A Roscommon man acquitted of murdering his mother by reason of insanity last year is appealing his acquittal.
Paul Henry (29), who lived with his mother Ann Henry, had pleaded not guilty to her murder at The Spinney, Abbeystown, Roscommon in September 2011.
A jury acquitted Mr Henry of murder by reason of insanity at a Castlebar sitting of the Central Criminal Court and he was sent to the Central Mental Hospital (CMH) by Mr Justice Paul Carney on May 7th, 2014.
Mr Henry is seeking a retrial so he can plead, and be convicted of, manslaughter by reason of diminished responsibility and incur a determinative sentence rather than being under an indefinite regime at the CMH possibly for the rest of his life.
The Court of Appeal must first determine whether it has jurisdiction to hear an appeal against an acquittal on grounds of insanity. Such an appeal has never been brought before and no explicit powers on it were given to the court when it was established.
The Director of Public Prosecutions is seeking to have the insanity verdict upheld.
Counsel for Mr Henry, Colm Smyth, said it was accepted that the trial judge misdirected the jury when the burden to prove insanity, which was not introduced by the defence, was passed to the defence. It was a “clear misdirection”.
Mr Smyth submitted that the Court of Appeal had the jurisdiction required to order a retrial. Its predecessor, the Court of Criminal Appeal, had an inherent jurisdiction to correct wrongs if it was satisfied that a trial was unsatisfactory.
It would “turn the textbooks” on their heads if the Court of Appeal found it had no power to correct a mistake committed in a lower court.
Mr Henry would be left with no remedy having been subjected to an unsatisfactory trial and a misdirection on the burden of proof.
Mr Smyth wondered whether the Oireachtas intended to create an “appalling vista” such as this and said it was the first opportunity the court had to deal with this “thorny issue”.
He said Mr Henry was a vulnerable person who had been left in this difficult position.
The Court of Appeal had to have regard to the principals of natural justice, Constitutional justice and fairness, counsel submitted.
Mr Justice Garrett Sheehan suggested during counsel’s submissions that the outcome for Mr Henry could be substantially different depending on the verdict.
The current outcome had led to detention in the CMH and treatment on heavy medication whereas a conviction for murder would have lead to a completely different regime in terms of his health.
One might say, Mr Justice Sheehan suggested, that Mr Henry might have a better life in prison than in the CMH even if he gets a life sentence.
Counsel for the Director of Public Prosecutions, Úna Ní Raifeartaigh, said it was not the case that a verdict of guilty by reason of insanity would automatically lead to hospitalisation in the Central Mental Hospital. A separate inquiry as to whether the accused should be hospitalised is conducted by the trial judge, she said.
She said insanity related to the time of offence, and by the time an accused comes to trial two to three years later, could cause the judge to conclude he or she does not need detention in the CMH.
Mr Justice Sheehan put it to counsel that the only real choice a judge has in cases such as this is total release or committal to the CMH because there’s only one such centre in the country.
Ms Ní Raifeartaigh said it had to be a real choice according to European law.
She said the Criminal Procedure Act allowed for appeals against conviction and the Court of Appeal had no power to order a retrial on the facts of this case.
The only remaining avenue of appeal was the court’s inherent jurisdiction under the Constitution but this limited the courts to acts prescribed by law.
Ms Ní Raifeartaigh conceded that the trial judge had made an error but it was “not of any significance”.
She said the Criminal Law Jurisdiction Act allowed the prosecution to introduce insanity into criminal trials but the act itself was silent on the standard of proof required.
If the defence raised insanity it had to be proved by them on the balance of probabilities and not beyond reasonable doubt so “why would a different standard apply to the prosecution?” Ms Ní Raifeartaigh asked.
Mr Justice Sheehan asked counsel if there was a danger the court was being asked to legislate on the standard of proof. “Is it our job to rectify the silence” in the statute regarding burden of proof? he asked.
Unfortunately, Ms Ní Raifeartaigh said, the court had to decide what the Oireachtas intended when a standard is silent. The court could not say ‘the statute is silent, we’re sending it back to the Oireachtas’. The court must make a decision, she said.
“I fear you’re probably right,” Mr Justice Birmingham said.
Mr Justice Birmingham, who sat with Mr Justice Garrett Sheehan and Mr Justice John Edwards, said the court would reserve judgment and deliver it “as soon as we can”. It’s going to take considerable thought, the judge said.