well as Professor Fahy's view that there was a high risk of recidivism and that his condition was prone to relapse if, for example, he was exposed to illicit drugs. Birmingham J. was clearly troubled by the applicant's own statement to the effect that he was likely to fall back into criminal behaviour and that he would find it difficult to maintain a sober, drug-free regime. There was thus a real apprehension regarding unsupervised release. Any release into the community would need to be structured, pre-planned, and would have to involve the parole board. In passing sentence, the learned judge referred to the case of DPP v. Crowe [2009] I.E.C.C.A. 57, which held that where a Court is imposing a maximum sentence, notwithstanding a plea of guilty, it is incumbent upon it to give reasons therefor, and continued:
‘It seems to me that his re-entry into the community is going to involve rigorous supervision and it seems to be also that it's going to have to be supervision that would be backed by this sanction of indefinite re-incarceration if he doesn't comply. … [I]t seems to me that the extent of the danger to the public posed by Mr Egan, which seems to me is only capable of being dealt with by a structured and in all likelihood a phased released into the community, does mean that this case falls fairly and squarely into the category of special and exceptional cases … It seems to me that in terms of protecting the public, that the sentence which is best calculated to achieve that is a sentence of life imprisonment and accordingly I impose that sentence.’
Mr Egan appealed his sentence to the now defunct Court of Criminal Appeal (‘the CCA’). He alleged, inter alia, that the term imposed failed to adequately reflect the jury's finding of diminished responsibility under the 2006 Act, and that it amounted to inadmissible preventative detention. The appeal was heard on the 29th October, 2010. In relation to his diminished responsibility, the applicant highlighted, in particular, the medical mismanagement of his mental illness in the weeks leading up to the killing of Gary Douch, including the fact that he was without his medication in the days before the assault. The Court of Criminal Appeal rejected his complaints and dismissed his appeal in an ex tempore judgment of Hardiman J. delivered on the 29th October, 2010. He endorsed the ‘lengthy and very impressive’ sentencing remarks of Birmingham J., stating that the learned trial judge had ‘approached this matter correctly and not merely correctly but thoughtfully and even ingeniously’. The Court concluded that there was ‘absolutely no ground to consider the sentence wrong in principle’.
Following the killing of Mr Douch, a Commission of Investigation was established to enquire, inter alia, into the circumstances surrounding his death (see also para. 21, infra). Its investigations were initially stayed so as not to prejudice the trial and appeal of Mr Egan; it circulated its draft report in April, 2012, and on the 1st May, 2014, it published its final report entitled the Report of the Commission of Investigation into the Death of Gary Douch (‘ the Report of the Commission of Investigation’). Following its publication, the accused brought an application to the Court of Appeal pursuant to section 2 of the Criminal Procedure Act 1993 (‘the 1993 Act’) seeking a review of his life sentence on the grounds that certain of the Report's findings constituted new or newly-discovered facts showing that the sentence imposed was excessive.
The Judgment under Appeal
The judgment of the Court of Appeal ( [2017] I.E.C.A. 95) on that section 2 application was delivered by Edwards J. (with whom Sheehan and Mahon JJ. concurred) on the 21st March, 2017. The Court dealt, as a preliminary matter, with the issue of whether the material upon which the accused sought to rely constituted a new or newly-discovered fact or facts; if it did not, the accused would have no entitlement to re-ventilate the complaints that were previously rejected by the CCA.
Both parties accepted that the principal authorities on the proper application of section 2 of the 1993 Act are The People (DPP) v. Willoughby [2005] I.E.C.C.A 4 and The People (DPP) v. O'Regan [2007] 3 I.R. 805, in which the Supreme...
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