Marcus Jason Daniel v The State (Trinidad and Tobago)

A deliberate tactical decision not to advance a known defence weighs heavily against receiving fresh evidence on appeal, but it is not conclusive. The appellate court retains an overriding discretion where the evidence gives the defence real prospects of success and justice requires its consideration.

For diminished responsibility, an abnormality of mind may affect perception, judgment or control. Borderline personality disorder is not automatically excluded. Transient self-induced intoxication is generally irrelevant, subject to an exception for irresistible craving or compulsion. A jury’s rejection of an intent defence does not establish that these separate capacities were intact.

The appellant was convicted of murdering his cousin and sentenced to death at the Port of Spain Assizes. The Court of Appeal of the Republic of Trinidad and Tobago dismissed his appeal.

Before the Privy Council, he sought to adduce fresh psychiatric and psychological evidence concerning diminished responsibility. He also argued that the evidence cast doubt on the voluntariness and admissibility of his statement to the police. The submissions focused principally on diminished responsibility. The central issue was whether the fresh evidence disclosed a credible defence which should now be considered despite its omission at trial.

1. Disposition. Lord Dyson delivered the single judgment of the Board. The case was remitted to the Court of Appeal of the Republic of Trinidad and Tobago to hear the fresh evidence, and any further evidence bearing on the issue, and then determine how to dispose of the appeal.
2. Fresh evidence. A deliberate decision by a defendant whose decision-making faculties are unimpaired not to advance a known defence weighs heavily against receiving fresh evidence. It is not conclusive. The appellate court retains an overriding discretion, particularly in a murder case, and may receive the evidence where it has real prospects of supporting a successful defence and the interests of justice require it. The Board found no sufficient basis for concluding that the defence had been deliberately omitted for tactical reasons. In any event, such a decision would not have barred reception of the evidence.
3. Diminished responsibility. Section 4A of the Offences Against the Person Act required proof of an abnormality of mind arising from a specified cause which substantially impaired mental responsibility for the killing. The defence bore the burden of proof. The statutory expression was broad enough to encompass perception of physical acts, rational judgment as to right and wrong, and the ability to exercise will power over physical acts. The rejection of lack of intent did not establish that the appellant retained the latter capacities, because the jury had not been asked to decide those questions.
4. Intoxication and personality disorder. Transient self-induced intoxication is generally irrelevant, but may be relevant where alcohol or drugs were consumed as the involuntary result of an irresistible craving or compulsion. That issue had not been explored at trial. The fresh evidence suggested alcohol and substance dependence, drug-induced psychosis and severe borderline personality disorder. If accepted, it provided a credible basis for diminished responsibility. Borderline personality disorder could not be excluded merely by analogy with authority concerning psychopathic personality disorder.
5. Premeditation. The Board declined to determine the appeal on the basis that the killing was premeditated. That theory had not been put to the appellant or considered by the jury, and the features relied upon supplied no more than a slender basis for the inference. They were insufficient to justify rejecting the fresh evidence without examining it.

1. Privy Council — the case was remitted to the Court of Appeal to hear the fresh evidence and determine how to dispose of the appeal.
2. Court of Appeal of the Republic of Trinidad and Tobago — dismissed the appellant’s appeal against conviction.