Onus of proof of diminished responsibility did not undermine presumption of innocence

O'Malley J (nem diss): Criminal law - murder - diminished responsibility - s.6(2) of the Criminal Law (Insanity) Act, 2006 - whether accused needed to "establish" that he was not liable to be convicted of murder - whether accused was delusional at time of events in question - belief that, by killing the victim, the accused had removed a devil from the world - whether exaggerating or feigning symptoms - whether 2006 Act created new statutory defence - whether burden of proof on accused to prove diminished responsibility, or simply to raise sufficient doubt as to liability to be accused of murder - reversing the onus of proof - Article 38.1° of the Constitution - trial in due course of law - presumptions creating reverse onus of proof - Article 6(2) of the European Convention on Human Rights.

"In the instant case, it seems to me that there is no question but that the Oireachtas intended, by use of the word “establish”, and by requiring the court or jury to make a “finding”, to cast a burden of proof on the defence that goes beyond the raising of a reasonable doubt. Does that violate the presumption of innocence in the case of diminished responsibility, in a manner requiring the Court to either reinterpret the statutory burden or to consider whether the infringement can be justified? In my view it does not."

"The long-established elements of murder remain as they were, and are for the prosecution to prove beyond reasonable doubt. Evidence of a mental disorder sufficient to qualify under the Act does not in itself rebut either the common law presumption of sanity and responsibility for actions, or the statutory presumption that the accused person intended the natural and probable consequences of his or her actions. It creates a new, mitigatory defence that reduces the consequences of a proven offence. It is therefore incorrect to suggest that the imposition of a burden of proof could require an accused to prove either the actus reus or the mens rea, since these are matters that must be proven by the prosecution beyond reasonable doubt before the question of diminished responsibility can arise."

Charleton J (concurring): Development of defence of diminished responsibility.

"It can tentatively be argued that legislation may legitimately distribute a burden onto the accused where it is necessitated by the nature of the offence and where it does not fundamentally and unnecessarily undermine the duty of the prosecution to demonstrate culpability. No unified theory, however, prohibiting burdens of proof as to the elements of offences on constitutional grounds or of enabling a persuasive burden for defences is either predictably grossly unfair as to the distribution of proof or is necessarily productive of an unavoidably unjust result. Therefore, no such theory is warranted."