Hearing Of Sweeney Murder Appeal Begins

Press, Volume C, Issue 29535, 9 June 1961, Page 20

Hearing Of Sweeney Murder Appeal Begins

<Aeu 4ea(una Pres* Association i

WELLINGTON. June 8 The hearing of an appeal on the grounds that the trial judge misdirected the jury on three defences 'of temporary insanity because of drunkenness. lack of intent, and of provocation, was begun tn the Court of Appeal, in Wellington today, arising from the conviction of Edward McMillan Sweerey, aged 36. a freezer hand, of Wellington, for the murder of Isabella Black Taylor Sweeney was sentenced to death on May 17 last by Mr Justice Hutchison. It was alleged during the Supreme Court trial that after Isabella Black Taylor iapellant's de facto wife* had refused to return to h.m, and being told that She had been unfaithful to him. Sweeney drank a quantity of alcoho' and fatally wounded her with a knife Mr F. D O'Flynn (with him Mr W. Shires) is appear'rg for the appellant, and Mr W R: Birks (with him Mr J. D Murray! for the Crown The Court of Appeal comprises Mr Justice K M Greseon (president!. Mr Justice North, and Mr Justice ClearyThree Defences In opening the case for the appellant. Mr O'Flynn said that there were three defences put forward—first, that of temporary insanity due to drunkenness, second, that because of the appellant's drunkenness, the Crown : could not prove that he was 'capable of forming the necessary intent; and third, that of i provocation, it being further I argued that drunkenness was relevant to Sweeney’s reaction. Mr O'Flynn cited a judgment of Lord Birkenhead which said that an insane person could rot be convicted of a crime, and if insanity j was induced by drunkenness iit afforded as complete an ! answer to a charge as if the accused was insane from other causes. and even though the insanity was only temporary. There were two broad complaints gs to the learned trial judge’s direction in so far as it related to the first defence, said Mr O'Flynn. First, he submitted, the learned trial judge had mis-

conceived the defence entirely, treating It as if it related to more usual instances of diseases of the mind, and did not really direct the jury on that topic at ail. for no ’ reference had been made to Intoxication or drunkenness in the portion of the direction which was devoted to the defence of temporary insanity "Disease of the Mind" If in law the phrase "disease of the mtod" was to include temporary insanity produced by drunkenness, then in counsel’s submission a jury of lavmcn should have been told that such was the law. A precise source of insanity was relied upon, and it was not for the jury to know without d'rectj'n tha’ the law recognised it as a defence. Second, there was evidence from which the necessary elements of imsatvtv con'd be inferred and «o. Mr O'F’ynn ’ubmitted. the learned trial Judge was wrong in withdrawing the first defence from the fury Mr Justice Clea-v: What is “temnorary tn.'—n ty due to drunkenness"” If it is something co-extensive with dnmkeness. is it anythin? but drunkenness, and if it is something that results from drunkenness, is it anything but inn pity? Mr O’Flynn: It is a state that temporarily deprives a man of his reason, where his reason is temporarily dethroned bv drink instead of by disease. Two Requirements Mr Justice Cleary; A defence of insanity requires two things—first, that, in the words of the section, the person should be incapable' of understanding the nature and quality of his act or of knowing that it was wrong, and. . second, that it was for the defence to prove that such was the case. A defence of drunkenness was that the accused did not have the ability to form the necessary intent and it was not for the defence to prove such lack of ability. Was the defence here one of insanity or one of drunkenness? Mr O'Flynn: Primarily, the defence was that this man, due to his over-consumption of liquor, had tost his reason

altogether, and so was temporarily insane. Continuing Iks argument. Mr O'Flynn submitted that there was evidence from which the Jury might infer the necessary elements of insanity. and so it was wrong for the trial judge to have withdrawn the issue from the jury. Mr O’Flynn traversed parts of the evidence from which such inference could he submitted, be drawn The only other evidence that could be required was medical evidence and further evidence of the same sort. However, the authorities sa.d that medical evidence was not necessary and. aa further evidence would go only to the weight of the evidence, it was a matter for the jury to decide. Mr O’Flynn said. There was evidence on which the jury could have found Insanity. Mr O’Flynn submitted. In a criminal trial, it was not for a Judge to withdraw a defence from the jury, he said. The Judge might make a strong expression of opinion, but an accused has a right to put lus defence to a jury: in fact, a case said that he was entitled to find a stupid jury, and to persuade them to acquit him. Mr O'Flynn'* address completed today, and the case wili continue tomorrow w.:b the Crown's reply