The People (At the Suit of the DPP) v F.X.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Kennedy |
| Judgment Date | 31 March 2022 |
| Neutral Citation | [2022] IECA 86 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Court of Appeal Record Number: 65/2015 |
[2022] IECA 86
The President
McCarthy J.
Kennedy J.
Court of Appeal Record Number: 65/2015
THE COURT OF APPEAL
Indictment – Criminal Law (Insanity) Act 2006 s. 4(4)(a) – Non-Fatal Offences Against the Person Act 1997 s. 9(2) – Appellant appealing from an order discharging the appellant on the charge of murder, but refusing to discharge the appellant on the offence of assault causing serious harm – Whether the respondent was entitled to lodge an indictment on the appellant being sent forward pursuant to s. 4(4)(a) of the Criminal Law (Insanity) Act 2006
Facts: The appellant, on the 11th May 2010, stabbed a patient with whom he was sharing a ward who died some 8 months later. The appellant was originally charged with s. 4 of the Non-Fatal Offences Against the Person Act 1997. Subsequently, the appellant was charged with murder and sent forward to the Central Criminal Court pursuant to s. 4(4)(a) of the Criminal Law (Insanity) Act 2006 for a determination of his fitness to be tried. On the 26th March 2012, it was determined that he was unfit to stand trial. Thereafter, an inquiry pursuant to Article 40.4.2 of the Constitution proceeded on the 3rd July. It was found that the committal order was insufficient to detain the appellant beyond 14 days. It was directed that he be released on the 10th July 2012. An application was then moved pursuant to s. 4(8) of the 2006 Act upon which the appellant was discharged in respect of the murder charge but not on the charge contrary to s. 4 of the 1997 Act. The appellant appealed to the Court of Appeal from that order of the 17th February 2015, discharging the appellant on the charge of murder, but refusing to discharge the appellant on the offence of assault causing serious harm. The appellant submitted, in essence, that as the appellant was sent forward from the District Court on the charge of murder only for a determination of his fitness to be tried, that was the sole matter before the court and there is no provision under the 2006 Act to prefer additional charges; moreover, the procedure pursuant to the 2006 Act is sui generis and the provisions of the Criminal Procedure Act 1967 did not apply.
Held by the Court that whilst the 1997 Act refers to “on an indictment for murder”, this in and of itself does not preclude a judge when considering the actus reus of the offence of murder on an application under s. 4(8) of the 2006 Act from considering alternative offences which are constituent elements of the offence of murder and which may lead to a conviction for an alternative offence at trial.
The Court dismissed the appeal and refused the reliefs sought.
Appeal dismissed.
JUDGMENT of the Court delivered on the 31st day of March 2022 by Ms. Justice Kennedy
This is an appeal from an order of the Central Criminal Court (Butler J.) following an application by the appellant for an inquiry pursuant to s. 4(8) of the Criminal Law (Insanity) Act 2006 (hereafter “The 2006 Act”). The appellant's application arose from an incident which occurred on the 11th May 2010. The appellant stabbed a patient with whom he was sharing a ward who died some 8 months later. The appellant was originally charged with s. 4 of the Non-Fatal Offences Against the Person Act, 1997 (hereafter “The 1997 Act”). Subsequently, the appellant was charged with murder and sent forward to the Central Criminal Court pursuant to s. 4(4)(a) of the 2006 Act for a determination of his fitness to be tried. Carney J. determined that he was unfit to stand trial. That determination was made on the 26th March 2012, however, thereafter, an inquiry pursuant to Article 40.4.2 of the Constitution proceeded before Hogan J. on the 3rd July who found that the committal order made by Carney J. was insufficient to detain the appellant beyond 14 days and directed that he be released on the 10th July 2012.
An application was then moved pursuant to s. 4(8) of the 2006 Act upon which Butler J. discharged the appellant in respect of the murder charge but not on the charge contrary to s. 4 of the 1997 Act. It is this order of the 17th February 2015 which is the subject of this appeal.
This case has a somewhat complicated background. The incident which is the subject of these proceedings took place on the 11th May 2010. The appellant was a voluntary psychiatric patient at Tallaght Hospital, where he occupied one of six beds in a room on the Rowan Ward. He attacked a fellow patient, one Mr McGrane, with whom he was sharing a ward, by stabbing him in the neck with a steak knife. The appellant made admissions to the Gardaí, whilst fit to be interviewed, that he had purchased this knife from a shop earlier in the day of the attack. The attack was a single stab of the steak knife. The knife remained lodged in the victim which severed his spinal cord at the level of T2 and paralysed him below that level. Mr McGrane, who was 73 years old at the time, was not known to the appellant and was chosen at random. Mr McGrane died some 8 months later on the 11th January 2011.
The appellant was originally charged with s. 4 of the Non-Fatal Offences Against the Person Act, 1997 and thereafter he was charged with murder and sent forward to the Central Criminal Court for determination of his fitness to be tried pursuant to s. 4(4)(a) of the 2006 Act. On the 27th October 2011, the Prosecution entered a nolle prosequi in respect of the earlier charge of serious harm contrary to the 1997 Act.
The issue of fitness to be tried was first contended on the 10th of June 2010, where the District Court remanded the appellant to the Circuit Criminal Court for the purpose of a fitness assessment pursuant to s. 4(4) of the 2006 Act. However, following the death of the deceased, the appellant was charged with murder and he was sent forward to the Central Criminal Court on the issue of fitness, whereupon, on the 26th of March 2012, Carney J. determined on the basis of unchallenged medical evidence that the appellant was unfit to be tried and adjourned the proceedings until further order pursuant to s. 4(5)(c)(i) of the 2006 Act.
As stated, an inquiry pursuant to Article 40.4.2 of the Constitution was instituted wherein Hogan J. found on the 3rd July 2012 that the appellant's detention was not in accordance with law and directed that he be released on the 10th July 2012.
The Director of Public Prosecutions applied to the Central Criminal Court on the 9th July 2012 for an order pursuant to s. 4(6)(a) of the 2006 Act committing the appellant to the Central Mental Hospital, the matter was adjourned to the 16th July 2012, and the appellant was committed to the Central Mental Hospital subject to periodic review pursuant to the 2006 Act.
On the 30th July 2012, the appellant brought an application pursuant to s. 4(8) of the 2006 Act which provides:-
“Upon a determination having been made by the court that an accused person is unfit to be tried it may on application to it in that behalf allow evidence to be adduced before it as to whether or not the accused person did the act alleged and if the court is satisfied that there is a reasonable doubt as to whether the accused did the act alleged, it shall order the accused to be discharged.”
On the 30th July 2012, Carney J. gave directions in relation to the hearing and directed that the issue be tried by a judge alone pursuant to the 2006 Act and directed that the prosecution prepare a statement of charges and book of evidence stating as follows:-
“[I] am surprised the statute doesn't tell us one way or another, but, that being so, I think I would come down on the side of trial by judge alone. So I give that direction and note that a book of evidence and statement of charges is to be served, and that the matter will progress through list to fix dates in the ordinary way.”
Following this, an indictment was lodged with two counts; murder and assault causing serious harm. It appears from the submissions filed on behalf of the Director that the hearing was to take place on the 21st October 2013, but was adjourned, prior to that date, an indictment was lodged as above.
This Court raised the issue regarding the jurisdiction of the Court to hear this matter and following the consideration of supplemental written submissions, we are satisfied on this issue and proceed accordingly.
On the 2nd December 2014, the inquiry commenced. It was submitted at the hearing on behalf of the Director that if the court were to discharge the appellant on the murder count, s. 9(2) of the Criminal Law Act 1997 as amended by s. 29 of the 1997 Act applied.
Furthermore, the Director submitted that even if s. 4 had not been preferred on the indictment, s. 4 would have been an alternative verdict pursuant to s. 9(2) of the 1997 Act, as amended.
Counsel on behalf of the appellant argued that there was no lawful charge pursuant to s. 4 of the Non-Fatal Offences Against the Person Act 1997 before the Central Criminal Court and therefore the possibility of the appellant being discharged on such charge did not arise. It was also submitted that there was no basis in the 2006 Act requiring or permitting an indictment to be lodged where a person had been returned for a determination as to fitness to be tried. Moreover, that there was no lawful basis for the addition of counts to an indictment. Counsel on behalf of the appellant argued that if the Court had a reasonable doubt as to the alleged act of murder, it should discharge the appellant on that charge and make no further order.
Evidence was adduced and judgment was delivered by Butler J. on the 17th February 2015. The judge found that there was a reasonable doubt on the murder charge but he was satisfied that a jury would have...
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