The Judicial Committee of the Privy Council Decisions

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 1st December 1999

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Present at the hearing:-

Lord Hoffmann

[Delivered by Mr. Justice Henry]

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1. This is an appeal by special leave from a judgment of the Court of Appeal of Trinidad and Tobago delivered on 15th October 1997dismissing the appellant’s appeal against conviction on two counts of murder. The facts giving rise to the charges can be stated quite briefly.

 

2. The victims, a boy aged 8 years and a girl aged 7 years, died between 25th and 26th October 1993. The appellant, then aged 31 years, had been living for some time with the children’s father. On that morning she collected the two children from school and took them home, part of the journey being in a taxi. In the afternoon the father went to the school to pick up the children but found that they were not there, although their school bags and lunch kits were. He went home and asked the appellant whether she had collected or seen the children. She denied having done so. The police were later notified, and on interview the appellant admitted she had been with the children, and said they had been struck by a car and their bodies thrown into a field by the occupant of the car. She identified the field, but a search revealed nothing. Eventually the appellant said she had buried the children’s bodies in the manure heap where they were found. In a statement to the police the appellant gave an account which indicated that she had killed both children by strangulation when bathing them. Post mortem examinations however established that the death of the boy had resulted from severe blows to the head and chest inflicted by a blunt object. The girl had also suffered injuries to the chest as a result of being struck with a blunt instrument, but there were indications she had died from suffocation, still being alive when she had been buried. The weapon was never located.

 

3. At trial, the appellant relied upon the defence of diminished responsibility. Although arrested and taken into custody on 26th October 1993, the appellant was not examined as to her mental condition until admitted to St. Anns Hospital, Port of Spain on 7th November 1996 for a court - ordered psychiatric evaluation. A report dated 6th December 1996 signed by Dr. Gerald Hutchinson, a consultant psychiatrist, was forwarded to the Registrar of the High Court. Dr. Hutchinson was called to give evidence for the prosecution. He detailed the investigation carried out by the forensic unit, which included a psychologist and social workers. At the end of the process an evaluation was undertaken, which resulted in the report of 6th December 1996. Dr. Hutchinson recognised the difficulties in assessing the appellant’s mental state three years after the events. He said that at the time he saw her she was suffering from moderate depression, which was probably due to her incarceration. Her intelligence quotient was at the low end of the normal range. She was of sound mind. Dr. Hutchinson said that the appellant was not suffering from any disease of the mind that could be applied to justify her actions. In response to further questioning he agreed the appellant was suffering from an abnormality of mind, but only in that she had a depressive illness. He was cross-examined extensively.

 

4. The appellant did not give evidence, but called as witnesses her two sisters. They both deposed to the children and the family, particularly the appellant, having been subjected to extensive and repeated physical violence by the father, usually occurring when he was drunk. The father was said to have been detained in the psychiatric ward of the general hospital as a result of his alcohol addiction. In the Court of Appeal a number of grounds of appeal were argued. These no longer have relevance, and the only issue now before their Lordships concerns the possible significance of further medical evidence, which did not feature either in the High Court or the Court of Appeal.

 

5. Mr. Carter Q.C., in his helpful and responsible argument, confined the appeal to a submission that the new evidence now put before their Lordships established that there had been a miscarriage of justice, justifying a referral back to the Court of Appeal. The defence of diminished responsibility was again at issue.

 

6. The further evidence comes from two sources. The first is Dr. C.P. Treves Brown, a consultant psychiatrist practising in Luton, Bedfordshire. He visited the appellant in prison on 28th and 29th August 1999. The interviewing conditions for the purposes of a psychiatric examination were necessarily restricted, and less than desirable for that purpose. He obtained some background information from the appellant, and her version of the events of 25th October 1993. He also had access to the notes from St. Anns Hospital relating to the appellant’s November 1996 admission to the hospital. Dr. Treves Brown concluded that the appellant had what he described as a "genetic loading for mental illness" on her father’s side, and noted there was also evidence of a genetic predisposition (to mental illness) from her mother’s side. He considered that there was evidence of psychiatric symptoms, including suicidal ideas, from late adolescence, but which may not have been psychotic in origin. The symptoms pointed to a long-standing depressive condition. He did not address directly the statutory requirements governing diminished responsibility. The second source of the further evidence was Dr. Henrietta Bullard, an experienced consultant forensic psychiatrist, practising in Oxford. She had not had the opportunity of interviewing the appellant or her family, and understandably was not in a position to make a diagnosis. She felt however that the most likely diagnosis would be what was described as an emotionally unstable personality disorder. She believed that the appellant had some of the characteristics of women who have Munchausen Syndrome by Proxy, a syndrome which occurs in profoundly psychologically disturbed women who have themselves been abused and have serious personality disorders. Dr. Bullard said that the appellant may or may not have been suffering from an abnormality of mind at the time of the killings.

 

7. Their Lordships have given careful consideration to the totality of the information contained in the material from both Dr. Treves Brown and Dr. Bullard, and also to the submissions of Mr. Carter which were based on that material. They are however not persuaded that any miscarriage of justice has been demonstrated. There are two primary factors which have led to that conclusion. First, their Lordships are satisfied that the appellant had a fair trial. No criticism of trial counsel is made. The defence of diminished responsibility was squarely before the jury. The evidence of Dr. Hutchinson was expressly directed to that issue, and he was examined and cross-examined extensively on matters relevant to the defence and the factual material which could have gone to support it. In the circumstances it was not surprising that the defence was rejected by the jury.

 

8. Secondly, the further evidence does not contain that degree of cogency which gives concern as to the safety of the verdicts. This is not a case where their Lordships have been provided with positive evidence which, if accepted, is clearly supportive of the defence of diminished responsibility. Put shortly, the evidence as it now stands is not of such cogency that if put before the jury, it may have yielded a different result. It does not aver that the appellant was suffering from such an abnormality of mind as substantially impaired her mental responsibility for her acts in killing the two children, within the meaning of section 4A of the Offences Against the Person (Amendment) Act 1985. At best it establishes that further investigations and examinations may (or may not) lend weight to or provide a foundation for that defence. The evidence, which is essentially speculative as to the existence of a psychiatric basis for the requisite abnormality of mind, must for present purposes also be considered in the light of Dr. Hutchinson’s trial testimony, and his responses to the material provided by Dr. Treves Brown and Dr. Bullard. When all these matters are taken into account, it becomes clear that there is an absence of any principled basis for revisiting the jury’s rejection of the defence of diminished responsibility.

 

9. Neither are their Lordships able to accept Mr. Carter’s alternative submission that it is a sufficient reason for allowing the appeal and remitting the matter to the Court of Appeal if the further evidence suggests that a different or more effective cross-examination of Dr. Hutchinson may have been able to have been conducted. That is not a test appropriate to the present circumstances.

 

10. There is a third factor which also has relevance. It cannot be said that the evidence is fresh, in the sense of being unavailable at trial. The practical difficulties in the particular jurisdiction of obtaining professional advice and assistance in this area are appreciated, but this was not a case where there was a total unavailability of expert evidence. The appellant was aware of Dr. Hutchinson’s report and also of its basis, which included expert assistance on the relevant social and psychological aspects. It simply did not assist the appellant’s case, and nothing new by way of either factual material or psychiatric knowledge which would help to establish the defence has now emerged.

 

11. For these reasons their Lordships dismiss the appeal.