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SOLOMON, WINSTON (Appellant) vs. THE STATE (Respondent) [1999] TTCA 1 (11 June 1999)

REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

CrA No. 38 of 1996

WINSTON SOLOMON

Appellant

And

THE STATE

Respondent

APPEARANCES:

Mr. D. Allum, S.C., Mr. B. Dolsingh,

Mr. R. Rajcoomar and Mr. R. Persad

for the Appellant

Mr. A. Carmona and Mr. G. Henderson

for the Respondent

CORAM:

M.A. de la Bastide C.J.

R. Hamel-Smith JA

J. Permanand JA

DATE DELIVERED:

11 ^th June, 1999.

J U D G M E N T

Delivered by M.A. de la Bastide C.J.

The appellant was convicted of the murder of his wife. The evidence against him was very strong. The attack which resulted in his wife’s death some nine days later was witnessed by an off-duty policeman, P.C. James, who was the main witness for the prosecution. P.C. James described how he saw the appellant first cuff his wife in the face. James identified himself to the appellant and remonstrated with him, but the appellant proceeded to cuff his wife again, this time in the stomach. James tried to restrain the appellant, but the appellant produced a small cutlass and made two stabs at James, who pulled away and fell in a drain. The woman ran a few steps before falling on the roadway. The appellant then stabbed her several times with the cutlass. James picked up a piece of wood and approached the appellant with it, ordering him to stop. The appellant then threw the cutlass away in a nearby yard. James arrested and cautioned him and informed him of his rights, whereupon the appellant said: “Darkie, I don’t care if you kill me because I make up my mine to kill she”. James then took the appellant to the police-station, returned to the scene and retrieved the cutlass which was spotted with blood. Another police officer, Sgt. Marcelle, gave evidence that the appellant admitted to him that the cutlass was his.

The appellant’s defence consisted of what we can now describe as a ‘cock and bull’ story. It never had the remotest chance of being accepted by the jury. He claimed that his wife had met him at his place of work that evening and they had gone to her grandmother’s house where she had been staying since they had separated some months before. Their intention was to go together back to his home to spend the weekend. Outside the grandmother’s yard a slim, tall, dark man approached. His wife introduced the man to him as a friend, and him to the man as her husband. The man annoyed him by talking to him as though he had no right to be there. They had something of a quarrel, but the appellant left to go and buy something for his wife to eat. On his way back to the spot where he had arranged to meet his wife, he heard a scream and saw the man whom his wife had earlier introduced to him, come towards him. The man made a swipe with a knife at him, but he evaded it. The man then turned and ran off. The appellant chased but did not catch him. While doing so he saw his wife bent over a fire-hydrant. He returned to her and people who had gathered, assisted him in putting her into a car. About that time P.C. James came on the scene. The appellant told him what had happened, but James insisted that he accompany him to the police-station to give a statement. He complied. He claimed that P.C. James had been involved with him in trafficking drugs and that they had fallen out as a result of the appellant’s failure to pay James for drugs he had received. It was suggested to James by counsel for the appellant that it was out of spite that he had concocted the story of having seen him stab his wife. The appellant also denied that the cutlass belonged to him or that he had admitted to Sgt. Marcelle that it did.

The jury found the appellant guilty of murder and he was sentenced to death. He appealed his conviction to this Court. When the appeal was heard, the same counsel who had appeared for him at the trial, announced his appearance for the appellant, informed the Court that he could find no arguable ground of appeal and sought leave to withdraw the application for leave to appeal. In those circumstances, the application for leave to appeal was dismissed.

On further appeal to the Privy Council, however, a number of new grounds were argued. Their Lordships held that there was substance in some of these. Thus they held that hearsay evidence had been wrongly admitted and that the judge had erred in making certain comments in the course of his summing-up. Their Lordships nevertheless held that these irregularities had not resulted in any injustice and did not warrant quashing the conviction.

The appeal succeeded, however, on a different ground. New material was put before the Board which suggested that at the time of the killing the appellant suffered from a major depressive illness. This material was for the most part not put before the jury or known to defence counsel. In those circumstances, the appeal was allowed and the matter remitted to us to examine any issues arising as a result of the new evidence regarding the appellant’s mental state. In fact, before their Lordships counsel for the State agreed that that course should be followed. As a result, the order made by the Privy Council was a consent order, except for that part which directed that the appellant should be represented before us by senior counsel. Counsel for the State did not consent to that part of the order, although he did not object to it either.

It was also argued that the judge had erred in failing to leave the issue of provocation to the jury. Their Lordships did not reach a conclusion with regard to this ground, but left it to us to do so as the matter was not fully argued before them and they considered that the new evidence with regard to the appellant’s mental state at the material time might have some bearing on whether he lost his self-control.

In the course of their judgment their Lordships commented unfavourably on the clerk having been permitted by the judge at the trial to ask the jury “Do you wish to retire to consider your verdict?” Their Lordships referred to an earlier judgment of the Board in Crossdale v. The Queen [1995] 1WLR 864 in which it was held that such a question asked after a summing-up in which the judge had heavily criticised the defence, was objectionable because it might convey to one or more of the jurors the suggestion that in the circumstances of the case they did not need even to retire in order to reach a verdict of guilty. We think we should explain why a question in the form of that put to the jury by the clerk in this case (and by the judge in Crossdale) is asked in our jurisdiction. Section 26 (2) of the Jury Act, Chap. 6:53 provides:

“(2) The verdict of the jury, whether on consultation in the jury-box or after the jury have retired and been enclosed, shall be returned by the mouth of the foreman of the jury in the presence of the other jurors. When the jury are not immediately prepared to return their verdict, the Court may direct them to retire and be enclosed.”

That section seems to require that the jury be given the option of giving their verdict there and then, before they are permitted to retire. There is no reason why this cannot be done without conveying to the jury the impression that it is such an open and shut case that they need not retire. With this in view, judges have been advised to adopt the following course: at the conclusion of the summing-up the judge should say to the jury words to this effect:

“Members of the jury, the law requires that you be now given the option of either returning a verdict without retiring or retiring to consider your verdict. This option is given to the jury in every case”.

The clerk of the Court should then put the following question to the jury: “Members of the jury, do you wish after consultation to return a verdict immediately or do you wish to retire to consider your verdict?”

I turn now to their Lordships’ order. The relevant part of the order reads as follows:

“The Lords of the Committee ... do allow the appeal set aside the judgment of the Court of Appeal of Trinidad and Tobago dated 29th November, 1996, and remit the case to the Court of Appeal (1) to consider (a) the alleged non-disclosure of information relating to the appellant (including records reports and medical evidence from St. Ann’s Hospital the Port-of-Spain General Hospital the Prison Medical Officer and Prison Authorities) and (b) the effect of any evidence (including any fresh evidence) relating to the Appellant’s mental state at the time of his conviction (in particular on the following issues (i) diminished responsibility (ii) insanity (iii) fitness to plead (iv) provocation or (v) any other matter arising from such evidence as to his mental state)and (2)(a) to decide whether the Appellant’s conviction should be quashed and if so, whether a verdict of manslaughter should be substituted or a retrial ordered or (b) make such other Order as the Court sees fit”.

We felt some concern about the direction to consider the effect of the evidence relating to the appellant’s mental state at the time of his conviction in relation to:

(i) diminished responsibility;

(ii) insanity;

(iii) fitness to plead; and

(iv) provocation.

In relation to (i), (ii) and (iv) the material time for considering the appellant’s mental state would be the time when the offence was committed, not the time when he was convicted. In relation to (iii), the material time would strictly speaking be when he was arraigned. We cannot see how the appellant’s state of mind at the time of his conviction is germane in any way to the question whether the appellant’s conviction should be quashed. Accordingly, despite the terms of their Lordships’ order, we propose to consider the impact of the new evidence on the appellant’s mental state at the time of the offence in relation to possible defences of diminished responsibility, insanity and provocation and at the time of his arraignment in relation to his fitness to plead. Counsel on both sides agreed that we should adopt this course, and we are satisfied that this is what their Lordships must have intended.

Counsel for the appellant did not suggest that the material now before us provided any basis for believing that the appellant was insane in the M’Naghten sense at the time of the offence, or that he was unfit to plead when called upon to do so. Neither suggestion would in any event have been supported by the new evidence. Counsel for the appellant also expressly conceded that the judge at the trial was not required on the evidence to leave the issue of provocation to the jury. Again we would have so held in any case. Counsel did not submit before us that the new evidence would have made it necessary for the judge to leave the issue of provocation to the jury but we are required by the order of the Privy Council to consider this question.

It does seem to us that having regard to the terms of their Lordships’ order, we do not have to consider the admissibility of the new evidentiary material that has been produced to the Board and to this Court. Our understanding of their Lordships’ order (though not shared by Mr. Allum) is that we must consider all such evidence – provided only that it relates to the mental condition of the appellant or to non-disclosure. This we can only do if we treat it as admissible for the purposes of the appeal. On the basis of that evidence we must decide whether the appellant’s conviction should be quashed, and if so, whether to substitute a verdict of manslaughter or order a re-trial.

There were three notices of motion filed before us. By the first, dated the 12th February, 1998, the appellant sought an order for disclosure of documents relating to the admission of the appellant to the General Hospital on a number of occasions, his proposed transfer to the St. Ann’s Hospital on two of these occasions, and his eventual admission to the St. Ann’s Hospital at a later date. The appellant also asked for leave to amend his grounds of appeal and leave to adduce further evidence as appropriate in the light of the documents disclosed. It was not necessary for us to make any order for disclosure as the State voluntarily disclosed a number of documents and Mr.Allum informed us that he was satisfied with the disclosure so made.

By the other two motions, dated respectively the 26th and the 31st March, 1998, the appellant sought leave to adduce fresh evidence, consisting of a psychiatric report from Dr. Nigel Eastman dated the 10th March, 1998, and an affidavit sworn by the appellant on the 31st March, 1998.

Given our interpretation of the Privy Council’s order as explained above, we do not consider that we have any option but to admit into evidence and consider both the new psychiatric report and the appellant’s affidavit in so far as the latter bears on the appellant’s mental condition or the issue of non-disclosure. Indeed, although no formal application was made to introduce before us the evidence that was looked at by the Privy Council in relation to these issues, we think it is clearly our duty to examine that evidence as well and to take it into account in coming to our decision.

It is necessary to summarise first the documentary evidence that was before the Privy Council. There was firstly an affidavit sworn to by the appellant on an unspecified date in November, 1997. This affidavit contained an account of the appellant’s unhappy childhood which involved his being deserted by his mother on several occasions and being physically and emotionally abused by her. He spent two periods living with his great grandmother in Tobago and at the age of 12 he was put out of his mother’s house and thereafter lived on the streets for four years. By this time he had already attempted suicide unsuccessfully on three occasions - firstly by attempting to drown himself, then by trying to cut his Achilles tendon with a cutlass, and thirdly by drinking a poisonous substance. During the four years he was on the streets he worked at a tyre shop. At age 16 he got a job as a security guard. He got married and his wife bore him three children. His in-laws nagged him mercilessly. On the 3rd January, 1992, his wife left him taking their three children with her. He became depressed and again attempted suicide, this time by drinking a bottle of rum. As a result he was admitted to the General Hospital, Port-of-Spain for treatment and psychiatric evaluation. There followed the incident on the 1st August, which resulted in his wife’s death, after which he was arrested and detained at the Besson Street Police Station. On the 3rd August, 1992, he took an overdose of tectracycline tablets. He was taken by the police to the Port-of-Spain General Hospital, and was referred by a psychiatrist there to the St. Anns Hospital. He was not, however, admitted to St. Anns Hospital for some unexplained reason. On the 17th August, 1992, he was again admitted to the Port-of-Spain General Hospital after yet another suicide attempt, this time by drinking disinfectant. He was again seen by a psychiatrist and referred to St. Anns Hospital, but again he was not admitted there.

His next admission to the Port-of-Spain General Hospital was on the 13th July, 1993, after again attempting suicide by taking an overdose of tectracycline and other tablets. He was seen by a psychiatrist who again referred him to the St. Anns Hospital for further psychiatric treatment.

The referral was written by hand on a printed hospital form and signed by the referring doctor. The patient’s address is given as ‘Besson Street Police Station’ and the diagnosis is “major depression”. In the space headed “Summary” the following note was written:

“Dear Doctor,

Kindly assess and manage this patient who has a history of suicidal behaviour and is now depressed. He is discharged to the custody of the Commissioner of Prisons.

Thank you.”

There is also a notation at the foot: “Seen 93/7/19”.

There was a covering letter dated 16 ^th July, 1993, written on behalf of the Head of the unit in whose care he had been placed, to the Psychiatric Consultant at St. Ann’s Hospital. It read:

“Dear Sir/Madam,

This is to inform you that Mr. Winston Solomon was admitted to this hospital under the care of Professor Bartholomew’s unit for ingestion of tectracycline and some other unknown antibiotic together with Eusul [?] in an attempt to commit suicide. He was treated by us and thought to be medically stable and fit for discharge. We ask the psychiatrist from ward to review him and they thought that he needed to be admitted and managed at St. Anns Hospital. Enclosed is a letter from them. Thank you for your kind co-operation.”

Copies of these documents (which were annexed to the appellant’s affidavit) were apparently obtained by him at the time and were shown by him to the officer in charge of the Prison Infirmary. That officer arranged for Dr. Gerard Hutchinson, Acting Registrar at the St. Anns Hospital, to examine the appellant. As a result of his examination, Dr. Hutchinson wrote a report, a copy of which was also annexed to the appellant’s affidavit.

This report is dated the 24th November, 1993, and is addressed to the Prisons Medical Officer, State Prison, Frederick Street, Port-of-Spain. It reads:

“Dear Doctor,

Re Winston Solomon, 28 yrs.

This man was seen on 27/9/93. He is charged with the murder of his wife. He has been imprisoned by (sic) fourteen (14) months.

He has no significant past psychiatric history and denies any history of substance abuse. He however has attempted suicide several times. He also claims to have a positive family history of mental illness - cousins and aunt.

His three (3) children are now in an orphan home. He admits to being impulsive and has symptoms suggestive of major depression.

He was prescribed tritriptyline [?]- 25 mg. daily and 50 mg. at night.”

The letter itself indicates that a carbon copy was sent to the Commissioner of Prisons at the State Prison, Frederick Street, Port-of-Spain.

Between September, 1992 and February, 1996, when he was convicted the appellant was kept in the Infirmary at the State Prison in Port-of-Spain. He was given various anti-depressant drugs including Chlorpromazine and Atrine. The appellant’s London solicitors obtained a copy of the medical report from the General Hospital. This report was also exhibited to his affidavit. It is dated October 24, 1997, and records his admissions to the hospital on the 3rd and 17th August, 1992, following upon suicide attempts and his referral on both occasions to St. Anns Hospital. It also records that following the first admission, the psychiatrist who examined him stated that he “exhibits violent behaviour”. There was another admission from the 14th to the 16th June, 1993, but this was for an attack of shortness of breath. No abnormalities were found. There are also recorded his admission from the 13th to the 16th July, 1993, after digesting tectracycline and other unidentified tablets and his referral to St. Anns Hospital for treatment. The report also records that on the 18th November, 1995, he was admitted for chest pains but no cardiac or respiratory abnormalities were found and he was discharged on the 20th November, 1995.

The Judicial Committee also had before it the report of a psychiatrist, Dr. Eastman, who is not only a highly qualified and experienced psychiatrist, but also a barrister-at-law. Dr. Eastman gave his report without having seen the appellant. He based his report largely on the appellant’s affidavit and the evidence which the appellant gave at his trial. The report took the form of answers given by Dr. Eastman to a number of questions framed by counsel for the appellant. On the basis of the documents before him Dr. Eastman came to the following conclusions:

(1) That it was very likely that the appellant did have a history of mental illness. In coming to this conclusion Dr. Eastman relied especially on the times he was admitted to the General Hospital and referred by the doctors there to the St. Anns Hospital, the drugs which were prescribed for him, the diagnosis of “major depression”, which suggested not a neurotic mental illness but psychotic depression, his long history of suicidal behaviour, particularly in childhood, the abuse which he suffered as a child and his mental and emotional response to that.

(2) That there was sufficient evidence to make it more likely than not, that the appellant was mentally ill at the time of the offence. In this connection the doctor relied on his tendency to depressive illness, his estrangement from his wife and her departure with the children, his attempted suicide in February 1992 and again shortly after his wife was killed and the circumstances in which he was alleged to have killed his wife, that is, in the presence of P.C. James. Alternatively, he found that these matters should have been investigated further prior to trial in order to come to a more definitive conclusion.

(3) That the depressive illness from which the appellant was suffering with or without the brain damage which he may have suffered as a result of a car crash which he claimed to have caused deliberately in yet another suicide attempt, would amount to “abnormality of mind” in terms of the English provision which corresponds with our section 4A of the Offences Against the Person Act, Chap. 11:08. The incident of the car crash was not mentioned in the appellant’s affidavit, but is mentioned in a document entitled “Chronology On The Medical Issue” which was one of the documents put before the Judicial Committee. It was alleged to have occurred in 1983 or 1984. In connection with the possibility of brain damage, Dr. Eastman recommended that this should be investigated by means of a brain scan, electroencephalogram and neuro-psychometric test. Dr. Eastman conceded that in connection with brain damage he was dealing with possibilities rather than probabilities, but he said that such damage could have resulted in an abnormally low threshold for violence and could also have adversely affected his judgment and his memory. Turning to the English equivalent of section 4A of the Offences Against the Person Act, Dr. Eastman conceded that in relation to “the second limb” of the section, i.e. whether the appellant’s mental responsibility for his acts was substantially impaired, this is usually a question for a jury. He also conceded that two factors made it more difficult for him to reach a definite conclusion about this, namely, the absence of a clinical interview with the appellant and the absence of any admission of the offence by the appellant (both of which omissions have since been supplied). The doctor pointed out, however, that depressive illnesses affect adversely a person’s judgment and volition, increase irritability and lower the threshold for violence. He considered it more likely than not that having regard particularly to the circumstances in which he killed his wife, that he did so under the impulse of some abnormality of mind. If brain damage were found, that would tilt the balance even further in that direction. The doctor went on to say that it was not possible to exclude the possibility that the appellant might have been “frankly psychotic, that is profoundly out of touch with reality at the time he committed the offence”. This would bring him close to the realm of legal insanity.

4) Dr. Eastman was very critical of the prison authorities, and in particular the prison doctor, for not bringing to the attention of the court the appellant’s history of mental illness. The doctor also expressed his view on whether the appellant was fit to be executed, but that is an issue which does not arise on this appeal.

We have had the benefit of a second report from Dr. Eastman dated 10 ^th March, 1998, which was annexed to an affidavit sworn by the appellant’s local instructing attorney, Mr. Bindra Dolsingh, on the 26 ^th March, 1998. By the time Dr. Eastman wrote this report the two major constraints under which his previous report had been written, had been removed. Firstly he had had the opportunity of clinically examining the appellant at a long interview held with him at the prison on the 17th February, 1998. Secondly, the appellant had admitted killing his wife. This admission was later incorporated in an affidavit sworn by the appellant on the 31st March, 1998. In this affidavit he says: “I am completely satisfied that I am responsible for killing my wife although I do not remember the details of what I did to her on that day”.

At Dr. Eastman’s interview with the appellant, a local psychiatrist, Dr. Ghany, was also present. Dr. Ghany had originally been instructed by the appellant’s attorneys to examine him, but according to Dr. Eastman it was by chance that Dr. Ghany happened to be at the prison infirmary when Dr. Eastman’s examination took place. The purpose of Dr. Ghany being present during the interview was to assist Dr. Eastman with interpretation of language and culture. The appellant gave Dr. Eastman quite a detailed account of the physical abuse to which he was subjected as a child by his mother and step-father, and of his frequent moves from one home to another. The only person who was kind to him as a child was his grandmother who died a few weeks after his admission to hospital in February, 1992. The appellant claimed that he was sexually abused by a man over a period of about a year. He recounted two attempts at suicide which were not mentioned in his first affidavit. The first was by deliberately eating a can of cooked beef which he believed to be toxic and the other was by diving off a roof. These incidents allegedly took place when he was 8 and 11 years old respectively. He also described his attempt to commit suicide as an adult by deliberately crashing a car, at a time when his wife was threatening to leave home for Carnival. He claimed that after this crash, he suffered from headaches, black-outs, memory loss and increased irritability. The appellant showed the doctor ‘what could have been a very small scar’ on his left heel and a ‘very obvious’ one on the back of his head. He related these to his attempt at severing his Achilles tendon and the car crash respectively. According to the appellant, he and his wife usually quarrelled around Carnival time when she would find some pretext for leaving him and placing the children with her mother. He said he only suspected her of infidelity from 1991. His wife left him in January, 1992 and took the children and put them to live elsewhere. She did not allow him to see the children after the separation. The appellant claimed that after his wife left him he started suffering symptoms of depression, including loss of appetite and weight, sleeplessness and irritability. At many points in the interview the appellant became very tearful. He mentioned another suicide attempt, which occurred before the one which prompted his admission to hospital on the 14th February, 1992. On this occasion he attempted to drink disinfectant in a glass of milk, but yet again he was saved, this time by a neighbour who knocked the glass out of his hand. He described yet another suicide attempt when he was going to jump from a window high up in the hospital but was persuaded not to do so by the doctors. Apparently the hospital notes confirm that such an incident did take place. The appellant gave an account of events on the night his wife was killed, which was quite different from that given in his evidence. The two accounts are similar up to the time when he and the tall dark slim man quarrelled outside his wife’s grandmother’s home. According to the new account, he did not leave then and go to buy food as he claimed in his evidence; but his wife taunted him saying that his children were not his and that he and she were finished. He described sitting in the road in the hope that a car might hit him. He also contemplated jumping off a bridge into the ‘dry-river’. At a certain point he blacked out and had no recollection of killing his wife or for that matter, seeing her killed. He accepted that he must have killed her. He only came to his senses after he had been arrested. He said that he made up the story he told in evidence because other prisoners advised him to do so. An important new document which Dr. Eastman then had before him was an extract from the medical records of the Port-of-Spain hospital dealing with the appellant’s stay there in February, 1992. According to these records (which incidentally we were not shown) he was brought in very drunk and after he revived, he indicated that he had drunk a bottle of rum in an effort to kill himself and spoke of difficulties he had with his wife. An entry on the 17th February, 1992, recorded that he had to be persuaded to come off the ledge outside Ward 16 and that he was emotionally unstable at that time. The records also indicate that the doctors were satisfied that he was suffering from depression and had suicidal tendencies which warranted his being kept under observation at all times. By the 20th February, 1992, his attitude seemed to have improved considerably. He was discharged on the 24th February, 1992. The diagnostic impression of the doctors was ‘adjustment disorder, depressed mood, marital discord’.

Dr. Eastman pointed out that the appellant at a very early age showed a substantial mental abnormality. He thought that the appellant’s repeated efforts to kill or harm himself in early childhood, were very significant and suggested extreme and profound emotional disturbance. His history showed that he had had depressive symptoms from childhood and he would be predisposed to mental disturbance in adulthood most likely of a depressive nature. His history of abuse made him particularly vulnerable to emotional loss such as the loss of a partner or of contact with his children, and also to a sense of failure in relation to the upbringing of his own children. Dr. Eastman’s opinion was that it was highly likely that from an early age the appellant had been the subject of substantial depressive symptoms, sufficient at times for a diagnosis of mental illness and that from the time his wife left with the children in January, 1992, he developed a depressive illness in the category of ‘major depressive disorder, recurrent’. Dr. Eastman appears to have satisfied himself from the way in which the appellant answered the questions which he asked him, that the appellant’s account of his symptoms was genuine and not fabricated. The doctor recognised the possibility that the appellant might have developed his depressive illness after, and as a result of, killing his wife, but for various reasons which he gave the doctor discounted that possibility. Dr. Eastman gave some seven factors which he claimed validated the symptoms the appellant said he experienced between February and August, 1992. The only factor which pointed in the opposite direction according to Dr. Eastman, was found in the medical records for February, 1992, which referred to: “adjustment disorder” and “depressed mood” but fell short of diagnosing a “major depressive episode”. The doctor suggests, however, that the explanation for this may be that after his hospitalization in February, 1992, the continued estrangement of his wife and absence of contact with his children coupled with the death of his grandmother, may have caused serious deterioration in his mental condition by the time of the offence. The doctor’s final conclusion is that there remains very strong evidence that at the time of the offence the appellant was suffering from a major depressive illness. With regard to the possibility of the appellant having suffered brain damage as a result of the injury he received in the car crash which he claims to have deliberately caused, the doctor repeats that in order to establish conclusively whether or not there was such damage it would be necessary to subject the appellant to the three tests mentioned in his first report. He said that to his knowledge these tests were not “immediately available locally”. Without the benefit of these tests Dr. Eastman says there is ‘a significant chance’ that the appellant does have some underlying brain damage as a result of a head injury and that such damage could have legal significance to the issue of his diminished responsibility. Such damage would be consistent with the symptoms which the appellant described, including a proneness to anger. With regard to diminished responsibility, the doctor again expressed the view that the depressive illness was an abnormality of mind within the meaning of the relevant section and did amount to a disease. Furthermore, he considered that there was much evidence to support the conclusion that the depressive illness resulted in “substantial impairment of mental responsibility”. In this connection the doctor points out that people suffering from depressive illnesses have a substantially lower threshold to violence and if the jury accepted his account of having his hopes of spending a weekend with his wife dashed by the intervention of the other man and that his wife taunted him with the children not being his, this could easily have been the trigger which in combination with his progressive illness may have resulted in a substantial impairment of his mental responsibility. With regard to the possibility that the appellant may have suffered brain damage which was relevant not only to a defence of diminished responsibility, but even to a defence of insane automatism, Dr. Eastman said that there was insufficient evidence to conclude that he was in an insane automatism. He did not find that either the amnesia from which the appellant reportedly suffered in relation to the killing of his wife or the history of past episodes of blackouts provided a sufficient basis for any conclusion that he was suffering from such an insane automatism. With regard to provocation, the doctor who as mentioned is also a barrister, was inclined to treat the appellant’s proneness to anger resulting from his abused childhood and his tendency to depression, particularly under the stimulus of an emotional loss, as mental characteristics which could be attributed to the reasonable man for the purpose of judging whether the reasonable man would have lost his self-control in the way in which the appellant may have done, given the nature of the provocation to which he claimed he was subjected. The doctor was satisfied that on the account which the appellant gave him, the sequence of events that evening did cause him to lose his self-control. The doctor’s conclusion with regard to the impact of his findings on the issue of provocation is based on the account of the incident which the appellant gave to the doctor and which as already pointed out, is markedly different from that which he gave to the Court.

Dr. Eastman concludes in summary that there is strong evidence that the appellant suffered from a serious mental illness at the time of the offence and possibly from brain damage. Though cautiously phrased, his opinion appears to be that it is likely that the appellant was suffering from ‘diminished responsibility’ when he killed his wife. He also found strong evidence that the appellant had ‘mental characteristics’ which would have made him substantially more vulnerable to the provocation which he now alleges against his wife and would have substantially increased the likelihood that he did in fact lose his self-control. The doctor recommends that if his conviction is not reduced to manslaughter, the ‘organic investigations’ of the appellant which he proposed, be fully carried out, for without them the medical assessment of the appellant would be incomplete.

The defence which the appellant ran at his trial did not involve any reliance on mental abnormality though there was passing reference to it in his evidence. In his examination-in-chief in recounting what happened after his arrest, he did relate that he was hospitalised after “taking in”. He explained what he meant by “taking in” in this way: “I suffer with high blood pressure, heart and mental depression”. He was questioned briefly about his mental depression. He said that he had suffered with it since age 11, that he had been medically treated for it at the psychiatric ward of the Port of Spain General Hospital and that this had happened on more than one occasion since he was a boy. Later in his examination-in-chief he returned to the subject and said that he had been sent to the General Hospital for the “same mental depression”. He further explained that although he had been referred by the doctors at the General Hospital to the St. Ann’s Mental Hospital for treatment, he had never actually been taken to the St. Ann’s Hospital. Then he said he was subsequently kept in the infirmary at the Port of Spain prison. Later in the course of his cross-examination he did refer to the fact that he was in the prison infirmary and taking medication that they were giving him for “mental depression and rest”. In two letters written to solicitors in England, Mr. Brooks who appeared for the appellant at his trial explained why he did not run a defence of diminished responsibility. These letters are dated respectively the 2 ^nd July and the 7 ^th October, 1997. In his first letter he said that the issue of diminished responsibility did not arise since the appellant denied any involvement in the killing of his wife and that is why he did not follow-up the written instructions which he had received the day before the appellant gave evidence with regard to his mental history. His instructions were to the following effect: “He had sought medical treatment in his earlier years as a child for bouts of depression. … This situation no longer obtained”. When he asked the appellant for “medical proof” of his illness he was unable to provide any. In the second letter Mr. Brooks said that Dr. Hutchinson’s report was never made available to him and that if it had been, he would have “approached the matter differently”. In a subsequent letter dated 4 ^th November, 1997, Mr. Brooks confirmed that he also never knew of the existence of the referral to the St. Ann’s hospital and the accompanying letter both issued from the Port of Spain General Hospital in July 1993.

This then is the evidential material on the basis of which we have to decide whether or not to quash the appellant’s conviction for murder and if we decide to quash it, whether to substitute a conviction for manslaughter or order a re-trial.

If the matter had not already been dealt with by the Privy Council we would have had to consider whether the appellant ought to be allowed to raise on appeal the defence of diminished responsibility which he did not run at the trial and whether he should be permitted to introduce new evidence in support of it. Counsel on both sides have proceeded on the basis that these questions are still open and to be answered by this Court. Although the matter is not clear, it does seem to us (as we have already explained) that they have already been answered in favour of the appellant by their Lordships in the Privy Council. It would appear to be implicit in the judgment and order of the Privy Council, that their Lordships have decided that the appellant should be allowed to raise not only the issue of diminished responsibility but also any other issue to which the appellant’s mental condition is relevant. They also appear to have decided not only to admit the written evidence which was put before them relating to the appellant’s mental condition and non-disclosure, but also that we should receive any further evidence put before us touching these topics. In any case it is of no practical importance whether our interpretation of the Privy Council’s judgment and order is correct since if the matter were open, we would have come to the same conclusion as that which, rightly or wrongly, we understand their Lordships to have reached. In case we have misunderstood the Privy Council’s intention, however, we will give our own reasons for reaching this conclusion.

The appellant starts off with a number of hurdles to cross. The first is the general principle that an accused is required to bring forward all his defences at the trial. The Court sets its face against any attempt to try out one defence and when that fails, to raise another on appeal.

There was a strong statement of this principle by Lord Taylor in Ahluwalia v. R. (1993) 96 Crim. App. R.133 when he said (at 142):

“It cannot be too strongly emphasised that this court would require much persuasion to allow [a defence of diminished responsibility] to be raised for the first time here if the option had been exercised at the trial not to pursue it. Otherwise, as must be clear, defendants might be encouraged to run one defence at trial in the belief that if it fails, this court would allow a different defence to be raised and give the defendant, in effect, two opportunities to run different defences. Nothing could be further from the truth”.

The principle was restated by Lord Bingham C.J. in R. v. Campbell [1996] EWCA Crim 1206; (1997) 1 Cr. App. R. 199 (at 204) in these words:

“It is not permissible to advance one defence before the jury and when that has failed to devise a new defence perhaps many years later, and then seek to raise that defence on appeal”.

Moreover, at his trial the appellant denied under oath any responsibility for his wife’s death and in an attempt to negative the evidence of P.C. James, made the gravest allegations against him. Now in order to run this new defence of diminished responsibility, the appellant must admit that this was all a pack of lies invented by him to secure an acquittal. Another hurdle in the appellant’s way is the general principle of common law that an appellate court will not allow fresh evidence to be introduced on appeal if it was available at the time of trial. In this case the appellant obviously knew his own medical history, including not only his several hospitalisations, but also his string of suicide attempts. These he appears not to have disclosed even to his attorney at the trial. Had he given his attorney fuller instructions and told him about the letters and reports from the doctors at the Port of Spain General and the St. Ann’s hospitals, then his attorney might well have requested them from the State. He may not have had the advantage of being examined by Dr. Eastman, but there is no reason to believe that he would have been denied a psychiatric examination if one had been requested by his attorney. There is nothing in Dr. Eastman’s reports to suggest that his mental condition in any way impaired his ability to give instructions to his attorney. Accordingly if the full picture of his mental history and condition was not put before the jury at his trial, he has to a large extent only himself to blame.

Neither of the principles referred to above, however, is absolute. In a number of cases the Court of Appeal in England has allowed the defence of diminished responsibility to be raised for the first time on appeal. Ahluwalia itself is a case in which diminished responsibility was permitted to be raised for the first time on appeal, although in that case the appellant had at the trial admitted responsibility for the killing. In R. v. Borthwick , (unreported but summarised in [1998] Cr. Law Review 274) however, the Court of Appeal in England substituted a verdict of manslaughter for one of murder on the basis of diminished responsibility, notwithstanding that the defence run at the trial not only did not raise diminished responsibility but involved a denial of any responsibility for the killing.

Section 47 of the Supreme Court of Judicature Act. Chap.4:01 gives the Court of Appeal power to receive the evidence of a competent witness “if it thinks it necessary or expedient in the interest of justice”. It enables us to admit evidence which does not satisfy the common law requirement of not having been available at the trial. See the judgement of Gopeesingh J.A. in Basdeo Baldeo v. The State Criminal Appeal No. 111 of 1990 (unreported).

The flexibility of the Court of Appeal in this connection is exemplified by the following dictum of Hobhouse L.J. (as he then was) in the unreported case of Heather Arnold (1996): “It is thus possible for the Court of Appeal to receive fresh evidence after a defendant has deliberately not run a particular defence at trial and even where the predicament has arisen from his having told lies at an earlier stage”. The situation there described mirrors the one with which we are faced in the instant case.

There are basically two reasons why we think this case should be treated as an exception to both these general principles. The first is the cogency of the new evidence relating to the appellant’s mental condition. Its cogency is derived from two sources. One is the qualifications of Dr. Eastman and the quality of his reports. The second is the contemporaneous medical records which not only confirm some of the suicide attempts narrated by the appellant and the gravity of the depressive condition from which he suffered, but also confirm that his depression and suicidal tendencies had manifested themselves prior to his wife’s murder, that is, in February 1992, shortly after his wife had left him.

The second reason is the failure of the State to disclose to the appellant’s attorney the information and documents which the police and prisons authorities had touching the appellant’s mental history and condition. Obviously the police knew of his two suicide attempts in August 1992, as they occurred while he was in their custody. They had him hospitalised and no doubt guarded him while he was in hospital. Copies of the written referrals in July 1993 from the Port of Spain General Hospital to the St. Ann’s hospital were in the possession of the prison authorities (among whom I include the prison doctor). In fact it was they who arranged for the appellant to be examined by Dr. Hutchinson whose report was contained in a letter addressed to the Prisons Medical Officer and copied to the Commissioner of Prisons. These documents which the prison authorities had, and the information which the Besson Street police had about the appellant’s two suicide attempts, ought to have been passed on by them to the D.P.P., who in turn ought to, and presumably would, have disclosed them to the appellant’s attorney. None of this was done and as a result this highly relevant material never reached defence counsel.

I do not think that in the circumstances of this case, the State can claim to be excused on the ground that the material in question was not in the possession of those in charge of the prosecution. In Blackledge (1996) 1 Cr. App. R. 326 it was held that for the purposes of disclosure, material in the possession of any of a number of Government departments involved in the granting of certain licences should be regarded as in the possession of the Crown as “an undivisible entity”. We do not understand this case to decide that failure to disclose any material in the possession of a Government department amounts in all cases to a material irregularity. We think such a proposition would be far too wide. But where as here, the persons in whose possession the material is, know of the pendency of the prosecution and appreciate, or should appreciate, the relevance of the material in their possession, then non-disclosure to the defence does amount to a material irregularity of which the appellant is entitled to complain if it has caused him prejudice. In R.v. Ward (1993) 96 Cr. App. R. 1 it was held by the Court of Appeal that the failure to disclose evidence, some in the possession of the police, some in the possession of the scientists who had assisted the police in their investigation and some in the possession of the D.P.P., constituted “material irregularities at the trial” (see Glidewell L.J. at page 67). Similarly, we regard the non-disclosure of the information and documents in the possession of the police and the prison authorities as material irregularities.

Did these cause the appellant any prejudice? We think there is substance in Mr. Brooks’ claim that if he had been aware of the medical referrals and reports, he might well have approached the appellant’s defence differently. He obviously would have had in the final analysis to accept the instructions which he received from the appellant as to what happened immediately before his wife was killed, if he persisted in them. If he had seen the medical documents, however, he would have realised that there was a solid basis for a defence of diminished responsibility. Presumably he would have explained that to the appellant and offered him what might have been an acceptable alternative to relying on the far-fetched tale which he told the jury.

Non-disclosure is of course a separate ground on which the conviction might be quashed. But having regard to the very real possibility, if not probability, that but for the non-disclosure the defence of diminished responsibility would have been run in this case, it is also highly relevant to whether the appellant should be allowed to raise that defence at this stage. In cases like this, a Court of Appeal will obviously attach a lot of importance to whether or not the decision not to run a defence was taken after the defendant had been fully and properly advised. In Blackledge the Court of Appeal allowed an appeal against conviction despite the appellants having pleaded guilty at the trial; one of the arguments which weighed with the court, was that the effect of the non-disclosure was to deprive the appellants of material which would “have enabled them to make properly informed decisions as to what course they should take” (page 338). On the other hand one of the factors which led the Court of Appeal in R. v. Straw [1995] 1 All E.R. 187 to refuse to allow the appellant to introduce a plea of diminished responsibility on appeal, was the fact that she had decided not to run that defence at the trial after she had been fully advised as to her position with regard to a plea of manslaughter on the ground of diminished responsibility. O’Connor L.J. said (at page 191): “In addition, it is quite plain that she was fully advised as to exactly where she stood and, although she may not have been a normal person, she was capable in law of making the decision as to how her case should be put before the court and, with full advice, she chose to do as she did”. In the instant case, because of Mr. Brooks’ ignorance of the material available to support a defence of diminished responsibility, the appellant was not fully and properly advised.

If, therefore, contrary to our view but in accordance with counsel’s, it was for us to decide whether to allow the defence of diminished responsibility to be raised and fresh evidence to be adduced in support of it, for the reasons we have given, we would have allowed the appellant to do both. We would like, however, to make one qualification and enter one caveat. The qualification is that the statements contained in Dr. Eastman’s reports of what was told him by the appellant, cannot be treated as evidence of the truth of what was said by the appellant. To the extent that any opinion was based solely on such statements, it would be inadmissible.

The caveat is against anyone treating the decision in this case as a relaxation of the general principle applicable in both the criminal and civil spheres of litigation, that a party must use the opportunity of the first trial to present the whole of his case. We have already identified one significant feature of this case which justifies it being treated as exceptional. It is what we regard as the culpable failure of the State to disclose to the defence highly relevant information and documents. But for that factor it is doubtful, at best, whether the appellant would have been allowed to raise the issue of diminished responsibility and to adduce fresh evidence in support of it. That might well have depended on whether we regarded the evidence of diminished responsibility as not merely cogent but overwhelming – and that we are not inclined to do for reasons which will be given later. We do not put this forward as a test of general application but as one appropriate in the particular circumstances of this case.

What exactly do we have to be satisfied about in order to quash the conviction in the light of the new evidence? In the course of their judgment the Privy Council said: “Thirdly, while the issue of non-disclosure of medical information regarding the appellant’s mental state will be before the Court of Appeal, it is possible that, irrespective of non-disclosure and in the light of new evidence, the conviction of murder may be unsafe”. It was pointed out by Mr. Carmona for the State, that the test whether the conviction was ‘unsafe’ is one that is prescribed by statute in England, but not in Trinidad and Tobago. In England, section 2(1) of the Criminal Appeal Act, 1968, originally read in part as follows:-

“ (1) Except as provided by this Act, the Court of Appeal shall allow an appeal against conviction if they think –

(a) that the conviction should be set aside on the ground that under all circumstances of the case it is unsafe or unsatisfactory.

…

and in any other case shall dismiss the appeal:

Provided that the Court may, notwithstanding that they are of opinion that point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no miscarriage of justice has actually occurred.”

The Criminal Appeal Act, 1995, substituted for this provision the following:-

“(1) Subject to the provisions of this Act, the Court of Appeal –

(a) shall allow an appeal against conviction if they think that the conviction is unsafe; and

(b) shall dismiss such an appeal in any other case.”

That test is different, or at least differently formulated, from ours . We have no provision corresponding to section 2 (1). The test prescribed by the relevant part of section 44 (1) of the Supreme Court of Judicature Act, is as follows:-

“The Court of Appeal in any such appeal against conviction shall allow the appeal if it thinks that … on any ground there was a miscarriage of justice.”

The Privy Council does not appear to have ever expressly adverted to the difference in terminology between the legislation in the two jurisdictions. They habitually use the English terminology of ‘unsafe’ as the criterion by which the validity of convictions in Trinidad and Tobago is to be assessed. For our part we do not think there is any difference in substance between the test prescribed by the statutory provisions in the two countries. In order to establish that there has been a miscarriage of justice, it is not necessary for the appellant to satisfy the Court of Appeal that but for some irregularity, he would have been acquitted (or found guilty of a lesser offence). It is sufficient in our view for him to persuade the Court of Appeal that his chances of securing a more favourable verdict were significantly impaired by the irregularity. Put another way, he must show that there was a reasonable prospect that if the irregularity had not occurred, the jury would have acquitted him or found him guilty of a lesser offence. By a reasonable prospect we mean in betting terms one that would not attract longer odds than 10 to l. If that test (expressed in either form) is satisfied, then in our view there has been a miscarriage of justice within the meaning of section 44(1). We venture to suggest that it is not significantly different from the test of ‘unsafe’ in the English Act.

Support for this view is provided by a dictum of Lord Hutton in R. v. Mills and Poole [1997] UKHL 35; [1997] 3 All E.R. 780(at 791e). He said:

“There is no real distinction between a material irregularity which causes a miscarriage of justice and a feature of the trial which causes a conviction to be unsafe”.

If the defence has as a result of some irregularity suffered the sort of damage which would produce a miscarriage of justice, then presumably the conviction would not be safe – and vice versa.

Applying our interpretation of section 44 (1) to the facts of this case, we do not see how it could be suggested that if the evidence now before us, had been placed before the jury and the defence of diminished responsibility left with them, there was not at least a reasonable prospect that the jury would have brought in a verdict of manslaughter. We have already examined the medical evidence in some detail and it is not necessary to go over it again. We must say that what particularly impressed us is the independent and contemporaneous evidence of the suicide attempt and the resulting hospitalisation which occurred in February, 1992, immediately after his wife had left him, taking the children with her. In all cases in which mental abnormality is relied upon, one is always alert to the possibility that the symptoms of the abnormality may be feigned or fabricated. In capital cases there is the further possibility that if genuine, they may have been produced by an appreciation by the defendant of the enormity of his crime or by the prospect of his being hanged, and so be the result, rather than a contributory cause, of the offence. The documentary evidence now available of the appellant’s hospitalisation in February, 1992, tends to negative any suspicion or suggestion that this might have occurred in the instant case. We have no doubt, therefore, that in this case the effect of not giving the jury the opportunity to consider the issue of diminished responsibility in the light of the evidence of the appellant’s mental condition and history, which is now before us, was to produce a miscarriage of justice and, therefore, on that ground as well, the conviction should be quashed. In one sense, that is a basis for quashing the conviction which is independent of non-disclosure, but in another sense, it is not, as non-disclosure is key to the appellant being permitted to raise the new ground and lead fresh evidence. It may be as well for us to state expressly that non-disclosure of itself also provides in our view a sufficient ground for quashing this conviction, as for reasons already explained, such non-disclosure constituted a material irregularity that produced a miscarriage of justice.

The Privy Council left it open to us to decide if we quashed the conviction, whether to order a re-trial or substitute a verdict of manslaughter. Mr. Allum for the appellant did not ask for substitution of manslaughter, but accepted that the proper course was to order a re-trial. Even without that concession, however, we are ourselves satisfied that that is the proper course. In coming to this conclusion we have taken into account the following factors. Firstly, many of Dr. Eastman’s conclusions are based to a greater or lesser extent on what was told him by the appellant. Only some of this is verified by his affidavit or the contemporaneous medical records, and none of it has been subjected to cross-examination. This is particularly important given the very serious damage done to the appellant’s credibility by the now admittedly false account which he gave under oath at the trial about his wife’s killing. Further, the appellant’s remarkably long record of failed suicide attempts may provide some basis for questioning whether on each of those occasions he really intended to kill himself. Again, there was some evidence at the trial of pre-meditation. We refer in this connection both to the appellant having apparently armed himself with a cutlass well in advance of the attack on his wife, and to the statement made by him to P.C. James immediately after the killing “I don’t care if you kill me because I make up my mind to kill she”. Admittedly, pre-meditation is more damaging to a defence of provocation, and is not inconsistent with the defence of diminished responsibility. It does, however, tend to negative Dr. Eastman’s theory of the ‘trigger’ for the appellant’s attack on his wife having been provided by the events which immediately preceded it. Moreover, had the defence of diminished responsibility been raised at the trial, this aspect of the matter might well have been explored in cross-examination. These are some of the reasons why we would not classify the evidence of diminished responsibility in this case as over-whelming. Further, a re-trial will give the opportunity to ascertain definitively whether the appellant is suffering from brain damage as a result of the car crash which he claimed to have deliberately caused. We strongly recommend that the State ensure that the opportunity be provided for the appellant to undergo the three tests recommended for this purpose by Dr. Eastman, that is, the brain scan, the electroencephalogram and the neuro-psychometric test. The results of these tests may not only assist the jury in arriving at a correct verdict, but should also help to indicate to the judge the proper order to make if the appellant is found guilty of manslaughter. We are also of the view that when there are substantial issues of fact to be determined, particularly in a case of murder, it is better for these to be determined by a jury rather than by an appellate court. Hobhouse L.J. (as he then was) said in his judgment in Heather Arnold (at page 15): “It is for a jury to decide contested issues of diminished responsibility when they arise”. In this case, the State does not accept that a defence of diminished responsibility has been conclusively established by the new evidence and wishes an opportunity to contest it. In this respect, this is different from a case like Borthwick in which the Court of Appeal substituted a verdict of manslaughter with the consent of the Crown. We have taken into account the time which has elapsed since the offence was committed in August, 1992, and since the appellant’s conviction in February, 1996. We have nevertheless come to the conclusion that the proper course in this case is to order a re-trial. We will direct, however, that the re-trial (as all re-trials) should be given priority and be speedily undertaken.

We must also deal briefly with the issue of provocation. As already stated, no argument was addressed to us by Mr. Allum on this issue as he accepted that the judge was right not to leave it to the jury. It is true that there was evidence of a background of marital discord and of the appellant’s wife having left him and taken the children with her, but there was no evidence of any provoking act by the wife on the night in question. Such evidence may of course be gleaned from any source, not necessarily from the accused himself. According to him, his wife introduced him to the stranger quite properly as her husband and the stranger to him as ‘a friend’. He may well have been annoyed by the man’s presence and certainly took exception to his attitude. There is no evidence of anything having been done or said by the wife, however, to cause him to lose his self-control. The testimony of P.C. James that he and his wife appeared to be arguing immediately before his attack on her, provides a basis for speculation but no evidence of a provoking act. Similarly the fact that there were multiple stab wounds inflicted on his wife suggestive of a “frenzied” attack, might have provided supporting evidence if there had been some other evidence of a provoking act, but by itself the mere ferocity of an attack cannot constitute a basis for leaving provocation to the jury. The position was stated by Lord Steyn in R. v. Acott [1997] UKHL 5; (1997) 1 W.L.R. 306 (at 313) in this way:

“It follows that there can only be an issue of provocation to be considered by the jury if the judge considers that there is some evidence of a specific act or words of provocation resulting in a loss of self-control”.

There is simply no such evidence in this case and in our view the judge was right not to leave the issue of provocation to the jury. Furthermore, evidence of the appellant’s mental condition could not fill this gap. His mental condition may have made him more prone to lose his self control, but there is still the requirement of some specific act or words calculated to trigger such a loss. It is to be noted that the only issue to which the Privy Council considered that the new evidence of the appellant’s mental condition might be relevant, was whether or not the appellant did in fact lose his self-control. No doubt their Lordships (unlike Dr. Eastman) had in mind the earlier decision of the Privy Council in Luc Thiet Huan v. R. (1996) 3 W.L.R. 45 that a mental condition which reduces a person’s ability to maintain his self control, is not a characteristic which can be attributed to the reasonable man for the purpose of determining whether a reasonable man might have reacted to the provocation in the way in which the appellant did.

The part of the new evidence that is relevant to provocation is the portion of the appellant’s affidavit which deals with events immediately preceding the offence, in particular the taunts of his wife. Had that evidence been led, then certainly provocation would have had to be left to the jury. If the appellant’s application had been merely to re-open the issue of provocation in order to lead this evidence, we have no doubt it would have failed. The effect of the new evidence, however, is to require a new trial in order that the issue of diminished responsibility can be properly ventilated. We do not think it would be feasible or proper to prevent the appellant from raising at the re-trial the issue of provocation on the basis of the new and different evidence which presumably he will then give about events immediately prior to the attack on his wife. That option will be an additional, though undeserved, bonus which it is not feasible to deny him.

For these reasons, therefore, we quash the appellant’s conviction and order that he be re-tried at the earliest opportunity.

M.A. de la Bastide

Chief Justice

R. Hamel-Smith

Justice of Appeal

J. Permanand

Justice of Appeal

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