Robinson v The State (Trinidad and Tobago)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hughes |
| Judgment Date | 20 July 2015 |
| Neutral Citation | [2015] UKPC 34 |
| Date | 20 July 2015 |
| Docket Number | Appeal No 0038 of 2013 |
| Court | Privy Council |
[2015] UKPC 34
Privy Council
From the Court of Appeal of the Republic of Trinidad and Tobago
Lady Hale
Lord Kerr
Lord Clarke
Lord Hughes
Lord Toulson
Appeal No 0038 of 2013
Appellant
Paul Bowen QC Stephen Broach Amanda Clift-Matthews
(Instructed by Simons Muirhead and Burton Solicitors)
Respondent
Peter Knox QC Tom Poole
(Instructed by Charles Russell Speechlys LLP)
Heard on 16 June 2015
On this appeal from the Court of Appeal in Trinidad and Tobago against conviction for murder, the issue concerns the manner in which the partial defence of diminished responsibility was dealt with in the court of trial.
The law of diminished responsibility in Trinidad and Tobago is, so far as material to this case, in the same form that it had in England and Wales from the introduction of the concept in 1957 until alteration by the Coroners and Justice Act 2009. Section 4A(1) of the Offences Against the Person Act 1925, chapter 11.08 provides:
"4A. (1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing."
By section 4A(2) the onus of establishing diminished responsibility is placed upon the defendant; as in the case of any other burden of legal proof which is laid upon a defendant, this is to be discharged by proof on the balance of probabilities. By section 4A(3) diminished responsibility, if established, reduces the offence from murder to manslaughter.
The present defendant was born in September 1962. On 16 January 2002, in an incident in a pharmacist's shop in Tacarigua, he killed Mr John, a security guard. In due course he was tried for murder. His defence advanced the issues of self-defence, provocation, and diminished responsibility. The Board is concerned only with the last.
The defendant was 39 years old at the time of the offence. He had a history of schizophrenia, which had resulted in his admission to a mental hospital on some five or so occasions, beginning in 1985 at the age of 23. In January 2002, despite having a High School and Labour College education, he was wandering the streets as a destitute in an unkempt, dishevelled and unhygienic condition, and appears to have been living in an abandoned house. It was his habit sometimes to visit the pharmacist's shop to beg for snacks or soft drinks. The proprietor had known him for some dozen or so years, by the names 'Tony' or 'Psycho'. On 16 January the defendant returned to the shop for a second time that day at around 5.00 pm. His clothes were ragged and he was barefoot. He was carrying a metal bar about three and a half feet long and about half to one inch thick. He stood tapping the bar on the floor. The proprietor told him that he was not supposed to be there, having already been in that morning. Although he was asked on something like seven occasions to leave, the defendant did not. He eventually went to the door, opened it, flapped it to and fro, and invited the proprietor to put him out. The latter asked his security guard to deal with the defendant. When the guard went up to him, the defendant first laughed at him and said he could not put him out if the proprietor could not, and then swung the metal bar at the guard in a way which brushed him lightly about three times. At that, the guard took out his sidearm, placing his other hand on the defendant's neck or upper chest. He said to the defendant "See what I have here; I am a firearm security officer; kindly leave". At that, the defendant swung the bar, this time forcefully from behind his back, and struck the guard on the back of the head. Within a second or two, the guard's gun was fired, whether in reflex or by deliberate action was unclear. Both men fell to the floor. The guard had sustained fatal injuries. The defendant had been shot under the left arm. He ran from the shop, but was seen to return to stand on the opposite side of the road watching for two to three minutes, before walking away. He was found shortly afterwards sitting on the kerb two streets away, barebacked, trembling and rocking back and forth in an agitated manner. When approached by two uniformed policemen, he repeated "You is Carl; you is Carl" (not the name of either officer) and then told the sergeant "I want a smoke to take out a bullet and a pain from my chest". He was co-operative and was arrested. He was himself taken to hospital where his wound was treated. He made no further comment about the events which had occurred. Nor did he give evidence at the trial.
The defendant was not tried until seven years after the killing. The reasons for the delay were part of his medical history. This history was not placed chronologically before the jury and was not properly deployed in support of the assertion of diminished responsibility, as it ought to have been, although it emerged, almost incidentally, in the evidence of the two forensic psychiatrists called for the defence, Dr Othello and Dr Ghany. Some of it emerged in chief and other snippets in cross examination. Putting it into order, the picture was this. Prior to the killing, there had been some five previous admissions to hospital beginning in 1985; the consistent diagnosis had been schizophrenia. After that there had been some outpatient treatment, but the last had been in December 2000. That was a little more than a year before the offence. There was no record of his having had, during that year, any drug treatment (essential so often in cases of schizophrenia and frequently very effective whilst maintained). The offence was then in January 2002. Some three or four months after the killing he had been admitted to hospital on 30 April 2002 with florid symptoms of schizophrenia. At that stage, Dr Ghany noted that he was experiencing delusions and hallucinations, he was exhibiting grandiose ideas and religious incoherence and he was generally functioning at a low level. He was agitated, irrational and incoherent. He claimed to have had 91 wives and a career as an inventor of lasers, computers and generators. At one stage he said that the man he had been charged with killing had in fact himself murdered the shopkeeper. At a later stage during this hospital admission he gave an account of events at the shop which was not far from accurate save that he said that he had been shot by the guard and had then stood bleeding for some three minutes before responding by striking the guard with the metal bar. In May 2006 he was admitted to hospital for assessment of fitness to plead; where exactly he had been between June 2002 and then was not in evidence. He was seen by, no doubt amongst others, Dr Othello. He was assessed to be unfit to plead and in February 2007 was found by the court to be so; an order was made for his detention in hospital during the court's pleasure. Under treatment, he recovered considerably and became fit to plead. Reports detailing his recovery were not before the jury, but in fact showed that by February 2008 he was well groomed and coherent and lacked most of the previous psychotic symptoms, save that he was still asserting that the security guard was still alive. Counsel for the State did elicit that this last assertion was made, and also that it had disappeared within a matter of days, or at most weeks, of one of the reports, at a time when the defendant may have believed that recovery might lead to his release, rather than to his trial. In June of 2008 he was discharged from hospital to prison, by now fit for trial. His trial followed in February 2009.
At that trial the initial stance of the State was that it would accept a plea of guilty to manslaughter on the basis of diminished responsibility (if it were tendered). The Deputy Director of Public Prosecutions had herself authorised this position. Whether such a plea was actually tendered or not is not clear, but it may not have been, since self-defence (as well as provocation) was being relied upon, and seems to have been defence counsel's primary case throughout, including in his closing speech. At all events, counsel for the State formed the view, clearly conscientiously, that he ought not to accept diminished responsibility and should challenge the evidence of it. The Board will return to this conclusion later.
The defence was proposing to rely, on the issue of diminished responsibility, only upon the evidence of Dr Othello. She had not seen the defendant until May 2006, after his admission that year to hospital, thus four years and more after the offence. She had examined him on three occasions, but all had been brief owing to his irritable and illogical responses. She had written a very short one and a half page report. It described his condition at that time, which was floridly schizophrenic. It referred in a sentence or two to the fact that he had had several previous admissions to hospital and had been diagnosed as schizophrenic. It referred to Dr Ghany's report of summer 2002, to its description of his then florid schizophrenia, and to its stated conclusion that he had been suffering from an abnormality of mind at the time of the offence, and it endorsed that last conclusion.
After the cross examination of Dr Othello had put diminished responsibility in issue, and had elicited the period between the offence and her contact with the defendant, the defence also called Dr Ghany, relying not on any recent assessment or indeed any recent report, but simply on what he had said in June 2002. That report does not have the appearance of being prepared for use at a...
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