Pitman v. The State  (Trinidad And Tobago) [2008] UKPC 16 (3 March 2008)

Privy Council Appeal No 89 of 2005

Lester Pitman 								Appellant

v.

The State	Respondent

FROM

THE COURT OF APPEAL OF
TRINIDAD AND TOBAGO

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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL

Delivered the  March 2008

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Present at the hearing:-

	Lord Hoffmann
	Lord Rodger of Earlsferry
	Baroness Hale of Richmond
	Lord Carswell
	Lord Mance
	
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[Delivered by Lord Carswell]

1.	The appellant Lester Pitman, who is now 28 years of age, was convicted on 14 July 2004, after a long trial before Volney J and a jury, of the murder between 10 and 14 December 2001 of three persons, and sentenced to the mandatory sentence of death.  He was charged and tried jointly with Daniel Agard, who was also convicted.  Both appealed to the Court of Appeal.  Agard’s appeal was successful, his conviction was quashed and a new trial was ordered.  The appellant’s appeal was, however, dismissed on 15 April 2005.  He was due to be executed on 13 June 2005, but execution was stayed and on 27 July 2006 the Board gave the appellant special leave to appeal as a poor person.

2.	The three persons murdered were John Cropper, Lynette Persad-Lithgow, otherwise Pearson, and Maggie Lee.  Lynette Pearson was the sister and Maggie Lee the mother of John Cropper’s wife Angela.  Agard was Angela Cropper’s great-nephew.

3.	In the afternoon of 11 December 2001 there was a tea party at the Croppers’ house.  Angela Cropper was abroad at the time, but the three victims were all in the house on that day.  The other guests left about 7.30 pm.  No reply was received to telephone calls made to the house at about 8.30 pm that evening and on the following day.  On the morning of 13 December the three victims were found dead in the bathroom.  Their hands had been bound with electrical cord and their mouths gagged.  The post mortem reports established that all three died from chops/incisions to the neck with a bladed implement.  Various items of value were missing from the house, which were subsequently recovered by the police.  In the early hours of 12 December the sum of $2000 was withdrawn from the joint bank account of John and Angela Cropper at an ATM cashpoint.  There followed two further transactions on 13 December involving the withdrawal of money from the same account at cashpoints and two unsuccessful attempts to withdraw money from a savings account in the Croppers’ names.

4.	About 5.30 pm on the afternoon of 11 December 2001 two men were seen by Anjani Maharaj and her mother Jacqueline Maharaj on the grassy verge at the bottom of the hill below the Croppers’ house.  At an identification parade held on 20 December Jacqueline Maharaj identified the appellant as one of the men whom she had then seen, but Anjani Maharaj did not identify him.

5.	Dion Jones, a taxi driver, gave evidence at trial that he had been approached in the early morning of 12 December by the appellant, who said he had a job for him.  About 6 pm that evening Jones collected the appellant and Agard, both of whom he knew previously, and took them to Mendez Drive, where Agard collected two television sets and two small bags.  Agard requested him to keep them for him and he arranged for his brother to keep the items.  On 14 December Jones was again hired by Agard, and took him to a jewellery store, where Agard gave him some jewels in a plastic bag and asked him to sell them.  He did so and later gave the proceeds to Agard.  Jones was arrested on 18 December and charged with receiving stolen goods.  He was subsequently given immunity against prosecution and gave evidence at the trial of the appellant and Agard, when he was cross-examined on the basis that his evidence was a fabrication and that he was trying to protect a third man “Cudjoe”, referred to in Agard’s statement to the police as the perpetrator of the murders.

6.	Their Lordships are of opinion that there would not be a sufficient prima facie case of murder against the appellant apart from his statement made to the police, and they will accordingly focus on the content of that statement and the circumstances in which it was taken.

7.	 The appellant was arrested at about 7.30 am on 19 December 2001 and taken to the Homicide Office in Port of Spain.  He was questioned by Sgt Dick about the murder for about an hour and denied knowing anything about it.  A further interview commenced at about 10 am, in the course of which, according to Sgt Dick’s evidence, he said in relation to the deaths of the victims “I will tell you about that later”.  Sgt Dick said that about 1.30 pm he requested a statement and the appellant agreed to give one.  The appellant denied in the voir dire that he agreed to tell the sergeant about the matter or that he made a voluntary statement, maintaining that the statement was put before him to sign and that he was given to understand that he should make a statement to clear himself, as Agard had been trying to “set him up”.

8.	The appellant’s aunt, Mary Pitman-Gilkes, said in evidence in the voir dire and again in the main trial that she became aware that the appellant was wanted for questioning and arranged with Sgt Dick that he should pick him up on the morning of 19 December.  She said that later that morning she spoke to the sergeant by telephone and he said that he was positive that Agard was trying to set up the appellant.  She asked him if she needed a lawyer for the appellant, to which the sergeant replied that that was not necessary, he was not charged with anything.  The appellant stated that his aunt then spoke to him and told him to listen to Sgt Dick and that he would work something out for him.  Sgt Dick said that he could not remember speaking to Mrs Pitman-Gilkes, but maintained that he would not tell someone that there is no need to have a lawyer for a suspect.

9.	The police requested Mr Mortley de Peaza, a justice of the peace, at 9.15 am on 19 December to come to the station, but not in connection with the appellant.  He did eventually arrive some time after 2 pm and saw the appellant about 2.30.  Mr de Peaza said that the appellant told him that he wanted to give a statement, which was voluntary.  He then asked the appellant whether he was in a fit state to be interviewed and the appellant replied “I am not in a fit mental state to give the statement now.”  The appellant’s evidence was, however, that he simply said that he was not giving a statement.

10.	Some little time later he again saw the appellant, who said he was ready to give the statement and that he had not received threats, promises or inducements.  The appellant then dictated a statement after caution to Sgt Corbett, in the presence of WPC Phillips and Mr de Peaza.  The statement commenced at 4.45 pm.  The appellant finished dictating about 6.05 pm and answered some questions, which were recorded along with his answers.  The appellant signed each page, the officers signed it and Mr de Peaza affixed his certificate authenticating it, setting out in some detail the substance of his conversation with the appellant.  The transaction concluded at 7.30 pm.

11.	The appellant’s statement, omitting the questions and answers, read as follows:

“Daniel Whey tell me right he is going by a relatives to pick up a radio and other items. I was home at the time.  I did told him that I was not feeling to go anywhere and he told me, come let’s go, he just going to collect some things.  Well, he did tell us to come an go Monday, and then we did not go anywhere again, because I tell him I was not feeling to go anywhere.  Tuesday he came and told me, the 11th, that was last week Tuesday, he want me to go with him to collect his things, after reaching by the place we walk by the gate and the gate was lock. We walk back down the road and cut through by a track up by the house, seeing, just now eh, wait, wait, I ent lying nah, dread, people in the house.  We decide to leave an go down the road.  Rain started to fall.  We were sheltering for a while, and then we start to walk back up the road.  Oh good ah mis out a part.  When the rain started to fall I en lying nah dread.  I told him let us go home, and he told me he have to go an got those tings today.  We were sheltering under a tree.  It was dark, now starting to get dark.  The people and them who was there had left and he told me to come.  Walk in the yard and go inside.  He hold man and I hold the woman.  The man tried to run and, he pulled out a blade, carried them in the Bathroom, tied, he tied them up and stuffed the mouth.  I asked him what he was doing and he told me, lets us pack up de car with items.  It had another lady, ah old lady, whey she was boy, she was in a small room and he went for her, tied her up too.  He put she around by the rest in the Bathroom.  then I told him let us go, and he told me he coming now and he went with a knife in his hand to the Bathroom.  Before dat two of we was packing items in de car, two T.V., a radio, something in a black bag.  I ent sure what it was.  It was a plastic bag right.  And then he bring out two black bags.  [Interruption]  I did find he was staying long and I went back inside by the Bathroom and I tell him lets go, and I look inside the Bathroom and I see the three people lying down on the ground, and I see blood.  He did come out side with de knife in he hand, and he say they dead.  I kill them.  We walk the house, and get in the car an leave.  I en sure what he do with de knife.  We drive de car down town, then come up de road. We went Champ Fleurs, he drop off a radio an T.V. by a low hair fella.  He did went in the yard, and I remain in de road.  Den we drive up MAITAGUAL, and I went home with Five Hundred in my pocket whey I did take from the house, on top of ah dressing table and dat is it dey.”

12.	At no stage during the time between the appellant’s arrival at the Homicide Office and the conclusion of the taking of his statement was any accompanying person present with him, nor did he see a lawyer during that time.

13.	Agard made a statement in writing on the morning of 19 December, in which he admitted going to the Croppers’ house with another man whom he called “Cudjoe”.  He blamed Cudjoe for all the acts of violence which occurred, and asserted that “Nobody was to dead”.  The part of his statement which is material for present purposes read as follows:

“When we finish pack de things in de house when we finish pack de things in de car.  Correct this now please when we finish pack de things from de house not in right de green Sunny come back nah well he park up de car down de hill and walk up de hill he and Cudjoe was talking and I was finishing packing up de things in de car.  Den de man leave with de Sunny and gone.  After we gone back through de house to see if we leave anything I end up telling he no he tell me yeah I tell he let we go from here and he tell meh go ahead nah go ahead and drop de things and den how he ride go come back an pick him up an he go call meh an tell meh which part to meet him he have something to finish up nah.  I take de car an I gone to drop de things and dem.  I went an drop de things by Small Mikey before I reach dey he call me back nah an tell me when I done to come back by de look out on de lady young and pick him up dey nah.  So I drop out de things an went back for him.  When I went an pick him up on the lookout he tell me he fix dat scene nah so I ask him whey he talking about.  He say how dead people tell no tales nah. He say how dead men tell no tales how he fix dat an pelt de knife over de hill nah so I tell he nobody was te dead.  I tell him we never talk nothing like dat so he tell me he ent taking no chances nah.”

14.	In the course of her evidence in the voir dire Mrs Pitman-Gilkes stated that the appellant had ”always been a bit slow”, which she attributed in part to his having fallen on his head as a small child.  Father Michael de Verteuil was also called on behalf of the appellant, but was not prepared to say more than that he was intelligent but slow.  He could follow a conversation, but would not put himself forward or express opinions.  He knew little about life in general.  In cross-examination he agreed that he might be described as reserved, intelligent but reserved.  He did say finally that if the appellant was asked questions he would find it difficult “to start from himself in giving explanations”.

15.	At the conclusion of the voir dire the judge ruled briefly that he would admit the statement in evidence, saying:

“The Court is satisfied beyond all reasonable doubt that the statement was given voluntarily and that there was no breach of any of the protective procedural provisions of the Constitution.”

During the course of submissions made by the appellant’s counsel before the ruling was given, the judge indicated that he did not accept the appellant’s evidence that he was promised that if he made a statement he could go home and that he would be used as a State witness in a prosecution.

16.	The appellant did not give evidence in the main trial.  He called Mrs Pitman-Gilkes, who repeated the evidence she had given in the voir dire, and a police witness relating to the telephone calls from the police station to Mr de Peaza.  Agard gave evidence, in which he denied that he had been at the Croppers’ house and stated that on 11 December he had been elsewhere, involved in a fight with another man at the time when the murder was alleged to have occurred.

17.	Mr Fitzgerald QC for the appellant criticised two elements of the judge’s summing-up to the jury, comments which he termed inappropriate and his directions on joint enterprise, with particular reference to the question whether on the terms of the appellant’s statement it had come to an end before the murders.

18.	Mr Fitzgerald also criticised a remark made by the judge just before a short adjournment, when the appellant’s counsel asked that Mr de Peaza should not speak to anybody during the break.  The judge said “I know Mr de Peaza; he won’t.  There are certain men of integrity.”   Their Lordships would not regard that remark on its own as sufficiently prejudicial to undermine the jury’s verdict, but Mr Fitzgerald coupled it with further remarks in the course of the judge’s summing-up.  The first was:

“I want you to consider what effect perhaps it may have on you for you to be in that witness stand for days and days when you are 83 years old, and when all you are doing is responding to a call to be of public duty; further public duty … Did Mr Mortley de Peaza at 82 or 83 leave his home, presumably, I guess he has a wife who must be close to that age, leave her at home, go down to the police station and spend the whole day there because he wants to conspire with Mr Dick and Mr Nedd, and lie and make up a case against someone; a young man who could be his great grandson, who he doesn’t know? You ask yourself these questions.  It is very easy to make suggestions to someone under cross-examination for days upon days with absolutely nothing to back up the suggestions, wild suggestions.”

After a further comment in the same vein and asking the jury if they thought there was any evidence to suggest that Mr de Peaza was lying, the judge said:

“...if after considering the evidence you believe Mr Mortley de Peaza, who, may I remind you, is a former Permanent Secretary, a man of service to his country, a man who in his retirement will still leave his home and go and do the - according to him, watch the interest of persons who are suspects to ensure fairness and be present, and knowing full well that he has to go in the Magistrate’s Court and face one Mr Wayne Sturge, perhaps, or Mr Mario Merritt [counsel for Agard], and then come up here and repeat it.  If you think that Mr de Peaza lied and was part of this fix up, this fabricating of this document, this statement, reject it entirely.”

At another point in his summing-up the judge said that he was “glad” that they had in court WPC Phillips, who had written down the appellant’s statement, and subsequently stated that the jury might conclude that she was a “decent ministering-type of individual”.

19.	Mr Fitzgerald contrasted these descriptions with the judge’s remarks about the appellant’s decision not to give evidence:

“You would also recall at the close of the Prosecution’s case, Accused No. 2, Lester Pitman, was put to the election, and he elected to remain silent.  In other words, he was exercising his constitutional prerogative of saying, “You have brought me here. I am presumed to be innocent.  You prove your case against me.”  So that by remaining silent he was exercising his prerogative, and this cannot be held against him.  Of course, I dare mention and I dare suggest to you that it is passing strange that he made all kinds of suggestions to police officers and to a retired public officer, the Justice of the Peace, suggesting impropriety on their part in the execution of their public functions; subjected them to days upon days of cross-examination where they were told that they were liars and made up all sorts of things, but called himself, or on his behalf, no evidence to back up these suggestions that were made to these witnesses.  However, it is his right to have elected to remain silent, as he did, and you cannot hold it against him.”

Their Lordships would observe at this point that if a judge makes unduly unfavourable remarks about a defendant or witness, which may be prejudicial, they cannot be sufficiently neutralised by resorting to the mantra in the last sentence of the passage quoted: cf Mears v The Queen [1993] 1 WLR 818.

20.	It was submitted on behalf of the appellant that the judge’s remarks painted an unbalanced picture of the evidence, and that they were likely to influence the jury unduly to accept the evidence of Mr de Peaza and WPC Phillips in preference to that of the appellant.  Counsel compared the judge’s remarks in this case with those made by Lord Goddard CJ in the trial of Derek William Bentley in 1952, which were held by the Court of Appeal (Criminal Division) in 1998 to have been prejudicial (R v Bentley (deceased) [2001] 1 Cr App R 307).  Lord Bingham CJ pointed out the risk of injustice if a jury is invited to approach the evidence on the assumption that police officers (or, it may be added, any other witness such as a justice of the peace), because they hold that office, are likely to be accurate and reliable witnesses and defendants, because they are defendants, are likely to be inaccurate and unreliable.  Their Lordships have given careful consideration to the passages quoted from the summing-up, against the background of the summing-up as a whole.  They regard the judge’s comments as ill-chosen and of a nature which should be avoided in a criminal trial, but they do not consider that on their own they were sufficiently prejudicial to make the conviction unsafe.  They take the same view of the remarks which the judge made in passing about counsel who appeared for the appellant at trial.  The judge must undoubtedly have found his conduct very trying, but he should not in a criminal trial have yielded to the temptation to make remarks about a defendant’s counsel which the jury might regard as disparaging and by inference hostile to the defendant’s case.

21.	The prosecution case against the appellant was based squarely on the allegation that he had taken part in a joint enterprise, as part of which he contemplated that the persons in the house might be subjected to fatal injuries or grievous bodily harm.  The judge gave directions to the jury at a couple of points in his summing-up.  He commenced at page 2273 of the Record by asking them to consider what the defendants contemplated, what crossed their mind (a phrase he used several times).  He referred to the time when the perpetrator went into the bathroom and said:

“If you arrive at a finding of fact on that statement that it did cross his mind, that his confederate might have gone in there with the intention to kill, or to cause grievous bodily harm to those people who are tied up there, and he still, with that knowledge, with that foresight of what might have happened, continued to participate without disassociating himself, without withdrawing himself there, and by letting it known to his confederate, “Stop it. I am not in that. Let us get out of here.  Leave the people.  Let us move,” and that confederate, that other man goes in there with the knife and cuts their throat, he is equally guilty of murder for the killing, the unlawful killing, if that confederate goes in there and cuts their throat.”

22.	The judge followed this up at page 2305 by giving the jury a proper direction on the essence of a joint enterprise.  He then went on to discuss the possibility that one participant might go beyond what the other had contemplated or foreseen.  He said at page 2306:

“Now, bear in mind that even if there was a plan, for example, to rob, if what one of the confederates did in executing that plan went beyond anything that the other had agreed, or realised he might do, then that person alone is responsible for the act and is, therefore, guilty of that offence.  The other would be not guilty of the offence.  But if you are sure that the other did realise that his confederate might go on to commit a further offence, the law is that by taking part in the lesser offence with that knowledge, he is taken to have accepted the risk that his confederate would act in that way, and so he adopts those acts and is responsible for them.  So in this particular case, Members of the Jury, it is the foresight that matters.”

It is clear from the context that in that part of his summing-up the judge was discussing the case against Agard, but his remarks about participation in a joint enterprise were expressed in general terms applicable to both defendants.

23.	The appellant’s notice of appeal to the Court of Appeal contained fourteen grounds, which were considered seriatim by the court and rejected.  Two of them related to the judge’s directions on joint enterprise.  The basis of Ground 7 was that the judge had failed to direct the jury properly about the appellant’s foresight that the enterprise might extend to murdering the victims, the test laid down by Lord Hutton in R v Powell [1999] 1 AC 1.  In Ground 8 the complaint was that the judge had wrongly directed the jury that the appellant had acknowledged in his statement that he had the requisite foresight, rather than posing the issue and leaving its resolution to the jury.  Agard’s counsel also advanced a general criticism of the judge’s directions on joint enterprise and foresight, but included a specific ground of appeal, Ground 1, that the judge failed to give the jury adequate directions about the sequence of events and whether Agard’s part in the joint enterprise had come to an end before (on the case made in his statement) the murder was carried out by the other participant.

24.	The Court of Appeal considered the judge’s directions in some detail and came to the conclusion that the general criticism of them on foresight and intention was not well founded in the case of either appellant.  They went on to conclude, however, that Agard’s appeal should be allowed in respect of his complaint in Ground 1.  They held in paragraph 106 of their judgment:

“The judge fell into error in failing to leave for the jury’s consideration the question whether the joint enterprise had come to an end when Agard left the premises.  In so doing Agard was deprived of the opportunity for the jury to consider an issue which could have been decided in his favour thereby entitling him to an acquittal.”

Although Pitman had not advanced that specific ground in his notice of appeal or, apparently, in the argument addressed by his counsel to the Court of Appeal, on the terms of his statement it was arguable that such a case could possibly have been made on his behalf, though on the wording of the statement it might have been less cogent than in Agard’s case.  Their Lordships are unable to understand why the court did not consider this issue, however briefly, in relation to Pitman when they did so in relation to Agard.  It is the duty of the court in a criminal appeal to take account of all the grounds which could reasonably be advanced on behalf of an appellant, whether or not they have been sufficiently argued, and their Lordships think that it was desirable that this should have been done.

25.	They consider that it would have been preferable if the judge had spelled out in the case of each defendant how it might be said that he did not contemplate the murder of the victims, the essential mens rea for a defendant’s responsibility for an act committed as part of a joint enterprise.  This could be argued in any case of this nature on several bases, according to the facts of the case: that the joint enterprise never went beyond robbery and that the defendant in question did not foresee that his confederate might go beyond that and commit murder; that when he realised that things were getting out of hand and that his confederate was intending murder, the defendant withdrew from the joint enterprise by a sufficiently clearly evinced dissociation; or that the defendant was no longer part of the joint enterprise, which had earlier come to an end.  These are in truth facets of the same issue, whether the defendant was part of a joint enterprise which included as one of its elements the possible murder of another person.  That depends on what was agreed, expressly or impliedly, by the defendant, and if a murder takes place it may be outside the parameters of the enterprise in a number of ways, including those specified above.  It is desirable that a trial judge should tailor his directions to the evidence, so that the jury have put clearly before them the basis on which to decide if the defendant agreed to the commission of the act with which he is charged.  Their Lordships consider that the judge’s directions to the jury, although they could have been less diffuse and more focused on the issues, can be said to have covered the necessary ground by making it clear at several points that it is essential that the defendant is proved to have foreseen and so contemplated that a murder might occur and still remained part of the joint enterprise.  It was leaving the jury to apply that principle to the facts, whereas it would have been more appropriate if the judge had spelled out the various ways in which it might be said that the appellant was not part of a joint enterprise to murder the victims, relating the material parts of the evidence to each.  The Board does not consider, however, that the lack of such specific directions made the appellant’s conviction unsafe.

26.	The main thrust of the argument for the appellant before the Board related to his mental state.  Evidence relating to this issue was contained in two medical reports obtained and several affidavits sworn and affirmations made since the hearing in the Court of Appeal, which Mr Fitzgerald submitted should now be admitted as fresh evidence.  The Board considered these reports and affidavits in order to determine what course should be taken.

27.	The first report, dated 7 July 2006, was given by Dr Jessica Bramham, a clinical neuropsychologist with the Maudsley Hospital.  She carried out an assessment of the appellant’s mental capacity by means of a number of psychometric tests and interviews of the appellant and his mother.  She concluded that he exhibits significant cognitive impairment.  His full scale IQ score on the Wechsler scale was 52, which is in the “extremely low” range and although this might be adjusted upwards on account of cultural factors and potential biases, he presented with a level of intellectual functioning which falls well below an IQ of 70, the figure which represents a significant impairment.  In addition, the tests showed a high degree of suggestibility and compliance, the effect of which tends to make the subject likely to give misleading and incorrect adverse answers in interrogation and to comply with figures in authority.  Dr Bramham did not consider that the appellant could give evidence effectively in court and thought that he would be unable to comprehend the course of the proceedings or understand the details of the evidence.

28.	The other report, dated 12 July 2006, was from Professor MD Kopelman, a professor of neuropsychiatry at King’s College, London and consultant neuropsychiatrist at St Thomas’s Hospital.  Professor Kopelman did not see the appellant, but prepared an opinion based on documentation from the trial and other documents, including Dr Bramham’s report.  He expressed the opinion that the appellant’s learning disability would have rendered him unfit to stand trial or make a plea.  In his view he satisfied the legal criterion of insanity and his responsibility for his acts and omissions was substantially impaired.  He also questioned the admissibility of his confession statement, in the absence of an “appropriate adult” accompanying him and without the advice of a lawyer.

29.	Mr Fitzgerald also tendered two affirmations from the appellant’s mother and one from Mr Saul Lehrfreund of the firm of solicitors now acting for him, and affidavits from Mr Wayne Sturge, his counsel at trial, and Mr Ivor Niles, who had taught the appellant at school when he was aged eight years.  The affidavit from Mr Niles and one affirmation from the appellant’s mother were directed towards establishing his “slowness” as a child and subsequently.  The other evidence was adduced to establish that it had proved impossible through lack of funds to obtain psychiatric or psychological evidence at the time of trial, as the appellant was not legally aided and his family did not have the means to pay for it.

30.	The fresh evidence, if admitted and accepted as correct, could have a bearing on the safety of the conviction in several possible respects:  

(i)	It might reflect on the appellant’s fitness to plead and stand trial.  
(ii)	It might be relevant to his ability to understand the nature of the joint enterprise and agree to participation in it.  
(iii)	It could cast doubt on the admissibility of his statement to the police, taken without legal advice or the presence of an independent person.  A suspect has to be informed of his right to consult a lawyer (AG of Trinidad and Tobago v Whiteman [1991] 2 AC 240) and it was submitted that that information would not be effectively given unless the suspect was capable of understanding it.  Moreover, even if the statement was properly admitted, the jury might have required a warning, on the lines of section 77 of the Police and Criminal Evidence Act 1984 applying in England and Wales, that there is special need for caution before convicting the appellant in reliance on it.  
(iv)	It could form the basis for a finding of unsoundness of mind or diminished responsibility.  
(v)	Finally, it could be relevant to sentence.

Their Lordships will not attempt to offer any opinion on the likely outcome of further consideration of these possible issues, which will be a matter for the Court of Appeal. 

31.	Section 47 of the Supreme Court of Judicature Act of Trinidad and Tobago gives the Court of Appeal power in a criminal appeal to receive fresh evidence “if it thinks it necessary or expedient in the interest of justice”.  It was made clear by de la Bastide CJ in Solomon v The State (1999) 57 WIR 432 that the breadth and generality of this power do not remove the long accepted requirements of the law that fresh evidence should appear to be capable of belief and that a reasonable explanation be furnished for the failure to adduce it at trial.  These factors are not, however, conclusive of the issue of admission of fresh evidence, and an appellate court has the overriding statutory power to admit it if it is in the interest of justice: see Benedetto v The Queen [2003] UKPC 27, [2003] 1 WLR 1545, and cf Smalling v The Queen [2001] UKPC 12.  Their Lordships have given careful consideration to the evidence now put forward and have come to the conclusion that it should be admitted, for several reasons.  First, they are of opinion that the evidence appears capable of belief.  The medical opinions are given by reputable practitioners and, although the appellant’s advisers furnished the solicitors acting for the State with copies of their reports and offered them an opportunity to have their own medical examination as long ago as 2006, they did not take advantage of the offer.  Secondly, although it is possible that the doctors would qualify their opinions if their evidence were tested, or contrary opinions may yet be given by doctors advising on behalf of the State, prima facie the extent of the appellant’s intellectual handicap is substantial and such as to require proper investigation by the court.  Thirdly, the explanation proffered for failure to adduce medical evidence at trial may be regarded as reasonable: cf Cardinal Williams v The Queen (Privy Council Appeal No 4 of 1998), p 10.

32.	Since the fresh evidence is capable of having the effect to which they have referred, their Lordships consider that the conviction of the appellant is potentially unsafe and requires review.  They accordingly propose to remit the case to the Court of Appeal, who should determine the safety of the conviction in the light of the fresh evidence, together with any rebutting evidence which they may decide to admit, applying the principles laid down by the House of Lords in R v Pendleton [2001] UKHL 66, [2001] 1 WLR 72.  The procedure to be followed is a matter for them to decide, with the help of submissions from counsel.  They will have to form an opinion on the appellant’s mental capacity, then, depending on the opinion which they form, they may have to decide (i) whether he was fit to plead and stand trial (ii) whether there is a sufficient doubt about his ability to understand and participate in the joint venture (iii) whether his statement should have been admitted and, if necessary, (iv) whether there is sufficient evidence to raise the defences of unsoundness of mind or diminished responsibility.  If they find in the appellant’s favour on any of these issues, the conviction will be unsafe and must be set aside.  The court should then go on to decide whether to order a new trial, assuming that they regard the appellant as fit to stand trial.  If they so order, they might consider it appropriate that he be tried again jointly with Agard, which of course makes it particularly desirable that they proceed with all due dispatch.

33.	In view of these conclusions, their Lordships do not propose to examine further the submissions on sentence addressed to it by counsel for the appellant.  They would only observe that if the appellant’s conviction were to stand or he were to be convicted on a retrial, those submissions would require serious consideration.

34.	Their Lordships will accordingly allow the appeal and remit the matter to the Court of Appeal of Trinidad and Tobago for further hearing in accordance with the opinion of the Board, the appellant remaining in custody.