Chandler v The State

An appellate court has a broad statutory discretion to admit fresh evidence where necessary in the interests of justice. The usual requirements that evidence be credible and that a reasonable explanation be given for its absence remain relevant, but are not conclusive. A particularly high hurdle applies where the proposed evidence supports a defence that was available at trial but is inconsistent with the defence then advanced. Propensity evidence must be accompanied by directions explaining its limited purpose and warning that it does not itself prove guilt. A direction remains adequate if the summing-up as a whole was fair, even though every factor affecting probative value was not repeated.

The appellant was convicted of murdering a fellow remand prisoner in Trinidad and Tobago and sentenced to death. His appeal against conviction and sentence was dismissed by the Court of Appeal of the Republic of Trinidad and Tobago on 12 December 2013.

Before the Privy Council, he renewed a challenge to the trial judge’s direction on later propensity evidence and sought to adduce psychiatric evidence supporting a possible defence of diminished responsibility under the Offences against the Person Act 1925. That defence had not been raised at trial, where he denied involvement in the killing. The central issue was whether the evidence should be admitted under section 47 of the Supreme Court of Judicature Act of Trinidad and Tobago, despite its lateness and inconsistency with the trial case.

1. Disposition. By a majority, the Board dismissed the appeal. The challenge to the propensity direction did not render the conviction unsafe, and the application to admit the new psychiatric evidence was refused. Lord Kerr and Lord Lloyd-Jones dissented.
2. Propensity evidence. The jury had to be directed on the limited purpose for which the evidence could be used and warned that it was not, by itself, proof of guilt. The judge’s directions adequately explained the evidence as relevant only to propensity and as part of the circumstantial case. Although it would have been preferable to refer expressly to the five-year gap and the isolated nature of the later incident, the jury knew the timing and counsel had emphasised it. The summing-up, considered as a whole, was fair.
3. Fresh evidence. Section 47 of the Supreme Court of Judicature Act of Trinidad and Tobago confers an overriding discretion governed by the interests of justice. As explained in Pitman v The State [2008] UKPC 16 and Pitman and Hernandez v The State (Trinidad and Tobago) [2017] UKPC 6, credibility and a reasonable explanation for absence at trial are relevant but not conclusive. The discretion is fact-specific. Where a proposed defence could and should have been advanced at trial, particularly where it contradicts the defence then run, the appellant faces a particularly high hurdle. The integrity of the trial process remains important, although there is no absolute rule against alternative defences.
4. Application. Brown (Nigel) v State of Trinidad and Tobago [2012] UKPC 2 concerned fitness to plead and offered limited assistance. Daniel v The State (Trinidad and Tobago) [2012] UKPC 15 was distinguishable because the proposed defence was not inconsistent with the trial case and the omission had been explained by the psychiatric evidence then available. Here, the appellant had consistently denied killing the victim, had never linked the killing to the voices he described, and had not shown why the defence was omitted or that he would adopt it at a retrial. The evidence was therefore not sufficiently compelling to require admission. The appeal was dismissed.
5. Dissent. Lord Kerr and Lord Lloyd-Jones would have allowed the appeal and remitted the case. They considered that an appellant should not be presumed to have deliberately abandoned diminished responsibility unless there was a sound basis for concluding that he knew it was available and consciously chose not to raise it. A denial of involvement did not itself disprove diminished responsibility. The psychiatric evidence should have been tested on a full hearing rather than discounted at the admission stage.

• Privy Council: Appeal dismissed by Lord Carnwath, with Lord Sumption and Lord Reed agreeing. Lord Kerr and Lord Lloyd-Jones dissented.
• Court of Appeal of the Republic of Trinidad and Tobago: Appeal against conviction and sentence dismissed on 12 December 2013.
• Trial court: The appellant was convicted of murder and sentenced to death by hanging.