The People at the Suit of the Directorof Public Prosecutions v Yusuf Ali Abdi

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham,Edwards J,Kennedy J
• Judgment Date: 23 August 2021
• Neutral Citation: [2021] IECA 237
• Court: Court of Appeal (Ireland)
• Docket Number: [2020/202]

Between

The People at the Suit of the Directorof Public Prosecutions

Appellant

and

Yusuf Ali Abdi

Respondent

[2021] IECA 237

The President

Edwards J

Kennedy J

[2020/202]

THE COURT OF APPEAL

CIVIL

Conviction – Murder – Miscarriage of justice – Appellant appealing against the decision to certify that the conviction of the respondent of the offence of murder amounted to a miscarriage of justice – Whether the conviction of the respondent amounted to a miscarriage of justice

Facts: The respondent, Mr Abdi, on 17th April 2001, killed his infant son. On 2nd September 2020, the High Court (Owens J) certified that the conviction of the respondent in the Central Criminal Court in May 2003 of the offence of murder amounted to a miscarriage of justice. The appellant, the Director of Public Prosecutions, appealed to the Court of Appeal against the decision to so certify, submitting that the evidence relied on by the jury in the trial was honest and given by a psychiatric expert.

Held by the Court that there was no question of prosecutorial irregularity or of perjured evidence. The Court held that the decisive factor in the retrial was agreement by all psychiatric experts who gave evidence that the respondent was suffering from schizophrenia when he killed his son. The Court noted that by the time of the retrial, what had started as a disputed medical opinion that the respondent suffered from schizophrenia, which was the situation at the time of the first trial, had become accepted fact. The Court found that nobody was in any doubt about the fact that the respondent killed his infant son while suffering from schizophrenia and that the extent of the mental illness that he suffered from in 2003 was such that he was not legally sane at the time that he killed. That being so, the Court held that he should never have been convicted; that a conviction for murder was recorded when it should not have been meant that the conviction was wrong in a fundamental aspect.

The Court agreed with the conclusion of the High Court judge that this was a case where a certificate had to issue. Accordingly, the Court dismissed the appeal.

Appeal dismissed.

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Birmingham, President of the Court of Appeal, delivered (electronically) on the 23 ^rd day of August 2021

1 . On 17 ^th April 2001, the respondent killed his infant son, Nathan. On 2 ^nd September 2020, the High Court (Owens J.) certified that the conviction of the respondent in the Central Criminal Court in May 2003 of the offence of murder amounted to a miscarriage of justice. The appellant has appealed against the decision to so certify.

2 . To put the issues that arise in this appeal in context, it is necessary to say more about the sequence of events that has occurred.

Background Events

3 . There has never really been any dispute about the fact that on 17 ^th April 2001, the respondent was responsible for actions which culminated in the death of his 20-month old son, as a result of head injuries arising from multiple blows to the head. In 2003, the respondent stood trial, charged with murder, before the Central Criminal Court. The issue before the Court was whether the accused should be convicted of murder or whether the appropriate verdict was one of guilty but insane, to use the language then applicable. As might be expected, when there was no real dispute about the facts surrounding the killing, and where the real issue at trial was whether the respondent was legally sane or insane at the time he killed his son, psychiatric evidence was a significant aspect of the trial, with evidence called from two psychiatrists by the defence to the effect that the then accused was a paranoid schizophrenic and was legally insane when he killed his son. Evidence to that effect was given by Dr. Brian McCaffrey and Dr. Aggrey Washington Burke. Evidence on behalf of the prosecution was given by Dr. Damien Mohan, a forensic psychiatrist from the Central Mental Hospital, whose assessment it was that the accused was not suffering from schizophrenia.

4 . Faced with conflicting expert evidence, the jury would appear to have preferred the evidence of Dr. Mohan and returned a verdict of guilty of murder on 28 ^th May 2003 by a majority of 10:2.

The Appeal Against Conviction

5 . The convicted man appealed to the Court of Criminal Appeal. On 6 ^th December 2004, the Court of Criminal Appeal, in a judgment delivered by Hardiman J., dismissed the appeal against conviction. In the course of that judgment, it was observed that the most fundamental clash between Dr. Mohan and his colleagues who gave evidence for the defence was in relation to the degree of credibility that they attached to the proposition that the defendant had killed the child because he heard voices telling him to do so. The Court noted that all of the doctors were agreed that delusion and voices were a psychotic symptom, but that while Drs. McCaffrey and Burke were prepared to accept the respondent's history of hearing voices as both honest and accurate, Dr. Mohan was extremely sceptical on the subject. The Court of Criminal Appeal went on to comment that it cannot, in their view, be said that Dr. Mohan lacked a factual basis for his opinion. He had prepared a very detailed 19-page report which was available to both sides. He had formed the view that the respondent was “an unreliable historian, with many inconsistencies in the history that he gave me and furthermore his account is at odds with others that I have read in the witness statements”. The Court referred to the fact that the report of Dr. Mohan had made reference to a report of Dr. Ivor Shortts, clinical psychologist, which had concluded:

“Mr. Abdi's performance suggests the possibility that he may be exaggerating some of his psychiatric symptoms. This indicates that his self report may be unreliable and thus he may be an unreliable informant regarding the nature and extent of his actual symptomatology. This does not mean of course that he may not be experiencing some psycho pathology, only that he may feel the need to exaggerate various aspects of it, such as its actual nature, severity or the generality or possibly even the need to manufacture some features. His results in part may also possibly represent a cry for help and/or may be to some extent contributed to by low self evaluation, severe depression as well as a high level of apprehension regarding the legal consequences for him”

6 . The Court of Criminal Appeal refers to the fact that Dr. Mohan had described in his report, and had repeated in evidence, many indications which, to him, suggested unreliability, noting the lateness of the accused's claim of “hearing voices” and the lack of complaint of this problem at earlier times back to 1998 when it was now alleged to have been present.

7 . The Court of Criminal Appeal was of the view that Dr. Mohan's evidence was admissible in principle, and sufficiently grounded in fact to allow the jury to reach a conclusion on it. The Court commented that Dr. Mohan's evidence was fully and amply supported by closely reasoned arguments and properly drawn inferences, and was presented with a minimum of technicality, and such technicality as there was, was comprehensively explained.

The Section 2 Miscarriage of Justice Application

8 . The respondent brought proceedings before this Court pursuant to s. 2 of the Criminal Procedure Act 1993 (as amended). The judgment of the Court was delivered on 13 ^th February 2019 by Edwards J. Before the appeal court, counsel for the respondent submitted that the “newly discovered facts” were the respondent's psychiatric presentation and history in the years subsequent to his sentencing, and in particular, the symptoms and signs exhibited by him over the years which, when taken into account and considered with his overall psychiatric history, had led to his diagnosis being changed from one of depression and non-psychotic paranoid state to one of paranoid schizophrenia following a fourth admission to the Central Mental Hospital in 2013. The case on behalf of the respondent was that his actual condition was not new; rather, it was a changed diagnosis with respect to same, consequent upon the additional symptoms and the signs of paranoid schizophrenia exhibited in the years since sentencing, necessitating several admissions to the Central Mental Hospital which was new. At paras. 58 and 90 of his judgment, Edwards J offers this overview:

“58. […] It is contended that heretofore he was misdiagnosed by the psychiatrist who initially was treating him, Professor Harry Kennedy, and also by Dr. Mohan who independently assessed him on behalf of the State; and that in truth he was suffering from paranoid schizophrenia both at the time of the killing and at the time of his trial. It is not suggested that those who provided the incorrect diagnoses were negligent, dishonest, incompetent or biased; or that their diagnoses were offered other than in good faith, but merely that they were wrong and that subsequent events have established that they were wrong.

[…]

90. In our view the applicant's psychiatric symptomology, presentation and treatment since he was sentenced are undoubtedly newly-discovered facts. Moreover, his current diagnosis of schizophrenia is also a newly discovered fact, because it is not based on an investigation of the same symptoms and history as underpinned the previous diagnoses, be it that of Professor Kennedy's diagnosis of depression and non-psychotic paranoid state, with which Dr. Mohan was in agreement, or that of Dr. Washington-Bourke's and Dr. Caffrey's respective diagnoses of paranoid schizophrenia. Moreover, that the applicant's treating doctors now regard his earlier diagnosis made at the same hospital as having been incorrect, is itself a newly discovered fact in our judgment; and the opinion evidence of Dr....