REPUBLIC
OF TRINIDAD AND TOBAGO
IN
THE COURT OF APPEAL
CrA.
NO. 61 OF 1993
PANEL:
MR.
A. ALEXANDER, S.C. and MR. R. PERSAD appeared on
behalf of the APPELLANT
DATE DELIVERED
12th
June 2001
JUDGMENT
Delivered
by M.A. de la Bastide, C.J.
The appellant has been in prison since the 14th June 1985, so he has been in prison for some 16 years, and he has spent nine of those years on death row. He was convicted of the murder of a man in circumstances which disclosed no motive whatever. One night while in a bar where he had been for some hours, he suddenly got up and went across to this man and shot him dead. The explanation for his action, it now appears, was the mental illness from which he was suffering, that is a psychosis which caused him to have delusions of a paranoid nature. Apparently, in his dementia he thought that the man he shot represented a danger or threat to him. He was convicted originally of murder on the 30th April 1987. This conviction was overturned on appeal and a retrial ordered. He was convicted of murder for a second time on the 8th November 1993, and his appeal to this court was dismissed. But the Privy Council upheld his further appeal to the extent of substituting for the conviction of murder a conviction of manslaughter on the ground that at the time of the offence his responsibility for his action was diminished by virtue of the abnormality of mind from which he was suffering.
The Privy Council then remitted the matter to us, that was on the 29th January this year, for us to impose such sentence as we think fit. An indication of how the Privy Council expected us to proceed is given in the last sentence of their judgment which reads: “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”.
Well, we have received further medical opinions as to his present condition from Dr. Ghany and Dr. Chen. Dr. Ghany has dealt with his mental condition. He saw him quite a few times between 1985 and 1993. He in fact gave evidence for the defence at both his trials and testified about the psychosis from which he was suffering. It is perhaps pertinent to point out that the appellant’s mental illness led to his being hospitalised at the St. Ann’s Hospital on two occasions before he committed the offence. He was hospitalised for the first time as far back as 1962 and again in 1984, not long before he shot and killed the victim. Dr. Ghany has told us that he examined the appellant again recently and he reports that for the last ten years or so, the appellant has been free of all symptoms of the psychosis from which he was suffering.
It is true that for this Dr. Ghany relies largely on the word of the appellant himself, but apparently Dr. Ghany’s experience is that persons suffering from this condition do sometimes go into remission. Dr. Ghany thinks it unlikely that there will be a relapse. He put the chances of a relapse at ten per cent.
Dr. Chen is the prison doctor. He is a general practitioner. I must say that we were not impressed by his evidence. One must recognise that the lot of a prison doctor is often not a happy one. His experiences with the patients he deals with in prison must tend to breed in him some cynicism, but I think that wherever the blame for it lies, it is quite unforgivable that this appellant has been denied surgical treatment for the cataract which developed in his left eye over a period of some seven years now. As a result of this he is totally blind in that eye.
He has also developed cataract in his right eye, and his vision in that eye is substantially impaired as a result. As Dr. Chen admitted, cataract is a condition which is routinely treated with success by surgical operation. It appears that Dr. Chen regarded his duty in respect of the appellant as discharged when he referred him to the Eye Clinic at the Port of Spain hospital seven years ago. He has apparently shown no interest in finding out why the appellant has not had surgery, nor taken any step to ensure that he does get it. At any rate the condition of his eyes represents a substantial physical disability.
In addition to that, it appears that he suffers with a weakness of his knees. Again Dr. Chen has not identified the reason for that weakness. He suggested that it might be the result of a neuropathy, but admits that it may be linked with osteoarthritis. At any rate, the result is that he cannot stand for any long period.
The appellant is now 75 years old. Dr. Chen, in his initial report of the 28th May 2001, reported that the appellant had a 60 to 70 per cent loss of hearing. He now says that was a ‘guestimate’ and is prepared to revise that downwards on the basis of a more recent interview.
I am bound to say that even given the constraints that must govern the treatment of prisoners, especially in the overcrowded conditions that reportedly obtain in our prisons, the standard of medical treatment which prisoners receive is pathetically bad if one is to judge from the experience of this appellant.
The evidence of Dr. Chen as to how he dispenses that treatment does not conduce to confidence. At any rate, the effect of Dr. Chen’s evidence is that the appellant, apart from being 75 years old, is suffering from significant physical disabilities.
In answer to questions by me, Dr. Chen volunteered that as recently as the 16th March this year, the appellant had complained of or had reported, hallucinations to him. This evidence, I must say, I find difficult to credit. The doctor has given a medical report which he now claims was not given for the purposes of this hearing but was simply a routine yearly report on the appellant. In that report, there is no mention of these recent hallucinations but there is reference to hallucinations that occurred ten years ago.
Dr. Chen said that as a result of this recent report of hallucinations, he prescribed valium for the appellant and referred him to the St. Ann’s Hospital. But not only does Dr. Ghany make no mention of having received any such reference, there is no suggestion that any other doctor at any hospital has examined the appellant as a result of this reference by Dr. Chen. Nevertheless, I must admit that Dr. Chen’s evidence although volunteered so late in the day, does give one some cause for concern. On the whole, however, I would prefer to rely on the evidence of the specialist, Dr. Ghany, and on his prognosis. In all the circumstances, there would seem to be little purpose to be served in prolonging this appellant’s period of incarceration unless it was necessary in order to protect society from him.
We are satisfied that the chances of his becoming a danger to any member of society at this point is so small that it would be proper to release him from prison on terms which would minimise yet further any risk of a relapse by him into the sort of behaviour which put him in prison in the first place. We think that this can be achieved by making a probation order for the next three years subject to certain terms, the first of which is the standard term that he will be under the supervision of a Welfare Officer to be designated by the Chief Probation Officer.
The second is that he will reside, at least for the next 12 months, at the home of Curtis Charles, at 41 Chaconia Avenue, Coconut Drive, Morvant. The third is that he shall place himself under the care of Dr. Ghany and present himself at least once every month for examination by or under the direction of Dr. Ghany at the out-patient clinic at St. Ann’s Hospital.
The appellant has indicated his acceptance of these terms. If he is in breach of any of these terms during the subsistence of the order, then he will be brought back to court and he may be sentenced then afresh for the offence of manslaughter, although it was committed some 16 years ago.
[Case re-called]
Since we announced our decision in this matter, we have given further consideration to the question of the appellant’s place of residence. We had made it a condition of the probation order that the appellant reside with Curtis Charles. We heard the appellant’s expression of a preference for living with his son or in another property that he owns.
On reflection, we think it better that he be given a choice as to which of the options he chooses in terms of where he lives. For that reason we have had this matter recalled for the purpose of amending our order so as to delete the term that the appellant reside with Curtis Charles. The order is amended accordingly.
| Home |