BETWEEN
JUDGMENT of Mr. Justice Robert Eagar delivered on the 21st day of June, 2016

1. The issue which is before this Court is whether or not the accused in this case, T.O.N. is fit to be tried. On 30th July, 2014 Sheehan J. having considered the evidence of Dr. Peter Leonard, Dr. Damien Mohan and social worker Marian Timmons, decided that T.O.N was fit to be tried and directed that the trial should proceed. That court in reaching this conclusion placed great weight on the length of time Dr. Mohan and Marian Timmons had in which to observe and interact with T.O.N, as against the period of time that Dr. Leonard spent with T.O.N in the course of his two assessments. In particular the court preferred the view of Dr. Mohan as to why T.O.N was reluctant to deal with the allegations against him. Having regard to that decision of Sheehan J., this Court will not act as an appellate court. However, this Court is prepared to take note of any issues which may have arisen between the 30th July, 2014 and the hearing of this matter on 7th and 8th June, 2016.

2. The Court is aware that the accused was born on the 3rd August, 1941, is 75 years old, and resides in Co. Wexford. He is the eldest of five siblings and worked with the local authority in Wexford for 21 years before he retired. He is charged with 73 offences. This Court notes that they are all in respect of alleged sexual offending committed against four sisters living in Wexford between 2001 and 2006, and are thus not particularly old charges. There are 18 charges of rape and 56 charges of sexual assault. The sisters ranged in age from four to ten when the sexual offending is alleged to have commenced.

3. Section 4 of the Criminal Law (Insanity) Act 2006 provides for fitness to plead issues to be determined by a judge. Section 4 (1):

“(1) Where in the course of criminal proceedings against an accused person the question arises, at the instance of the defence, the prosecution or the court, as to whether or not the person is fit to be tried the following provisions shall have effect.

(2) An accused person shall be deemed unfit to be tried if he or she is unable by reason of mental disorder to understand the nature or course of the proceedings so as to—

(a) plead to the charge,

(b) instruct a legal representative,

(c) in the case of an indictable offence which may be tried summarily, elect for a trial by jury,

(d) make a proper defence,

(e) in the case of a trial by jury, challenge a juror to whom he or she might wish to object, or

(f) understand the evidence.

Section 4 (4) (b) states:

“the question of whether the accused person is fit to be tried shall be determined by the judge concerned sitting alone.”

4. It appears to be agreed by counsel that the onus of proof rests on the defence to satisfy the court on the balance of probabilities that the accused is unfit to be tried.

5. The history of the case has been set out by Mr. Coffey and he indicates that the case came for trial on the 4th March, 2013 before Sheehan J. and on that occasion the issue of fitness to plead was raised by both the prosecution and defence. On the basis of the uncontroversial evidence that was given on that occasion, the court found that the accused was unfit to plead and in consequence he was committed on 15th March, 2013 to the Central Mental Hospital for inpatient treatment. The Act provides for the review of detention by the Mental Health (Criminal Law) Review Board (herein ‘Review Board’) and he was reviewed on three occasions by the Board. The first occasion was the 2nd August, 2013 when the Review Board determined to continue his detention. The second occasion was 22nd November, 2013 when it made a similar order. However, when the matter came back before the Review Board on 6th March, 2014 the Review Board determined that the accused was fit to be tried and sent the matter back to the Central Criminal Court. Under the Act, when such an order is made, it is for the relevant court to make such order as it thinks proper. On 10th March, 2014 the accused was admitted to bail pending further order in the matter. The matter substantively came back before Sheehan J. on 28th July, 2014 and it did so for a further fitness hearing, for the purpose of determining whether the Review Board was correct in its conclusion.

6. It is commonplace that the accused has no history of mental illness. He has an IQ of 53 which is in the lower range for mild mental retardation, bordering on moderate mental retardation. Both Dr. Leonard, Dr. Mohan and Marian Timmons gave evidence before Sheehan J.

7. The matter does not come back before this Court because of some adverse development or some newly discovered medical fact, but by way of correspondence from the accused solicitors dated the 20th May, 2016 in which the defence indicated that they wished to withdraw their appeal against the determination of Sheehan J. to the Court of Appeal and wished to re-agitate the issue of fitness on the trial date.

8. Dr. Leonard gave evidence that he was a consultant psychiatrist at St. Joseph’s Intellectual Disability Service, St. Ita’s, Portrane, Co. Dublin, and that he has dual specialist registration with the Medical Council of Ireland in both psychiatry of learning disability and adult psychiatry. He has extensive experience in forensic psychiatry and prior to his current appointment he worked at the Psychiatry Court Liaison Service based at Cloverhill Prison. He works primarily with people who have intellectual disabilities and severe behavioural problems. He gave evidence of the two previous interviews with T.O.N he conducted over a period of three hours on 10th May, 2012 and 11th May, 2014.

9. Dr. Leonard stated that T.O.N informed him that he attended his GP in relation to his diabetes.

10. Dr. Leonard stated that:

“In comparison to my initial assessment which had been four years ago, and consistent with my second assessment two years ago T.O.N, he presented as evasive and reluctant to engage.

When asked about the alleged indexed offence, he replied, ‘I was supposed to rape the young woman, something I didn’t do’, and then he replied, ‘I don’t remember’ or ‘I don’t know’ to all of my enquiries in relation to the alleged indexed offence.”

Dr. Leonard then said,

“He really clammed up in relation to the discussion of the alleged indexed offence.”

Dr. Leonard referred to the book of evidence in which T.O.N’s confession to the Gardaí comprised of an admission of having had sexual intercourse on repeated occasions over an extended period with M.S., who was a child with at the material time. The general pattern through the records of the interview was T.O.N initially denying the offences, and subsequently admitting the offences when pressed. There are admissions by T.O.N of the commission of sexual assaults on three other siblings and T.O.N admitted to having paid for sex on a regular basis with Md.S., the mother of the family.

11. Dr. Leonard gave evidence that he had T.O.N on 26th May, 2016 in the offices of Coughlan Kelly Solicitors. He described him as unkempt in appearance, more so than on other occasions, that his clothes were soiled and there was a smell of body odour indicating a significant degree of neglect of personal hygiene. He said that T.O.N was alert throughout the interview. When asked about the offences he stated,

“I can’t remember.”

12. Leading up to the hearing before this Court, Dr. Leonard assessed T.O.N on the 26th May, 2016. Dr. Mohan assessed T.O.N on 30th May, 2016.

13. The new matters which Dr. Leonard identified in his report of 26th May, 2016 are as follows:

i. T.O.N described his cooking habits and said he no longer gets “meals on wheels”. Instead he cooks for himself each day. The repertoire of meals he can prepare consists of a number of vegetables which are prepared by boiling (potatoes, onions and cabbage, and sometimes bacon which is also boiled). He said that for breakfast he would usually eat Weetabix or Corn Flakes. He sometimes has a sandwich. He said he has a washing machine and is able to use it. He does not have central heating because he has a stove which he says effectively heats the house.

ii. In terms of personal hygiene, he said he would have a shower three or four times a week.

iii.He also reported that he had very limited social supports and having regard to the nature of the charges this is not surprising. T.O.N explained to Dr. Leonard that he has lost all his friends as a consequence of all of the charges he faces. There appears, to this Court, to be a clear awareness by T.O.N as to the reason why he lost his friends.

iv.Dr. Leonard set out the medication which T.O.N was on, including the medication for non-insulin dependent diabetes mellitus. In answer to the Court, Dr. Leonard understood that he attended his G.P. in relation to his diabetes. There are no new medical issues and whilst the diet of boiled vegetables and boiled bacon may be monotonous, it is certainly appropriate for a person with diabetes mellitus.

14. Dr. Leonard also pointed out that in comparison to his initial interview of 14th June, 2012 and consistent with his second interview on the 17th June, 2014, T.O.N presented as being particularly evasive and reluctant to engage.

15. Despite the very strong evidence, including the evidence of admissions by T.O.N and forensic evidence indicating that T.O.N is the likely father of the child of M.S., Dr. Leonard took the view that he lacked the ability to fully grasp the significance of this evidence, and was not capable of using this knowledge in a rational manner in order to weigh up and consider his options in terms of entering a plea.

16. Dr. Leonard said that T.O.N presented as a man in his mid 70’s of small stature, is clearly overweight, has grey, balding hair and was very unkempt in appearance. His clothes were soiled and he wore a fleece jumper with no shirt underneath. He wore shoes with no socks. He had attempted to shave himself but had done so incompletely and as noted in his previous assessments of T.O.N there was a strong smell of body odour indicating a significant degree of neglect of personal hygiene. Dr. Leonard also noted that he was hard of hearing. When Dr. Leonard inquired about discussions T.O.N would have had with his solicitor regarding his case and the type of decisions he would have to make, he said,

“I can’t remember”.

Unlike previous assessments, T.O.N did not recognise the process of fingerprinting. He recognised the witness box. He had difficulty explaining what the role of the judge is and, in contrast with previous assessments, T.O.N appeared to have difficulty with the terms “giving evidence” and being “cross examined”. However, on perusing the report of Dr. Leonard of 14th June, 2012 very little change in relation to these issues was exhibited in Dr. Leonard’s most recent report. In answer to this Court’s question as to whether Dr. Leonard has worked with sex offenders, and has dealt with sexual offenders experiencing denial, Dr. Leonard said he did have experience in this area, and opined that denial was a relatively consistent finding in the examination of sexual offenders.

17. This Court notes the report of Dr. Mohan, dated 26th July, 2013 where Dr. Mohan commented,

“T.O.N does appear to be able to recall events and demonstrates an understanding of matters unrelated to the offending behaviour… At interview with me, T.O.N comes across as being vague and evasive initially, he would maintain that he was unable to understand my questions. However after the question is repeated he is clearly able to understand the question. He is very avoidant when it comes to discussing his alleged offending behaviour.”

He continues,

“I have no doubt that T.O.N has a good understanding of the nature of the charges for which he is before the Court. I have no doubt that T.O.N understands the difference between a guilty and a not guilty plea.”

This report was compiled a number of months after T.O.N was first admitted to the Central Mental Hospital on 4th March, 2013 and was prepared for the Review Board. He continued,

“However there is some doubt as to whether or not he would be able to instruct his legal representative and make a proper defence. At the time of writing this report it is my view that T.O.N would experience difficulty in understanding and following the evidence.”

He then stated,

“It is the intention of this clinical team to continue to observe T.O.N and to continue with his psychological assessments in order to assist us in making a determination in whether or not he would have the requisite capacity to understand the evidence relating to this charge.”

18. The report of Dr. Kearns on 12th November, 2013 is also noted by this Court in the report prepared for the Review Board. In discussing his general background, T.O.N was able to answer Dr. Kearns, but when it came to the offences, he made a comment that he did not know the name of his solicitor. He reiterated that he was a man from Tipperary and at this interview added “Furlong, got it”. He also said he was pleading not guilty so far.

19. Dr. Mohan, in his report of 3rd June, 2016, noted that T.O.N presented with “apparent deafness” which was noted to be intermittent. He confirmed that when interviewed by himself on 17th May, 2013, T.O.N appeared to have a basic understanding of the charges and Dr. Mohan noted that the Review Board believed that he frequently exaggerated his hearing loss. He noted that T.O.N understood that Mr. Eric Furlong would be representing him at his trial. He noted that T.O.N was fully aware of the date, time and arrangement for this appointment, that he had made travel arrangements with his taxi driver the previous week and they had agreed a fare of €110 for the return journey. In relation to family and visitors T.O.N was able to explain about his family and about his home circumstances.

20. Dr. Mohan’s report of his mental state examination on 30th May, 2016 noted that, after commencing the interview T.O.N got up from his seat and paced around the room with the aid of his walking stick. He described being in continuous pain. He paced around the room. This was despite him being observed sitting without agitation in the clinic waiting room prior to being called in for interview. In answer to most of the questions in relation to the charges, the proceedings in court and the evidence he said,

“I haven’t a clue.”

He confirmed his view that T.O.N’s clinical presentation was consistent with ‘malingering’, meaning the intentional production of false or grossly exaggerated physical or psychological symptoms motivated by external incentives such as avoidance of military duty, avoiding work or evading criminal prosecution or obtaining drugs. He stated in his report that in the case of T.O.N, he believed he was exaggerating the symptoms associated with his low level of intellectual functioning in order to avoid criminal prosecution. His amnesia appeared selective. There was also evidence he was claiming to have a disorder in relation to claiming to hear voices - during the course of his interview, he opined that T.O.N attempted to feign schizophrenia by claiming that he was experiencing an auditory hallucination. In his conclusion, he said,

“I have no doubt that T.O.N has a good understanding of the nature of the charges for which he is before the Court. I have no doubt that T.O.N understands the difference a guilty and not guilty plea. I am also satisfied that he would be able to instruct his legal representative and make a proper defence with the assistance of his legal team should he decide to do so. I am also satisfied that he will be able to challenge a juror whom may wish to object to. T.O.N has the capacity to understand the evidence before the court.”

21. This Court also had the benefit of hearing the evidence of Marian Timmons, Social Worker. She discussed her journey back with T.O.N to his home after being discharged from the Central Mental Hospital. He said that he wanted to get something for his breakfast in the morning, and when passing by entrance to his home he said,

“My house is back there, what are you doing?”

22. Counsel for the defendant reiterated the evidence of Dr. Leonard and said that the real question for the Court was whether T.O.N is actually fit to stand trial in relation to the charges. He emphasised that it was very important that he has the intellectual capacity to understand the difference in terms of any possible sentence if he were to plead not guilty as opposed to guilty.

23. In reply, counsel for the prosecution emphasised that the whole point of the evidence given by Dr. Mohan is that over a period of time, and in particular that the 51 weeks that he was treating T.O.N in the Central Mental Hospital allowed for a deeper understanding and insight into T.O.N’s true condition. He also said that nothing new has emerged since the last fitness hearing where Sheehan J. having considered all of the evidence, which was substantially identical to the evidence which has been heard before this Court, came to the view that T.O.N was fit.

24. This Court has dealt with many sexual offenders, many of whom despite having entered guilty pleas in the Central Criminal Court and the various Circuit criminal courts, then decide that they did not commit the offence, or tend to minimise their offending, and often blame the victim for leading them on.

25. This Court accepts the opinion of Dr. Mohan that T.O.N is seeking to deliberately avoid the criminal prosecution. Again, as with Sheehan J., it is clear that Dr. Mohan had 11 months of observation of T.O.N in the Central Mental Hospital as did his team which included Marian Timmons. The Court is also aware of the reality of many sexual offenders who would seek to avoid responsibility for their action.

26. In all the circumstances this Court is of the view that the decision of Sheehan J. was correct and I so direct that the trial proceed on the allocated date.