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 the purpose of determining whether the Review Board was correct in its conclusion.
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.
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 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.
Dr. Leonard gave evidence that he was a consultant psychiatrist at St. Joseph's Intellectual Disability Service, St. Ita's, Portrane, Co. Dublin, and that he has dual specialist registration with the Medical Council of Ireland in both psychiatry of learning disability and adult psychiatry. He has extensive experience in forensic psychiatry and prior to his current appointment he worked at the Psychiatry Court Liaison Service based at Cloverhill Prison. He works primarily with people who have intellectual disabilities and severe behavioural problems. He gave evidence of the two previous interviews with T.O.N he conducted over a period of three hours on 10th May, 2012 and 11th May, 2014.
Dr. Leonard stated that T.O.N informed him that he attended his GP in relation to his diabetes.
Dr. Leonard stated that:
?In comparison to my initial assessment which had been four years ago, and consistent with my second assessment two years ago T.O.N, he presented as evasive and reluctant to engage.
When asked about the alleged indexed offence, he replied, ?I was supposed to rape the young woman, something I didn't do', and then he replied, ?I don't remember' or ?I don't know' to all of my enquiries in relation to the alleged indexed offence.?
Dr. Leonard then said,
?He really clammed up in relation to the discussion of the alleged indexed offence.?
Dr. Leonard referred to the book of evidence in which T.O.N's confession to the Garda? comprised of an admission of having had sexual intercourse on repeated occasions over an extended period with M.S., who was a child with at the material time. The general pattern through the records of the interview was T.O.N initially denying the offences, and subsequently admitting the offences when pressed. There are admissions by T.O.N of the commission of sexual assaults on three other siblings and T.O.N admitted to having paid for sex on a regular basis with Md.S., the mother of the family.
Dr. Leonard gave evidence that he had T.O.N on 26th May, 2016 in...
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