DPP v T.O.N
 IECCC 3
CENTRAL CRIMINAL COURT
(Bill No. CC 69/2009)
CC60/2009 - Eagar - Central Criminal Court - 21/6/2016 - 2016 IECCC 3
Criminal prosecution – Sexual offences – Fitness to stand trial – Prosecution seeking to try the accused – Whether the accused is fit to be tried
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.
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.
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.?
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.
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...
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