The Judicial Committee of the Privy Council Decisions

Campbell v. The State (Trinidad and Tobago) [1999] UKPC 40 (20th August, 1999)

Adolphus Campbell Appellant

v.

The State Respondent

FROM

THE COURT OF APPEAL OF TRINIDAD

REASONS FOR DECISION OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

OF THE 21st July 1999, Delivered the

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Present at the hearing:-

Lord Hoffmann

[Delivered by Lord Hutton]

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1. On 21st July 1999 their Lordships allowed the appeal to the extent of remitting the case to the Court of Appeal with a direction that that Court should consider whether it should receive the evidence of Dr. Eastman under section 47 of the Supreme Court of Judicature Act and to dispose of the appeal accordingly. Their Lordships indicated that they would give their reasons later, which they now do.

 

2. This is an appeal by special leave from the decision of the Court of Appeal dismissing the appellant’s appeal against his conviction for murder and sentence of death at the Tobago Assizes on 20th March 1995.

 

3. On 28th February 1993 the appellant, who was then aged 48, was living in the home of the deceased, Augustine Valentine, and his wife, Jean Valentine, at Daniel Trace in Tobago. Jean Valentine was a Spiritual Baptist and described herself as "a healer with the Spirit". She said in her evidence that the appellant had been brought to her house in January 1993 and she allowed him to stay there and gave him some sort of medicine.

 

4. During the morning of 28th February the persons present in the house were Augustine and Jean Valentine, the appellant, two men, Jackie Duke and O’Brien McArthur, and a woman, Sandra Guy. About 10.45 a.m. McArthur and Sandra Guy went into a bedroom. The evidence of McArthur and Sandra Guy was that the latter was McArthur’s common law wife and that in the bedroom she sat on the bed and he lay with his head on her lap and she started to burst pimples on his face. It was put to Sandra Guy in cross-examination that she was not bursting pimples but that she and McArthur were engaged in sexual intercourse in the bedroom. It was also put to her that when McArthur had previously been in jail she and the appellant had had a sexual relationship and that when McArthur had come out of jail the appellant was "left out in the cold", but she denied all of these suggestions.

 

5. In their evidence McArthur and Sandra Guy further stated that whilst Sandra Guy was bursting pimples on McArthur’s face the appellant opened the bedroom door and peeped in and said words to the effect that everyday they were only making love and were they not tired of making love and to come out of the bedroom. They both laughed and McArthur told the appellant that they were not making love and that Sandra was only bursting some pimples on his face. The appellant left but came back a short time later and again told them to come out of the bedroom but they did not reply and he again left. Shortly afterwards the appellant ran back into the room armed with a kitchen cutlass with which he attacked Sandra Guy and McArthur. The appellant chopped Sandra Guy on her right hand and she also sustained a cut on her right leg and the appellant chopped McArthur on his face and on his left hand. McArthur then caught the cutlass with his right hand and he and the appellant scuffled for possession of it and in the course of the scuffle they moved out of the bedroom into the living room. Mrs. Valentine then pushed the appellant back onto a chair and held him with her left hand and caught the cutlass with her right hand trying to take it away from him, but the appellant pushed her off and pulled the cutlass away and the cutlass caught her on her right hand. McArthur ran out of the house with the appellant in pursuit. Jackie Duke ran after the appellant and the appellant then asked him if he (Duke) could follow McArthur with his car, but Duke refused.

 

6. The appellant then returned to the living room where he met Augustine Valentine who was coming out from a bedroom. The appellant chopped Augustine Valentine in the centre of his forehead with the cutlass and chopped him again across the face and Augustine Valentine then slid to the ground. A doctor was summoned to the house and he examined Augustine Valentine where he lay. He found a laceration to the skull and another laceration in the right side of the neck and he pronounced him to be dead.

 

7. Shortly after the attack on Augustine Valentine an ambulance arrived at the house, and the appellant approached the ambulance driver and said: "I just kill a man. I want to give up myself". He was then taken by the ambulance crew to the local police station. The appellant arrived at the police station about 11.15 a.m. and was given into the custody of Sergeant Cummings. Sergeant Cummings detained the appellant at the police station and he went to the house of Augustine Valentine where he saw the body of Augustine Valentine in the living room with large wounds to the head and right side of the jaw.

 

8. About 5.00 p.m. Sergeant Cummings saw the appellant in the police station and told him that he was investigating the death of Augustine Valentine and cautioned him. The appellant replied: "Boss I will take you where I hide the cutlass". Sergeant Cummings then took the appellant to the house of Augustine Valentine and on arrival the appellant took him to some grass on the southern side of the house where he took up a cutlass and said to him: "Boss, this is the cutlass I chopped the man to death with". Sergeant Cummings examined the cutlass and found on it what appeared to be bloodstains. On 2nd March 1993 Sergeant Cummings charged the appellant with the murder of Augustine Valentine and cautioned him and told him of his rights to an attorney, but the appellant remained silent.

 

9. At the conclusion of the prosecution case the appellant elected not to give evidence in his own defence, but one witness was called on his behalf. She was Dr. Helene Crooks, a psychiatrist who had come to Tobago two weeks before the start of the trial to become the Medical Director of the Scarborough Hospital in Tobago. She had examined the Scarborough Hospital files and found that the appellant had been admitted to the hospital on one occasion. He had been admitted on 2nd November 1990 and discharged on 6th November 1990. The appellant had given the hospital a history that his home had been burgled, and he thought that some juice in the house had been poisoned and he had then drunk the juice. A blood test was carried out for toxicology but she did not have the results. The other tests were normal and he was discharged from hospital in no distress. She thought that it was doubtful whether the appellant had ingested a poisonous substance at all. She thought that he reported the house was burgled because he was upset and disturbed and wanted some help. She was making a guess which she did not like to do. There was nothing in the notes to indicate one way or the other. She was then asked by the appellant’s counsel whether she was able to come any conclusions as to the mental state of the appellant and her reply, as noted by the trial judge was:-

"I can only assume or guess that if he had to react in such a way to a stress, it was a very unhealthy way to deal with it. I would like to add that I wished he had been assessed at the time. The notes do not reflect any referral to a psychiatrist. I believe that it should have been done."

 

10. In cross-examination by the prosecution Dr. Crooks said that she had never examined the appellant and had never seen him at all. She could not give any formal assessment of his mental state in 1990 or later. She said that there was a strong possibility that the accused was paranoid. She could not say that the accused was paranoid not having interviewed him.

 

11. In his closing speech to the jury on behalf of the appellant defence counsel, Mr. Clarke, told them that the appellant’s defence was temporary insanity and provocation. The appellant had come to the house sick and at the time of the killing he was no longer master of his mind. He became insane and ran amok. Having regard to the nature of the crime it required a sick man to carry it out. As to provocation, he was provoked by what he saw, by what was alleged to be occurring in the bedroom.

 

12. In his summing up to the jury the trial judge told them that there was no evidence that the appellant was insane at the time of the killing. In relation to the defence of provocation, the judge directed the jury that if a man caught his wife or his common law wife in the act of sexual intercourse with another man, that would reduce murder to manslaughter, but in the present case there was no evidence that Sandra Guy was the common law wife of the appellant, the evidence was that she was the common law wife of McArthur. If the appellant said that he was in any way affected by seeing the picking of McArthur’s pimples by Sandra Guy, that by itself was not sufficient provocation. The judge also directed the jury that there was no evidence that McArthur and Sandra Guy were engaged in sexual intercourse. The appellant appealed against his conviction to the Court of Appeal. The written grounds of appeal are not set out in the record before their Lordships. Miss Chote was the counsel retained by the Legal Aid Authority to act on behalf of the appellant in his appeal to the Court of Appeal, and prior to the hearing of the appeal Miss Chote wrote a letter to the Court of Appeal which contained the following passage:-

"I have perused the documents in this matter and I have been unable to find any grounds of appeal which I would be able to advance to the Honourable Court. I have visited Mr. Campbell in prison and informed him of my position. He has requested that I seek the Court’s leave with withdraw (sic) from the matter."

 

13. At the hearing of the appeal the Court of Appeal referred to this letter and refused Miss Chote’s application for leave to withdraw. In its judgment, delivered by Sharma J.A., the Court stated:-

"Once again this is one of those cases in which we have had to deal with in recent times when convicted murderers have sought to withdraw instructions when the advice tendered by counsel to them is not favourable. This is a ploy which is often used in this jurisdiction by many criminals convicted of murder who are wise and are very alert to the timetable set by the case of Pratt and Morgan (1993) 43 W.I.R. 340. We have no doubt whatsoever, that this is the motive behind the move of his instructions to Miss Chote to seek the Court’s leave to withdraw.

 

We, too, have perused the summing-up and the proceedings and agree with the observations and conclusion of Miss Chote, and also of that of Mr. Dolsingh who is a very experienced prosecutor in these courts, and in fact who is a very experienced advocate at the Criminal Bar.

 

The evidence of the State was overwhelming and it is clear that the defence raised by the appellant did not get off the ground. A jury would have had absolutely no difficulty in coming to the conclusion which it did. There was absolutely no evidence of provocation; and it is incumbent upon the defence in cases of this nature to at least raise some evidence of provocation before the trial judge is obliged to deal with this issue. (See R. v. Acott (1997) 1 A.E.R. 706 HC). It certainly was not raised on the prosecution’s case. In respect of the defence of temporary insanity that was even worse. There was nothing, there was no scintilla of evidence (although the burden of proof is on a balance of probabilities) there was absolutely no evidence to juridically justify a direction by the judge in this regard.

 

In the result the application is refused and the conviction and sentence affirmed."

 

14. Mr. Robertson Q.C. advanced four main submissions to the Board on behalf of the appellant. His first submission was that the trial judge erred because his directions to the jury on the defence of provocation, in effect, withdrew the issue from the consideration of the jury. Section 4(B) of the Offences Against the Person (Amendment) Act 1985 in Trinidad and Tobago, which is in identical terms to section 3 of the Homicide Act 1957 in England, provides:-

"Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man."

 

15. Mr. Robertson submitted that the judge erred in his directions to the jury because he told the jury, in effect, that only an act of sexual intercourse, of which there was no evidence, could constitute provocation and, on one reading of his summing up, he also directed the jury that only an act of sexual intercourse by the wife or common law wife of the accused could constitute provocation. Mr. Robertson further submitted that the issue must be left to the jury if there was any evidence that some provocation, however slight it might appear to the judge, in fact caused the accused to lose his self-control at the time of the killing, as held in Director of Public Prosecutions v. Camplin [1978] AC 705, 716 and Reg. v. Doughty [1986] 83 CrAppR 319, 326. Reg. v. Acott [1997] 1 All ER 706 was distinguishable as in that case there was no evidence whatever that the accused had lost his self-control and the accused denied in his evidence that he had lost his self-control.

 

16. Their Lordships consider it unnecessary to express a concluded opinion on the appellant’s submissions in relation to provocation because they are satisfied that, even if the trial judge had left the issue to the jury on the basis that what happened in the bedroom might constitute some evidence of provocation, it was inevitable that the jury would have rejected the defence and would have concluded that there was nothing done or said which was enough to make a reasonable man do as the appellant did in killing Augustine Valentine. Accordingly this ground of appeal is rejected.

 

17. Mr. Robertson’s second submission was that the trial judge erred in withdrawing the defence of insanity from the jury (and their Lordships observe that the adjective "temporary" is irrelevant – the issue is whether the accused was insane at the time of the killing). Their Lordships are of opinion that this submission is devoid of substance. Dr. Crooks’ testimony did not constitute any evidence of insanity and the judge was right to direct the jury that there was no evidence of insanity before them.

 

18. Mr. Robertson’s third submission, in reliance on the observations of the Board in refusing special leave to appeal in Thomas v. The State (6th November 1997), was that the Court of Appeal erred in refusing leave to Miss Chote to withdraw after the appellant had requested her to take this course. However, for the reasons which their Lordships have given, there was no possibility that submissions advanced to the Court of Appeal by other counsel or by the appellant himself could have resulted in the quashing of the conviction, and therefore the appellant suffered no miscarriage of justice by the course taken by the Court of Appeal. Accordingly this ground of appeal is also rejected.

 

19. A number of other grounds of appeal were set out in the appellant’s written case but they were not relied upon by Mr. Robertson in his oral submissions to the Board and it is unnecessary to make further reference to them.

 

20. Their Lordships have referred to the very limited nature of the evidence of Dr. Crooks who had not examined the appellant nor even spoken to him. However, before the Board, Mr. Robertson made an application for leave to tender new evidence in the form of a report by Dr. N.L.G. Eastman, a distinguished English psychiatrist, who at the request of the appellant’s solicitors interviewed the appellant in the prison in Port of Spain for four hours on 21st April 1999. The application was made under section 47 of the Supreme Court of Judicature Act of Trinidad and Tobago which provides:-

"For the purposes of an appeal in any criminal cause or matter, the Court of Appeal may, if it thinks it necessary or expedient in the interest of justice –

 

(a) receive the evidence, if tendered, of any witness including the appellant, who is a competent but not compellable witness, and, if application is made for the purpose, of the husband or wife of the appellant in cases where the evidence of the husband or wife could not have been given at the trial except on the application;

 

(b) issue any warrant necessary for enforcing any order or sentence of the Court of Appeal.

 

However,

…

 

(ii) whenever the Court of Appeal receives further evidence it shall make such order as will afford an opportunity to the parties to the proceedings to examine every witness whose evidence is taken."

 

21. Section 4A of the Offences Against the Person (Amendment) Act 1985 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.

 

(2) 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."

 

22. In his lengthy and detailed report Dr. Eastman states that in his opinion it is highly likely that the appellant suffered from a paranoid psychiatric illness at the time of the killing of Mr. Valentine and that at that time he was suffering from an abnormality of mind and that there were very strong factors which were suggestive of substantial impairment of mental responsibility. Therefore Mr. Robertson submitted that the interests of justice required that the matter should be remitted to the Court of Appeal to consider the evidence of Dr. Eastman.

 

23. Mr. Dingemans for the respondent submitted that the appeal and the application to receive new evidence should be dismissed. The reasons advanced by Mr. Dingemans were these. Dr. Eastman had interviewed the appellant six years after the date of the offence and his opinion formed as to the appellant’s mental state so many years after the killing would be of little assistance to an appellate court. Moreover the opinion formed by Dr. Eastman was not supported by any evidence adduced at the trial. Furthermore the information given by the appellant to Dr. Eastman and on which the latter, in part, based his opinion was not credible. For example, the appellant told Dr. Eastman that he had not killed Augustine Valentine and that he had been framed. Mr. Dingemans also placed strong emphasis on the point that if the Privy Council permitted fresh medical evidence to be introduced in the appellate process years after the killing had been committed and the accused had been convicted and sentenced to death, this would result in the delaying of the execution so that under the principle stated in Pratt v. The Attorney-General for Jamaica [1994] 2 A.C. 1 the execution could not be carried out.

 

24. Their Lordships are very conscious of the undesirability of fresh medical evidence being introduced at a late stage of the appellate process, and they recognise the force of the submission made by Mr. Dingemans that if fresh medical evidence as to the state of the accused’s mind can be introduced at a late stage it may result in the execution not taking place notwithstanding that the conviction for murder is upheld. Nevertheless the overriding consideration is that justice should be done, and it would be a grave miscarriage of justice for a man to be executed for murder if, at the time of the killing, he was suffering from diminished responsibility as defined by section 4A(1) of the 1985 Act. The authorities recognise that there are individual cases where the interests of justice require that fresh medical evidence should be admitted by an appellate court. In Reg. v. Campbell [1997] 1 CrAppR 199 the Court of Appeal in England in 1996 on a reference by the Home Secretary permitted the reception of fresh medical evidence in respect of diminished responsibility where the accused had been convicted of murder in 1985. The approach of the Court to the receipt of new evidence under section 23 of the Criminal Appeal Act 1968 as amended by section 4 of the Criminal Appeal Act 1995 was stated as follows by Lord Bingham C.J. at pages 204-205:-

"Under the section, the Court of Appeal must therefore primarily consider what it thinks necessary or expedient in the interests of justice, but must pay particular regard to the four matters listed in subsection (2). Here, the evidence which we are asked to receive appears to us to be capable of belief, and the Crown do not suggest otherwise. It appears to us that the evidence might afford a ground for allowing the appeal. It is plain that the evidence would have been admissible in the proceedings from which the appeal lies on an issue (diminished responsibility) which is the subject of the appeal. The reason given for failing to adduce the evidence in the proceedings before the jury is that the evidence was not then available to the appellant, and that there has in the intervening decade been an advance in medical science which permits a more complete picture of the appellant’s mental condition to be presented than could then have been easily done. This Court has repeatedly underlined the need for defendants in criminal trials to advance their full defence before the jury and call any necessary evidence at that stage. It is not permissible to advance one defence before the jury and, when that has failed, to devise a new defence, perhaps many years later, and then seek to raise that defence on appeal. It is, however, plain that the failure of the appellant’s advisers to advance a defence of diminished responsibility at the trial was not a matter of tactical decision but of practical necessity: since the expert witness on whom the defence relied found it impossible to support a defence of diminished responsibility, it was rightly judged to be improper to advance such a defence. Since the case has now been referred back to this Court for reconsideration, we were bound to judge the application to adduce this evidence according to our judgment of what the interests of justice required. We concluded that in all the circumstances we should receive this evidence and accordingly had the benefit both of studying the written reports of Dr. Fenwick and Professor Fenton and of hearing their oral evidence. …

 

Having received this new evidence and considered all the material drawn to our attention and all the arguments addressed to us on both sides, we are of opinion that a defence of diminished responsibility, if based on the evidence now available, might well succeed, and might well have succeeded at the trial if then advanced along the present lines. It follows that in our judgment this conviction is unsafe and we must allow the appeal."

 

25. The Court of Appeal then ordered a retrial.

 

26. In the present case having regard to the contents of his report it appears that the opinion of Dr. Eastman may well be capable of belief and may afford a ground for allowing the appeal. Their Lordships consider that the failure of defence counsel to advance a defence of diminished responsibility at the trial was not a tactical ploy, having regard to the fact that the defence of insanity was advanced. Their Lordships also consider that the application at this late stage to adduce the evidence of Dr. Eastman and to advance the defence of diminished responsibility is not a tactical ploy to take advantage of the timetable laid down in Pratt v. The Attorney-General for Jamaica but is justifiable in the circumstances of this particular case. Having regard to what their Lordships understand to be the limited facilities for the psychiatric examination of accused persons in Trinidad and Tobago and the difficulty of advancing a defence based upon a thorough psychiatric examination and report in that jurisdiction, it appears to their Lordships, prima facie, that this is a reasonable explanation for the appellant’s failure to adduce the detailed psychiatric evidence which he now wishes to put forward.

 

27. Their Lordships do not propose to direct the Court of Appeal to receive the evidence of Dr. Eastman under section 47 of the Supreme Court of Judicature Act, but for the reasons which they have given their Lordships order that the case be remitted to the Court of Appeal for that Court itself to decide whether it should receive the evidence of Dr. Eastman under section 47.

 

28. Having regard to the terms of their Order their Lordships do not propose to comment further on Dr. Eastman’s report or on the circumstances of the killing of Augustine Valentine, save to observe that there appears to be no reason why the appellant should have attacked Augustine Valentine with a cutlass and that his conduct in fatally attacking him was so bizarre that his behaviour called out for a detailed psychiatric examination before his trial which regrettably did not take place. In England where a person is charged with murder, it is the automatic procedure that before his trial he is examined by a state psychiatrist who furnishes a report on his mental condition to the prosecution and the defence and the report is also furnished to the trial judge. Their Lordships appreciate that it may be difficult to adopt this practice in Trinidad and Tobago, but there would be obvious advantages if such a procedure could be followed as it would obviate the problem which has arisen in this case and which can arise in other cases.