Gouldbourne v R

• Jurisdiction: Cayman Islands
• Court: Court of Appeal (Cayman Islands)
• Judge: (Zacca, P., Taylor and Mottley, JJ.A.)
• Judgment Date: 15 April 2008
• Date: 15 April 2008

GOULDBOURNE

and

R.

(Zacca, P., Taylor and Mottley, JJ.A.)

Court of Appeal

Criminal law-diminished responsibility-expert evidence-presumption that accused of sound mind-expert psychiatric evidence to establish diminished responsibility to be given first, followed by prosecution evidence in rebuttal-irregularity if heard in wrong order ex improviso because of non-availability of defence expert but trial not necessarily unfair if circumstances explained to jury

Criminal procedure-fair trial-equality of arms-disparity between way in which evidence of witnesses heard and between number of expert witnesses on each side, no offence to principle of equality of arms if jury directed not to base decision on disparity

Evidence-expert witnesses-qualifications-whether witness qualified to be expert for judge to decide-voir dire normally unnecessary-credibility and weight of witness”s evidence for jury to decide

Held, dismissing the appeal:

(1) The conviction was safe as the trial of the appellant was not unfair. However, the correct procedure had not been followed in respect of the order in which evidence had been heard, and the judge should not have permitted the irregularity, despite the consent of all concerned. Since the accused was presumed to be of sound mind, the correct procedure would have been for the defence witness who wished to challenge this to give evidence first, followed by the witnesses for the prosecution. The principle of ex improviso did not apply and the procedural irregularity was not, therefore, justified. No prejudice had been caused by that irregularity, or by the differences in the way in which evidence was actually delivered, however, as the issues surrounding it were properly explained and left to the jury. There had been more than ample evidence to support the conclusion that the appellant was, in fact, malingering and was not suffering from an abnormality of the mind at the time of the killing and it

was therefore perfectly reasonable for the jury to reject the evidence of Dr. Bursztajn and accept the evidence of Dr. Othello and Dr. Lockhart (paras. 51–53; para. 56; para. 91; para. 93).

(2) The court had not been not wrong to refuse the application for a voir dire, as not only was the refusal within its discretion, which should be rarely exercised, but a voir dire was not required. The concerns of the defence related not, in fact, to the qualifications of Dr. Othello and the admissibility of her evidence, but rather to the weight to be applied to that evidence. While the issue of whether a witness was qualified to give evidence as an expert was for the judge to determine, the weight to be attached to the witness”s evidence was a matter for the jury. Upon proper direction by the court, the jury could not have failed to appreciate the issues relating to the expert witnesses and it was for them to decide whose evidence they accepted and what weight they attached to it (para. 62; para. 64; para. 87).

(3) The failure to grant legal aid to the defendant to call another expert in no way offended the principle of ‘equality of arms.’ The application had been made too late and, in any case, was entirely based on the disparity between the number of expert witnesses on each side, which the judge had properly directed the jury not to take into account (para. 75; para. 87).

Cases cited:

(1) Att. Gen.”s Reference (No. 82a of 2000), [2002] 2 Cr. App. R. 24; [2002] 2 Cr. App. R. (S.) 334; [2002] EWCA Crim 215, dictum of Lord Woolf, C.J. considered.

(2) Ebanks (A.G.) v. R., 2007 CILR 403, referred to.

(3) G.B. v. FranceHRC(2002), 35 E.H.R.R. 36, considered.

(4) R. v. BonythonUNK(1984), 38 S.A.S.R. 45, dicta of King, C.J. applied.

(5) R. v. Chaaban, [2003] Crim. L.R. 658; [2003] EWCA Crim 1012, dicta of Judge, L.J. considered.

(6) R. v. Day, [1940] 1 All E.R. 402; (1940), 38 L.G.R. 155; 27 Cr. App. R. 168; 104 J.P. 181; 31 Cox, C.C. 391; 162 L.T. 407, considered.

(7) R. v. G, [2004] 2 Cr. App. R. 38; [2004] EWCA Crim 1240, applied.

(8) R. v. Harris, [2006] 1 Cr. App. R. 5; [2008] 2 F.L.R. 412; (2005), 85 B.M.L.R. 75; [2005] EWCA Crim 1980, dicta of Gage, L.J. considered.

(9) R. v. Hutchinson, [1985] Crim. L.R. 730; (1985), 82 Cr. App. R. 51; 129 Sol. Jo. 700, referred to.

(10) R. v. Jisl, [2004] EWCA Crim 696, dictum of Judge, L.J. considered.

(11) R. v. Pilcher, [1974] Crim. L.R. 61; (1974), 60 Cr. App. R. 1, considered.

(12) Randall v. R., 2002 CILR 254; [2002] UKPC 19, dicta of Lord Bingham of Cornhill followed.

(13) Von Starck v. R., [2002] 1 W.L.R. 1270; [2000] 4 L.R.C. 232, dicta of Lord Clyde considered.

(14) Walton v. R., [1978] A.C. 788; [1977] 3 W.L.R. 902; [1978] 1 All E.R. 542; [1977] Crim. L.R. 747; (1977), 66 Cr. App. R. 25; 121 Sol. Jo. 728, applied.

Legislation construed:

Penal Code (2007 Revision), s.185(1): The relevant terms of this sub-section are set out at para. 15.

The appellant was charged in the Grand Court with murder and was sentenced to life imprisonment.

The appellant had been found by the police in an unresponsive state, at the home of the victim, who was herself found there dead, with multiple stab wounds and a gunshot wound to the head. The appellant was immediately arrested and taken to hospital by the police. Upon assessment by a psychiatrist, Dr. Othello (who became an expert witness for the Crown), a full neurological assessment of the appellant was requested. During that assessment, certain disparities and inconsistencies in the behaviour and symptom pattern of appellant caused Dr. Othello to come to one of two conclusions: either that (i) he was suffering from a conversion disorder, a condition in which a patient has medical symptoms of a neurological nature, suggestive of some disease process affecting the nervous system; or (ii) he was malingering. Dr. Othello indicated that her tentative opinion was that he was malingering. This opinion was supported by that of a second psychiatrist for the Crown, Dr. Lockhart.

However, the consultant psychiatrist who examined the appellant on the instructions of the defence, Dr. Bursztajn, who was based in the United States, came to the opposite conclusion-that he was, in fact, severely impaired by reason of a mental disorder, which affected his judgment,

reasoning, planning and decision-making, and stemmed from personal problems dating from childhood.

At the trial, the appellant accepted that he had killed his victim, but pleaded not guilty to murder and guilty to manslaughter by reason of diminished responsibility. All three psychiatrists gave evidence, the sole issue being whether the appellant was suffering from such abnormality of mind as substantially impaired his mental responsibility at the time he inflicted the injuries on his victim, causing her death. Early in the trial, a procedural irregularity arose: since Dr. Bursztajn”s commitments in the United States did not allow him to come to the Cayman Islands immediately (with the prospect of a long adjournment to allow him to do so), the trial judge agreed that the two psychiatrists for the Crown could testify first, with the result that the jury heard their reaction to Dr. Bursztajn”s report before hearing the report itself. Dr. Othello and Dr. Lockhart both strongly disagreed with Dr. Bursztajn”s assessment, which was eventually given in evidence by the appellant”s counsel reading the report aloud and supplementing it with an examination of Dr. Bursztajn via video link. Since Dr. Othello had initially agreed with his report but later changed her mind, counsel for the appellant applied to the court for a voir dire to be held in respect of her reliability as an expert witness. That application was refused, together with an application for legal aid and an adjournment to allow a second psychiatrist for the defence to examine the appellant. The jury was satisfied that the appellant had in fact been malingering and convicted him of murder.

On appeal against the conviction, the appellant submitted that he had a strong, arguable defence and would have been acquitted had he received a fair trial, which he had not because (a) the evidence of the expert witnesses had been heard in the wrong order, a procedural irregularity which the judge should not have allowed, despite the appellant”s consent (which would not have been given had he anticipated that Dr. Othello would change her mind), and which unfairly influenced the jury and led it to approach the evidence of Dr. Bursztajn in a sceptical and prejudicial way; (b) the court had wrongly refused an application to hold a voir dire to determine the admissibility of the evidence of Dr. Othello, who was not competent to give evidence as an expert and/or her evidence should not have been admitted in any case, because of its clear unreliability, pursuant to the Police and Criminal Evidence Act 1984, s.78(1), as she had significantly changed her opinion regarding Dr. Bursztajn”s report; (c) the court had also wrongly refused its application for legal aid and an adjournment to allow a second psychiatrist for the defence to examine the appellant and by allowing the prosecution to call two psychiatrists and restricting the defence to just one, the judge had breached the principle of equality of arms, to the prejudice of the appellant, and even the court”s direction to the jury failed to overcome that; and (d) the way in which Dr. Bursztajn”s evidence had to be heard, via video link and his report being read to the jury in his absence, contrasted with the way in which evidence

for the prosecution had been heard, and severely unbalanced the overall fairness of the trial.

The Crown submitted in reply that the appellant”s conviction was safe, as no prejudice or unfairness had been caused, because (a) the defence had consented to the order in which evidence was given and, ex improviso, it had been required to lead the evidence that it had available, thereby rebutting Dr...