Hernandez (also Called Redman) v The State
| Jurisdiction | Trinidad & Tobago |
| Judge | Narine, J.A. |
| Judgment Date | 15 July 2014 |
| Neutral Citation | TT 2014 CA 35 |
| Docket Number | Cr. App. No. 63 of 2004 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 15 July 2014 |
Court of Appeal
Weekes, J.A.; Yorke-Soo Hon, J.A.; Narine, J.A.
Cr. App. No. 63 of 2004
Mr. K. Scotland for the appellant.
Mrs. Honore-Paul for the respondent.
Constitutional law - Appeal — Whether the imposition of the death penalty would constitute cruel and unusual punishment contrary to section 5(2)(b) of the Constitution — Constitutionality of imposing the death sentence on mentally retarded criminals — Whether the lapse of time between the date of the death sentence and the execution of sentence constitutes a breach of the constitution — Sentence constitutes a breach of the constitution — Pratt and Morgan principle — Death sentence vacated — Appeal allowed.
On 29th November 2004 the appellant was convicted of the murders of Christine Henry and her six year old son Phillip Henry.
The case for the prosecution was that the appellant killed both deceased on 2nd May, 2000 at Tompire Beach, Toco where they had gone to have a bath. He attacked them with a cutlass. The deceased received multiple fatal chop wounds about their bodies.
The prosecution relied principally on the evidence of Darren Lyons, Julien Des Vignes and a confession statement given by the appellant to the police on 4th May 2000. Lyons and Des Vignes both worked nearby on Peake's Estate which adjoined Tompire Beach. On the morning of the 2nd May 2000, Lyons was instructed by Everton Williams also called Breddo, who was the overseer at Peake's estate and husband of the deceased Christine Henry, to go to Williams' home approximately a quarter mile from the estate. When he arrived there he met Julien Des Vignes and they went to the beach. On the track leading to the beach Lyons stumbled upon the motionless body of Phillip Henry and on the beach he saw the body of Christine Henry covered in blood with several chop wounds to her body. On the way to the hospital, in response to Lyons, Christine told him that they had been attacked by the appellant. She also told him that she knew she was going to die and to take care of her children.
Des Vignes testified that at 5:00 a.m. that day the appellant left the accommodation that they shared saying he was going to cut coconuts on the beach. When the he left he had a cutlass in a case fastened around his waist.
Des Vignes also testified that around 10:00 a.m. he ran down to the beach. On the way he saw the body of Phillip Henry, and on the beach he saw Christine Henry lying on the ground. He asked Christine who had done that to her and she replied that it was the appellant who had attacked her. She also told him that she knew she was going to die and to take care of her children.
The appellant was arrested at his home on 2nd May, 2000. When told of the report against him he told the police officer that he only used his cutlass with a cause. He gave a written statement to the police on 4th May 2000. In the statement he said that he was on top of the hill husking coconuts when he observed Christine and her three children on Tompire Beach. He called out to them and went towards them with his cutlass in his hand. He said that Christine asked him if he was working and he told her he wasn't and that he was only making a hustle. She threatened to report him to her husband. An argument arose between them and Christine walked off saying she was going to tell her husband.He admitted that he then swung his blade at her, not intending to chop her, but in the process she was chopped.
The appellant further indicated in his statement that his intention was to “planass her” (to strike her with the flat side of the cutlass). He said that on hearing her tell Phillip to call Breddo he swung the blade with the intention of planassing Phillip but he too got chopped.
The appellant gave evidence and called witnesses. He raised the issue of alibi stating that on the day in question he had left home very early to go and husk coconuts along the beach. He returned home about 11:30 a.m., took a bath and had a rest. About 3:00 p.m. he was awakened by the police officers and taken into custody. He contended that he was tricked into signing a statement which he was not allowed to read. He agreed that the signatures were his.
No psychiatric evidence was adduced on behalf of the appellant and no psychiatric assessment was conducted.
On the 29th November 2004, the appellant was convicted on both counts of murder and sentenced to death. The Court of Appeal dismissed his appeal and affirmed his convictions and sentences on 21st June 2005.
On 12th February 2008, the Judicial Committee dismissed the petition against conviction and adjourned the petition against sentence pending the outcome of Lester Pitman v. The State (P.C.A. No. 89 of 2005).
By supplemental petition for special leave to appeal dated 30th January 2008 the appellant:
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a. sought leave to admit fresh evidence in the form of a neuropsychological report of Dr. Alistair Gray, a Clinical Psychologist; and
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b. set out one further ground of appeal against sentence arising out of the findings of Dr. Alistair Gray.
The further ground of appeal was whether the imposition of the death sentence on a mentally retarded defendant is cruel and unusual punishment contrary to section 5 of the Republican Constitution of Trinidad and Tobago.
Pursuant to the supplemental petition, the Judicial Committee having taken into consideration the judgment of the Board in Lester Pitman v. The State (P.C.A. No. 89 of 2005), granted special leave to appeal against sentence and the matter was remitted to the Court of Appeal to consider the following issues:
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a. whether to admit the neuropsychological report of Dr. Alistair Gray dated 27th November 2007, as well as any further evidence filed by the appellant and/or the State and
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b. to determine the supplemental ground of appeal against sentence as the Court of Appeal sees fit.
The time which had elapsed between conviction and the hearing and determination of the appellant's supplemental petition by the Privy Council was approximately three years and five months.
Subsequent to the Order of Remittal by the Judicial Committee of the Privy Council the matter came before us to consider whether to admit the neuropsychological report of Dr. Alistair Gray dated 27th November 2007 and the supplemental ground of appeal against sentence.
The grounds of appeal against sentence are:
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a. The imposition of the penalty of death on the appellant having regard to his mental retardation is cruel and unusual punishment contrary to section 5 of the Republican Constitution of Trinidad and Tobago and
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b. The imposition of the penalty of death on the appellant is cruel and unusual punishment contrary to section 5 of the Republican Constitution of Trinidad and Tobago having regard to the lapse of time since his conviction.
The appellant submitted:
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a. that it is necessary and expedient in the interest of justice that Dr. Alistair Gray's neuropsychological report be admitted as fresh evidence;
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b. that the appellant's full scale IQ score as contained in the fresh evidence (the neuropsychological report of Dr. Alistair Gray) places him within the World Health Organization's recognized criteria for mental retardation, and accordingly the imposition of the death penalty on the appellant is contrary to the prohibition on cruel and unusual punishment or treatment contained in section 5(2) of the Republican Constitution of Trinidad and Tobago;
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c. that the psychological profiles of the appellant were not presented at trial because they did not fall directly within the M'Naghten standard or the standard of abnormality of mind under diminished responsibility and that persons with psychological profiles like the appellant should be recognized as a class of persons exempt from the death penalty;
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d. that given the appellant's low IQ score of 57 as contained in the neuropsychological report, his characteristics (for example, his ability to anticipate and appreciate consequences) are similar to juvenile characteristics. Since the law recognizes that children are exempted from the death penalty, then by extension a mentally retarded person should not be executed since a mentally retarded offender is not an appropriate medium for making an example to others thereby being unable to satisfy the goals of sentencing which is retribution and deterrence;
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e. that it is now unlawful to execute the appellant for the two convictions of murder since a delay of more than five years in carrying out the sentence of death is an abuse of process of the court, deprives the appellant of his right to due process of the law and constitutes cruel and unusual punishment;
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f. that the court should consider the following factors when sentencing a person with a mental impairment which does not fall within the scope of insanity or diminished responsibility:
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a. the accused must be suffering from mental impairment at the time of sentencing and
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b. the accused must be diagnosed by an appropriately qualified medical doctor who must certify that the degree of mental impairment has four effects on the accused, that is, (1) substantial effect, (2) adverse effect, (3) long term effect and (4) recurring effect.
The Respondent submitted:
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a. that despite the findings contained in the fresh evidence, the Privy Council did not ask the Court of Appeal to look afresh at the conviction of the appellant because the appellant's impairment made no impact on the Court's assessment of the evidence against him or on the fairness of the trial.
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b. that the fresh evidence of the appellant's mental disability is not such that an accused person can avail himself of a defence of diminished responsibility.
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c. That an arrest of judgment would not apply in the...
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