Court of Appeal
Criminal Appeal No. 5 of 1991
12th June, 1991.
KENNETH ST. L. HENRY, P.
DR. NICHOLAS J. 0. LIVERPOOL, J. A.
SIR JAMES A. SMITH, J. A.

Mr. Sabido, for the Appellant.
Mr. Sooknandan, for the Respondent.

Criminal Appeal against conviction for murder - Defence of diminished responsibility - Point in time when diminished responsibility relevant as a defence - Whether during the time of the commission of the crime or during the examination of the accused person by a doctor - Meaning of reactive psychosis as an ingredient of the defence of diminished responsibility.

JUDGMENT

The Appellant was convicted on March 14, 1991 for the murder of Carol Moreira and sentenced to death. He appealed against his conviction.

The Appellant and the deceased lived together for some time as husband and wife but separated. The Appellant wished to effect a reconciliation and to this end visited the deceased from time to time at the home which she occupied with her sister. His efforts were not successful. On the night of May 10, 1990 when he visited the home the deceased was absent and returned later. Upon her return an argument ensued ending with the death of the deceased. She had been stabbed several times and died as a result of haemothorax, shock and respiratory failure due to the stab wounds, in particular a deep cut wound below the collar bone which injured the blood vessels in the neck and left lung.

Counsel for the Appellant sought and obtained leave to abandon the original grounds of appeal filed and to argue instead three grounds of appeal filed on May 31, 1991. The first two of those grounds, which were argued together, are as follows:

"1. The Learned Trial Judge removed from the jury's consideration the defence of diminished responsibility by emphasizing that at the time of the examination of the accused by Dr. Velasquez there was no manifestation of abnormality of mind or inherent mental condition.

2. The Learned Trial Judge failed to direct the jury that the abnormality of mind that they were concerned with was the abnormality of mind at the time of the stabbing incident."

In support of these grounds counsel submitted that by emphasizing to the jury the evidence of the defence witness Dr. Matthew Velasquez to the effect that at the time of his examination of the Appellant some 10 months after the killing of the deceased the Appellant showed no abnormality of mind, the learned trial judge effectively and wrongly focused their attention on the mental condition of the Appellant at the time of the examination rather than at the time of the killing and removed from their consideration the defence of diminished responsibility raised by the Appellant. Counsel referred in particular to the following passage in the summing?up:

"Mr. Foreman and Members of the jury, you will have to ask yourself as judges of the facts to determine the weight and quality of this expert evidence, to determine whether the defendant had established on a balance of probability the defence of diminished responsibility but further the Crown asked specific questions and here are the answers. When 1 examined the accused he manifested no abnormality of mind; he showed no delusion or hallucinations, no delusion of extreme fear; he showed no arrested or retarded development of mind. He says he knows of no mental condition with his family and himself and 1 conclude there is no inherent mental condition. So Mr. Foreman and Members of the jury, you will have to ask yourself whether the evidence supports the ingredients of diminished responsibility. You are the final judges of the facts, you are the ones in charge of this matter."

Counsel further submitted that when at the very end of his summing up the learned trial judge reminded the jury of the various verdicts open to them he failed to remind them that a verdict of guilty of manslaughter was also open to them if the defence of diminished responsibility succeeded, and this would seem to confirm that he had removed from the jury's consideration the defence raised by the Appellant.

The passage in the summing up about which complaint is made appears after the learned trial judge had set out in full the evidence of Dr. Velasquez and accurately explained the law relating to diminished responsibility. The passage itself concludes with a clear direction to the jury that as judges of fact it was their responsibility to decide whether the defence of diminished responsibility had been established. Immediately thereafter the learned trial judge set out what he understood the defence to be, including a reference to Dr. Velasquez' evidence as to "brief reactive psychosis". The learned trial judge then reminded the jury of the presumption of innocence in favour of the accused and finally of the various verdicts open to them having regard to his earlier directions as to intention and provocation. In the circumstances we do not consider that the learned trial judge can fairly be said to have removed from the jury's consideration the defence of diminished responsibility. In explaining the law relating to diminished responsibility he clearly told the jury:

"So what are the ingredients to be satisfied in dealing with this diminished responsibility? To satisfy this requirement the accused must show (1) that he was suffering from an abnormality of mind ......."

He referred to Dr. Velasquez' evidence that "at the time of the incident he [the Appellant] could have had a brief reactive psychosis" and considering the summing up as a whole we do not consider that the jury could have been in any doubt that what they had to consider was the Appellant's mental condition at the time of the killing.

It is only right to say that it is at best doubtful whether there was evidence on which the jury could conclude that the defence of diminished responsibility had been established. The doctor's evidence following his examination of the Appellant (which appears to have taken place after the close of the prosecution's case) was as follows:

"There were no observable symptoms of any pathological disorder, i.e. such as delusion and hallucination. Client was co?operative and calm."

"From my interview and evaluation of the person it seem that the client having felt that he was being treated unfairly, he seemed to have flown into a rage. Rage here would mean extreme anger where the person at that moment seem to lose rational control leading to behaviour that is both destructive and distracted. To lose rational control in legal terminology ? temporary insanity or diminished capacity. In street terms it is referred to as craziness but in our own psychological terminology we would refer to his condition as brief reactive psychosis and that is a physiological condition where a person under extreme tension experiences psychological symptoms such as cognative dissilence (confused)."

"The client shows symptoms of reactive depression. He is basically open and insecure. This insecurity comes to fore in extreme rage when he is provoked. Having assessed the client he had no traces of drug traces and he gave a good account of himself."

There was no clear evidence as to whether the inability to control his rage or the rage itself was an "abnormality of mind" nor was there any clear evidence as to the cause of any abnormality of mind which might have existed. In cross examination the doctor stated that the Appellant showed no delusions, arrested or retarded development of mind; No inherent mental conditions of mental disorder; no symptoms of psychological disorder. He would only say that at the time of the incident the Appellant "could have had a brief reactive psychosis" and in re?examination he said:

"Indications are that the client may have been suffering from brief reactive psychosis at the time of the incident and ... may have been suffering from unfair judgment, lack of insight i.e. consequential behaviour and disturbed thinking."

The doctor also stated in cross examination:

"If a person is suffering from brief reactive psychosis ? to obtain a proper result should the assessment be done within 48 hours to 6 months it would be important to have the assessment done within 48 hours to 6 months because the symptoms would still be manifest and prevalent.",

and he conceded that "This brief reactive psychosis can occur in any human given the same conditions."

In our view the first two grounds of appeal fail.

The third ground of appeal is as follows:

"3. The Learned Trial Judge deflected the jury from their proper approach and invited them to consider the matter of the defendant's character which was not in issue when he addressed them as follows:

(a) "You Mr. Foreman and members of the jury, you will decide what kind of a person the accused was but these are questions of facts for you to decide, you are going into the character of this person".

(b) "These are questions of facts for you to decide and if you accept that Mr. Foreman and members of the jury, it will also show the sort of temper and character of this person".

(c) "Mr. Foreman and members of the jury, that the sister goes in there, sees what was happening, interrupts what is happening, and if you accept it that he turned on her. What sort of person is this?"

We do not consider that in the passages cited the learned trial judge was inviting the jury to consider the Appellant's character but rather his behavioural characteristics which were relevant both to the issue of provocation and to the defence of diminished responsibility as raised. This ground of appeal also fails.

For these reasons the appeal is dismissed and the conviction affirmed.

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