The People (At the Suit of the DPP) v Yusuf Ali Abdi

• Jurisdiction: Ireland
• Judge: Mr. Justice Alexander Owens
• Judgment Date: 02 September 2020
• Neutral Citation: [2020] IEHC 434
• Docket Number: Bill No. CCDP 87/2002
• Court: High Court
• Date: 02 September 2020

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL PROCEDURE ACT 1993, SECTION 9

BETWEEN:

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

-AND-

YUSUF ALI ABDI

APPLICANT

[2020] IEHC 434

Alexander Owens J.

Bill No. CCDP 87/2002

THE HIGH COURT

CENTRAL CRIMINAL COURT

Miscarriage of justice – Acquittal – Re-trial – Applicant seeking a miscarriage of justice certificate under s. 9 of the Criminal Procedure Act 1993 – Whether newly-discovered facts showed that there had been a miscarriage of justice

Facts: The applicant, Mr Abdi, was tried before the High Court in December 2019 on a charge that he murdered his son on 17th April 2001. At the conclusion of the trial on 13th December 2019 the jury acquitted him of murder and returned the special verdict that he was not guilty by reason of insanity. He was previously tried in the High Court in May 2003 and at that trial he was convicted of the murder of his son. The jury did not accept his defence that the evidence established that he killed his son while legally insane on that occasion. Evidence that he was suffering from schizophrenia was rejected by the jury. An appeal to the Court of Criminal Appeal was unsuccessful. An issue arose as to whether the initial diagnosis that the applicant was not suffering from schizophrenia was in fact incorrect. The applicant applied to the Court of Appeal for an order quashing his conviction under s. 2 of the Criminal Procedure Act 1993. That Court decided in 2019 that the confirmed diagnosis of schizophrenia and the materials on which it was based and a reassessment of the diagnosis at the time of the trial were “newly-discovered facts” which indicated that there was a real risk that the murder conviction involved a “miscarriage of justice”. The conviction was set aside and a re-trial was ordered. The applicant applied to the High Court seeking a miscarriage of justice certificate under s. 9 of the Criminal Procedure Act 1993. Two issues were raised in submissions: whether there was an acquittal in the re-trial; and whether it had been demonstrated to the High Court’s satisfaction that any newly-discovered facts showed that there had been a miscarriage of justice.

Held by the Court that there are only two outcomes in any completed criminal trial where a jury has not disagreed: the first outcome is a conviction and the second outcome is an acquittal. The Court held that s. 9(1) of the 1993 Act does not give any special meaning to the term “acquittal” which departs from the ordinary meaning as understood by lawyers. The applicant had satisfied the Court that it was established that “newly-discovered facts” showed that there had been a “miscarriage of justice”.

The Court granted a miscarriage of justice certificate under s. 9 of the 1993 Act.

Certificate granted.

JUDGMENT of Mr. Justice Alexander Owens delivered on 2nd September 2020

1 The applicant was tried before this court in December 2019 on a charge that he murdered his son Nathan on 17th April 2001. At the conclusion of the trial on 13th December 2019 the jury acquitted him of murder and returned the special verdict that he was not guilty by reason of insanity.

2 The jury accepted the evidence that at the time of the killing the applicant was a schizophrenic suffering from a compelling overpowering delusion.

3 He was previously tried in this court in May 2003 and at that trial he was convicted of the murder of his son. The jury did not accept his defence that the evidence established that he killed his son while legally insane on that occasion. Evidence that he was suffering from schizophrenia was rejected by the jury. An appeal to the Court of Criminal Appeal was unsuccessful.

4 An issue arose as to whether the initial diagnosis that the applicant was not suffering from schizophrenia was in fact incorrect. The applicant applied to the Court of Appeal for an order quashing his conviction under s.2 of the Criminal Procedure Act 1993. That Court decided in 2019 that the confirmed diagnosis of schizophrenia and the materials on which it was based and a reassessment of the diagnosis at the time of the trial were “newly-discovered facts” which indicated that there was a real risk that the murder conviction involved a “miscarriage of justice.” There is an overlap in the list of “newly-discovered facts” set out in the judgment and I am giving a condensed summary here.

5 It appears that chronic psychiatric conditions may vary in intensity. Sometimes symptoms and behaviour may result in a review and change of diagnosis. Some years following his conviction the applicant was diagnosed as a schizophrenic by psychiatrists in the Central Mental Hospital. This led to the application to the Court of Appeal under s.2 of the 1993 Act.

6 Diagnosis changed gradually. By the time of the re-trial what had started as a disputed medical opinion that the applicant suffered from schizophrenia at the time of the first trial had become accepted fact.

7 The Court of Appeal took the view that if this diagnosis of schizophrenia was an accepted fact at the time of the original trial, the jury might well have taken a different view of the evidence and concluded that the applicant was insane at the time of the killing. The conviction was set aside and a re-trial was ordered.

8 The Court of Appeal will allow an appeal under s.2 of the 1993 Act where it considers that there is a real prospect that a jury would come to a different conclusion if the so-called “ newly-discovered facts” were available as evidence at the trial or if it considers that the new material points in some other concrete way to the result in the original trial being a miscarriage of justice.

9 I refer to s.9(1)(a), (i) and (ii) of the 1993 Act. The context of this application is that compensation becomes payable where, following a successful s.2 application or a successful appeal, the accused “has been acquitted in any re-trial” and “the court of retrial … has certified that a newly-discovered fact shows that there has been a miscarriage of justice.” There must be a relationship between the “newly-discovered fact” and “miscarriage of Justice”. The one must demonstrate the other, and it may be that the form of demonstration is cause and effect.

10 Two issues were raised in submissions. Was there an acquittal in the re-trial? Has it been demonstrated to my satisfaction that any newly-discovered facts show that there has been a miscarriage of justice?

11 I will deal with the issue of acquittal first. During the oral presentation counsel for the respondent accepted that the verdict amounted in law to an acquittal and that had a special verdict been entered in 2003, this would have amounted to an acquittal, but he suggested that the nature of the activity which the applicant was proved to have engaged in showed that the applicant was not “acquitted” within the sense of that term as used in s.9.

12 I do not agree with this submission and would not have accepted this proposition even if this matter had come up for determination prior to the commencement of the Criminal Law (Insanity) Act 2006. There are only two outcomes in any completed criminal trial where a jury has not disagreed. The first outcome is a conviction. The second outcome is an acquittal. Section 9(1) of the 1993 Act does not give any special meaning to the term “acquittal” which departs from the ordinary meaning as understood by lawyers.

13 It is necessary to say something about the history of the defence of insanity and of the special verdict where a defence based on insanity is made out. The origin of special verdicts in insanity trials goes back to the trial of James Hadfield reported in (1800) 27 State Trials 1281. He was charged with treason following an attempt to kill George III with a pistol at the Drury Lane Theatre on 15th May 1800. At that time the correct course was for the jury to find the prisoner who was adjudged to be insane not guilty but as the law then stood this might result in his immediate release. The common law on that was unclear.

14 Everybody was in agreement that Hadfield should be kept in confinement as he posed a danger to others. At the time of his trial legislation was contemplated to cover the potential difficulty as to what was to be done after the verdict if Hadfield was found not to be so under the guidance of reason as to be answerable for his act. At the suggestion of the prosecution the jury returned a verdict “ We find the prisoner is not guilty; he being under the influence of insanity at the time the act was committed.”

15 This brought Hadfield within the scope of the Bill which Parliament was about to consider and which became the Criminal Lunatics Act 1800. The effect of the Act was that a person found not guilty on the grounds of insanity was no longer entitled to a general acquittal which would permit release. Insanity became a special verdict with automatic confinement for an indefinite period of time. The Act required the jury to find specially whether the person charged with the offence was insane and made it lawful for a court as a consequence of such a finding to order the detention of that person at the pleasure of the Sovereign.

16 The form of the special verdict was altered by s.2(1) of the Trial of Lunatics Act 1883 which provided as follows:

“Where in any indictment or information any act or omission is charged against any person as an offence, and it is given in evidence on the trial of such person for that offence that he was insane, so as not to be responsible, according to law, for his actions at the time when the act was done or omission made, then, if it appears to the jury before whom such person is tried that he did the act or made the...