DPP v McGinley
| Jurisdiction | Ireland |
| Judge | Ms. Justice Ní Raifeartaigh |
| Judgment Date | 14 October 2022 |
| Neutral Citation | [2022] IECA 239 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Bill Number: CCDP0026/2013 |
[2022] IECA 239
Birmingham P.
McCarthy J.
Ní Raifeartaigh J.
Bill Number: CCDP0026/2013
Court of Appeal Record No.: 105/2014
THE COURT OF APPEAL
CRIMINAL
Conviction – Murder – Miscarriage of justice – Applicant seeking an order quashing his convictions – Whether a new or newly-discovered fact showed that there had been a miscarriage of justice
Facts: The trial of the applicant, Mr McGinley, took place in March/April 2014 in the Central Criminal Court. He was convicted on the 3 April 2014 for murder, burglary and false imprisonment. On the same date, he was sentenced to life imprisonment in respect of the murder, seven years in respect of the burglary, and ten years in respect of false imprisonment, all sentences to run concurrently and to date from the 29 September 2012. He lodged an appeal against conviction, which was rejected by the Court of Appeal and in that regard, the judgment of the Court was delivered on the 21 November 2016: [2016] IECA 424. No issue was raised at the trial by the defence as to the applicant’s mental health at the time of the offence. No defence of diminished responsibility was raised at the trial nor in the original appeal to the Court. The applicant applied to the Court pursuant to s. 2 of the Criminal Procedure Act 1993 for an order quashing his convictions on the ground that a new or newly-discovered fact showed that there had been a miscarriage of justice in relation to them. This arose in circumstances where an expert consultant psychiatrist had provided a report indicating that the applicant suffered from paranoid schizophrenia and had set forth certain views as to whether the applicant was in the early stages of this illness at the time of the offence and how it might have interacted with a drug and alcohol dependency on the part of the applicant at the time of the offences.
Held by the Court that Dr Monks’ reports did not indicate whether the intoxication he was speculating about was voluntary or involuntary in the legal sense. Given that Dr Monks was reluctant to ascribe any causal nexus between the applicant’s mental disorder(s) and the offending in question, the Court held that his evidence fell short of the “substantial” part of the “substantial impairment” test for diminished responsibility in s. 6 of the Criminal Law (Insanity) Act 2006. The Court noted that it was dealing with a (suggested) retrospective diagnosis made some eight years after the killing, in circumstances where, the records showed, the first formal diagnosis of schizophrenia by the experts was not made until five years after the killing. The Court also noted that the applicant’s interactions with his legal advisers at the time of trial did not raise any alarm bells that he might have been suffering from a mental disorder at the time of the offence; nor did any alarm bells go off on the part of the doctor interacting with the applicant in the Garda station upon his arrest, nor on the part of the persons interacting with him upon his committal to prison after his detention in Garda custody concluded. Distinguishing The People (DPP) v Abdi [2019] IECA 38, the Court held that the applicant had a rational purpose in committing the offence of burglary, namely personal gain; also, he took various steps to conceal his involvement in the offence, which as Dr Monks noted, was also “goal-oriented” behaviour. The Court noted that the applicant himself did not report to the Gardaí during interview anything that would be suggestive of mental disorder being a factor in the killing. In light of all of the circumstances, and even taking the contents of Dr Monks’ reports at their height in favour of the applicant, the Court was satisfied that the evidence fell far short of what would be required for a successful application pursuant to s. 2 of the 1993 Act.
The Court refused the application.
Application refused.
JUDGMENT of the Court delivered on the 14th day of October 2022 by Ms. Justice Ní Raifeartaigh.
. This is an application pursuant to s. 2 of the Criminal Procedure Act 1993. The applicant has applied to the court for an order quashing his convictions for murder, burglary and false imprisonment on the ground that a new or newly-discovered fact shows that there has been a miscarriage of justice in relation to them. This arises in circumstances where an expert consultant psychiatrist has provided a report indicating that the applicant currently suffers from paranoid schizophrenia and has set forth certain views as to whether the applicant was in the early stages of this illness at the time of the offence and how it might have interacted with a drug and alcohol dependency on the part of the applicant at the time of the offences.
. The applicant's trial took place in March/April 2014 in the Central Criminal Court. He was convicted on the 3 April 2014. On the same date, he was sentenced to life imprisonment in respect of the murder, seven years in respect of the burglary, and ten years in respect of false imprisonment, all sentences to run concurrently and to date from the 29 September 2012. He lodged an appeal against conviction, which was rejected by this Court and in that regard, the judgment of the court was delivered on the 21 November 2016 by Birmingham J. (as he then was) [2016] IECA 424. No issue was raised at the trial by the defence as to the applicant's mental health at the time of the offence. No defence of diminished responsibility was raised at the trial nor in in the original appeal to this Court. The issue has been raised for the first time in this application.
. This judgment will at times refer to the application herein as “a s.2 application”. S. 2 of the 1993 Act provides as follows:
(1) A person —
(a) who has been convicted of an offence either—
(i) on indictment, or
(ii) after signing a plea of guilty and being sent forward for sentence under section 13(2)( b) of the Criminal Procedure Act, 1967, and
who, after appeal to the Court including an application for leave to appeal, and any subsequent re-trial, stands convicted of an offence to which this paragraph applies, and
(b) who alleges that a new or newly-discovered fact shows that there has been a miscarriage of justice in relation to the conviction or that the sentence imposed is excessive,
may, if no further proceedings are pending in relation to the appeal, apply to the Court for an order quashing the conviction or reviewing the sentence.
(2) An application under subsection (1) shall be treated for all purposes as an appeal to the Court against the conviction or sentence.
(3) In subsection (1)(b) the reference to a new fact is to a fact known to the convicted person at the time of the trial or appeal proceedings the significance of which was appreciated by him, where he alleges that there is a reasonable explanation for his failure to adduce evidence of that fact.
(4) The reference in subsection (1)(b) to a newly-discovered fact is to a fact discovered by or coming to the notice of the convicted person after the relevant appeal proceedings have been finally determined or a fact the significance of which was not appreciated by the convicted person or his advisers during the trial or appeal proceedings.
(5) Where—
(a) after an application by a convicted person under subsection (1) and any subsequent re-trial the person stands convicted of an offence, and
(b) the person alleges that a fact discovered by him or coming to his notice after the hearing of the application and any subsequent re-trial or a fact the significance of which was not appreciated by him or his advisers during the hearing of the application and any subsequent re-trial shows that there has been a miscarriage of justice in relation to the conviction, or that the sentence was excessive,
he may apply to the Court for an order quashing the conviction or reviewing the sentence and his application shall be treated as if it were an application under that subsection.”
. A brief summary of the facts leading to the applicant's murder conviction was set out in this Court's judgment dated the 21 November 2016 concerning the original appeal, and we gratefully adopt the summary therein as follows.
. The background was that on the 19/20 September 2012, the applicant entered the home of Mr. Eugene Gillespie at Old Market Street, Sligo, in the course of a burglary. Mr. Gillespie was 67 years of age and lived alone. The prosecution case as outlined by counsel at the trial was that while Mr. Gillespie was in his home, he was subjected to a serious degree of violence. The evidence was such as would leave the jury to infer that he had been subjected to a violent assault and subjected to repeated blows. The house was ransacked and indeed one witness described it as being “ like a bomb went off”. A number of pieces of furniture were broken. The applicant restrained Mr. Gillespie by tying his hands behind his back with a cord that he had found in the house. When the applicant left the house, he left Mr. Gillespie tied up in the house. At around 1.35pm on the 20 September, the applicant rang the emergency services and referred to a house across from the station with a “brown gate”, saying that there was a man tied up in the house. In fact, the house where the accident occurred was red, not brown. There was a house with a brown door or gate opposite the Garda station and the Gardaí called to that house, but of course found nothing untoward there. It was not until 9.20pm on Friday the 21 September that Mr. Gillespie was found tied up in his home. He appeared to be unconscious and was having difficulty breathing. He was brought to the hospital and was found to have experienced a brain bleed and...
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