Richard Brown v The Queen (Jamaica)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Toulson |
| Judgment Date | 09 February 2016 |
| Neutral Citation | [2016] UKPC 6 |
| Date | 09 February 2016 |
| Docket Number | Appeal No 0104 of 2014 |
| Court | Privy Council |
[2016] UKPC 6
Privy Council
From the Court of Appeal of Jamaica
Lady Hale
Lord Clarke
Lord Wilson
Lord Hughes
Lord Toulson
Appeal No 0104 of 2014
Appellant
James Guthrie QC
Rowan Pennington-Benton
(Instructed by Candey)
Respondent
Tom Poole
(Instructed by Charles Russell Speechlys)
Heard on 3 December 2015
On 16 January 2003 in the Home Circuit at Kingston, Jamaica, the appellant was convicted of murdering Errol Lynch on 22 September 1998. For a considerable part of the time between the murder and the appellant's trial he was detained as unfit to plead. On conviction he was sentenced by the trial judge (Pitter J) to life imprisonment with hard labour and ordered to serve a minimum period of 25 years' imprisonment before he could become eligible for parole. On 11 March 2005 his appeal against conviction and sentence was dismissed by the Court of Appeal of Jamaica (Forte P, Smith JA and McCalla JA (Ag)).
On 19 March 2015 the appellant was granted leave to appeal by the Board. The reason for the grant of leave was that extensive investigations carried out pro bono by Mr Timothy Wright, then a solicitor in the firm of Morgan, Lewis & Bockius, raised concerns about the appellant's mental health and whether it had been properly investigated during the trial process. In giving leave, the Appeal Panel asked that both parties use their best endeavours to provide the Board with full information as to the basis for and circumstances of the appellant's detention from September 1998 to January 2003 including the circumstances in which he was found fit to plead. The Board is appreciative of the parties' efforts, which have resulted in it now having a fuller picture than at the time when leave was granted.
The prosecution case was that on 22 September 1998 the appellant and two other men went to deceased's home in Swallowfield Road, Kingston, and shot him. The case depended on the eye witness evidence of Mr Artheram White, who lived opposite the deceased. Mr White died before the case came to trial, but the judge admitted in evidence a witness statement made by him on 3 October 1998 and a deposition taken from him at a preliminary examination on 17 June 1999. The witness statement was admitted under section 34 of the Justices of the Peace Jurisdiction Act and the deposition was admitted under section 31D of the Evidence (Amendment) Act. In the Court of Appeal it was accepted that it was permissible for the court to admit one or other of the witness statement and the deposition, but it was argued that it was wrong to admit both of them, because the two were consistent and to admit both served no purpose other than to provide mutual corroboration. The court rejected that argument and there is no longer any complaint about the admission of Mr White's evidence, except in one respect (connected with the appellant's mental health) which it will be necessary to explain.
Mr White in his witness statement described the deceased as "the weedman on the street". He said that at about 8 pm he was standing by his gate when he saw three men walking along Swallowfield Road. Under the streetlight he recognised the face of one of the three men as the appellant, whom he had known for the past seven years. He did not recognise either of the other men. The deceased was at a neighbour's yard but soon returned to his own yard. Mr White described the events which followed:
"I could see that there was a conversation between Romy [the appellant] and Burru [the deceased]. Within seconds of Romy and Burru talking I saw when Romy pulled a gun from his waist and fired one shot at Burru. Burru was within arm's reach of Romy. After the first shot was fired I saw when Burru held on to Romy and a struggle developed between both men. I saw when both men fell to the ground. I saw when one of the other men walked up and fired one shot at Burru's head. I could hear the explosions. I see fire coming from the gun that Romy and the other men had. After the second shot was fired I saw when Romy and the other two men ran out of the yard."
Mr White's deposition included some additional details but did not contradict his witness statement. Both in his witness statement and in his deposition he gave the date of the incident as 22 November 1998 and remained adamant about that in cross examination. He was plainly wrong because 22 November 1998 post-dated his witness statement by seven weeks. The only other cross examination was that counsel put it to Mr White that he had not seen the appellant with a gun or at all on that night. (It is unsurprising that the cross examination was not more extensive, because it was a preliminary hearing and it would doubtless be common for the defendant's counsel to keep his powder dry, as used to be the practice in England and Wales when committal proceedings involved oral depositions.)
The appellant was arrested for murder on 30 September 1998. He was interviewed under caution and signed a written statement which recorded:
"On Tuesday the 22nd of the 9th, 1998, at about 8 pm, I was walking along Swallowfield Road, when I was met by two men who, we all went to Burruw's yard. When entering Burrow's yard we pass about five youths sitting in the yard. One of the men with me ask one of the youth for Burruw. I heard when the youth say 'See Burruw deh ah come.' Burruw entered the yard and I asked Burrow for, to buy weed. I ask Burruw to sell me a bag of weed. He replied by saying, 'Me ah go inna mi room fi it, wait.' The two youth that follow me to Burruw also ask Burrow for weed. I saw when one of the men pull a barrel gun and fire two shot at Burruw. I saw when Burruw drop near to a tree where he parked his van. I ran from the yard, the man also ran … I threw away the jacket I had on because it had on blood. When Burruw got shot he was about three feet …"
The appellant gave evidence at the trial, which differed in some respects from his statement under caution but not in the core of his defence. He said that on the evening of 22 September 1998 he went to the deceased's premises to buy some weed. He was not joined by others and was on his own when he reached the yard. There were four men sitting at the front of the gate and two men standing by the gate. He called out for the deceased, who was not there, but then he saw the deceased cross the road from another house. One of the two men at the gate started to argue with the deceased and the argument turned into a struggle in which they fell to the ground behind a parked van. After they fell to the ground he heard an explosion which sounded like a gunshot. Then the other man by the gate walked up to the van and he heard another explosion. The appellant said that he did not have a gun and that he left. He told his mother about the incident and she told him to throw away his jacket in case anyone at Swallowfield Road wrongly suggested that he was responsible for the shooting. He denied giving a written statement to the police and said that they made him sign some blank sheets of paper. He also denied knowing Mr White and said that he could think of no reason why Mr White should have provided evidence against him.
Neither fitness to plead nor diminished responsibility was raised as an issue at the trial. Prior to sentencing, the only reference made to the appellant's health was that in cross examination he was asked whether he remembered the preliminary hearing at which Mr White came to court and replied "No, ma'am, I was a sick person them time". In re-examination he was asked whether he had received treatment. He said that he was taken to Bellevue Hospital ("BVH") when he was at the police station; that he was treated by Dr Leveridge and that he also went to University Hospital to Dr Ottey. The matter was not further pursued.
The medical records now available to the Board show that he had history of a schizophrenic psychotic disorder. He was born on 8 November 1967 and was first treated at the University Hospital of the West Indies ("UHWI") in 1987, but the hospital notes were destroyed in a hurricane.
In 1996 the appellant was convicted of robbery with wounding and sentenced to a period of probation. The probation service was concerned that he was mentally disturbed and referred him to the BVH for assessment. The BVH notes show that he was admitted on 19 August 1996. He was brought to the hospital by relatives, who gave a history that for about six years he had been disruptive, attacking them and others, setting fire to property and destroying furniture. He was said to become aggressive and violent towards others when faced with stressful situations. He was put on medication.
On 24 September 1997 a BVH progress note recorded that the appellant was suffering auditory hallucinations and delusions of persecution. The diagnosis was psychotic disorder modified by ganja abuse. The note referred to relapse due to non-compliance with medication. He was given an injection and put on a daily course of medications. On 18 November 1997 his condition was noted to be stable and his medication was adjusted.
The overall picture which emerges from the medical records is that the appellant suffered from a chronic mental disorder aggravated by drug abuse; that with proper treatment his condition would improve and would remain stable as long as he continued to receive appropriate medication; but that failure to take his medication would result in relapse and an acute psychotic condition. There is no evidence whether he was taking prescribed medication during the months leading to the commission of the offence on 22 September 1998.
Following his arrest, on 13 October 1998 the appellant appeared at the Gun Court on charges of murder and illegal possession of a firearm. He told the judge that he...
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