The Queen Claimant v Andrew Kagan Richardson Defendant [ECSC]

• Jurisdiction: St Lucia
• Judge: BENJAMIN, J
• Judgment Date: 13 July 2011
• Judgment citation (vLex): [2011] ECSC J0713-3
• Docket Number: CASE NO. SLUHCRD 2009/0122
• Court: High Court (Saint Lucia)
• Date: 13 July 2011

[2011] ECSC J0713-3

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CRIMINAL DIVISION)

CASE NO. SLUHCRD 2009/0122

Between:

The Queen

Claimant

and

Andrew Kagan Richardson

Defendant

Appearances:

Mr. S. Innocent and Mr. Leslie Prospere for the Defendant

Mrs. Veronica Charles-Clarke, Director of Public Prosecutions, for the Crown

JUDGMENT ON SENTENCING

BENJAMIN, J

1 . The defendant was charged for the offence of murder contrary to Section 85 (a) of the Criminal Code of Saint Lucia 2004 on an Indictment filed on March 10, 2010. The said Indictment alleged that the defendant, intending to cause death, caused the death of his mother, Dr. Trona Bennett on Tuesday the 13 ^th day of January 2009 at Trouya, Gros Islet. The defendant pleaded not guilty to the charge upon arraignment. Subsequently, on February 2, 2011, the defendant pleaded not guilty to murder but guilty of manslaughter by reason of diminished responsibility.

2 . At the sentencing hearing, evidence was received from Drs. Eloy Castrillo and Swamy, both of whom are consultant psychiatrists. In addition, the Court received testimony from Mr. Hilary Herman, Director of the Bordelais Correctional Facility and Mr. Marcus Girard, Executive Director of the National Mental Wellness Centre. For the purposes of the plea taken and also for the purposes of sentencing, reports were furnished: from Dr. Castillo and Dr. Swamy as well as from Dr. Hazel Othello —a consultant psychiatrist; Dr. Glenn Griffin —a clinical and forensic psychologist; and Dr. Denis Edward —a clinical neuropsychologist.

3 . Submissions were made by learned Counsel on behalf of the defendant and by the Director of Public Prosecutions (the DPP). The defendant is now before the Court for sentencing.

THE FACTS OF THE CASE:

4 . The facts were presented in written submissions laid over by the DPP and the Defence did not take issue with them. These facts are critical to the nature of the plea as well as to the determination of the proper sentence to be meted out by the Court.

5 . The deceased is the biological mother of the defendant. His parents are both medical doctors but they had been divorced prior to the date of the incident.

6 . On the day before the incident, that is, on Monday January 12, 2009, the defendant and his father had a physical altercation. At the time, they lived in the same residence. The Police had cause to intervene and the defendant, at his request, was taken to his mother's house at Trouya in the quarter of Gros Islet by the Police in the evening. The defendant was given a warning at the request of his father. At the time he was dropped off at his mother's house, he had three bags with his belongings and his mother was not at home.

7 . The defendant's father spoke with the deceased at about 6:45 a.m. the next morning. However, at noon, he was made aware that the deceased, with whom he shared an office at the Tapion Hospital, had not attended for work. The Police at the Gros Islet Police Station were notified of this fact.

8 . Police Officers left the station to investigate the report and while driving along the road leading to the deceased's house at Trouya, they met the defendant walking on the road not too distant from the house. He was observed to have what appeared to be blood on his T-shirt and a bleeding cut on right thumb. He was questioned as to the whereabouts of his mother and he offered that she had gone to work. The Police escorted the defendant back to his mother's house where her vehicle was seen parked. The presence of the vehicle was pointed out to the defendant and he replied that she may have returned early. He was asked whether he had seen his mother leave the house and he responded that he had heard the vehicle start and when he left to go to Windjammer, the vehicle was not there.

9 . The house was forcibly entered through a small window. The deceased was lying on the floor with blood on and near her face. The defendant was thereupon taken into custody.

10 . There was a security system installed with cameras at the deceased's house. The digital recording was retrieved by a technician and the CCTV footage was viewed. The defendant was seen walking around the house, struggling with a female adult, dragging a human body from the side to the front of the house and washing the steps with a garden hose.

11 . At the Gros Islet Police Station, several minor injuries were observed on the body of the defendant. A red substance resembling blood was seen on his yellow t-shirt and on his brown short pants. In the defendant's possession, the Police found a small knife with what appeared to be blood, a cell phone, a wallet and two keys. One of the keys was later found to fit the bottom lock of the front door to the deceased's house.

12 . A post-mortem examination conducted by the pathologist, Dr. Stephen King, upon the body of the deceased yielded observations of a brown rope tied around the neck and injuries to the face, lower lip, left index finger and left leg. The cause of death was expertly opined to be asphyxia secondary to ligature strangulation. When pronounced dead at the scene, the doctor observed the face and eyes to be blackened and edematous. These injuries were attributed to blunt force trauma applied by a blunt instrument with severe force.

13 . Buccal swabs were taken from the defendant and the deceased for comparison with various items of clothing from the defendant, samples taken from the body of the deceased and samples taken from items from the crime scene and the crime scene itself. DNA analysis was done by a forensic scientist from the Forensic Science Laboratory in the United Kingdom. In summary, the conclusions were that the blood samples found could have come from the defendant there being a match to his complete DNA profile. Blood found on swabs taken from the defendant's jersey and pants were concluded to have possibly come from the deceased as the same matched the DNA profile of the deceased.

14 . In an interview conducted by the Police Investigator with the defendant in the presence of his lawyer, the defendant was formally charged and cautioned, at which time he again elected not to say anything.

PLEA OF DIMINISHED RESPONSIBILITY

15 . The defence of diminished responsibility was raised ahead of the plea in the defence statement in reliance upon the support of the psychiatric reports by Dr. R. G. Swamy, Dr. Hazel Othello and Dr. Glen Griffin. These reports are dated subsequent to the date of the offence. However, Dr. Swamy's report of January 20, 2009 made reference to and provided a psychological history of the defendant when seen in the years 2000 and 2003.

16 . The Crown relied upon its own expert and obtained reports from Dr. Eloy Azanza Castillo and Dr. Dennis Edwards. These reports were commissioned after the date of the offence and were sought for the purpose of ascertaining the mental status of the defendant prior to and at the time of the commission of the offence.

17 . The defence of diminished responsibility is set out in section 90 of the Criminal Code of Saint Lucia 2004. The said section reads:

The purport of the section is that where diminished responsibility is proved, the defendant is liable to be convicted of manslaughter and not of murder.

• 1. "If a person kills or is a party to a killing of another person, he or she shall not be convicted of murder if he or she was suffering from such mental disorder (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by deceased or injury) as substantially impaired his or her mental responsibility for his or her acts in doing or being a party to the killing.

• 2. On a charge of murder, it is for the defence to prove that the person charged by virtue of this section not liable to be convicted of murder.

• 3. A person who, but for this section would be liable to be convicted of murder, is liable to be convicted of manslaughter.

• 4. The fact that one party to a killing is by virtue of this section not liable to be convicted of murder shall not affect the question whether the killing amounted to murder in the case of any other party to the killing."

18 . The Crown stated its justification for the acceptance of the plea by reference to the following passage in Archbold 2009, para. 19-88(a):-

"Where on an indictment for murder the medical evidence plainly points to substantially diminished responsibility, it is proper to accept a plea of guilty of manslaughter based on that ground."

This learning is based on Section 2 (2) of the Homicide Act, 1957 (UK) which is in substantially similar terms and is supported by a dictum in R. v. Cox (M) 52 Cr.Ap.R.130, CA. This approach was adopted by Hariprashad—Charles, J in The Queen v. Germain Sebastian BVIHCR2006/0004 (BVI) in relation to Section 148 of the Criminal Code of the Laws of the Virgin Islands.

19 . Given the wording of section 90 of the Criminal Code, medical evidence would invariably be required to successfully support a defence of diminished responsibility. The evidential burden rests with the defence and must be established on a balance of probabilities by showing that it was more probable than not that the defendant was suffering from such abnormality of mind as to substantially impair his mental responsibility for this acts and omissions in doing the killing. The Court of Criminal Appeal in the judgment of Lord Parker, CJ. R.v. Byrne [1960] 2 Q.B 396 at p.403 interpreted "abnormality of mind" in the following authoritative statement:

"Abnormality of mind"…… means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind's activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a...