Supreme Court: Convicted murderer loses appeal challenging the admissibility of witness testimony

About this case:

• Court:
  Supreme Court
• Judge:
  Ms Justice Iseult O'Malley

The man contended that the witnesses reliability may have been impaired due to a mental illness and argued that the trial judge should have stopped the trial in absence of the witness undergoing psychiatric examination; however Ms Justice Iseult O’Malley was satisfied that there was no evidence that the witness was suffering from a serious mental illness, that the trial judge did not have the power to order that he undergo an examination, and it was clear that the trial judge was prepared to consider admitting expert evidence bearing upon the witness’s mental condition but that no evidence was proffered.

Background

In October and November 2007, Gary Campion stood trial along with three co-accused (Desmond Dundon, John Dundon and Anthony Kelly) on the charge of murdering Mr Brian Fitzgerald in Limerick on the 29th November 2002.

A fifth man, Mr James Martin Cahill had pleaded guilty to being the person who actually shot Mr Fitzgerald, and was serving a life sentence at the time of the trial in 2007. Mr Cahill gave evidence for the prosecution at the trial, and according to his testimony Mr Campion agreed to provide and drive a motorcycle, transporting Mr Cahill to and from the scene of the murder. Mr Cahill also gave evidence regarding the involvement of Mr Campion’s three co-accused, however his evidence ‘did not go entirely as anticipated’ and ultimately the three men were acquitted; Mr Campion was the only person convicted, primarily based on Mr Cahill’s evidence which was corroborated by CCTV evidence and evidence from a taxi driver.

Mr Campion contended that ‘Mr Cahill’s reliability as a witness may have been impaired by reason of mental illness’ – this was based on expert reports reviewing Mr Cahill’s prison medical records. At the trial, an application to have Mr Cahill psychiatrically examined before he gave evidence was refused. The judge also refused to direct the acquittal of Mr Campion at the close of the DPP’s case.

Considering the application to have Mr Cahill examined, the trial judge indicated that he was concerned about the admissibility of expert psychiatric evidence on the question of the reliability of a witness, referring to Director of Public Prosecutions v Kehoe [1951] I.R. 70 and Toohey v The Metropolitan Police Commissioner [1965] A.C. 595. The trial judge was also concerned about the lack of any authority for the suggestion that a court could make an order that a witness be psychiatrically examined. Having read the medical reports, the trial judge was satisfied that there was no evidence to suggest that Mr Cahill was suffering from a major mental illness. Emphasising that he was not stopping the defence from calling any of the treating doctors in relation to Mr Cahill from giving evidence, the trial judge concluded that he did not have the power to order Mr Cahill’s psychiatric examination.

The trial judge was also satisfied that a fair trial was possible in absence of the order sought.

In the Court of Appeal, it was concluded that having been warned of the dangers of acting on Mr Cahill’s evidence in the absence of corroboration, and having heeded that warning in returning verdicts of not guilty for two of the co-accused, the jury were fully entitled to decide whether the evidence as a whole was sufficient to satisfy them beyond a reasonable doubt that the appellant was guilty of murder.

Supreme Court

The issues for determination in the Supreme Court were as follows:

• (i) In a criminal trial, is expert evidence admissible in relation to (a) the competence and (b) the credibility of a witness if there is material before the court indicating a real possibility that the reliability of that witness’s testimony may be affected by mental illness?
• (ii) If the answer to Question (i) is Yes, and the witness refuses to undergo examination, or is for some other reason unavailable for examination by the parties, should the trial judge stop the trial?
• (iii) If the answer to Question (ii) is No, is it a matter to be taken into account by the trial judge in considering an application for a direction?
• (iv) If no expert evidence has been adduced, is an appellate court entitled to review the decision of the trial judge to permit the case to go to the jury on the basis of his own assessment of the reliability of the witness?

Delivering the judgment of the Supreme Court, Justice O’Malley said there was nothing in the evidence to suggest that Mr Cahill could not pass the threshold test for competency; and further there was no evidence that Mr Cahill suffered from a mental illness of a nature rendering him incapable of giving reliable evidence. On that basis, Justice O’Malley was satisfied that there was no reason for the trial judge to stop the trial on the basis of Mr Cahill’s refusal to submit to an examination.

Justice O’Malley was also satisfied that it was within the trial judge’s remit to determine ‘whether the jury could, if properly directed and given the appropriate warnings, rely upon the evidence’. Furthermore, in deciding whether or not a case should go to the jury, the judge is not deciding whether or not the witness is reliable or truthful – the judge is determining whether or not there is a case upon which a properly instructed jury can convict, and the decision whether a witness is to be believed is a matter for the jury.

Dismissing the appeal, Justice O’Malley said that it was clear that the trial judge was prepared to consider the admission of appropriate expert evidence bearing upon the mental condition of the witness insofar as it affected his reliability, but that no such evidence was proffered.

• by Seosamh Gráinséir for Irish Legal News

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