The Judicial Committee of the Privy Council Decisions

Angela Ramdeen Petitioner

v.

The State Respondent

FROM

THE COURT OF APPEAL OF

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REASONS FOR DECISION OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL UPON

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Present at the hearing:-

Lord Hutton

[Delivered by Lord Hutton]

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1. This is an appeal to the Judicial Committee by the petitioner against the decision of the Registrar under rule 52 of the Judicial Committee (General Appellate Jurisdiction) Rules Order 1982 to refuse to receive her second petition for leave to appeal as disclosing no reasonable cause of action for setting aside the judgment of the Judicial Committee delivered on 1st December 1999. In that judgment their Lordships dismissed her appeal against the decision of the Court of Appeal of Trinidad and Tobago affirming her conviction for the murders of two young children for which she was sentenced to death.

 

2. The facts can be briefly stated. The petitioner was convicted of having murdered two young children aged 8 years and 7 years. It was not in dispute that she had killed the children, and at the trial the defence of diminished responsibility was advanced. A psychiatrist was not called on behalf of the defendant. A psychiatrist, Dr. Hutchinson, was called to give evidence for the prosecution. He said that the petitioner was not suffering from any disease of the mind and that she may have suffered from mild depression at the time of the killings. The petitioner did not give evidence. Her sister and brother were called by the defence and gave evidence that they and the petitioner had been physically abused by their father throughout their lives. The defence also made the case that the horrific nature of the acts of murder carried out by the petitioner on two young and defenceless children supported the defence of diminished responsibility. The jury rejected this defence and found the petitioner guilty of the murders of both children.

 

3. After her appeal to the Court of Appeal had been dismissed the petitioner was granted special leave to appeal to the Judicial Committee. At the hearing of her appeal new evidence was placed before the Board from two English psychiatrists. One psychiatrist was Dr. Treves Brown who had visited the petitioner in prison in August 1999 after the judgment of the Court of Appeal. His opinion was that the petitioner had symptoms which pointed to a long standing depressive condition, but he did not address directly the statutory requirements governing diminished responsibility. The second psychiatrist was Dr. Henrietta Bullard. She had not had the opportunity of interviewing the petitioner or her family. She was therefore not in a position to make a diagnosis but she felt that the most likely diagnosis would be that the petitioner had an emotionally unstable personality disorder, and she said in her report that the petitioner may or may not have been suffering from an abnormality of mind at the time of the killings. The Board dismissed the appeal on two grounds. The first was that the petitioner had had a fair trial. The second was that the new psychiatric evidence did not contain that degree of cogency which gave rise to concern as to the safety of the verdicts.

 

4. After the judgment of the Board had been delivered on 1st December 1999 Dr. Bullard visited the petitioner in prison in Trinidad on 3rd December 1999 and prepared a report dated 7th December. In that report she states:-

"It is my opinion that the time of the killings Ms. Ramdeen was suffering from an abnormality of mind arising from inherent cause (Emotionally Unstable Personality Disorder) which substantially impaired her responsibility for her acts … The children were ‘proxy victims’ and were used by Ms. Ramdeen to resolve emotional conflicts arising from her position as a ‘battered woman’ and a victim of abuse."

 

5. On the hearing of the present appeal from the decision of the Registrar by a Board composed of three members of the Judicial Committee, Mr. Carter Q.C. submitted that the report dated 7th December from Dr. Bullard showed that there was now evidence which established that the petitioner was a person who suffered from abnormality of mind at the time of the killings, and that if this evidence had been before the jury they would have found the defence of diminished responsibility established and would have convicted the petitioner of manslaughter and not of murder. He further submitted that a grave injustice would be done if the Board declined to grant leave for a second appeal at which the Board could decide to remit the case to the Court of Appeal for the purpose of that court hearing the fresh evidence of Dr. Bullard.

 

6. Mr. Carter recognised that there is very strong authority against his submission that the Board should permit the petitioner to bring a second appeal. In Reg. v. Pinfold [1988] Q.B. 462 an applicant who had been convicted of murder and whose appeal had been dismissed by the Court of Appeal after a full hearing sought to bring a second appeal based on very strong evidence pointing to his innocence which had not been available at the time of the first appeal. The Court of Appeal held that it had no jurisdiction to entertain the second appeal and Lord Lane L.C.J. referring to sections 1(1) and 2(1) of the Criminal Appeal Act 1968, stated at page 464:-

"So there is nothing there on the face of it which says in terms that one appeal is all that an appellant is allowed. But, in the view of this court, one must read those provisions against the background of the fact that it is in the interests of the public in general that there should be a limit or a finality to legal proceedings, sometimes put in a Latin maxim, but that is what it means in English. We have been unable to discover, nor have counsel been able to discover, any situation in which a right of appeal couched in similar terms to that, has been construed as a right to pursue more than one appeal in one case."

 

7. Their Lordships consider that this principle is one which has long been applied in the United Kingdom and in the Commonwealth. In exceptional cases the Judicial Committee has given leave on a second petition for leave to appeal where the first petition has been dismissed, but in those cases there had, of course, been no hearing of the appeal by the Board, and they are clearly distinguishable.

 

8. Mr. Carter submitted that the principle stated in Pinfold’s case was based on the policy consideration that there should be finality in legal proceedings, and that where fresh evidence pointing to innocence emerges after the dismissal of an appeal the interests of justice, particularly in a capital case, should prevail over such a consideration. However, section 64 of the Supreme Court of Judicature Act of Trinidad and Tobago appears to make adequate provision to deal with such a case and states:-

"(1) Nothing in this Act shall affect the prerogative of mercy.

 

(2) The President on the advice of the Minister on the consideration of any petition for the exercise of the President’s power of pardon having reference to the conviction of a person on indictment or to the sentence, other than sentence of death, passed on a person so convicted, may at any time –

(a) refer the whole case to the Court of Appeal, and the case shall then be heard and determined by the Court as in the case of an appeal by a person convicted; or

(b) if he desires the assistance of the Court of Appeal on any point arising in the case with a view to the determination of the petition, refer that point to the Court for their opinion thereon, and the Court shall consider the point so referred and furnish the President with their opinion thereon accordingly."

 

9. Section 64(2)(a) appears to be wide enough to provide a remedy for the situation which Mr. Carter submits has arisen in this case and their Lordships were informed that an application has been made to the President under the subsection to refer the whole case to the Court of Appeal.

 

10. When their Lordships referred to section 64 Mr. Carter raised the possibility that the President might not refer the case back to the Court of Appeal notwithstanding the existence of the new evidence. Mr. Carter submitted that if this were to happen, there would be no judicial remedy available as the Board had held in Reckley v. Minister of State for Public Safety and Immigration (No. 2) [1996] AC 527 that the exercise of the prerogative of mercy was not a matter which could be reviewed by the courts. Therefore he submitted that a person convicted of murder and sentenced to death and whose appeal had been dismissed would have no judicial remedy where fresh evidence emerged which showed that person to be innocent. Accordingly the only legal remedy open would be to permit a second appeal to the Board in such an exceptional case.

 

11. Their Lordships consider, without expressing any opinion on the outcome of the argument, that it might be arguable that the decision in Reckley’s case is confined to the exercise of the prerogative to pardon and does not relate to a decision whether or not to refer the whole case to the Court of Appeal on the emergence of compelling fresh evidence. Accordingly, because of the importance of the issue which emerges from the present petition for leave, their Lordships have decided that the petition should be adjourned for hearing to a full Board of five members of the Judicial Committee, the hearing of the appeal to follow if leave is granted.

 

12. Their Lordships desire to make it clear that they have given no consideration to the question whether the fresh evidence is of sufficient cogency to justify an order of the Board remitting the case to the Court of Appeal for further consideration on the issue of diminished responsibility if there were jurisdiction to hear a second appeal.

 

13. Their Lordships consider that it would be of considerable benefit if, before this matter comes on again for hearing before the Board, a decision had been taken by the President whether or not to refer the whole case to the Court of Appeal under section 64(2)(a) and they venture to express the hope that such a decision may be taken before the further hearing.