A murderer has failed in a bid to have his conviction quashed on account of new evidence that he had an undisclosed mental condition when he attacked a retired man in his home.
Simon McGinley (38) had originally pleaded not guilty to the murder of Eugene Gillespie (67) at a house on Old Market Street, Sligo, on September 19th, 2012, instead admitting to manslaughter.
However, his plea was not accepted by the State, and in April 2014, a jury unanimously found McGinley guilty of the murder of Mr Gillespie, a retired telecoms broker who worked in the family shop and lived alone with his dog, Tiny.
Mr Gillespie was found tied up in the hallway of his home by his nephew and his brother two days after McGinley assaulted him. He died in hospital the following day after suffering a cardiac arrest.
McGinley was sentenced to life imprisonment and later lost appeals against his sentence and conviction.
In dismissing McGinley's latest appeal on Friday at the Court of Appeal, Ms Justice Úna Ní Raifeartaigh said the appellant's lawyers had submitted that he was displaying symptoms of schizophrenia when he attacked Mr Gillespie.
McGinley's legal team submitted that under section 2 of the Criminal Procedure Act (1993), he has been a victim of a miscarriage of justice.
'Benefits of hindsight'
In a submission presented to the court by McGinley's lawyers, consultant forensic psychiatrist Dr Stephen Monks stated that “with the benefit of hindsight, the description of symptoms recorded in the applicant’s GP records would be sufficient to diagnose schizophrenia”.
“The issue of whether or not the applicant was suffering from a mental disorder at the time of the index offence was not considered during the trial.”
At the appeal hearing, Martin O’Rourke SC, for McGinley, said the trial would have been “run differently” if his client’s mental state before the murder had been submitted in evidence.
On Friday, Ms Justice Ní Raifeartaigh said that neither insanity nor diminished responsibility had been raised at the trial or at McGinley's first appeal.
She said that at the time of the trial, McGinley's drink and drug dependencies were well known to the court.
Ms Justice Ní Raifeartaigh said the development of McGinley's mental issues as a ground of appeal were only at issue after the trial and that if one were to now assess McGinley's mental state at the time of the killing it would amount to a "retrospective diagnosis".
The judge noted that Dr Monks was a "highly respected" consultant psychiatrist, who did not mention insanity or diminished responsibility in his first report because he was most likely not asked to assess them specifically.
In a second report, Dr Monks said it was "possible" that at the time of the offence, McGinley was suffering a psychosis when combined with his likely intoxicated state.
Speculative
Ms Justice Ní Raifeartaigh said that even if the court were to accept Dr Monks' latest report at its height in favour of McGinley, the appeal was still "questionable or speculative" and "fell short" of meeting the threshold for diminished responsibility.
Ms Justice Ní Raifeartaigh said "no alarm bells" regarding a mental disorder were raised by McGinley's "extensive" legal team during the trial and that there was no suggestion of any incompetence or negligence on their part.
She added that gardaí had also not raised any issue regarding McGinley's mental health.
Ms Justice Ní Raifeartaigh said the court also noted how Dr Monks referenced in his report that McGinley exhibited a "goal-orientated purpose" in burglary for personal gain and that he then took steps to conceal his involvement in the crime.
Ms Justice Ní Raifeartaigh then dismissed the appeal.
Mr O'Rourke had told McGinley's appeal hearing that a year before the killing, his client was suffering from auditory hallucinations and had been prescribed antipsychotic medication.
McGinley had also been suffering from alcohol and drug dependence syndrome, which Mr O’Rourke said was a recognised medical condition. Such symptoms, counsel added, met “the diagnostic threshold for schizophrenia”.
State counsel Sean Gillane SC said the court was being asked to quash a conviction that had been reaffirmed by the same court in 2016.
Mr Gillane said people with mental disorders commit crimes every day of the week and that was the first time he has heard an appeal submission “simply say there is a mental disorder, full stop”. “I am still unsure what has been isolated as the new fact,” he added.
Mr Gillane also said Dr Monks’ report was “heavily caveated and contingent” and the court was being asked to consider it in an “evidential vacuum”.
“To urge mental disorder on its own is meaningless,” he added.
