DPP v Ward

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Ní Raifeartaigh
• Judgment Date: 27 June 2024
• Neutral Citation: [2024] IECA 227
• Docket Number: Record Number: 18/2022

Between/

The People at the Suit of the Director of Public Prosecutions

Respondent

and

Alan Ward

Appellant

[2024] IECA 247

Kennedy J.

Burns J.

Ní Raifeartaigh J.

Record Number: 18/2022

Bill Number: 89/2019

THE COURT OF APPEAL

Judgment of the Court delivered on the 27 ^th day of June 2024 by Ms. Justice Ní Raifeartaigh

Introduction

1 . This is an appeal against conviction. The appellant was convicted of three counts following a jury trial, namely murder, threat to kill (contrary to section 5 of the Non-Fatal Offences Against the Person Act, 1997), and attempted assault. The primary issue on appeal is the interaction between the rule that a witness may not comment on the “ultimate issue” falling for decision by a jury and the opinions of the prosecution and defence psychiatrists with regard to the interaction between mental disorder and intoxication, and their impact on the appellant's mind at the time of the killing.

2 . Other issues also arising are the judge's treatment of the issue of intoxication in his charge to the jury; comments made by the prosecution in the closing speech about the appellant's self-report to the psychiatrists of having endured a violent childhood; a ruling that the defence could not put a particular question to a garda officer about a statement the appellant had made during interview; and the refusal of the prosecution to call two witnesses who had made statements but were not included in the Book of Evidence.

3 . There was also a ground of appeal relating to the admissibility of a portion of a psychologist's report (Ground 2) but this was withdrawn at the oral hearing of the appeal and is not dealt with in this judgment.

4 . Section 6 of the Criminal Law (Insanity) Act, 2006 provides:

“(1) Where a person is tried for murder and the jury or, as the case may be, the Special Criminal Court finds that the person—

(a) did the act alleged,

(b) was at the time suffering from a mental disorder, and

(c) the mental disorder was not such as to justify finding him or her not guilty by reason of insanity, but was such as to diminish substantially his or her responsibility for the act,

the jury or court, as the case may be, shall find the person not guilty of that offence but guilty of manslaughter on the ground of diminished responsibility.”

5 . Mental disorder is treated thus: ““mental disorder” includes mental illness, mental disability, dementia or any disease of the mind but does not include intoxication” (emphasis added).

Factual background and the evidence at the trial

6 . The appellant was married to the deceased, Catherine Ward, for 23 years and had been abusive and violent towards his wife during the marriage. He also had a long history of alcohol abuse. Mrs. Ward had left with the children on a number of occasions during the marriage. In 2017 the appellant had a stroke which left him with certain impairments including of his ability to communicate.

7 . On the 1st March 2019, the appellant fatally stabbed his wife upstairs in their family home. On the night in question, she was heard by her sons screaming after she ran up the stairs followed by the appellant. One of their sons saw the appellant standing over the body in the immediate aftermath of what had happened, holding a knife. The appellant then attempted to slash and lunge at one of his sons with the knife and made threats to kill him.

8 . He told gardaí at the scene that his wife had hit him and that he “grabbed my knife and I said to her if she did it again, I'd hit her with it.” He then said that he was sorry that he had stabbed her, that he hoped she was not dead and that he did not “mean” to do it. Admissions were also made at subsequent formal garda interview. During interview the appellant also said “ That's not me” or “ it's not me” with regard to his stabbing and killing of his wife.

9 . At the trial, the appellant accepted that he had stabbed his wife and relied primarily on the defence of diminished responsibility. It was argued in the alternative that he may not have formed the requisite intent to be guilty of murder due to intoxication. There was limited evidence of intoxication. The experts (as we shall see) agreed that the effect of intoxication upon the appellant would have been greater than upon someone who did not have his acquired brain injury. They were also agreed that the appellant suffered from a mental disorder. The important subject of disagreement between the experts was whether the mental disorder or the intoxication were operating on his mind at the time of the stabbing.

10 . A neighbour with whom the appellant and the deceased got on well gave evidence that on the 16 ^th January 2019, the appellant told her he was distressed and at one point said to her “ You lovely woman but brain telling me to stab you”. On the same date, according to the medical notes as reported by Dr. O'Connell, he had been taken by ambulance to A&E and said he wanted to hurt himself and made stabbing motions to his own chest; and expressed a fear of hurting others namely his wife and three sons.

The first issue: Expert Evidence and the “ultimate issue”

11 . We will deal in the first instance with the issue which featured most prominently during the appeal. This arises from Ground 6 of the Notice of Appeal, which says:

“The learned Trial Judge erred in law in allowing the prosecution to adduce the opinion evidence of Dr. Smith on the ultimate issue for determination by the jury as to whether diminished responsibility should reduce the crime from murder to manslaughter.”

The issue as it was dealt with at the trial

12 . During the trial, before expert evidence was adduced in front of the jury, legal argument took place as to whether certain passages in the report of Dr. Smith, the prosecution expert, could be given in evidence before the jury. The passages in question were:

“16.5.8 Based on the evidence available to me, it is my opinion that Mr Ward was suffering from a non-traumatic acquired brain injury at the time of the offence charged, however in my view his actions at the material time were better explained by acute intoxication with alcohol and hypnotic medication.

16.5.9 I base this opinion on evidence that Mr Ward had been physically violent towards his deceased wife preceding his acquired brain injury during arguments while intoxicated with alcohol and “tablets” (29th September 2002).

16.5.10 Additionally, I note from the Statement of Evidence to be given by his son Mr Daniel Ward that he reported overhearing his parents argue immediately before the alleged offending. This account was corroborated in the Statement of Evidence to be given by Garda Elaine Maher.

16.5.11 I further note Statements of Evidence to be given by Garda Kerry Harman and Garda Garrett Boyle, which reported that at the time of his arrest for the alleged index offence, while outside his home, Mr Ward said he had a “row” with the deceased, became angry after she assaulted him and threatened her with a knife before stabbing her.

16.5.12 […] I was not satisfied however that the abnormality of mental functioning caused by his acquired brain injury was sufficient to substantially impair his responsibility at the material time, had he not been intoxicated with alcohol and hypnotic medications.”

13 . Counsel for the appellant submitted that Dr. Smith was purporting to offer opinion evidence on the ultimate issue in the case when he said that the responsibility of the appellant was not diminished by the mental disorder but was better explained by intoxication. It was submitted that his was a matter for the jury to determine since it was necessary to balance all the evidence and circumstances, including factors which were not within the psychiatrist's sphere of expertise, such as, for example, the history of violence in their relationship. It was submitted that an important factor for consideration in this context was the fact that the defence expert Dr. O'Connell did not offer an opinion on the ultimate issue in his report. The application was opposed by the prosecution.

14 . In his ruling, the trial judge noted that the issue fell to be decided by reference to the words of the statute. He noted that Section 1 of the Criminal Law (Insanity) Act 2006 expressly provides that the term “mental disorder” does not include “intoxication” and said that intoxication was an “obvious feature of the evidence” which would have to be considered by the jury. Given that the jury would be required to consider whether the appellant was subject to a mental disorder (from which intoxication was excluded), it was “an entirely appropriate process that an expert qualified to opine on whether a person has a mental disorder as defined by the Act should necessarily also be able to offer an expert view on the applicability or the non-applicability of a specific statutory component of the concept of mental disorder as defined by the Act”. He said that where there was a conflict of expert evidence, such evidence was offered for the assistance of the jury in discharging their task as ultimate fact finders, and they might well disagree with the prosecution expert's opinion. He said that it was equally open to the defence expert to offer his views on the interaction between mental disorder and intoxication. He said that he believed the jury would be “rightly surprised” if at the end of the case they did not have the assistance of both experts in the case on all ingredients of the statutory definition of mental disorder and were left without any expert opinion to guide them on the interaction and the distinctions specifically drawn by the statutory provision in question. He concluded by saying that his reasoning was based on the wording of the legislative provisions but noted that it appeared to be somewhat at least in line with the “persuasive” observations of the Court of Appeal of England and...