The Gazette 1974

UNREPORTED IRISH CASES Production of most documents belonging to Depart- ment of Local Government allowed as interroga- tories.

(1) Where, on the trial of an application for compen- sation for criminal injury, there is evidence of the in- sanity of the person who caused the damage at the time should the Judge determine the issue of insanity solely on the evidence offered, or should he in addition apply the principles laid down by McNaghten's lease? (2) The applicant was asked in cross-examination by the County Council whether he had been insured for the whole or part of the loss by fire which was the subject of the application. Was the Judge correct in disallowing this question as irrelevant? The case was heard by the full Supreme Court, main judgement was given by Griffin J. The submission that the Circuit Court Judge, in considering the question of insanity should not apply the standards appropriate to a criminal trial was rejected. Before the application for compensation can succeed, the applicant must prove that a crime has been committed by some person, known or unknown, for which the community is to be made liable. If by reason of insanity, the perpetrator of the act in question here is to be excepted from crim- inal responsibility, no crime would have been committed by him. Counsel for the County Council concedes that if the McNaghten Rules are applied, the Circuit Judge is bound to find against them. While insanity has always exempted from criminal responsibility a person from doing an act which would otherwise be a crime, the approach of the Courts to the question of insanity has become less rigid with the passage of time. Up to the eighteenth century, a person was no deemed insane unless he acted like a beast. From the eighteenth cen- tury it was held that no mentally disturbed person should be excepted from criminal responsibility, unless he was totally deprived of his understanding and his memory. Following the acquittal of McNaghten for the murder of Edward Drummond in 1843 on the ground of criminal insanity, the House of Lords asked Judges to give opinions on various questions relating to crim- inal insanity. For present purposes, the Judges answered "that the jury ought to be told that in all cases every man is presumed to be sane, until the contrary is proved; and that, to establish a defence on the ground of insanity, it must be clearly proved that, at the time of committing the act, the accused was labouring under such a defect of reason from disease of the mind, as not to know the nature and quality of the act he was doing or that he did not know what he was doing was wrong". As Lord Reid pointed out in Williams v. Williams (1964) A.C., for many years the McNaghten Rules have not been regarded as entirely satisfactory and have frequently been applied liberally. Griffin J. states that he does not think that the McNaghten Rules provide the sole test for determining the sanity or insanity of an accused. In Hayes's case (November 1967), unreported, Henchy J. stated that the McNaghten Rules do not take into account the capacity of a man on the basis of his knowledge to act or refrain from acting. I believe it to be correct psychi- atric science to accept that certain serious mental dis- eases, such as paranoia or schizophrenia, in certain cases enable a man to understand the morality or immorality of his act, or the legality or illegality of it, 100

Declaration sought by plaintiff that a decision of the ^mister, by which he refused outline planning per- mission for a housing development of lands at Fosters- 0vv n, North County Dublin, is void. An order for dis- covery w a s made by the Deputy-Master. Mr. Sheehy, Assistant Secretary of the Department ot Local Government, on 31 May 1973, claimed that Cer tain documents including documents covering nor- ti^l Departmental procedure in dealing with an appeal, 'jtiould not be produced. In a further affidavit of July "73 Mr. Sheehy contended that the disclosure of these documents would be injurious to the public interest, a n d this was reinforced by the Minister's Certificate 0 that effect. The Deputy Master made a further order " r discovery of these documents, numbered B1 to B22. e n n Y J. allowed all these documents, except B7, B8 an <| B13, to be produced. B7 was a draft order with the written comment of Kiernan, legal adviser to the Department of Local government. Kenny J. held that advice by a qualified "gal adviser to other members of the Department is in same category as advice by a barrister or solicitor to his client, and is consequently privileged. . "8 is another draft of the order to be made, and came 'nto existence as a result of the advice given by the e gal adviser. Kenny J. held that a document which ea ds to the preparation of what is a legal order is a confidential document which should not be produced. B13 is a document prepared by an officer who heard ?Ppeals similar to that of the plaintiff. Inasmuch as it | s Written by one civil servant to another, it is intended t 0 be confidential. The Minister appealed to the Supreme Court alleging "at all these documents were privileged. On 5 April the Supreme Court (Fitzgerald C.J., Budd and ^ r 'ffin J.J.) per Griffin J. affirmed Kenny J. and dis- Jjtissed the appeal. In addition, the Supreme Court held in *t document B15 was privileged. B15 is a communication in standard form, in which outline is given of the various steps in the appeal bich is sent to the legal adviser. It was essentially jG'tten to ascertain if the draft order was legally correct, ^enny J. w o u l d have held that it could have been P^°duced, as it did not contain any legal advice, but "e Supreme Court held it was privileged. ^ [Susan Geraghty v. Minister for Local Government; n n y J.; unreported; 31 July 1973.] ^"Naghten Rules on criminal insanity reviewed. In a malicious injury application, an applicant cannot be asked whether his property is insured for fire. •outh of 17 years set fire to the abattoir in Bray at ^gbt in January 1970 and the question arose whether a e was criminally insane. Judge Kenneth Deale stated t , Ca se, in December 1971, to the Supreme Court with e following questions :