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JUDGMENT
[1] This is an application for special leave to be granted to the Applicant
to appeal against the decision of the Court of Appeal of Barbados, dated
31st May, 2006, dismissing the Applicant's appeal from his conviction for
murder, which carries the mandatory death sentence.
[2] The grant of special leave is, of course, a matter of discretion.
However, if there is a realistic possibility of a miscarriage of justice if
leave is not given for a full hearing, then leave will be given. Counsel
thus needs to raise an arguable case for this, highlighting points in his
Notice of Application or in his skeleton argument, but not spending time on
the lengthy examination of many cases which should be reserved to the
substantive hearing, if any. No more than one to two hours should be needed
for this.
The trial judge's directions on the intent for murder
[3] Despite forceful, but courteous submissions, Mr Shepherd QC, leading
counsel for the Applicant, failed to make out an arguable case against the
reasoning of the Court of Appeal for upholding the trial judge's directions
on the need for the jury to be satisfied that the accused intended to kill
or cause serious bodily harm to the victim. Mr. Shepherd (relying on R v
Nedrick[FN1] and R v Woollin[FN2] argued that the trial judge should have
gone further to direct the jury that they were not entitled to find the
necessary intent for murder unless they felt sure that death or serious
bodily harm was a virtual certainty as a result of the Applicant's actions
and that he appreciated that such was the case.
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[FN1] [1986] 3 All ER 1
[FN2] [1998] 4 All ER 103
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[4] In our view, however, the Court of Appeal in a well-researched judgment
correctly held that there was no need for such a direction. While the
Applicant's motive was to rob the victim, he armed himself with a 32 cms (14
inches) butcher's knife with a 25 cms (9 inches) blade. Evidence in his
statement and in the witness box revealed cunning, coherent actions both
just before and just after the robbery. The Applicant, nevertheless, alleged
that at the time when he stabbed his female victim sixteen times with his
long knife he did not know what happened after the first stab, "I just knew
that the body got stab from me and I just froze for a while." The basis for
this assertion was that he had drunk a lot of alcohol and smoked two
marijuana cigarettes, so that he was not in a position to appreciate that he
was doing something where death or serious bodily harm was a virtual
certainty.
[5] We agree with the Court of Appeal's view that where there is evidence of
a direct violent attack on a victim, as there was in this case, and where
the accused has admitted in his sworn evidence that he was aware of what he
was doing when he made his first stab with his butcher's knife, and where
the trial judge has directed the jury to pay regard to all the relevant
circumstances before and after the attack in order to decide if the accused
intended to kill or cause serious bodily harm to the victim, there was no
need for the direction on virtual certainty argued for by Mr Shepherd.
NEW GROUNDS OF APPEAL NOT RAISED BEFORE THE COURT OF APPEAL
[6] Counsel who appeared for the Applicant at the trial and in the Court of
Appeal was replaced for the purposes of the Application to this Court by Mr
Alair Shepherd QC and Mr Tariq Khan, who have pursued new grounds of appeal.
Mr Charles Leacock QC on behalf of the Respondent did not object to this.
DIMINISHED RESPONSIBILITY
[7] It was submitted that the trial judge should have put the issue of
diminished responsibility to the jury and/or have advised the Applicant's
counsel to pursue this defence to a murder charge, but, in the absence of
medical evidence of some abnormality of mind substantially impairing the
Applicant's mental responsibility, this submission is baseless. Section 4 of
the Offences Against The Person Act (Cap 141) only prevents a killer from
being 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 or omissions in doing or being party to
the killing. On a charge of murder it shall be for the defence to prove that
the person charged is by virtue of this section not liable to be convicted
of murder."
[8] It was then submitted that, in order to help establish a plea of
diminished responsibility at this late stage, there should be admitted into
evidence a preliminary opinion of a Consultant Psychiatrist, Dr George Mahy,
dated 27th June, 2006. By section 29(1) of the Criminal Appeal Act (Cap
113A), "the Court may, if it thinks necessary or expedient in the interests
of justice ... (c) ... receive the evidence, if tendered, of any witness."
[9] However, by section 29 (2) it is provided that:
"Without limiting subsection (1), where evidence is tendered to the Court
under that subsection, the Court, unless it is satisfied that the evidence
if received would not afford any groundfor allowing the appeal, shall
receive the evidence if
(a) it appears to the Court that the evidence is likely to be credible and
(b) the Court is satisfied that though it was not adduced at the trial there
is a reasonable explanation for the failure to adduce it."
[10] The problem with Dr Mahy's preliminary opinion is that, even if
received into evidence, it "would not afford any ground for allowing the
appeal." As admitted by Mr Tariq Khan, dealing with this point on behalf of
the Applicant, at best it could afford grounds for a stay of this special
leave application until a further, definitive, psychiatric report on the
Applicant could be obtained, though there is a problem trying to obtain
funds for such a report. He submitted that if such a report could be
obtained and if it provides some credible evidence of some abnormality of
the mind that could support a plea of diminished responsibility, then
special leave should be granted, so that the case could be referred back to
the Court of Appeal for cross-examination upon the report; otherwise, leave
should not be granted.
[11] This is clutching at straws. Dr Mahy's preliminary opinion is very weak
material upon which to hope to establish a basis for a diminished
responsibility plea. Dr Mahy saw the Applicant only once when the latter
"was well orientated and denied ever having any features of a psychotic
illness" as set out in the opinion. His adolescent and adult life style, as
there described, is very like the usual aberrant behaviour of thousands of
under-privileged young men indulging in some marijuana while over-indulging
in alcohol. Thus, the evidence in support of Dr Mahy's "impression" that
"from the account [the Applicant] gives of his life style he has a major
Personality Disorder with a strong psychopathic element" falls short of the
standard required for presenting an arguable case on abnormality of the
mind.
[12] Dr Mahy's conclusions were also premised on the Applicant genuinely
being unable to recollect stabbing the victim sixteen times. In this
connection, the Applicant in his statement to the police admitted that,
after he first stabbed her from behind, the victim turned round and
recognised him, and he recognised that she recognised him. In the witness
box he denied this, though he later admitted it to Dr Mahy. He was thus
lucid at the start of the stabbing and his conduct was therefore open to a
possible inference that he went on with the stabbing so that his victim
could not bear witness against him.
[13] Overall, the new evidence provided by Dr Mahy lacks the "degree of
cogency which gives concern as to the safety of the verdict", as neatly put
by the Privy Council in Ramdeen v The State[FN3] at [8] when rejecting the
admissibility of fresh evidence of two expert psychiatrists. It is thus
unnecessary to consider further problems occasioned by the availability, if
sought, of evidence like that of Dr Mahy at the trial. One should note that
we have been informed that, if counsel had believed there to be reason to
obtain psychiatric evidence as to the possible existence of an abnormality
of mind of the Applicant, he could have obtained such evidence from one of
the psychiatrists employed at the Psychiatric Hospital by the Barbados
Government: part of their duties is to provide such services free in a case
like the present.
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[FN3] [1999] UKPC 50
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INCOMPETENCE OF COUNSEL
[14] Mr Shepherd further alleges that the incompetence of the Applicant's
former counsel raises a realistic possibility of a miscarriage of justice if
special leave is not granted. However, as stated by Sir David Simmons CJ in
Weekes v The Queen[FN4].
"All attorneys-at-law will do well to take to heart the advice of Judge LJ
in Doherty and Mc Gregor[FN5]: 'Unless in the particular circumstances it
can be demonstrated that, in the light of information available to him at
the time, no reasonably competent counsel would sensibly have adopted the
course taken by him at the time when he took it, these grounds of appeal
[based on criticisms of former counsel] should not be advanced.' There are
difficulties which face counsel under the immediate pressure of the trial
process and those difficulties should be carefully analysed. At all times
newly instructed counsel should approach the matter with a reasonable degree
of objectivity."
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[FN4] Criminal Appeal No 4 of 2000 (unreported)
[FN5] [1997] 2 Cr App R 218, [1997] EWCA Crim 556
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[15] It needs also to be noted that we have been informed that the
Applicant's former counsel has been in practice longer than either Mr
Shepherd QC or Mr Charles Leacock QC who, throughout, has been counsel for
the Respondent, and that he has acted as counsel in many criminal trials,
including murder trials.
[16] In our view, as intimated in our approach to Dr Mahy's opinion, no
question of incompetence arises over counsel not seeking to have a
psychiatrist examine the Applicant to try to see if the Applicant might have
an abnormality of the mind as a basis for alleging that his mental
responsibility was substantially impaired. It could well have been that the
Applicant denied having any mental abnormality symptoms, as he did when
examined by Dr Mahy. Moreover, as appears from the Applicant's affidavit of
27 September 2006, his former counsel had known the Applicant's family (and
presumably the Applicant) since "[he] was a little boy", so the family had
contacted counsel after his arrest and counsel had visited him the following
day. Counsel would also have the comfort of an evaluation of the Applicant's
fitness to instruct counsel and to stand trial, such limited evaluation
being provided by Dr Bell of the Psychiatric Hospital within two days of the
murder. There is a real problem trying to discover evidence to justify
finding incompetence in counsel's failure to run a defence of diminished
responsibility. There are some counsel who seek out a faint possibility of
running such a defence for want of anything better, but on the available
evidence the Applicant's former counsel cannot be faulted for not falling
into such a category.
[17] Indeed, it is the lack of reliable evidence, as to what went on between
the Applicant and his former counsel and as to why the latter took the
courses he did, that substantially undermines Mr. Shepherd's allegations. Mr
Shepherd has, indeed, carefully taken us through the trial process (as
evidenced in Tab 6 of his Notice of Application) and indicated what he
considered to have been grave shortcomings in former counsel's conduct of
the case, but he is forced to rely on his own factual assertions from the
Bar table, supported only by a last-minute and largely self-serving
affidavit of 27 September 2006 sworn by the Applicant, and some speculation
to try to explain why such conduct was incompetent. Thus, we have
insufficient reliable evidence for finding that former counsel's conduct has
led to a realistic possibility of a miscarriage of justice.
PREJUDICE FROM LACK OF BETTER PUBLIC FUNDING
[18] Lack of public funding for making the services of an independent (non¬Government
employed) psychiatrist available to the Applicant has no significance,
because we have no evidence that the free services provided by the
Government-employed psychiatrist at the Psychiatric Hospital would be either
biased or incompetent, while we have also found that there was inadequate
evidence for alleging that counsel should have had the Applicant examined to
see if there was any mental abnormality present.
[19] Whatever the intrinsic merits of Mr Shepherd's submissions that legal
aid fees for murder trials should be higher and that for such trials there
should be legal aid for leading counsel as well as junior counsel or at
least, two counsel, the Applicant did have the benefit of an experienced
counsel throughout, a man well-known to the Applicant's family. The
Applicant's position at trial was a very weak one. In our view he had a fair
trial. There is nothing unsafe in the verdict.
CONCLUSIONS
[20] The application filed on 24 July, 2006 for special leave to appeal is
dismissed and, by way of corollary, the joined application therein for
special leave to appeal as a poor person is also dismissed.
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