Pitman v The State (Trinidad and Tobago); Hernandez v The State (Trinidad and Tobago)

JurisdictionUK Non-devolved
JudgeLord Hughes
Judgment Date23 March 2017
Neutral Citation[2017] UKPC 6
CourtPrivy Council
Docket NumberAppeals No 0084 of 2014 and 0046 of 2015
Date23 March 2017
Lester Pitman
(Appellant)
and
The State
(Respondent) (Trinidad and Tobago)
Neil Hernandez
(Appellant)
and
The State
(Respondent) (Trinidad and Tobago)

[2017] UKPC 6

before

Lady Hale

Lord Kerr

Lord Clarke

Lord Hughes

Lord Toulson

Appeals No 0084 of 2014 and 0046 of 2015

Privy Council

From the Court of Appeal of Trinidad and Tobago

Appellants

Edward Fitzgerald QC

Paul Bowen QC

Alison Macdonald

Ruth Brander

Amanda Clift-Matthews

Daniella Waddoup

Katherine Buckle

(Instructed by Simons Muirhead & Burton LLP)

Respondent

Peter Knox QC

Tom Poole

(Instructed by Charles Russell Speechlys LLP)

Heard on 16 and 17 May 2016

Lord Hughes
1

The Board has heard together two appeals brought by defendants convicted in Trinidad and Tobago of murder and sentenced originally to death. The principal question which arises concerns the law applicable to persons convicted of offences carrying a death sentence where they are to an extent mentally impaired. This point is of importance although neither of these appellants now faces a death sentence, owing to the very lengthy time which has elapsed since their convictions.

2

In the case of Pitman, although not of Hernandez, there is also an appeal against conviction. That raises two distinct questions. The first is connected to the issue of mental impairment, for it is contended that the decision to admit in evidence his confession statement is vitiated by what is now known about his mental condition. The second is unconnected and arises from the recent decision of the Board as to the law of joint responsibility in R v JogeeandR v Ruddock [2016] UKSC 8 and [2016] UKPC 7: [2016] 2 WLR 681.

Pitman ; facts

3

As long ago as 11 December 2001 John Cropper, a respectable householder in the Cascade area of Port of Spain, was murdered together with his sister-in-law and 83-year-old mother-in-law by robbers who entered his home and stole jewellery, television sets and other possessions. The three deceased were left in the bathroom of the house with their throats cut, and were found about 36 hours later. The appellant Pitman and a co-defendant Agard were arrested within about a week and stood trial together. Both were convicted by the jury.

4

The evidence against Pitman consisted essentially of three parts. Firstly, he was identified at an identification parade nine days after the killings by a woman who had seen two men hanging about outside the targeted house on the evening of the murders. Secondly, a local man gave evidence that Pitman engaged him on the morning after the killings to drive him and Agard to collect much of the stolen property, later identified as such by Mr Cropper's widow, from the place where it had been left. Thirdly, the State relied on a written statement of confession made by Pitman to the police. In it he narrated going to the house with Agard, waiting outside until a number of tea-party guests had left, and then entering together. He said that Agard had held onto Mr Cropper and he had held his sister-in-law. When Mr Cropper tried to escape, Agard produced a knife. The two captives had been put in the bathroom tied and gagged, and when the older lady was found she was treated likewise. His account was that Agard had killed the occupants. After stealing what they wanted, and as they were ready to leave, Agard had gone into the bathroom with the knife and that when he had looked he had seen the bodies there. They had left together and stored some of the stolen property. He had himself also taken $500 from a dressing table, which he kept for himself.

Pitman : trial and appeals

5

At the trial both men denied the offence. Agard knew the Cropper family. He asserted an alibi. He had made a confession admitting presence but blaming all the violence on a man called "Cudjoe". He denied that this confession was true, saying that it was obtained by a false promise of immunity against a background of rough handling. He accounted for his fingerprint in the house by previous visits to work there, and for his proven use of Mr Cropper's bank card the following day by asserting that it had been given to his sister to help her out. He was convicted by the jury. His conviction was subsequently quashed by the Court of Appeal on grounds unconnected with Pitman's, and a re-trial ordered.

6

Pitman challenged the admissibility of his confession and a voire dire was held. His case was that he had refused to make any statement and had not said any of the things recorded; on the contrary, he had said that he knew nothing about the crime. He had maintained this refusal despite inducements offered by the police to the effect that he would go home uncharged and be treated as a witness for the State. He had, however, signed a piece of paper on which something was already written; this he had done, he said, because he had been told he would be treated as a witness. He gave evidence in the voire dire. His assertions about the making of the statement were flatly contradicted by the interviewing police officer and by a woman officer brought in to record what he said. In addition, the statement had been made in front of a senior JP and former permanent secretary. That gentleman gave evidence that he had spoken privately to Pitman on arrival at the police station and had asked if he was ready to make a statement. Pitman told him, he said, that he was "not in a frame of mind to give a statement now", and this the JP reported to the officers, who accepted it. Later in the evening the JP said that Pitman asked to speak to him again, privately, and said that he was now ready to make a statement, whereupon what was written down came from him. Thus the principal part of Pitman's case went not so much to admissibility as to whether he had ever made the confession. At all events, the judge admitted the evidence and the challenge to it was renewed by assertions made in cross examination of the police, apparently over some days, in front of the jury. Pitman did not, however, give evidence before the jury. There was also challenge to the reliability of the identification evidence, including a disputed assertion that he had stood out at the parade because he alone was shirtless. It would seem that there was also a challenge to the truthfulness of the evidence of the driver who said he had helped the two defendants to recover the proceeds the next day. The trial took no less than two months.

7

There was no significant legal issue at the trial relating to Pitman's mental capacity. It was in evidence from his aunt that he was slow generally and had been well behind at school; he had fallen on his head as a five-year-old and had had lengthy hospital treatment for a fractured neck and possible brain damage; he was able to hold down a job. A priest called in the voire dire described him as intelligent but slow. He was referred to by his counsel to the jury as a "dunce". This was not, however, suggested to relate to any legal issue. It was referred to by the judge in summing up in the context of the law of joint responsibility and what he must or might not have foreseen, if the confession was indeed made.

8

Pitman appealed his conviction to the Court of Appeal, represented by counsel different from the advocate who had conducted the trial. Some 12 grounds were advanced. They related to the suggested failure of the State to nail its colours firmly to the mast either of joint responsibility or felony-murder, to the contention that the re-enactment of the latter rule had had the effect of abolishing the law of joint enterprise, and to suggested imbalance in the summing up. None of them related in any manner to Pitman's mental capacity. The appeal was dismissed, and none of the grounds then rejected has been renewed.

9

Upon further appeal to the Board, there were proffered for the first time expert reports on Pitman's mental capacity. One came from a neuro-psychologist, Dr Bramham, who had examined Pitman on one occasion in prison and had administered standard psychological tests. The other came from Professor Kopelman, a professor of neuro-psychiatry, who had reviewed the papers. There was also put before the Board a statement from a former teacher of Pitman, who had taught him for a year at the age of eight, to the effect that he was extremely slow and withdrawn, having difficulty in simple tasks and in expressing himself. The expert reports, particularly that of Professor Kopelman, went so far as to conclude that Pitman would have been (a) unfit to plead and to be tried as unable to understand or participate in the process, (b) insane as unable to know what he was doing or that it was wrong, as well as (c) substantially impaired in his responsibility at the time of the killings. The Board accepted the explanation for the omission of any such evidence at the trial, namely that although there had been some consideration given to having the defendant examined by a psychiatrist this had never occurred, either through lack of money or oversight. It admitted the evidence and remitted the case to the Court of Appeal for consideration of the various possible legal consequences to which it might lead: [2008] UKPC 16.

10

Before the Court of Appeal at this second appeal, the potential issues were accordingly the impact of Pitman's mental impairment, whatever it was, on (1) fitness to plead, (2) insanity, (3) ability to participate in a joint venture, (4) diminished responsibility, (5) the admissibility of the confession and (6) sentence. Before the Court of Appeal there were also new reports obtained on behalf of the State from Dr Maharaj, a psychologist and Dr Othello, a consultant forensic psychiatrist. None of this evidence and none of these issues had been before the court of trial. The Court of Appeal conducted oral hearings at which evidence was given by all the experts and also by counsel who had...

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