Friday 20 April 2018

Court reserves judgement in Cecil Tomkins appeal

Brian Kavanagh

THE Court of Criminal Appeal has reserved judgement in the case of a Wicklow farmer and Parkinson's disease sufferer who was jailed for life for murdering his older brother in a row over their mother's burial wishes.

Cecil Tomkins (63) of New Lodge Nursing Home, Stocking Lane, Rathfarnham in Dublin had pleaded not guilty at the Central Criminal Court to murdering Walter Tomkins (66) at Cronlea, Shillelagh on July 1st, 2010.

In April he was jailed for life by Mr Justice Garrett Sheehan after a jury of nine men and three women found him guilty of murder by unanimous decision following a seven-day trial.

During the trial, the court heard how the now wheelchair bound defendant told gardai that he shot his brother and fellow bachelor Walter in the hallway of the house they shared because Walter did not follow his mother's burial wishes.

Bella Tomkins was buried locally in Aghowle with her late husband just three days before the shooting, even though she had reserved a plot in Gorey and had left a letter outlining her wishes and money to put toward her burial there.

The appeal court heard that Tomkins’ physical condition had deteriorated since the trial and that he is now unable to feed himself.

Counsel for the applicant, Mr John O’Kelly SC, said the question arose as to whether Tomkins, given his medical condition, was capable of forming the necessary intent for murder, which the prosecution was required to prove beyond a reasonable doubt.

He said that an MRI scan indicated Tomkins’ brain was afflicted with atrophy of the frontal lobes, the area which inhibits impulsive and anti-social behaviour.

Mr O’Kelly submitted that if the normal inhibitory function of the frontal lobes was severely affected or removed at the time of the offence, then the applicant’s normal decision making capacity could have been affected.

He said the jury’s verdict in this regard was “perverse”, as an essential facet of intent was the ability to form rational decisions, and if this was inhibited by physical damage to the brain, the jury had before it evidence which should have caused it to “hesitate”.

With regard to the defence of diminished responsibility, Mr O’Kelly said that the only medical evidence available to the jury was from leading consultant psychiatrist Dr Paul O’Connell, who testified that Tomkins was suffering from a mental disorder as defined under the Criminal Law Insanity Act, 2006 and that a defence of diminished responsibility was available.

He said that, in the absence of anything to throw doubt on or reject this evidence, the jury were required to accept it, but instead chose not to act on it and returned what was “clearly an unsafe verdict”.

On provocation, Mr O’Kelly said that once the defence had raised the issue the onus fell on the prosecution to disprove it beyond a reasonable doubt. He said that as his client’s ability to inhibit undesirable behaviour was affected by his mental disability, this presented a “big hurdle” for the prosecution to overcome.

Counsel for the State, Mr Dominic McGinn SC, told the court that although Dr O’Connell’s testimony was the only medical evidence on diminished responsibility to go before the jury, they were not bound to accept it and there other factors sufficient for the jury to have doubts.

He said that the jury had evidence of cogent answers given by Tomkins to gardai in the aftermath of the shooting, where he was able to give clear account of himself without indication that diminished responsibility or dementia was affecting his ability to function.

Mr McGinn said that Dr O’Connell only examined the applicant 18 months after the offence and as a result was speculating on Tomkin’s condition at the time of the shooting in June 2010.

He submitted that the evidence of Dr O’Connell “wasn’t particularly strong” and at its height indicated the defence of diminished responsibility was available to the jury.

Mr McGinn said that Dr O’Connell was not the final “arbiter of fact” and no expert witness was allowed give an opinion on the “ultimate issue” which was for the jury to decide.

He submitted that the verdict of the jury could not be said to be “bizarre” in circumstances where 12 people had come to a unanimous conclusion without having been told a majority verdict was available to them.

Presiding judge Mr Justice John Mac Menamin, sitting with Mr Justice Michael Moriarty and Mr Justice Gerard Hogan, said the court would return judgement in the first week of September.

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