DPP v M.B.

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards.
• Judgment Date: 01 November 2016
• Neutral Citation: [2016] IECA 311
• Docket Number: CCA 86/15
• Court: Court of Appeal (Ireland)
• Date: 01 November 2016

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Appellant

V

M.B.

Respondent

[2016] IECA 311

CCA 86/15

THE COURT OF APPEAL

Criminal law – Fitness to stand trial – Sexual offences – Appellant seeking to appeal on the merits against the determination of the Central Criminal Court – Whether respondent was unfit to be tried

Facts: The respondent was charged before the Central Criminal Court upon a 56 count indictment, charging 27 counts of rape and 29 counts of sexual assault against a female person at various times between 1994 and 2000. The respondent’s trial was listed before the Central Criminal Court, sitting in Cork, on the 10th of March 2015, and was due to commence on that date, when an issue was raised by the defence concerning his fitness to be tried. Following a trial of the issue as to whether the respondent was fit to be tried conducted on the 10th of March, 2015 before the then presiding judge, sitting alone, the Central Criminal Court determined that the respondent was unfit to be tried. The appellant, the DPP, appealed to the Court of Appeal pursuant to s. 7(3) of the Criminal Law (Insanity) Act 2006. Firstly, the appellant appealed on the merits against the Central Criminal Court’s determination. The appellant complained that the presiding judge was incorrect in preferring the evidence of a consultant forensic psychiatrist called as an expert witness on behalf of the respondent, Dr O’Connell, to that of a consultant forensic psychiatrist called as an expert witness on behalf of the appellant, Dr O’Neill. Secondly, the appellant complained that the Central Criminal Court judge, having found the respondent unfit to be tried, failed thereafter to follow the required statutory procedure. In particular, it was complained in that regard that the judge was wrong in adjourning the case simpliciter on the 11th of March, 2015 pending further order, without making any order pursuant to s. 4(5)(c)(ii) of the 2006 Act; alternatively, pending the making of such an order, without directing an examination of the respondent by an approved medical officer at a designated centre, and a report from the said approved medical officer concerning the treatment needs of the respondent, pursuant to the provisions of s. 4(6) of the 2006 Act. This secondary ground of appeal raised issues as to the correct statutory interpretation and/or the correct application of subsections (5) and (6) of s. 4 of the 2006 Act.

Held by Edwards J that, having considered The People (DPP) v Kelly [2005] IECCA 50, there was clear evidence given by Dr O’Connell as to the basis for his conclusion that the respondent had an underlying depression; moreover, even though Dr O’Neill did not himself consider the respondent to be depressed, there was no evidence that the suggested depression, if it existed, could not have affected the respondent’s cognitive abilities in the manner apprehended by Dr O’Connell. Edwards J held that for the appellant to have succeeded on the merits she would have to have been in a position to demonstrate that there was simply no evidence capable of supporting Dr O’Connell’s view. The Court was satisfied that there was more than adequate evidence capable of supporting his view. Edwards J therefore rejected the appeal against the merits of the trial judge’s ruling that the respondent was unfit to be tried. Edwards J held that there was no ambiguity or obscurity in subsections (5) and (6) of s. 4 of the 2006 Act. Edwards J held that if these provisions are afforded their natural and ordinary meanings the intention of the legislature is clear, unambiguous and entirely sensible; moreover, it could not be said that a literal interpretation of these provisions would lead to an absurdity. Edwards J concluded that the trial judge had no option but to adjoin the proceedings simpliciter until further order, and therefore the Court was also unable to uphold the appellant’s second ground of appeal.

Edwards J held that the appeal should be dismissed.

Appeal dismissed.

Judgment of the Court delivered on the 1st day of November 2016 by Mr. Justice Edwards.

Introduction

1 In this case the respondent was charged before the Central Criminal Court upon a 56 count indictment, charging 27 counts of rape and 29 counts of sexual assault against C.C., a female person, at various times between 1994 and 2000.

2 The respondent's trial was listed before the Central Criminal Court, sitting in Cork, on the 10th of March 2015, and was due to commence on that date, when an issue was raised by the defence concerning his fitness to be tried.

3 Section 4 of the Criminal Law (Insanity) Act 2006 as amended by the Criminal Law (Insanity) Act 2010 (hereinafter ‘the Act of 2006 as amended’) governs how such an issue is to be dealt with where it arises. In particular, sub-subss. (a) and (b) of s.4(5) of the Act of 2006 as amended provide that ‘where an accused person is before a court other than the [District] Court charged with an offence and the question arises as to whether that person is fit to be tried’ …. ‘[t]he question of whether the accused person is fit to be tried shall be determined by the judge concerned sitting alone’.

4 Following a trial of the issue as to whether the respondent was fit to be tried conducted on the 10th of March, 2015 before the then presiding judge, sitting alone, the Central Criminal Court determined that the respondent was unfit to be tried.

5 The appellant has appealed to this Court pursuant to s. 7(3) of the Act of 2006 as amended.

The basis of the appeal

6 The appeal is based upon two complaints. First, there is an appeal on the merits against the Central Criminal Court's said determination. The appellant complains that the presiding judge was incorrect in preferring the evidence of a consultant forensic psychiatrist called as an expert witness on behalf of the respondent to that of a consultant forensic psychiatrist called as an expert witness on behalf of the appellant.

7 Secondly, there is a complaint that the Central Criminal Court judge, having found the respondent unfit to be tried, failed thereafter to follow the required statutory procedure. In particular, it is complained in that regard that the judge was wrong in adjourning the case simpliciter on the 11th of March, 2015 pending further order, without making any order pursuant to s.4(5)(c)(ii) of the Act of 2006 as amended; alternatively, pending the making of such an order, without directing an examination of the respondent by an approved medical officer at a designated centre, and a report from the said approved medical officer concerning the treatment needs of the respondent, pursuant to the provisions of section 4(6) of the Act of 2006 as amended. This secondary ground of appeal therefore raises issues as to the correct statutory interpretation and/or the correct application of subsections (5) and (6) of s. 4 of the Act of 2006 as amended.

8 Following a hearing on the 1st of March, 2016 we indicated that we were not disposed to uphold the first ground of appeal, i.e., the appeal on the merits against the determination of the Central Criminal Court that the respondent was unfit to be tried. However, as regards the second ground of appeal, we indicated that we considered it necessary to reserve judgment. In the circumstances where there was to be a reserved judgment, the Court stated that it would give the reasons for its decision in respect of the first ground of appeal, and its decision and reasons in respect of the second ground of appeal, in the one judgment, which we will now proceed to do.

The appeal on the merits

9 We considered that the appeal on the merits must fail having regard to the decision in The People (Director of Public Prosecutions) v Kelly [2005] I.E.C.C.A 50 in which the Court of Criminal Appeal adopted for application in the context of criminal appeals the jurisprudence of the Supreme Court concerning findings of fact made by a trial court as laid down in Hay v O'Grady [1992] 1 I.R. 210.

10 In The People (Director of Public Prosecutions) v Kelly, McCracken J., giving the judgment of the Court of Criminal Appeal, stated:

‘The principles to be applied by an appellate court in relation to decisions of fact by a trial judge have been set down by the Supreme Court in the well known case of Hay v. O'Grady [1992] 1 IR 210. This Court considers that those principles, which were enunciated in relation to an appeal in a civil action, are equally applicable to an appeal from the judges of the Special Criminal Court in criminal proceedings. At page 217 McCarthy J. set out the principles to be followed, the ones relevant to the present case being:-

‘The role of this Court in my view may be stated as follows:-

(1) An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence, but also observes the manner in which it is given, and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.

(2) If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and apparently weighty the testimony against them. The truth is not the monopoly of any majority.

(3) Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact (see the judgment of Holmes LJ in Gairloch [1899] 2 IR 1 cited by O'Higgins CJ in the People (DPP) v. Madden [1977] IR 336 & 339). I do not accept that this is always necessary so. It may be that the demeanour of a witness in giving evidence will itself lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact,...