Moore v. The State (Trinidad and Tobago) [2001] UKPC 4

Judicial Committee of the Privy Council
Case No Privy Council Appeal No. 7 of 2000Venue FROM THE COURT OF APPEAL OF TRINIDAD AND TOBAGO
Between
MooreAppellantThe State (Trinidad and Tobago)Respondent
Before
Lord Nicholls of BirkenheadLord Hope of CraigheadLord ClydeLord Scott of FoscoteSir Murray Stuart Smith
[1]The appellant, George Moore, was charged with the murder of Robert McKenna on 14th June 1985. He was tried and convicted on 30th April 1987. On appeal the Court of Appeal of Trinidad and Tobago on 1st March 1990 allowed his appeal and ordered a retrial. This took place on 2nd November 1993 before Deyalsingh J. and a jury, when he was again convicted and on 8th November 1998 sentenced to death. The appellant’s application for leave to appeal to the Court of Appeal (Sharma, Gopeesingh and Hosein JJ.A.) was dismissed. He was granted special leave to appeal in forma pauperis to their Lordships’ Board on 23rd June 1999.[2]The principal issues in the retrial were insanity and diminished responsibility.[3]Evidence of the killing was given by two eye witnesses, Anthony Stephens and Horace Sandy. Both were sitting upstairs at the Ascott Recreation Club having a drink with some friends. They saw the appellant, whom they knew, standing by the bar, also having a drink, in the company of a man and a woman. Nearby was the victim Robert McKenna sitting on a bar stool. There were a few people between the victim and the appellant. This situation seems to have lasted a considerable time. Suddenly, at about 1.30 a.m. on 14th June, the witnesses heard a gunshot, and saw the victim fall off his stool, crying out "I get shoot". A few feet away they saw the appellant holding a gun in his hands.[4]According to Stephens, the appellant said "Nobody move". He then walked over to the victim, stood over him and walked out. Sandy said that the appellant went over to the woman behind the bar, put a gun in her face and said "Nobody going downstairs" and then "locked the door". He then went over to the victim, stood over him pointing the gun at him, before leaving to go downstairs.[5]The victim was taken to hospital but found dead on arrival.[6]Kelvin Patrick was the brother of the appellant’s girlfriend. At 5.30 a.m. he was woken at his home. He went to the drawing room where he found the appellant, waving a gun around. He said "I’m in trouble, let’s go for the TV". He asked Kelvin to hide the gun and some bullets; Kelvin put them in a box. Together with his brother, the appellant then drove off to get the T.V. On the way the appellant made a telephone call. They stopped again and the appellant spoke to a woman called Dolly. He told her that:
"the three men who were harassing him, he shot one"
. Dolly bawled out "Oh God". The appellant told her to sign some papers about some land and a house.[7]The three men drove to the appellant’s home, where Kelvin and his brother got the T.V. and put it in the back of his car. The appellant hugged a girl and shook a man’s hand, and said he would "take a drop by the corner". The three men got into the car, when the police arrived and all three were arrested and taken to the police station. By now it was 7.00 a.m.[8]The police evidence was that on his arrest the appellant said:
"Is not he alone I did want, is Pepsi and all"
. He was formally charged at 5.00 p.m. When arrested he appeared to be normal.[9]The appellant did not give evidence, but he called Dr. Iqbal Ghany, a consultant psychiatrist at St. Ann’s Hospital (the psychiatric hospital in Trinidad). According to the records of the hospital which were produced by Dr. Ghany, the appellant, who was 68 at the time of the trial, had been twice admitted to the hospital. The first time was from 26th June to 5th July 1962. The second time was from 1st to 19th November 1984 (about seven months before the killing) On the first occasion the appellant was brought in on the order of a certifying officer, suffering from "psychotic affective disorder" i.e. from schizophrenic symptoms and "affective" symptoms. On the second occasion the appellant was suffering from "paranoid psychosis". He was brought in believing that people were coming to kill him, and that he saw them and heard them saying "shoot him". He had made a report to the police, but they took no action. He went off and booked a room at the Holiday Inn; but even there he believed he was being tormented by persecutors, felt threatened and had intense fear. As a result, he broke a glass door at the hotel, the police were called, and he was taken to St. Ann’s.[10]Dr. Ghany examined the appellant on 23rd December 1985 and thereafter on eight occasions until 29th September 1993, shortly before the second trial. He found the appellant to be suffering from a paranoid psychosis. In his evidence he said:- "A psychosis is a serious mental illness in which patient lacks insight and is in poor contact with reality, is usually unaware of his illness and in a paranoid type, he would experience hallucinations and delusions. Hallucinations are sensory perceptions without an appropriate stimulus e.g. may hear voices when there is in reality, no voice. A delusion is a false belief which is held with great conviction, not amenable to reason, and is held in clear consciousness." His opinion was that paranoid psychosis can last a lifetime, and that:- "Having regard to the history and examination in December 1985, it was very likely that he was suffering from paranoid psychosis in June 1985." In cross-examination he said:- "These people can appear normal but secretly hold their delusions. Certain violent actions follow when they are a psychiatric mode. Then it would be obvious to the layman that they are disturbed and need assistance – this would be in the severe state." He said that the circumstances of the offence could be consistent with the two previous reports of violence. In re-examination he said:- "To a psychiatric, his violent action may be rational to him, e.g. defending himself from a perceived attack." And:- "Other people may not appreciate his abnormality at the time." It seems that in these passages, which are taken from the judge’s notes, the word should be ‘psychotic’ rather than ‘psychiatric’.[11]There are three main grounds of appeal, all of which involve criticism of the judge’s summing up. 1. That the judge misdirected the jury on intention, insanity, and diminished responsibility. 2. That the judge set too high a test for insanity, and particularly for diminished responsibility, leaving the case to the jury on a basis not explored in evidence with Dr. Ghany. 3. That the summing up was unfair and unbalanced. In particular:-(i) the judge minimised the effect of Dr. Ghany’s evidence;(ii) he failed to direct the jury on primary evidence of fact that supported Dr. Ghany’s conclusion;(iii) he overemphasised the importance of apparently rational behaviour at the time of the killing and afterwards.[12]As to the first ground the judge’s direction on insanity begins at page 77. At line 47 he said:- "Now the defence of insanity is based on the absence of the specific intent required for the particular crime and you will remember that specific intent in murder is the intention to kill or cause grievous bodily harm. So the defence of insanity is based upon the absence of that intent, in other words because he is or was insane he could not have formed that specific intent to kill or to cause grievous bodily harm. So since the defence of insanity is based upon the absence of that specific intent as it were, the mental condition of an accused person recognised by the law as insanity is not the same as insanity or mental illness recognised by the medical profession."[13]It is submitted by Mr. Knox on behalf of the appellant that this is a clear misdirection. It draws a false dichotomy between intention and insanity. It is clear from the authorities that a defendant may be insane within the McNaughten Rules (1843) 10 CL. and F. 200 even if he intends to kill, if he did not know that what he was doing was wrong. (See Reg. v. Antoine [2000] 2 WLR 703 at p. 715D per Lord Hutton).[14]Mr. Stevens, counsel for the respondent, accepted that this was a clear misdirection. But he submitted that it was cured by subsequent passages in the summing up. It is fair to say that at p. 78 line 15 to p. 79 line 34 the judge gives the standard direction on insanity. But nowhere does he expressly correct what he had previously said, or make it plain that insanity can be a defence even if the accused intends to kill or cause grievous bodily harm. That was particularly important in this case because on the facts it is reasonably clear that the appellant intended to kill or cause serious harm; the whole question was whether he did so because he was deluded that his victim was attacking or harassing him.[15]Similar considerations apply to the judge’s direction on diminished responsibility. While the judge gave an unexceptional direction as to diminished responsibility between p. 79 line 44 and p. 81 line 47 (although on a number of occasions both here and later in the summing up he refers to the appellant as "suffering from diminished responsibility" or "in a state of diminished responsibility", which is not acceptable shorthand for the concept of diminished responsibility), the judge again failed to make it plain that the defence applies specifically where the accused intends to kill or cause grievous bodily harm. It may well be that a lawyer listening to the summing up would have appreciated this; but their Lordships very much doubt whether the jury would have appreciated it, especially when the judge omits the word "intentional" when referring to the shooting.[16]Mr. Stevens further submitted that the direction was clarified at the end of the summing up. Their Lordships do not agree; indeed they think that this confusion was compounded. At p. 100 line 24 the judge said:- "The question is not whether this accused was suffering from paranoid psychosis. Generally, the question is whether this accused was in a psychotic mode on the crucial day at the crucial time. That is the issue. Was he in a psychotic mode that is irrational, not knowing what he was doing, suffering from abnormality of mind or was he in one of those rational periods or not." By defining the question in this way the judge appears to be confining the defences of insanity and diminished responsibility to situations where the appellant did not know what he was doing and cannot therefore have intended to kill or wound.[17]At p. 101, line 20 the judge invites the jury to consider first the defence of insanity and then diminished responsibility. He then continues:- "If you say no, no, he is not legally insane, no, no, he was not acting under diminished responsibility, then you don’t automatically convict him. You go to the case of the State and you ask yourself the crucial question are we satisfied on all the evidence that the accused murdered the deceased that is, shot and killed him with intent at the time of the killing to kill or cause grievous bodily harm. That’s the final question you ask yourself. Are we satisfied beyond reasonable doubt that the accused shot and killed the deceased with intent at the time of the killing to kill or cause grievous bodily harm. If you are so satisfied then he is guilty of murder. If you are not so satisfied then he is not guilty of murder." This again puts the matter the wrong way round, since the jury must first be satisfied that the appellant intended to kill or seriously wound, before they consider the defence of insanity (at least so far as the second limb is concerned, namely whether he knew what he was doing was wrong, which is the relevant aspect in this case) and diminished responsibility.[18]It is clear that both counsel were concerned that the judge had not properly directed the jury and at the conclusion of the summing up quite properly sought to draw the judge’s attention to the matter. It is unfortunate that the judge did not allow counsel to develop their points. Instead he once again gave a further direction. He said this at p. 102, line 16:- "Of course as Ms. Wilson pointed out before you even get to insanity or diminished responsibility since the law presumes a man to be sane you must be satisfied that he actually killed the deceased with intent to kill or to cause grievous bodily harm, that would be murder. But having reached that point, if you reach that point, of course, then you go on to consider insanity and diminished responsibility. But I think I have given you enough directions. You are men and women of the world with common sense. I have given you directions on what murder is and just to, out of an abundance of caution, pay attention to what Mr. Mohammed has said, let me repeat what murder is. Murder is committed where one person unlawfully kills another person. There must be a killing with intent at the time of the killing to kill or to cause grievous bodily harm. If, therefore, in this case you find that the accused shot the deceased and at the time he shot the deceased he had that intention to kill or to cause grievous bodily harm then in law that is murder. And obviously, as Ms. White-Wilson said since all that evidence is not contradicted, if you arrive at that point then insanity and diminished responsibility is tacked on. You look at the defences raised in the context of that. But after considering the defence, after considering insanity, after considering diminished responsibility what I will say in the final analysis you come back to the crucial question you have to ask yourself, are we satisfied beyond reasonable doubt that the accused shot and killed the deceased with intent at the time of the killing to kill or to cause grievous bodily harm." If this passage had stopped at the words "tacked on", it could perhaps be said to have corrected the position, though these words are not a felicitous way of describing the defence. But once again the judge continues with what he describes as the "crucial question". If they are satisfied as to that, then the answer is guilty of murder; at least that is the clear implication.[19]In their Lordships’ judgment there was a serious and fundamental misdirection which was never clearly or properly corrected. Indeed the subsequent passages in the summing-up can only have served to confuse the jury still further and leave them with the impression that if the accused intended to kill or cause serious bodily harm he was guilty of murder; and his defence of insanity or diminished responsibility could not avail him. This was particularly serious in a case where there cannot have been any real doubt that the appellant intended to shoot and kill the victim at close range. The whole question was whether in doing so he was deluded in thinking he was being attacked or harassed.[20]Their Lordships turn to the second ground of appeal, namely, that the judge set too high a test, particularly in relation to diminished responsibility and left the case to the jury on a basis not explored in evidence with Dr. Ghany. The judge dealt with Dr. Ghany’s evidence in a number of passages. First at p. 88, line 3 he said:- "When we come to the medical evidence you will see. Because Dr. Ghany said a man could be suffering from this paranoid psychosis, but he would have lucid moments when he can make rational judgment. In other words, a man suffering from paranoid psychosis is not psychotic all the time and continuously. And that was the point the State was making, Ms. White-Wilson was making. So the crucial question for you is even if he was suffering from paranoid psychosis, was he psychotic? Was he in a psychotic mode at the time of the killing that supports legal insanity and diminished responsibility." From the note of evidence it appears that the expression "psychotic mode" may have been introduced by prosecuting counsel. What is important is that the note contains no explanation of this expression, and it seems, as will later appear in this judgment, that the judge may well have misunderstood what Dr. Ghany meant by it.[21]The judge then dealt with the evidence of Kelvin Patrick and the appellant’s behaviour a few hours after the killing and repeatedly asked whether it showed that the appellant was behaving rationally, as if this had a bearing on his state of mind at the time of the killing, and effectively invited the jury to conclude that, if his behaviour was at that time rational, it might indicate that he was not in "psychotic mode at the time of the killing". The judge’s final comment on Kelvin Patrick’s evidence was:- "His evidence is damning, if one may call it that, so far as the accused is concerned and you will have to look at his evidence very, very carefully bearing in mind the caution I gave you and the direction I gave you about corroborative evidence." This was a reference to a wholly unnecessary warning as to the reliability of Patrick’s evidence because technically he was an accomplice. There was no dispute as to this witness’s evidence. The judge’s comment must have had a devastating effect on the jury’s minds.[22]Between p. 98, line 2 and 100, line 3, the judge gave a reasonable summary of the evidence of Dr. Ghany. But at line 24 on page 100 comes the passage their Lordships have cited in paragraph 16 above. Then at line 32 follows this:- "The doctor continued such a person would be violent at times. These people can appear normal but secretly hold their delusions. He went on to say that certain violent actions follow when they are in a psychotic mode. Then it would be obvious to the layman that they are disturbed and need assistance. This would be in the severe case. So what the doctor seems to be saying when they are in the psychotic mode they could be violent. But then it would be obvious to people around that they are in this psychotic mode and that they need assistance."[23]The effect of what the judge was saying, in their Lordships’ judgment, came to this:(1) The crucial question is specifically, not whether the appellant was suffering from paranoid psychosis, but whether he was in "psychotic mode".(2) If he was in "psychotic mode", then the defence of insanity and/or diminished responsibility could succeed; but if he was only suffering from paranoid psychosis, then both these defences must fail.(3) If the appellant was in psychotic mode at the time, it would have been obvious to the people around him.[24]This was a misdirection, or at the least, not helpful to the jury in considering the relevant question. They had to be satisfied, so far as diminished responsibility was concerned, first that the appellant was suffering from an abnormality of mind. There was no dispute that he was suffering from paranoid psychosis; that was never in issue. Secondly, that this substantially impaired his mental responsibility for the killing because, although he was not so mad or psychotic as not to know what he was doing, he was suffering from paranoia or delusions in that he believed the victim was about to attack him, and that in this state he shot him. The critical question for the jury was a simple one:
"are you satisfied on a balance of probability that the accused shot the victim because he was under the delusion that he was going to be attacked by him?"
. If the answer to that question was yes, then the defence of diminished responsibility was made out. Unfortunately this question was never asked.[25]Their Lordships think the judge must have misunderstood Dr. Ghany’s evidence, certainly when he defined "psychotic mode" as being "irrational, not knowing what he was doing". (See p. 100, line 28 already cited). What in fact the doctor was saying was that a patient suffering from paranoid psychosis may appear rational much of the time. But he may be violent because he believes he is being attacked or persecuted. His actions seem rational to him, because he is deluded. On the other hand he could be violent for some reason which has nothing to do with his delusion, for example because someone has spilt beer over him or in some other real way provoked him. The proposition advanced by the judge, that if the appellant appeared and behaved rationally five hours after the killing, he was not in "psychotic mode" (even if that meant not suffering from the delusion that the victim was about to attack him), at the time of the killing, was never put to Dr. Ghany. And their Lordships have little doubt that if it had been, he would have rejected it. In their Lordships’ judgment the second ground of appeal is also made out.[26]Finally their Lordships turn to the third ground of appeal that the summing up was unbalanced in that:(i) the judge minimised the significance of Dr. Ghany’s evidence;(ii) he failed to direct the jury on the primary evidence of fact in support of Dr. Ghany’s conclusion; and(iii) he over-emphasised the importance of apparently rational behaviour at the time of the killing and later.[27]Again their Lordships consider these criticisms are justified. Their Lordships can state them quite shortly because many of the points have already been made. There was no dispute that the appellant was a paranoid psychotic at the material time. In the absence of any explanation or motive for the killing, the overwhelming probability was that it was because the appellant was suffering from a paranoid delusion at the time. Yet the judge never referred to this matter, which was probably the single most important fact in favour of the defence. Despite the presence of a number of eye-witnesses, no one suggested that there had been any quarrel or provocation, nor was there any evidence of any real dispute or grievance between the appellant and the victim. On the contrary they seem to have been present at the Club for an appreciable time before this sudden and inexplicable killing.[28]Although the evidence as to what was in the appellant’s mind at the time was sparse, since he did not give evidence, he does not seem to have been interviewed at length by the police and his account to Dr. Ghany was not given in evidence, there was at least some evidence in what he said to Dolly and the police to support his case. The judge never drew the jury’s attention to the importance of this evidence.[29]Finally the judge’s emphasis on the question of whether the appellant was acting rationally was, for the reasons already given, wholly misplaced. This evidence was in truth largely, if not entirely, irrelevant. His comment that Kelvin Patrick’s evidence was damning was fatal to the defence and wrong.[30]In the result the verdict of guilty of murder and the sentence of death will be set aside. In substitution for the verdict of murder there will be a verdict of manslaughter on the grounds of diminished responsibility. The question of sentence will be for the Court of Appeal, in the light of the substituted verdict. The matter will be remitted to the Court of Appeal for this purpose. It may well be that the Court of Appeal will require further up-to-date medical evidence as to the appellant’s present condition to enable them to decide what course to adopt in sentencing.

Cited in 2 later judgments