Taitt v The State

Heard on 15 October 2012

On 9 May 2008 the appellant Marlon Taitt was found guilty, together with his co-accused Ijah Braithwaite, of the murder by shooting of Anthony McCarthy on 16 May 2006. They were both sentenced to death, as the crime of which they had been convicted attracted the mandatory death sentence.

The case for the prosecution had been based substantially on the identification evidence of Sheneka McCarthy, who was the deceased's niece. Prior to the summing up the appellant's counsel asked the judge to give the appellant, who had a prior conviction for larceny in 1999, a good character direction. The judge declined to do so. During the trial counsel for the appellant's co-accused Braithwaite expressed concern as to whether his client's mental state was such as to be able to give him proper instructions. The judge adjourned the trial for an evaluation of Braithwaite's state of mind at the time of the offence and his fitness to instruct counsel and plead at his trial. It does not appear that the grounds for concern were made out, as his trial was permitted to proceed after the adjournment. The appellant's counsel, with whom the matter had been discussed by counsel for Braithwaite, did not make a similar application on the appellant's behalf.

Both the appellant and his co-accused appealed against their convictions on a number of grounds. The co-accused's appeal was allowed, on the ground that the trial judge had given inadequate directions on the issue of identification as it affected him. A retrial was ordered in his case. The circumstances of the identification in the appellant's case were not the same, and he did not raise the question of the inadequacy of the trial judge's directions on that issue in his appeal. His appeal was presented on the basis that there had been a number of irregularities during the trial which, when taken collectively, had the effect of rendering the verdict unsafe. On 11 December 2009 the Court of Appeal dismissed the appellant's appeal against his conviction.

In April 2010, following the dismissal of his appeal, Simons Muirhead & Burton ("SMB"), who had been instructed by Herbert Smith LLP, agreed to act for the appellant pro bono with a view to a possible appeal to the Judicial Committee of the Privy Council. On 21 April 2010 they notified the State's Privy Council agents, Charles Russell LLP, of their interest and asked for a set of the relevant papers. They are to be commended for having taken this step so promptly. As was noted in Hamilton v The Queen[2012] UKPC 31,[2012] 1 WLR 2875, para 14, Charles Russell encourage initiatives of this kind, as it enables them to monitor, as well as assist in, the progress of the appeal, to provide any necessary support with documents for the purpose of the application and to deal with any issues that might arise on their production. Charles Russell provided SMB with the relevant papers between September 2010 and January 2011.

Having studied these papers and consulted counsel, SMB instructed a clinical psychologist, Mr CPA Norman, in February 2011 to assess the appellant's mental state and provide them with a report. Mr Norman interviewed the appellant in the State Prison on 28 March and 1 April 2011. He provided SMB with a report dated 27 August 2011 in which he indicated that in his opinion the appellant had a learning disability which represented a very significant handicap. He said that he had serious doubts as to whether the appellant would have understood the legal process sufficiently well to have offered a reasonably competent defence. On 14 December 2011 SMB lodged with the Board an application on the appellant's behalf for permission to appeal, for an extension of time to allow him to do so and for permission to introduce fresh evidence.

Permission was sought on the following grounds:

(1) that the trial judge ought to have given a modified good character direction;

(2) that the trial judge failed to give an appropriate warning in respect of Sheneka McCarthy's evidence;

(3) that the trial judge failed to deal fairly with the key aspects of the defence case;

(4) that the appellant's conviction ought not to be upheld in view of the successful appeal of his co-accused;

(5) that the appellant was likely to have been unfit to plead or stand trial; and

(6) that the imposition of the death sentence on a mentally impaired defendant is cruel and unusual punishment contrary to section 5(2)(b) of the Constitution of Trinidad and Tobago.

On 22 December 2011 SMB instructed a consultant forensic psychiatrist, Dr Marc Lyall, to prepare a psychiatric report in the light of Mr Norman's findings and to provide them with his own assessment of the appellant's psychiatric state. Dr Lyall saw the appellant in Trinidad on 10 January 2012 and provided SMB with a report dated 23 February 2012. He said that the appellant's clinical presentation was in keeping with Mr Norman's findings, that he appeared of borderline low intellectual capacity and that generally a person with his level of impairment would be likely to struggle to participate fully in a criminal trial if attention was not paid to their difficulties. He also said that the appellant required treatment from specialist medical health services as a matter of some urgency

In the meantime steps had been taken to obtain an explanation from the appellant's trial counsel, Mr Selwyn R Mohamed, as to why evidence as to the appellant's mental state had not been adduced earlier. SMB wrote to him on 13 December 2011 enclosing a copy of Mr Norman's report. They did not receive a reply to that letter. They wrote to him again on 30 April 2012 enclosing a copy of Dr Lyall's report. They did not receive a reply to that letter either, or to a further reminder which was sent on 7 August 2012. But, following further efforts by SMB to make contact, Mr Mohamed wrote to them on 1 October 2102 stating that the appellant had been able to give him full instructions. Mr Norman and Dr Lyall then, at SMB's request, provided addenda to their reports in the light of what Mr Mohamed had said.

On 30 April 2012 the Board refused permission to appeal on grounds 1 to 4 of the appellant's application. Nothing more need be said about them. But grounds 5 and 6, including the applications for permission to appeal out of time and to adduce fresh evidence, were referred to an oral hearing. Having heard oral submissions from Mr Guthrie QC for the appellant and Mr Poole for the State, the Board is now in a position to give its decision as to whether the appellant should have permission to appeal on these two grounds and on the related issue as to whether he should be permitted to adduce fresh evidence.

Very properly, Mr Poole did not resist the application for permission to appeal out of time. It is clear, from the chronology summarised above, that SMB acted promptly and took the steps which the Board was later to say in Hamilton v The Queen, para 18, can and should be taken to minimise the risk of unreasonable delay. Nor, in the light of the explanation that had been obtained from Mr Mohamed as to why they had not been obtained earlier, did Mr Poole resist Mr Guthrie's application that the Board should receive and consider the ^ reports that had now been obtained.

Mr Norman said in his report that, having met and examined the appellant, he did not think that he was in the presence of someone who was suffering from schizophrenia or a similar major mental illness. The tests which he carried out, which included the Wechsler Adult Intelligence Scale ("WAIS"), indicated that the appellant had a significant learning disability. His verbal comprehension index was 68, in the lowest 2% of the population around the world, and he had a reading age of between 6 and 7 years old. His conclusion from the various tests was that he fell in the lowest 2% of the population. Many of the test results fell within the lowest 1%, and in some areas his score was even lower. When he asked the appellant about the issues in his trial he seemed to be unable to show a clear understanding of them, although he was aware of what he had been charged with. In the opinion section of his report Mr Norman set out the following conclusions:

"(1) The standard and most reliable test of general ability (WAIS) suggests that Mr Taitt falls within the least able 1% of the population. This represents a very significant handicap. Any person with this sort of IQ would need very careful help to understand legal issues in a trial. A person with this sort of ability would have a basic capacity to understand right from wrong, especially if they had a stable and law-abiding up-bringing....