DPP v T.O.N

Court:Central Criminal Court
Docket Number:(Bill No. CC 69/2009)
Judge:Mr. Justice Robert Eagar
Judgment Date:21 Jun 2016
Jurisdiction:Ireland
Neutral Citation:[2016] IECCC 3

[2016] IECCC 3

CENTRAL CRIMINAL COURT

Eagar J.

(Bill No. CC 69/2009)

BETWEEN
DIRECTOR OF PUBLIC PROSECUTIONS
PROSECUTION
AND
T.O.N.
ACCUSED

Criminal prosecution – Sexual offences – Fitness to stand trial – Prosecution seeking to try the accused – Whether the accused is fit to be tried

CC60/2009 - Eagar - Central Criminal Court - 21/6/2016 - 2016 IECCC 3

Facts: The accused was charged with 73 offences, all in respect of alleged sexual offending committed against four sisters living in Wexford between 2001 and 2006. There were 18 charges of rape and 56 charges of sexual assault. The sisters ranged in age from four to ten when the sexual offending was alleged to have commenced. The case came for trial on the 4th March, 2013 before Sheehan J and on that occasion the issue of fitness to plead was raised by both the prosecution and defence. On the basis of the uncontroversial evidence that was given on that occasion, the court found that the accused was unfit to plead and in consequence he was committed on the 15th March, 2013 to the Central Mental Hospital for inpatient treatment. The accused was reviewed on three occasions by the Mental Health (Criminal Law) Review?Board. On the third occasion, the 6th March, 2014, the Review Board determined that the accused was fit to be tried and sent the matter back to the Central Criminal Court. On the 10th March, 2014 the accused was admitted to bail pending further order in the matter. The matter substantively came back before Sheehan J on the 28th July, 2014 and it did so for a further fitness hearing, for the purpose of determining whether the Review Board was correct in its conclusion. On the 30th July, 2014 Sheehan J having considered the evidence of one Dr Leonard, one Dr Mohan and one social worker Ms Timmons, decided that the accused was fit to be tried and directed that the trial should proceed. That court in reaching its conclusion placed great weight on the length of time Dr Mohan and Ms Timmons had in which to observe and interact with the accused, as against the period of time that Dr Leonard spent with the accused in the course of his two assessments. In particular the court preferred the view of Dr Mohan as to why the accused was reluctant to deal with the allegations against him. The matter came back before the Central Criminal Court by way of correspondence from the accused?s solicitors dated the 20th May, 2016 in which the defence indicated that they wished to withdraw their appeal against the determination of Sheehan J to the Court of Appeal and wished to re-agitate the issue of fitness on the trial date. The accused reiterated the evidence of Dr Leonard and said that the real question for the Court was whether the accused was actually fit to stand trial in relation to the charges. He emphasised that it was very important that he has the intellectual capacity to understand the difference in terms of any possible sentence if he were to plead not guilty as opposed to guilty. In reply, the prosecution emphasised that the whole point of the evidence given by Dr Mohan was that over a period of time, in particular the 51 weeks that he was treating the accused in the Central Mental Hospital, allowed for a deeper understanding and insight into the accused?s true condition. It was also said that nothing new emerged since the last fitness hearing where Sheehan J having considered all of the evidence, which was substantially identical to the evidence which had been heard before the Court, came to the view that the accused was fit.

Held by Eagar J that he accepted the opinion of Dr Mohan that the accused was seeking to deliberately avoid criminal prosecution.

Eagar J held that in all the circumstances the Court was of the view that the decision of Sheehan J was correct and he so directed that the trial proceed on the allocated date.

Judgment approved.

Mr. Justice Robert Eagar
1

The issue which is before this Court is whether or not the accused in this case, T.O.N. is fit to be tried. On 30th July, 2014 Sheehan J. having considered the evidence of Dr. Peter Leonard, Dr. Damien Mohan and social worker Marian Timmons, decided that T.O.N was fit to be tried and directed that the trial should proceed. That court in reaching this conclusion placed great weight on the length of time Dr. Mohan and Marian Timmons had in which to observe and interact with T.O.N, as against the period of time that Dr. Leonard spent with T.O.N in the course of his two assessments. In particular the court preferred the view of Dr. Mohan as to why T.O.N was reluctant to deal with the allegations against him. Having regard to that decision of Sheehan J., this Court will not act as an appellate court. However, this Court is prepared to take note of any issues which may have arisen between the 30th July, 2014 and the hearing of this matter on 7th and 8th June, 2016.

2

The Court is aware that the accused was born on the 3rd August, 1941, is 75 years old, and resides in Co. Wexford. He is the eldest of five siblings and worked with the local authority in Wexford for 21 years before he retired. He is charged with 73 offences. This Court notes that they are all in respect of alleged sexual offending committed against four sisters living in Wexford between 2001 and 2006, and are thus not particularly old charges. There are 18 charges of rape and 56 charges of sexual assault. The sisters ranged in age from four to ten when the sexual offending is alleged to have commenced.

3

Section 4 of the Criminal Law (Insanity) Act 2006 provides for fitness to plead issues to be determined by a judge. Section 4 (1):

?(1) Where in the course of criminal proceedings against an accused person the question arises, at the instance of the defence, the prosecution or the court, as towhether or not the person is fit to be tried the following provisions shall have effect.

(2) An accused person shall be deemed unfit to be tried if he or she is unable by reason of mental disorder to understand the nature or course of the proceedings so as to?

(a) plead to the charge,

(b) instruct a legal representative,

(c) in the case of an indictable offence which may be tried summarily, elect for a trial by jury,

(d) make a proper defence,

(e) in the case of a trial by jury, challenge a juror to whom he or she might wish to object, or

(f) understand the evidence.

Section 4 (4) (b) states:

?the question of whether the accused person is fit to be tried shall be determined by the judge concerned sitting alone.?

4

It appears to be agreed by counsel that the onus of proof rests on the defence to satisfy the court on the balance of probabilities that the accused is unfit to be tried.

5

The history of the case has been set out by Mr. Coffey and he indicates that the case came for trial on the 4th March, 2013 before Sheehan J. and on that occasion the issue of fitness to plead was raised by both the prosecution and defence. On the basis of the uncontroversial evidence that was given on that occasion, the court found that the accused was unfit to plead and in consequence he was committed on 15th March, 2013 to the Central Mental Hospital for inpatient treatment. The Act provides for the review of detention by the Mental Health (Criminal Law) Review Board (herein ?Review Board') and he was reviewed on three occasions by the Board. The first occasion was the 2nd August, 2013 when the Review Board determined to continue his detention. The second occasion was 22nd November, 2013 when it made a similar order. However, when the matter came back before the Review Board on 6th March, 2014 the Review Board determined that the accused was fit to be tried and sent the matter back to the Central Criminal Court. Under the Act, when such an order is made, it is for the relevant court to make such order as it thinks proper. On 10th March, 2014 the accused was admitted to bail pending further order in the matter. The matter substantively came back before Sheehan J. on 28th July, 2014 and it did so for a further fitness hearing, for the purpose of determining whether the Review Board was correct in its conclusion.

6

It is commonplace that the accused has no history of mental illness. He has an IQ of 53 which is in the lower range for mild mental retardation, bordering on moderate mental retardation. Both Dr. Leonard, Dr. Mohan and Marian Timmons gave evidence before Sheehan J.

7

The matter does not come back before this Court because of some adverse development or some newly discovered medical fact, but by way of correspondence from the accused solicitors dated the 20th May, 2016 in which the defence...

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