Chandler v The State
| Jurisdiction | UK Non-devolved |
| Judge | Lord Carnwath,Lord Sumption,Lord Reed,Lord Kerr,Lord Lloyd-Jones |
| Judgment Date | 12 March 2018 |
| Neutral Citation | [2018] UKPC 5 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0025 of 2016 |
| Date | 12 March 2018 |
[2018] UKPC 5
Hilary Term
Privy Council
From the Court of Appeal of the Republic of Trinidad and Tobago
Lord Kerr
Lord Sumption
Lord Reed
Lord Carnwath
Lord Lloyd-Jones
Privy Council Appeal No 0025 of 2016
Appellants
Tim Owen QC
Joanna Buckley
Jessica Jones
(Instructed by Simons Muirhead & Burton LLP)
Respondents
Tom Poole
(Instructed by Charles Russell Speechlys LLP)
Heard on 16 January 2018
( with whom Lord Sumption and Lord Reed agree)
The appellant, Mr Chandler, was convicted on 17 August 2011 of the murder of Mr Kirn Phillip on 8 October 2004. He was sentenced to death by hanging. His appeal against conviction and sentence was dismissed by the Court of Appeal (Weekes, Soo Hon and Narine JJA) on 12 December 2013. His appeal to the Board raises an issue not considered below: that is whether new medical evidence should now be admitted relating to his mental state at the time of the offence, with a view to supporting a case of diminished responsibility. He also renews his appeal on one of the grounds rejected by the Court of Appeal, relating to the judge's direction in respect of evidence of propensity.
On 8 October 2004 the appellant and Mr Phillip were both remand prisoners at Golden Grove Remand Prison, Arouca. At about 11 am on 8 October, prisoners who were going to have visits from members of the public that day were brought to the holding bay, and called individually by name to line up in the centre of the remand yard where they were to be searched and handcuffed. Mr Phillip had been searched and was standing at the end of the line of prisoners close to Prison Officer Mohammed. The appellant was the last prisoner to be called.
According to the prosecution, as the appellant approached Officer Mohammed he lunged towards Mr Phillip and then pursued him across the yard to the gate of the south wing. He had a metal object in his hand with which he was making an upward and downward and sideways movement towards the back of Mr Phillip. He came within one to two feet of Mr Phillip before Mr Phillip ran through the gate to the south wing of the prison. The appellant was then cornered by prison officers, and, after being hit with a baton by an officer, he dropped the metal object, which turned out to be an improvised knife. Mr Phillip was found to have a chest wound and was taken to the Arima Health Facility where he was pronounced dead on arrival. The cause of death was a stab wound to the chest.
The prosecution case was that the wound had been inflicted by the appellant. At his first trial in March 2009, he was represented by counsel, Mr Larry Williams. He denied the stabbing. He gave evidence that, as he was being handcuffed to Mr Phillip, he had hit him in the face with his fist. This was because Mr Phillip had stolen $10 which he had given him to buy some cigarettes. When Mr Phillip had begun to run towards the south west gate, the appellant had followed him for a few feet, but was stopped by officers who beat him with a riot staff, after which he became unconscious. The first trial ended with a hung jury. At the second trial, beginning in June 2011, the appellant was again represented by Mr Williams. On this occasion he did not himself give evidence or call any witnesses. His case, as put in cross-examination, was to deny having a weapon, or having stabbed Mr Phillip; the implication being that he had been stabbed by another prisoner after he entered the south wing, and that the police officers were lying.
In the course of the trial the prosecution applied to admit evidence of “the Haynes incident”: that is, evidence that in May 2009, almost four years later, the appellant had admitted stabbing Mr Haynes (a fellow inmate) in the neck with an improvised knife. After legal argument the judge admitted the evidence. No issue is taken as to the judge's decision to admit it as relevant to propensity in accordance with the guidance given by the Court in R v Adenusi [2006] EWCA Crim 1059; [2006] Crim LR 929. But there is a live issue as to the adequacy of the judge's direction on this aspect. It is convenient to deal with this ground first, since Mr Owen QC, for the appellant, realistically accepts that on its own it would be unlikely to justify setting aside the conviction, although he relies on it as an additional indication that the verdict was unsafe.
In admitting the evidence, the judge took account of the much longer period between the two incidents in the present case (as compared to Adenusi), commenting:
“Two factors … need to be borne in mind in this regard: The first is the significant degree of similarity which gives the evidence in this case … its probative force; and, secondly, that both allegedly occurred in the setting of the prisons. The effluxion of a considerable period of five years does not deprive the evidence of its potential probative force.”
He did not repeat these points in terms to the jury. However, before the evidence was heard, he directed them about its potential relevance to the issue whether the defendant had a propensity (or “tendency”) to commit an offence of the kind with which he was now charged, warning them of the need to guard against “unfair prejudice”, or treating it as in itself proving his guilt of the instant offence.
When summing up this aspect at the end of the trial, he again explained the potential relevance of the incident to the question of his propensity or tendency to commit an offence of the kind now charged, and said:
“You must first consider whether the State has proved, so that you feel sure, the facts relied on by the State in the Hilbert Haynes incident. If you are not sure of the evidence relied on by the State in the Hilbert Haynes evidence, then you must reject the evidence and go on to consider other issues in the case. If you are sure of the evidence that the State has placed before you on the Hilbert Haynes issue, bearing in mind that the burden is on the State to prove these matters to the extent that you feel sure, that burden never shifting from the State at any time, you must then go on to consider whether the evidence of the defendant's conviction for a disciplinary offence in prison establishes that the defendant has the propensity or tendency that the State is saying he has. You must first decide whether the propensity is proved so that you are sure of it. If it is proved, you must secondly decide whether if at all, and if so, to what extent that helps you when you are discussing whether the defendant is guilty of the offence charged …”
He added:
“Now, please bear in mind, Mr Foreman and Jurors, that this evidence on the Hilbert Haynes issue is but a small part of the State's evidence in this case. You will appreciate that it is not direct evidence that the defendant committed the offence which you are now trying, but it is evidence of circumstances concerning the defendant which you are entitled to take into account when deciding whether he did. It is part of the circumstantial evidence that the State is relying on in this case.”
The Court of Appeal saw no error in this part of the summing-up. They noted that the judge had reminded the jury that the evidence on this issue was but a small part of the State's evidence, and that it was not evidence that the defendant had committed the offence. His directions were clear and put the evidence of this incident in the appropriate context for the jury.
Before the Board Mr Owen criticises the judge's direction as lacking in detail.
He refers to the English Crown Court Compendium section on directions on bad character: “The issues to which the evidence is potentially relevant must be identified in detail and the jury directed about the limited purpose(s) for which the evidence may be used …” (para 12-2: Direction 4). In particular, the judge failed to draw the attention of the jury to the lengthy period between the two incidents, and the apparently isolated nature of the second incident. These were aspects which would normally throw doubt on the relevance of the evidence, and which the judge rightly had in mind when deciding whether to admit the evidence. It was incumbent on him to address them specifically in his instructions to the jury.
The Board sees some force in the criticism of lack of detail. The evidence of the Haynes incident took up some time at the trial, and there was a risk that it might have diverted attention from the limited purpose for which it was potentially relevant. It might also have been better if the judge had referred in terms to the significant gap between the two incidents. However, the jury would have been well aware of the difference in time, which was indeed emphasised by counsel for the appellant in his own closing remarks. The Board also notes that no criticism was made at the time by counsel of the judge's treatment of this issue, in spite of an invitation from the judge to indicate any matters which needed to be corrected or qualified. The Board agrees with the Court of Appeal that these possible criticisms are not sufficient to undermine the fairness of the summing-up as a whole, or to throw any doubt on the conviction.
Mr Owen seeks to introduce new medical evidence, which, it is said, could have provided the basis of a defence of diminished responsibility under section 4A(1) of the Offences against the Person Act 1925, as amended. That provides that, where a person “kills or is a party to the killing of another”, he is not to be convicted of murder if “he was suffering from such abnormality of mind … as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing”, the burden of proof being on the defence (section 4A(2)). The new evidence...
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