Conviction for murder of brother quashed


THE COURT of Criminal Appeal has quashed the conviction of a man for the murder of his brother at their home in Co Wicklow.

A retrial was ordered in the case of Cecil Tomkins (63), who is wheelchair-bound with advanced Parkinson’s disease.

He had pleaded not guilty at the Central Criminal Court to murdering his brother Walter (66) at the family home in Cronlea, Shillelagh, Wicklow, on July 1st, 2010. Both men were bachelor farmers and lived in the family home.

At his trial, the prosecution alleged Cecil Tomkins shot Walter because his brother had not followed their mother Bella’s written wish to be buried with her family in Co Wexford.

Mrs Tomkins was buried locally in Aghowle with her late husband three days before the shooting, although she had reserved a plot in Gorey and left a letter outlining her burial wishes and money for her burial in Gorey, the trial also heard.

Cecil Tomkins was jailed for life by Mr Justice Garrett Sheehan after being found guilty of murder following a seven-day trial.

His conviction was appealed on several grounds, including that the jury failed to attach sufficient weight to the effects of Mr Tomkins’s medical condition and to evidence from a consultant psychiatrist, Dr Paul O’Connell, that he was suffering a mental disorder, dementia, which, in Dr O’Connell’s view, affected his judgment and emotional regulation at the time of his brother’s death.

Giving the judgment of the Court of Criminal Appeal (CCA) yesterday, Mr Justice John MacMenamin, sitting with Mr Justice Michael Moriarty and Mr Justice Gerard Hogan, said the question of Mr Tomkins’s mental condition, and its possible effect on him at the time of the offence, “lies at the centre of this appeal”.

He said issues of law and medicine had been considered in the context of the partial defence of diminished responsibility as defined in section six of the Criminal Law (Insanity Act) 2006. The CCA had found the charge by the trial judge to the jury contained an error in law as it did not specifically state that premeditation was not necessarily inconsistent with diminished responsibility.

The prosecution had laid great emphasis on the question of premeditation in the context of Mr Tomkins’s defence of provocation but, while the trial judge’s charge was fair and objective, the jury was not charged that premeditation was not inconsistent with diminished responsibility, he said.

In a context where a number of alternative defences were being run at trial “in a somewhat uneasy co-existence”, the CCA said it was understandable the trial judge omitted to charge the jury that premeditation of itself was “not necessarily inconsistent with a diminished responsibility finding in the exercise of a disordered mind”.

While it was also accepted that Mr Tomkins’s counsel at his trial inadvertently omitted to deal with those issues via application to the trial judge, the CCA had a duty to ensure justice was done, he said.

The defence of diminished responsibility formed “the very essence” of the trial and the charge should have included a clear explanation of the nature of this defence and the question of premeditation.

The omission from the charge, in light of all the evidence, was reasonably likely to have left the jury with an incomplete and erroneous view of the law applicable to diminished responsibility, he said.

In the light of those exceptional circumstances, the CCA would quash the conviction and direct a retrial.

Mr Justice MacMenamin noted that Mr Tomkins was now incapable of independent living and that brain damage, part of Parkinson’s syndrome, had affected his personality.

The issue arose of who would take care of Mr Tomkins if he was granted bail and released immediately from prison, the judge said. He urged that the question of bail pending retrial be dealt with by the Central Criminal Court as soon as possible.

Mr Tomkins’s barrister, John O’Kelly, then applied for bail to Mr Justice Paul Carney at the Central Criminal Court. The State had no objection. Mr O’Kelly said his client would reside at Bloomfield Nursing Home.