DPP v Yusuf Ali Abdi

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 13 February 2019
• Neutral Citation: [2019] IECA 38
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 231/2016
• Date: 13 February 2019

APPLICATION UNDER THE CRIMINAL PROCEDURE ACT 1993, SECTION 2

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

YUSUF ALI ABDI

Appellant

[2019] IECA 38

Edwards J.

Birmingham P.

Edwards J.

McCarthy J.

Record No: 231/2016

THE COURT OF APPEAL

Conviction – Murder – Insanity – Appellant seeking to appeal against conviction – Whether newly discovered facts showed that the appellant was the victim of a miscarriage of justice

Facts: The appellant, Mr Abdi, on the 14th of May 2003, was placed on trial for the offence of murder in the Central Criminal Court. He was alleged to have murdered his 20-month old son. That he had killed the child was not in contest, but it was contended on his behalf that he had been insane at the time of the killing, within the meaning of M’Naghten Rules which still applied in Ireland at the time of the trial (albeit as modified in the Irish context post Doyle v Wicklow Co Council [1974] IR 55). His insanity defence was rejected by the jury, who on the 28th of May 2003 convicted him of murder by a majority verdict of 10:2. He was then sentenced to life imprisonment. He applied to the Court of Appeal seeking to have his conviction set aside on the basis that he was the victim of a miscarriage of justice. The basis for this claim was as follows. Psychiatric evidence was called on behalf of the defence at the appellant’s trial to the effect that he was a paranoid schizophrenic. There was expert testimony in that regard from Dr McCaffrey and Dr Washington-Burke, Consultant Psychiatrists. In response to this the prosecution called evidence from Dr Mohan, a forensic psychiatrist based at the Central Mental Hospital, who had assessed the appellant to the effect that he was not suffering from schizophrenia. The jury were therefore faced with conflicting expert opinions. The prosecution’s medical evidence was ostensibly preferred by the jury, and they rejected the defence of insanity. However, some ten years later, in 2013, yet another psychiatrist (also based at the Central Mental Hospital) independently diagnosed the appellant as suffering from paranoid schizophrenia. This latest diagnosis was not made in the context of a forensic assessment conducted for the purpose of a pending trial, but rather in the context of a clinical assessment of the appellant who had been admitted to the Central Mental Hospital by reason of exhibiting symptoms of possible mental illness while in prison. The appellant maintained that this 2013 diagnosis confirmed the evidence of the psychiatrists who testified on his behalf at his trial, and further demonstrated that the defence of insanity was wrongly rejected by the jury at trial. It was contended that the 2013 diagnosis, and certain medical evidence underpinning it that had been recorded since the trial, represented newly discovered facts on which the appellant should be entitled to rely in the hope of persuading the Court that it was possible that he may have been the victim of a miscarriage of justice.

Held by the Court that, on the basis of its review for the purposes of s. 2 of the Criminal Procedure Act 1993, the appellant had established the existence of newly discovered facts. While the Court was not required to determine conclusively whether or not there had in fact been a miscarriage of justice, it harboured a significant level of concern that the newly discovered facts that were being relied upon, if they had been before the jury, might have influenced the outcome of his trial. The Court therefore felt justified in concluding that the appellant’s trial was indeed unsatisfactory and that the verdict of murder that was recorded was unsafe.

The Court held that it would quash the conviction and direct a re-trial.

Appeal allowed.

JUDGMENT of the Court delivered on the 13th of February, 2019 by Mr. Justice Edwards

Introduction.

1 On the 14th of May 2003, the applicant was placed on trial for the offence of murder in the Central Criminal Court. The applicant was alleged to have murdered his 20-month old son. That the applicant had killed the child was not in contest, but it was contended on his behalf that the applicant had been insane at the time of the killing, within the meaning of M'Naghten Rules which still applied in Ireland at the time of the trial (albeit as modified in the Irish context post Doyle v Wicklow Co Council [1974] I.R.55). The insanity defence advanced by the applicant was rejected by the jury, who on the 28th of May 2003 convicted the applicant of murder by a majority verdict of 10:2. The applicant was then sentenced to life imprisonment.

2 The applicant now seeks to have his conviction set aside on the basis that he is the victim of a miscarriage of justice. In brief, the basis for this claim is as follows. Psychiatric evidence was called on behalf of the defence at the applicant's trial to the effect that the applicant was a paranoid schizophrenic. There was expert testimony in that regard from Dr. Brian McCaffrey and Dr. Aggrey Washington-Burke, Consultant Psychiatrists. In response to this the prosecution called evidence from Dr. Damien Mohan, a forensic psychiatrist based at the Central Mental Hospital, who had assessed the applicant to the effect that he was not suffering from schizophrenia. The jury were therefore faced with conflicting expert opinions. The prosecution's medical evidence was ostensibly preferred by the jury, and they rejected the defence of insanity. However, some ten years later, in 2013, yet another psychiatrist (also based at the Central Mental Hospital) independently diagnosed the applicant as suffering from paranoid schizophrenia. This latest diagnosis was not made in the context of a forensic assessment conducted for the purpose of a pending trial, but rather in the context of a clinical assessment of the appellant who had been admitted to the Central Mental Hospital by reason of exhibiting symptoms of possible mental illness while in prison. The applicant maintains that this 2013 diagnosis confirms the evidence of the psychiatrists who testified on his behalf at his trial, and further demonstrates that the defence of insanity was wrongly rejected by the jury at trial. It is contended that the 2013 diagnosis, and certain medical evidence underpinning it that has been recorded since the trial, represent newly discovered facts on which the applicant should now be entitled to rely in the hope of persuading this Court that it is possible that he may have been the victim of a miscarriage of justice.

The legal rules relating to the defence of insanity applicable at the time.

3 The applicant's trial took place in 2003, some three years before the enactment of the Criminal Law (Insanity) Act, 2006. In the introduction to this judgment we stated that the “modified” M'Naghten Rules were in operation. This was in the following circumstances. The insanity defence available under the original M'Naghten Rules catered solely for insanity based on insane delusions, such as are experienced by persons suffering from psychosis. To succeed in an insanity defence based on insane delusions, the applicant would have been required to satisfy the jury on the balance of probabilities, that at the material time he was suffering from a disease of the mind that prevented him from (a) knowing the nature and quality of his act, or (b) from knowing that the act in question was wrong. However, as already pointed out, following Doyle v Wicklow Co Council, another possible basis for establishing insanity – namely volitional insanity – was recognised in Irish law. Volitional insanity arose where a person, who was suffering from a disease of the mind, had killed another as a result of an “irresistible impulse”. Post Doyle v Wicklow Co Council a modified form of the original M'Naghten Rules that sought to accommodate volitional insanity was operated in Ireland up until the coming into force of the Criminal Law (Insanity) Act 2006. Allusion to this modification is relevant because it appears that the form of insanity contended for at the trial was volitional insanity. In that regard, Dr. Aggrey Washington-Burke, who gave evidence for the defence, testified that the applicant – whom he believed to be suffering from schizophrenia – did know what he was doing (in other words, he knew the nature and quality of his actions); that he did know that what he was doing was wrong; but that he couldn't prevent himself from doing what he did (in other words, that he was subject to an irresistible impulse). This evidence will be elaborated on further later in this judgment.

Subsequent procedural history of the appellant's case

4 Following his conviction of murder on the 28th of May 2003, the appellant, having been refused leave to appeal by the trial judge (Carney J.), appealed to the Court of Criminal Appeal against that refusal and sought the leave of that court to appeal. As was the usual procedure at that time, the Court of Criminal Appeal was prepared to treat and hear the application for leave to appeal as though it were the substantive appeal. The matter was heard by the Court of Criminal Appeal on the 6th of December 2004, and that court rejected the grounds of appeal advanced. See the judgment of the court delivered by Hardiman J.: Abdi v DPP [2004] IECCA 47.

5 As Hardiman J. notes, the grounds of appeal were very confined. They were as follows:

“(1) The Central Criminal Court erred in law in permitting Dr. Mohan, a Consultant Psychiatrist, to give evidence of his opinion as to the applicant's motive in killing his son.

(2) The learned trial judge erred in law in repeating in his charge to the Jury Dr. Mohan's opinion as to the applicant's motive in killing his son.”

A third ground was not pursued.

6 In summary, the Court of Criminal Appeal, following a consideration of the disputed evidence given by Dr. Mohan, was satisfied that the trial judge had...