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By Ariffin Sha
In the latest twist to what has been, under all circumstances, a most unusual case, the Court of Appeal (‘the Court’) has held that its previous decision on case involving Nigerian national Ilechukwu must be reviewed.
Chao Hick Tin J, who delivered a summary of the Court Appeal’s judgement this morning, stated that the evidence which the entire appeal was premised upon, a Psychiatric Report on the Appellant adduced by the Prosecution but relied upon by the Appellants, constituted “new” and “compelling” evidence which gave rise to a “powerful probability of a miscarriage of justice.” The judgement, in its entirety, can be viewed at the end of this article.
You can read a summary of the arguments heard by the Court during the hearing here. The arguments centered around Dr Jaydip Sankar’s diagnosis that the Appellant suffered from Post Traumatic Stress Disorder (‘PTSD’) during the time he gave statements to the Police and how the inconsistencies and lies in the Appellant’s statements, which were pivotal in the Court’s decision to overturn the Trial Judge’s acquittal, could have been attributed to PTSD.
As Dr Jaydip Sankar’s report was adduced by the Prosecution, there were no questions from both parties on the credibility of his diagnosis. However, the Prosecution submitted that the Report failed the two-tiered test set out in Kho Jabing at [44]:
(a) The first is the evidential requirement of “sufficient material”. The court must be satisfied that the material adduced in support of the application for review is both “new” and “compelling” before it will consider the application. If the material presented does not satisfy these two indicia, then the application fails in line and the inquiry stops there. The burden of production rests on the applicant.
(b) The second is the substantive requirement that a “miscarriage of justice” must have been occasioned. This is the threshold which must be crossed before the court will consider that a concluded criminal appeal ought to be reopened. The burden of proving this likewise rests on the applicant.
The First Limb in tbe Kho Jabing Test
“New?”
“New” material is that which: (a) has hitherto not been considered at any stage of the proceedings leading to the decision under challenge; and (b) could not, even with reasonable diligence, have been adduced in court prior to the filing of the application for review. – Kho Jabing at [53]
The Prosecution argued that as Appellant declined the offer to be sent for a psychiatric evaluation on 21 June 2013, the Psychiatric report cannot be considered new as it could have been adduced in court before the appeal at hand.
The Court stated that the rational of limb (b) in Paragraph [53] of Kho Jabing was to preclude Appellants from ‘drip-feeding’ evidence. It highlighted a excerpt from Dr Sarkar’s report which noted that the Appellant “did not try to bring attention to PTSD or dissociation symptoms at all and responded in detail only when asked.” A finding by Dr Sankar, which was also supported by the Changi Prison Center’s Psychiatric Report and Dr Ung (the Psychiatrist that Appellants engaged), that the Appellant had a “culturally-based negative attitude towards mental illness”, was cited too. His prison records, that indicated his refusal to take medicine for his mental illnesses, were also considered. Based on the facts, the Court rejected the Prosecution’s arguments as with the Appellant’s resistance to psychiatric care, the psychiatric report could not have been adduced at an earlier stage.
“Compelling?”
There are two dimensions to the requirement that the material in question must be “compelling”. First, the material must be “reliable”. The second dimension of the requirement of “compelling” material is that the material in question must be “substantial” and “powerfully probative” in the sense that it is logically relevant to the precise issues which are in dispute. – Kho Jabing at [61] – [63]
As to the first limb of reliability, the Prosecution did not raise any questions about Dr Sarkar’s objectivity but contended that the report was unreliable as Dr Sarkar’s diagnosis of PTSD was based on the Appellant’s “self-reported and uncorroborated version of events.”
In the Court’s view, the fact that the Appellant’s childhood trauma was uncorroborated did not mean that Dr Sarkar’s diagnosis of PTSD was unreliable. It noted that in Dr Sarkar’s report, after considering the various factors and rigorous scientific testing, the possibility of malingering was ruled out in no uncertain terms. In addressing the Prosecution’s point on how the Appellant’s childhood trauma was not brought up in previous psychiatric reports (both the Prisons’ and Dr Ung’s Psychiatric Reports were produced prior to Dr Sarkar’s), the Court cited the Appellant’s aversion to “the mental illness tag” again.
“Substantial?”
The Court found that Dr Sarkar’s report was prima facie “substantial” and “powerfully probative” as it is relevant to the precise issues in dispute during the Appellant’s last hearing. The Court of Appeal overturned the Trial Judge’s acquittal as it found that there was “no innocent reason” for the lies and omissions found in the Appellant’s statements.
“We would still have hesitated to think that the Respondent’s version of the facts is so incredible that it would ipso facto justify appellate interference. Had the case merely turned on the Judge’s assessment on the credibility of the Respondent’s oral testimony at trial (and nothing more), we might have declined to interfere.
What tipped the scales are the numerous lies and omissions made by the Respondent in his statements, for which there is no innocent explanation.” Court of Appeal in PP V Ilechukwa at [87] to [88].”
However, Dr Sarkar’s report suggests that the inconsistencies in the statements provided by the Appellant could have been attributed to his PTSD. Having witnessed murderous attacks as a child, like the one in the account that follows, Dr Sarkar concluded that the Appellant’s PTSD symptoms were triggered after the Appellant was told by CNB Officers that he faced the death penalty.
“He was playing outside the provision store owned and run by his mother when he saw people being attacked with choppers and cutlasses and maimed and killed. He has an abiding image of them being chased by assailants who raised bladed weapons above their heads and bringing them down with full force upon the victims fells down. He recalls seeing a lot of blood around a well near their shop into which bodies were chopped and thrown..” – The Appellant recounting his memories growing up as a young Christian child in a Muslim-dominated town to Dr Sarkar
Dr Sarkar’s report states that, at the time the inconsistent statements were recorded, with the exception of the first statement, the Appellant was suffering from acute symptoms of PTSD with dissociation. As Dr Sarkar’s report, in the Court’s opinion, provided a possible explanation for the Appellant’s lies, and thereby providing the “innocent reason,” it was held to be “powerfully probative” in that respect.
The Second Limb in the Kho Jabing Test
“Miscarriage of Justice?”
A miscarriage of justice is chiefly (but not exclusively) to be found in one of the following two situations:
(a) The first is where a decision on conviction or sentence is “demonstrably wrong”.
(b) The second situation is where there has been fraud or a breach of natural justice. – Kho Jabing at [63]
In this regard, in similar vein to its conclusion on the issue substantiality, the Court held that the IMH Report does prima facie raise a “powerful probability” that its previous decision was wrong. Although the Court, in Kho Jabing at [65], stated the material tendered in support for an application for review must demonstrate “alone and without the need for further inquiry – an objection raised by the Prosecution – it was prepared to accept evidence which prima facie satisfies the substantive “miscarriage of justice” requirement in Kho Jabing.
Orders
The Court ruled that it “would be best to reconsider all the facts of this case only after additional evidence outlined” has been adduced and dealt with. The Court directed the Trial Judge, Lee Seiu Kin J, to make findings on:
(i) Whether the Appellant was suffering from PTSD;
(ii) The typical effects of PTSD on a sufferer;
(iii) If the Appellant was indeed suffering from PTSD;
- the period of time during which PTSD affected him;
- the effects of PTSD on him during that period; and
- the extent to which PTSD affected him when he gave his statements to the CNB.
In so ordering, the Court is not making a finding that the Appellant was indeed suffering from PTSD or that he was affected by it during the time he gave his statements to the CNB. The Court is also not implying innocent or guilty – that is a matter for the subsequent review of the Court’s decision after the Trial judge has made his findings. The judgement concluded by stating that the case at hand was “a truly exceptional” case which met the high standards set by the Court in Kho Jabing.
Mr Eugene Thuraisingam, who represented Ilechukwu, had this to say about the Court’s decision:
“The team is humbled and grateful for being able to make a difference on whether Mr Ilechukwu suffers death or not.”
The hearing before the Trial Judge Lee Seiu Kin J will be held on 31 October 2017.
Relevant Links
1) Summary of Arguments for Appeal
2) Ilechukwa (CA)
3) Ilechukwa (High Court)
4) Kho Jabing v PP (CA)