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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Brown v The Queen (Jamaica) [2016] UKPC 6 (9 February 2016) URL: http://www.bailii.org/uk/cases/UKPC/2016/6.html Cite as: [2016] UKPC 6 |
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Hilary Term
[2016] UKPC 6
Privy Council Appeal No 0104 of 2014
JUDGMENT
Richard Brown (Appellant) v The Queen (Respondent) (Jamaica)
From the Court of Appeal of Jamaica
before
Lady Hale
Lord Clarke
Lord Wilson
Lord Hughes
Lord Toulson
JUDGMENT GIVEN ON
9 February 2016
Heard on 3 December 2015
Appellant James Guthrie QC Rowan Pennington-Benton (Instructed by Candey) |
|
Respondent Tom Poole (Instructed by Charles Russell Speechlys) |
LORD TOULSON:
“I could see that there was a conversation between Romy [the appellant] and Burru [the deceased]. Within seconds of Romy and Burru talking I saw when Romy pulled a gun from his waist and fired one shot at Burru. Burru was within arm’s reach of Romy. After the first shot was fired I saw when Burru held on to Romy and a struggle developed between both men. I saw when both men fell to the ground. I saw when one of the other men walked up and fired one shot at Burru’s head. I could hear the explosions. I see fire coming from the gun that Romy and the other men had. After the second shot was fired I saw when Romy and the other two men ran out of the yard.”
“On Tuesday the 22nd of the 9th, 1998, at about 8 pm, I was walking along Swallowfield Road, when I was met by two men who, we all went to Burruw’s yard. When entering Burrow’s yard we pass about five youths sitting in the yard. One of the men with me ask one of the youth for Burruw. I heard when the youth say ‘See Burruw deh ah come.’ Burruw entered the yard and I asked Burrow for, to buy weed. I ask Burruw to sell me a bag of weed. He replied by saying, ‘Me ah go inna mi room fi it, wait.’ The two youth that follow me to Burruw also ask Burrow for weed. I saw when one of the men pull a barrel gun and fire two shot at Burruw. I saw when Burruw drop near to a tree where he parked his van. I ran from the yard, the man also ran … I threw away the jacket I had on because it had on blood. When Burruw got shot he was about three feet …”
7. The appellant gave evidence at the trial, which differed in some respects from his statement under caution but not in the core of his defence. He said that on the evening of 22 September 1998 he went to the deceased’s premises to buy some weed. He was not joined by others and was on his own when he reached the yard. There were four men sitting at the front of the gate and two men standing by the gate. He called out for the deceased, who was not there, but then he saw the deceased cross the road from another house. One of the two men at the gate started to argue with the deceased and the argument turned into a struggle in which they fell to the ground behind a parked van. After they fell to the ground he heard an explosion which sounded like a gunshot. Then the other man by the gate walked up to the van and he heard another explosion. The appellant said that he did not have a gun and that he left. He told his mother about the incident and she told him to throw away his jacket in case anyone at Swallowfield Road wrongly suggested that he was responsible for the shooting. He denied giving a written statement to the police and said that they made him sign some blank sheets of paper. He also denied knowing Mr White and said that he could think of no reason why Mr White should have provided evidence against him.
10. In 1996 the appellant was convicted of robbery with wounding and sentenced to a period of probation. The probation service was concerned that he was mentally disturbed and referred him to the BVH for assessment. The BVH notes show that he was admitted on 19 August 1996. He was brought to the hospital by relatives, who gave a history that for about six years he had been disruptive, attacking them and others, setting fire to property and destroying furniture. He was said to become aggressive and violent towards others when faced with stressful situations. He was put on medication.
14. On 11 January 1999 the appellant appeared before another judge, who ordered a psychiatric assessment. On 27 January 1999 a nurse’s note at the BVH recorded that he said that he was hearing voices saying “Beware of dark shadows who eat people”, his speech was unclear and he appeared not to understand the charge against him. He was to be referred to a forensic psychiatrist, but there is no record of a further assessment at that stage.
15. The preliminary examination began in June 1999. The appellant was represented by counsel, Mr Norman Harrison. The examination concluded in November 1999 and the case was sent to the Home Circuit for trial. At a procedural hearing in the Home Circuit a psychiatric report was ordered and the appellant was examined by a consultant psychiatrist at UHWI, Dr Franklin Ottey. On 21 June 2000 Dr Ottey reported that in his opinion the appellant was suffering from a schizophrenic psychotic disorder and was unfit to plead. He said that the appellant was unable to give a coherent account of the offence for which he had been charged; that he gave incoherent answers to most of the questions asked; that he kept muttering, seemingly in response to hallucinatory voices; and that he displayed gross thought disorder.
“If any person indicted for any offence shall be insane, and shall, upon arraignment, be found so to be by a jury lawfully empanelled for that purpose, so that such person cannot be tried upon such indictment; … it shall be lawful for the court before whom any such person shall be brought to be arraigned or tried as aforesaid, to direct such finding to be recorded; and thereupon to order such person to be kept in strict custody, until the pleasure of the Governor-General shall be known; … and in all cases of insanity so found it shall be lawful for the Governor-General to give such order for the safe custody of such person so found to be insane, during his pleasure, in such place and in such manner as to the Governor-General shall seem fit.”
17. This provision followed, mutatis mutandis, the language of section 2 of the Westminster Parliament’s Criminal Lunatics Act 1800, which was in force at the time of enactment of the Jamaican Criminal Justice (Administration) Act 1960. (Section 2 of the 1800 Act was repealed and replaced by section 4 of the Criminal Procedure (Insanity) Act 1964, which was further amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 and again by the Domestic Violence, Crime and Victims Act 2004.)
18. Section 25 of the Jamaican Criminal Justice (Administration) Act 1960 was amended by the Criminal Justice (Administration) (Amendment) Act 2006 and now expressly provides that “A verdict of unfit to stand trial shall not prevent the defendant from being tried subsequently if he becomes fit”. This amendment post-dated the trial by three years.
“… when I first interviewed Mr Brown, I had occasion m’Lord to report to Mr Justice Karl Harrison a certain difficulty which I had which in turn led to, at my request, a third examination of Mr Brown. Drs Ottey and Leveridge had occasion to interview him again because he had a long period of two years or more at what the doctor describes as being at the Governor-General’s pleasure. He was unfit for quite a long time.”
“He [the appellant] said that he had been imprisoned at the General Penitentiary for the past two years and had been seen by the prison psychiatrist there, Dr G Leveridge, on several occasions. He has been receiving psychiatric treatment on a regular basis.
…
He is aware that he has been charged for murder but said that he had not committed the offence.
… He gave a history of having had auditory hallucinations in the past but not presently. He displayed no thought disorder or evidence of delusional thinking …
In my opinion the features of a Schizophrenic Psychotic Disorder which he previously displayed are presently in remission because of treatment. It is likely however that this illness would have caused substantial impairment of his mental state at the time the offence was allegedly committed.
He is presently fit to plead.”
24. Mr Guthrie argued that the appellant’s conviction should be quashed for several reasons relating to the issue of fitness to plead. First, he argued that prior to the amendment of section 25 of the Criminal Justice (Administration) Act by the Criminal Justice (Administration) Amendment Act, which was three years after the appellant’s conviction, a jury’s verdict of unfitness to plead had permanent effect and a defendant who subsequently recovered his health could not lawfully be put on trial. If that argument failed, Mr Guthrie’s next argument was that after a jury had found a defendant to be unfit to plead, it was necessary for a new jury to be empanelled to re-try the issue before the defendant could lawfully be put on trial. If that argument failed, Mr Guthrie argued that at least there had to be a recorded formal ruling by a court that the defendant was now fit to plead before he could be put on trial.
25. No authority was cited in support of these arguments and the Board rejects them. The first argument is a misinterpretation of the opening words of section 25 (“If any person indicted for any offence shall be insane, and shall, upon arraignment, be found so to be by a jury lawfully empanelled for that purpose, so that such a person cannot be tried upon such indictment …”). In R v Dyson, (1831), reported in a note to R v Pritchard (1836) 7 Car & P 304, Parke J empanelled a jury to decide whether the defendant was fit to plead. The report states that in directing the jury the judge, at p 306, referred to the following passage in Hale’s Pleas of the Crown, vol I, p 34:
“If a man in his sound memory commits a capital offence, and before his arraignment he becomes absolutely mad, he ought not by law to be arraigned during such his phrensy, but be remitted to prison until that incapacity be removed.”
26. Section 2 of the Criminal Lunatics Act 1800 was not intended to change the substantive law relating to fitness to plead, but dealt with the practical consequences of a finding of unfitness. It authorised the Crown to give such order for the person’s safe custody, during royal pleasure, in such place and manner as it considered fit. If the defendant recovered his sanity, there was nothing in the Act to prohibit the Crown from sending the defendant back to the court with a view to his arraignment and trial. Otherwise, if the appellant’s argument were correct, an innocent defendant who had been found unfit to plead, and had then recovered his health, would have no possibility of acquittal but would remain liable to executive detention for the rest of his life.
27. As to the second and third arguments, the question of the appellant’s fitness to plead was properly considered before he was tried. At his counsel’s request an up to date opinion was obtained from Dr Ottey, who reached the same view as Dr Leveridge that he was now fit to stand trial. It has not been argued that he was in fact unfit at the time of the trial. The medical evidence was one way, and the transcript of the appellant’s evidence contains nothing to suggest that he had any difficulty in giving his account of events or in understanding and answering questions. If, as seems clear, there was no live issue as to his fitness to plead at the time of the trial, the argument that there ought nevertheless to have been a jury trial of the matter, or a formal judicial ruling that he was fit, is a hollow procedural argument. It would have been a barren exercise, and the argument that it was necessary has no foundation in statute or at common law.
29. Turning to the issue of diminished responsibility, Mr Guthrie submitted that the appellant had a viable defence of diminished responsibility which the appellant’s trial counsel failed to advance, either because he was unaware of the evidence to support it or because he failed properly to consider it.
30. Section 5 of the Jamaican Offences Against the Person Act 1864, as amended, provides:
“(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.
(3) A person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter.”
The language is identical to section 2(1) to (3) of the Homicide Act 1957 for England and Wales as originally enacted.
32. Mr Poole for the prosecution did not dispute that it was open to the Board to consider fresh evidence on the hearing of the appeal. There have been numerous cases in England and Wales in which an appellant has sought to raise a defence of diminished responsibility on appeal, after unsuccessfully running a different and inconsistent defence at the trial, and the Board considers that valuable guidance is provided by the case law of the Court of Appeal of England and Wales (albeit that there are statutory provisions in England and Wales in section 23 of the Criminal Appeal Act 1968). The leading authority is R v Erskine and Williams [2009] EWCA Crim 1425; [2010] 1 WLR 183.
“… the trial process demands that the defendant, no doubt after considering legal advice, must decide which defence to advance. In an ideal world, of course, if he were responsible for the killing, he would admit it. But even if he is responsible, he may, and often does, choose to plead not guilty. What he cannot do is to advance such a defence and then, after conviction, seek to appeal in order to advance an alternative defence, such as diminished responsibility. There is one trial, and that trial must address all relevant issues relating to guilt and innocence.”
35. No rule of law prevents a defendant from advancing at the trial a primary defence and an alternative fall back defence if the primary defence fails, but there are obviously major practical difficulties in pursuing inconsistent defences at the same time. A defendant who seeks to do so, and who gives evidence, is likely to be put on the spot in cross examination as to what he is really saying. In the present case, if the appellant had raised an issue as to his mental health, it would inevitably have led to disclosure of his medical records, including evidence of his past aggressive and violent behaviour, and this would have weakened his primary case.
“HIS LORDSHIP: The last examination to which you referred speaks to his having an auditory history; ‘… auditory hallucinations in the past but not presently.’ [The judge continued reading from Dr Ottey’s report dated 20 November 2002.] And it goes on to say, ‘The features of schizophrenic psychotic Disorder which he previously displayed are presently in remission because of treatment. It is likely however that this illness would have caused substantial impairment of his mental state at the time the offence was committed.’ That is what the report speaks to. Certainly the evidence as is, did not suggest that at the time the offence was committed he was suffering from this mental disorder, the way the offence was committed.
MR HARRISON: If I had that kind of information then there may have been a different approach to the conduct of the defence, the question of the level of responsibility.”
41. In considering what is in the interests of justice, two matters stand out. The first is the appellant’s account of the circumstances and cause of the deceased’s death. He has consistently maintained that he went to the deceased’s premises to buy some weed; he did not have a gun; he was present when the deceased was shot by two men whom he described; and he later threw away his jacket for fear of being wrongly accused of responsibility for the murder. He said this to the police and to the jury. Mr Wright visited him in prison in August 2014 and recorded in his affidavit:
“The appellant said that at the time of the murder of Errol Lynch in September 1998, he was very ill and was not taking his medication. He said that he did not commit the murder, but was at the scene of the crime, trying to buy ganja from Lynch, who was his ‘weed man’. He said that he now knows it was two men, known as ‘Killa’ and ‘Shotta’, who committed the crime. He described Arthur White, the eyewitness as a ‘coke-head’”.
42. Mr Wright also stated in his affidavit:
“I asked the appellant if he had any conversations with Dr Ottey before the trial. He said that Dr Ottey explained that if he pleaded guilty, then medical records might allow a conviction for manslaughter, rather than murder. I asked whether the appellant considered pleading guilty. The appellant said that he did not want to plead guilty as he did not commit the crime.”
43. The latest psychiatric report on the appellant, by Dr Clayton Sewell, dated 2 December 2015, states that “Mr Brown maintains that he is not guilty of murder”.
44. The appellant has never said anything which might suggest that his illness had anything to do with the killing of the deceased, nor was there evidence from any other witness about the manner in which the appellant was behaving at the material time to suggest that his responsibility for his conduct was substantially impaired by his illness. Furthermore, in view of the appellant’s consistent account (reinforced by what he told Mr Wright about his unwillingness to accept a conviction for manslaughter because he did not kill the deceased), there is no reason to suppose that if his conviction were quashed, and there were a retrial, he would advance a different defence from that which he has always advanced. To advance a defence of diminished responsibility would be contradictory to the case which he has elected to maintain.
45. The second matter which stands out is the absence of psychiatric evidence adequate to support a defence of diminished responsibility. Mr Guthrie properly conceded that the final sentence of Dr Ottey’s report dated 20 November 2002 would have been inadequate. He had not obtained the appellant’s account of events, nor had he looked at the prosecution’s evidence about what happened or the account given by the appellant to the police. Those steps would have been essential in preparing a full report, addressing not only his mental health but also the critical issue of substantial impairment of responsibility. The Board does not criticise of Dr Ottey, who had not been instructed to provide a full report on the question of diminished responsibility, but the appellant is in the position of not having any psychiatric report on which to advance a viable defence of diminished responsibility (if he wished to do so).
46. In summary, the appellant has failed to show that he had or would have a viable defence of diminished responsibility, or that it would be in the interests of justice that he should be given an opportunity now to advance a case contrary to that which he has steadfastly maintained.
47. It remains to consider the question of the appellant’s sentence. The appellant was in custody from 9 September 1998 and was sentenced on 23 January 2003. He had therefore been in custody for four years and four months at the date of sentence. The judge in passing sentence said that this would be “reflected in the sort of sentence I am going to impose on you”, but it is unclear what allowance he made for it. The Court of Appeal ordered that the appellant’s sentence should commence on 23 April 2003. The respondent concedes that the Court of Appeal was wrong to do so, having regard to the decision of the Board in Ali v Trinidad and Tobago [2005] UKPC 41; [2006] 1 WLR 269, but there is an issue as to the approach taken by the judge.
48. Mr Guthrie submitted that time spent in custody should count against sentence unless there is good reason to the contrary. Mr Poole submitted that the judge acted properly within the scope of his discretion and he referred to the guidance given by the Board in Ajay Dookee v State of Mauritius [2012] UKPC 21. In that case the court passed a determinate sentence of five years’ imprisonment. The appellant had spent 14 months in custody on remand. There was detailed information before the Board about the differences in the conditions of custody on remand and as a convicted prisoner. In those circumstances the Board considered that credit should ordinarily be given to the extent of 80 to 100% for time spent on remand, 80% being the suggested default position.