Adderley v R
| Jurisdiction | Bahamas |
| Judge | Dame Anita Allen, P,Crane-Scott, J.A. |
| Judgment Date | 31 May 2017 |
| Neutral Citation | BS 2017 CA 66 |
| Docket Number | CCrApp. No. 123 of 2014 |
| Court | Court of Appeal (Bahamas) |
| Date | 31 May 2017 |
IN THE COURT OF APPEAL
The Hon. Dame Anita Allen, President
The Hon. Mr. Justice Jon Isaacs, Justice of Appeal
The Hon. Madam Justice Crane-Scott, Justice of Appeal
CCrApp. No. 123 of 2014
Mr. Murrio Ducille with Charisma Romer for the Appellant
Ms. Viola Barnett, for the Respondent
Attorney Gen v Larry Raymond Jones et al SCCrApp 12, 18 and 19 of 2007 — Considered
Cordell Farrington v Regina SCCrApp No: 30 of 2006 Considered
David Adolphus Walton v. The Queen [1978] A.C. 788 Applied
Prince Hepburn v. Regina SCCrApp No. 79 of 2013 Considered
R v Brennan [2014] All ER 18 Distinguished
R v. Byrne [1960] 44 Cr.App.R. 246 Applied
R v. Dawood Khan [2010] 1 Cr. App. R. 4 Mentioned
R v. Derek William Lloyd [1965] 50 Cr. A. R. 61
R v. Dunbar [1957] 41 Cr.App.R. 182 Mentioned
R v. Elvan Rose [1961] A.C. 496 Considered
R v. Garnet Roberts [1991] BHS J. No. 7 Considered
R v. Kiszko (1979) 68 Cr. App. R. 62 Mentioned
R v. Leonard John Sanders [1991] 93 Cr. App. R. 245 Considered
R v. Matheson [1958] 2 All ER 87 Considered
R v. Rodney William Bailey [1978] 66 Cr. App. R. 31 Considered
R v. Shaun Daniel Eagan [1992] 95 Cr. App. R. 278 Considered
R v. Terry [1961] 42 Q.B. 314 Considered
Robinson v The State [2015] UKPC 34 Considered
Penal Code, Ch. 84 ss.290, 305
Criminal Appeal - Appeal Against Conviction — Appeal Against Sentence — Murder — Diminished Responsibility — Unsafe and Unsatisfactory Verdicts — Verdict unreasonable and cannot be supported having regard to the evidence
Criminal Law - Murder — Appeal against conviction and sentence — Diminished responsibility — Verdict — Whether verdict unsafe and unsatisfactory — Whether verdict unreasonable — Whether verdict against weight of evidence
The appellant and the deceased were parents to a daughter. Weeks before the event of 9 January 2011, the appellant served the deceased with a Summons seeking an order for visitation. On the evening of the event, the two met at a service station and parked their vehicles at the northern extremity of the station's premises, parallel to each other. At some point during their meeting the appellant retrieved a 12 gauge shotgun from his vehicle and fired five shots at the deceased while she sat in the driver's seat. She was shot in the head, left flank, back, and hands.
The appellant left the scene of the crime and was stopped by police some time later while driving his taxi. He told officers that he had shot the deceased. When his vehicle was searched the shotgun, a large rock, and empty beer bottles were found in the front passenger seat of the taxi.
The appellant was charged with the murder of the deceased. At the trial, the appellant raised the defence of diminished responsibility and called Doctor Micheal Neville to give evidence as such. The prosecution cross examined Doctor Neville but brought no medical evidence to rebut the testimony of Doctor Neville. The appellant was convicted of the said crime and sentenced to 28 years and 8 months.
He appealed his conviction on 4 grounds namely; that the judge erred in law in allowing him to be convicted of murder stating that he had established he had diminished responsibility and should be convicted of manslaughter due to that fact. That the verdict is unreasonable and cannot be supported having regard to the evidence and it is unsafe and unsatisfactory having regard to the circumstances of the case. Further, he appealed that the sentence imposed was manifestly harsh and excessive.
Held: Appeal dismissed. Conviction and sentence affirmed.
per Allen P: The circumstances surrounding this killing were not in dispute in the present case. However, case law is clear that upon an issue of diminished responsibility, the jury is entitled to, and is bound to consider not only the medical evidence but all of the facts and circumstances of the case, including the nature of the killing, the conduct of the appellant before, at the time of, and after the killing, and any history of previous mental abnormality. In considering the evidence they are of course entitled to consider the quality and weight of the evidence. The determination of whether the defendant was suffering from diminished responsibility at the time of the killing is for the jury and not for doctors.
Doctor Neville in giving evidence for the defence stated that the appellant's abnormality of mind was of such severity as to affect his mental responsibility. To bring oneself within the requirements of the section, the abnormality must substantially ‘impair’ not simply ‘affect’ the defendant's mental responsibility. There is an important difference in the meanings of ‘affect’ and ‘impair. To ‘affect’ means to produce a material influence or to effect a response which may be positive or negative; on the other hand to ‘impair’ is pejorative, it means to damage, or to make worse, or to injure.
It was clear to us therefore, that the quality and weight of the medical evidence in the case fell far short of the quality, and cogency of the medical evidence in Matheson, Bailey, and Brennan, the cases on which defence Counsel relied. We found this case clearly distinguishable from those cases.
As is made clear in all of the cases, upon an issue of diminished responsibility, the jury is entitled to, and is bound to consider not only the medical evidence but all of the facts and circumstances of the case, including the nature of the killing, the conduct of the appellant before, at the time of, and after the killing, and any history of previous mental abnormality. In considering the evidence they are of course entitled to consider the quality and weight of the evidence.
Given all of the circumstances in this case, we were strongly of the view that the jury was entitled not to accept as conclusive the medical opinion of Dr. Neville, and to conclude as they did that the defence of diminished responsibility had not been established to the required standard, namely, on a balance of probabilities.
Ultimately, the questions of whether the appellant was suffering from an abnormality of the mind and whether that substantially impaired his mental responsibility were questions for the jury, and for this Court to conclude that they ought to have accepted the medical evidence in this regard would be to usurp the jury's function.
We had no lurking doubt about the safety of the murder conviction and were satisfied that the verdict was reasonable and supported by the evidence; therefore, we dismissed the appeal against conviction.
As to the sentence, after considering the range of sentences which this Court suggested for both murder and manslaughter in the Attorney General v Larry Raymond Jones et al (SCCrApp 12, 18 and 19 of 2007), the sentence imposed on the appellant for murder falls below the lower end of that range, and mid-point on the range for manslaughter. As such we did not interfere and affirmed the sentence.
Attorney Gen v Larry Raymond Jones et al SCCrApp 12, 18 and 19 of 2007 — Considered
David Adolphus Walton v. The Queen [1978] A.C. 788 Applied
Eifinger [2001] EWCA Crim. 1855 Considered
Leonard John Saunders v Regina 1991 CAR Vol. 93 Considered
Prince Hepburn v Regina SCCrApp No. 79 of 2013 Considered
R v Bailey (1961) 66 Cr. App Rep 31 , [1961] Crim LR 828 Considered
R v Brennan [2014] All ER 18 Distinguished
R v Colin Bradshaw [1986] 82 Cr. App R. 79 Considered R v Gumbs (1927) 19 Cr. App. R. 74 Considered R v Matheson [1958] 2 All ER 87 Considered R v Turner [1975] 1 QB 834 Considered
per Crane-Scott JA: The cases of Matheson, Byrne and Lloyd all establish that questions concerning the extent or degree of the abnormality of mind and whether it substantially impaired the appellant's mental responsibility for doing the killing, are issues for the jury to determine and are not for the doctors.
On the authority of Matheson, the law as applied in numerous cases since, is that where (as in this case) there is on the evidence as a whole, evidence of the conduct of the accused before, at the time of and after the killing, these are relevant facts and circumstances which it is for the jury (not the judge) to consider in determining whether the accused has discharged the onus of proving such abnormality of mind as substantially to impair his mental responsibility for his acts.
The cases of Brennan and Khan, both were decided in the context of an amended definition of diminished responsibility which does not apply in this jurisdiction. The appellant's contention in ground 1 of his appeal runs counter to the premise which underlies most, if not all, of the decided cases on diminished responsibility as defined by section 2 of the Homicide Act, 1957 which all seem to suggest that the question whether the accused has discharged the onus of proving that he was in fact suffering from diminished responsibility is to be determined by the jury.
The Privy Council in Robinson (a case where the law of diminished responsibility in Trinidad and Tobago corresponds to s. 2 of the 1957 Act before its amendment) underscored once again, the principle, already well established in the decided cases, that the issue of “substantial impairment” is a jury question. Their Lordships expressly declined to investigate the circumstances (if any) in which (as was contended) a trial judge would be justified in withdrawing murder from the jury in circumstances in which there is psychiatric evidence going to diminished responsibility “on one side only”.
In the light of the Board's observations in Robinson, I am not prepared to accept as a matter of principle that it will ever be appropriate for a trial judge, following his own evaluation of the medical evidence called in support of the defence of diminished...
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