Farmer accused of murdering brother 'too unwell' to attend trial

A Co Wicklow farmer who denies murdering his brother in a row over his mother’s burial wishes did not attend his trial today because he was “too unwell”.

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

The bachelor who suffers from Parkinson's disease, told gardaí that he shot his brother Walter, who was also a bachelor, in the hallway of the house they shared because he did not follow his mother’s burial wishes.

Judge Garret Sheehan told the jury that the accused was not able to attend his trial because he was unwell.

“Mr Tomkins has deteriorated overnight and he is too unwell to attend his trial today,” he said.

Mr Dominic McGinn SC prosecuting told the jury the case was not about emotion but about the evidence.

He said on the one hand Cecil Tomkins is a very sick man but on the other hand Walter Tomkins was a defenceless man who was shot in his own home.

Mr McGinn said the very least they could convict the accused of was manslaughter if they felt the prosecution had not proved murder.

He said the accused loaded the gun, discharged it and that the natural and probable consequence is that it would cause, at the very least, serious injury and that at the very least he intended to cause him serious harm.

He said Cecil Tomkins’s legal team had presented four different defences where the jury could reduce murder to manslaughter.

The first defence was that the discharge of the firearm was accidental. Secondly that he could not help what he did, that it was an impulsive action which comes under the insanity act, if he was at the time suffering from a mental disorder. He told the jury they could then find him not guilty by reason of insanity.

Thirdly, he said the defence of diminished responsibility was being used where a person who committed the act alleged was suffering from a mental disorder and this had diminished his responsibility.

The fourth defence being used is provocation, which only applies in the case of murder, Mr McGinn told the jury.

This would arise where a person loses control and “you are no longer master of your own mind.”

Mr McGinn said some of the evidence in the trial was theoretical as expert witnesses were all looking at the events afterwards.

“That approach ignores the reality of what happened and what he said to the guards about what happened,” said Mr McGinn.

He said Cecil Tomkins’s actions were deliberate, that he had to go into his bedroom, find the gun, find the cartridges, open the gun and put the cartridge in.

He told the jury he would have had to raise it, pull the hammer back and pull the trigger. “That series of actions could not be and accident”, he said.

Mr John O’ Kelly SC defending told the jury if there was a reasonable doubt, they would have to acquit the accused and they had to be satisfied the prosecution have proved the physical act was carried out.

Secondly he said it was necessary for the criminal intent to be present and that since it is essential the prosecution prove he did the necessary act, it was necessary to prove he had intent.

He said that was very important in the case because Cecil Tomkins has frontal lobe atrophy - shrinkage of the brain.

Mr O’ Kelly said there were brain scans in 2010 and 2009 documenting brain atrophy which affects judgement and the ability to inhibit socially unacceptable behaviour.

He said a consultant psychiatrist, Dr Paul O’ Connell, who had been treating his client since 2006 said his judgement could have been impaired because of this.

He said the medication his client was on might also affect his judgement and his normal inhibitors.

Mr O’ Kelly told the jury diminished responsibility was a statutory defence that could be used if a person is suffering from a mental disorder.

He said that the evidence of Dr O’ Connell was based on a very thorough study of the case and that the psychiatrist had no doubt in his professional opinion that Cecil Tomkins “had diminished responsibility within the terms of act.”

“I think its worthwhile to remember that Dr O’ Connell was examined very thoroughly on his evidence and he remained very, very firm on his opinion” he said.

“He was quite satisfied that there was diminished responsibility and that it was sufficient to come within the requirements of the act,” he added.

The jury of nine men and three women are expected to begin their deliberations in the trial tomorrow morning.