Daniel v The State

JurisdictionUK Non-devolved
JudgeLord Dyson
Judgment Date23 May 2012
Neutral Citation[2012] UKPC 15
CourtPrivy Council
Date23 May 2012
Docket NumberAppeal No 0109 of 2009

[2012] UKPC 15

Privy Council


Lord Phillips

Lord Clarke

Lord Dyson

Lord Sumption

Lord Reed

Appeal No 0109 of 2009

Marcus Jason Daniel
The State


Julian Knowles QC

Ms Michelle Butler

(Instructed by Simons Muirhead & Burton Solicitors)


Peter Knox QC

Aidan Casey

(Instructed by Charles Russell LLP)

Heard on 8 March 2012

Lord Dyson

On 14 December 2005, the appellant was convicted at the Port of Spain Assizes of the murder of his 16 year old cousin, Suzette Gibson, on 23 January 2002. He was 25 years of age at the date of the offence and was sentenced to death. He was a man of previous good character. His co-accused, Osei, who was only 17 years of age at the time of the offence, was sentenced to detention at the Court's pleasure. The appellant's appeal against conviction was dismissed by the Court of Appeal of Trinidad and Tobago (Hamel-Smith CH(Ag), John and Weekes JJA). His case is that his conviction is unsafe because fresh evidence from three expert witnesses (Professor Eastman, Dr Green and Dr Gray) (i) demonstrates that the defence of diminished responsibility was open to him at the trial and should have been (but was not) deployed before the jury and (ii) casts doubt on the voluntariness and therefore the admissibility of the statement that he made to the police under caution. The submissions addressed to the Board have been mainly directed to the diminished responsibility issue.


The principal evidence for the prosecution was contained in the appellant's statement in which he admitted the killing. The facts according to this statement were as follows. On Tuesday 22 January 2002, he had arranged with Suzette to take her for a drive at 7.30 pm on the following day before she went to her dance class. At 6.30 pm on 23 January, he borrowed a car from Sheldon Linton. He had spent much of the afternoon drinking black label rum and playing rock music. He picked up Suzette and his friend Osei and they drove off to Blue Basin, a place which had no street lights or houses nearby. They stopped and the appellant continued drinking and "getting into rock music". He started touching Suzette. She pushed his hand away. At this point, the "demon thing" rose up inside him and he choked her for about one and a half minutes. He then let go and Osei also choked her. The two of them pulled her out of the back door of the car. He blocked her mouth and slit her throat. She fell to the ground, whereupon he stabbed her in the chest and stomach and pushed her into a drain before slitting the fingers of his right hand. He and Osei then drove off. At about 9 pm, they returned the car to Sheldon Linton and went home. Suzette had been expected home at 9.15 pm. When she did not return, her father went off in search of her. He went to the appellant's father's house where he saw the appellant and Osei. The appellant told him that he had seen Suzette at about 3 pm that afternoon and that later he had gone to look for her without success. He explained the bandages on his fingers by saying that he had been attacked in a fight in a phone booth. The appellant agreed to lend Mr Gibson his car and, with Osei, to help him look for Suzette.


At 12.45 am the following morning (Thursday, 24 January), the three of them drove to the West End Police Station where Mr Gibson reported the disappearance of his daughter. They then continued their search for a while. In the meantime, Sheldon Linton had taken the car that he had lent the appellant to the police station because he had noticed what looked like blood stains in it.


The appellant and Osei later returned to the police station. Sergeant Ollivierre questioned Osei on his own. Osei told the officer that it was the appellant alone "who kill the girl" and offered to take the police to her body saying "Is Marcus who take a knife and slit she throat". He took the police to the place where Suzette's body was lying and then to Brunton Avenue where he said that he had thrown the two knives (one of which he said the appellant had used to kill Suzette, the other of which was his own). The knives were about 10 to 12 inches long. Osei then took the police to the appellant's father's house and pointed to an area in front of the house where he had seen the appellant bury some items which belonged to Suzette.


In the evening of 24 January, Sergeant Ollivierre took a statement from the appellant under caution. The interview started at 10.50 pm. At 11.34 pm, Sergeant Ollivierre was told that the appellant's mother had arrived and wanted to be present during the taking of the statement. She was taken to see the appellant and offered him food and clothing. But he told her that he did not want anything to eat and did not want her to be present for his statement. He resumed making his statement and finished at 12.35 am the following morning. The gist of what he said has already been summarised above.


At 9.15 am on 25 January, a post mortem was carried out on Suzette's body. This revealed a 7.5 cm incised slash on the front of the neck which cut through the windpipe, the thyroid gland and the major blood vessels; multiple stab wounds and bruises from the face and down the upper part of the body; and multiple incised wounds of the hands and right wrist consistent with defensive wounds. These multiple stab and incised wounds were the cause of death.


On 26 January, the appellant and Osei were charged with murder. At the trial, the appellant's attorney, Miss Elder QC elicited from prosecution witnesses that the appellant had enjoyed a close friendship with Suzette. It was not suggested by anybody that the friendship was other than platonic. The appellant elected to give evidence. He said that he had a very close platonic relationship with Suzette. He did not intend to kill her. He told the police that "it was a demon inside my head". He said: "I did not know what I was doing. I was seeing a dark object in front of me and I did not know what it was. I was not seeing or hearing Suzette in front of me". He did not know that he was stabbing Suzette. He had smoked "Blacks" during the afternoon of 23 January. Blacks are marijuana cigarettes rolled with crack cocaine. He had never smoked them before. He was "very high" on drink and drugs. When Suzette started pushing his hand away and slapping him, he did not become annoyed, but it was at that moment that "the demon thing raise in me". He had not mentioned Blacksin his statement to the police, because he did not want them to ask questions about it. He had not mentioned a dark object to them, but he did see a "dark object" that night and the dark object was the demon. He said that he did not tell Suzette's father what had happened to his daughter and drove around with him looking for her because he was "too scared and confused at the time". This was also the reason why he picked up his knife and cut himself on seeing Suzette's lifeless body on the ground.


Such were the concerns about the state of the appellant's mental health following the killing that he was remanded by the Magistrates' Court to St Ann's hospital at his first court post-charge appearance on 28 January 2002. He spent two months being treated there.


The issue for the jury at the trial was whether the appellant had the necessary intention for murder. His defence was that he did not because he was so intoxicated by drink, drugs and heavy rock music that he did not know what he was doing. There is no criticism of the judge's summing up.

Consideration of diminished responsibility pre-trial

The issue of diminished responsibility had been considered by those advising the appellant during the course of the preparation of his defence. Several psychiatric reports had been obtained from two Trinidad-based consultant psychiatrists. Dr Ghany's first report is dated 14 February 2002 and was based on an interview on 30 January 2002. Dr Ghany concluded that the appellant was fit for trial as he was "not mentally ill but has a personality disorder with…psychopathic features", including the "inability to form normal relations with women, fantasies of sexual violence, a desire to dominate the victim, lack of remorse for inflicting pain on her and perhaps getting some measure of extreme power and sexual satisfaction from inflicting pain injury on her." He concluded that these features were "atypical of the sa[d]istic murderer. His sa[d]istic tendencies were reinforced by drinking and listening to satanic music". On 20 March 2002, Dr Ghany wrote a second report in which he suggested that the appellant was now "malingering". He noted that the appellant said that he could not get rid of the rock music in his head. He had been observed closely on the hospital ward and was seen talking normally to staff and patients. He had been assessed by the full team and his behaviour was considered to be "psychogenic" in origin.


On 5 December 2003, the appellant was seen by Dr Hutchinson to whom he gave a somewhat different account of the killing. He said that, on arriving at Blue Basin, he took a drug called THC. He had never taken this drug before. He said that he went into a "kind of semi-conscious state". He saw threatening shadows moving toward him. His brain was pounding and "going to explode". When he came out ofthis state (which lasted for about 15–20 minutes), he found his cousin lying dead on the ground with her throat slit. Dr Hutchinson concluded that (i) this suggested a THC induced dissociative phenomenon in which, in a state of high sensory stimulation, the brain dissociates the conscious experience of the event from the affective or emotional response; (ii) while there were antisocial traits, it seemed more likely that he had a borderline personality disorder; (iii) antisocial personality disorder...

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