By Ariffin Sha
In a twist of Shakespearean proportions, Mr Eugene Thuraisingam, the lawyer for death row inmate Ilechukwu, has used evidence produced by the Prosecution to argue for his client's acquittal. The Defence counsel made the case that the results of a psychiatric assessment conducted by one Dr Jaydip Sarkar from Institute of Mental Health (IMH), which was sought for by the Prosecution, exculpated the Defendant.
The case of Ilechukwu Uchechukwu Chukwudi, a 32 year-old Nigerian National, was unusual even before the above-mentioned sequences of events had transpired. If he is to be acquitted tomorrow, it would mean that he has been acquitted twice for the same charge. He was first acquitted in the High Court in but then convicted again in the Court of Appeal.
He was first arrested in Singapore on the morning of 14th November 2011 for trafficking methamphetamine. He was arrested soon after the person he passed the controlled substances to and his co-accused, Hamidah Awang (whose sentence was eventually commuted to life imprisonment after receiving a Certificate of Substantive Assistance by the Prosecution), was arrested at Woodlands Checkpoint.
He entered Singapore from Nigeria a day earlier. He claimed that he was handed a laptop bag at Lagos Airport and was instructed to help bring it to Singapore and that he exercised due diligence by checking the bag before agreeing to transport it. At Changi Airport, his belongings were also subjected to a physical check by an officer and were passed through an X-Ray Machine but no drugs were found in the laptop bag. These statements were supported by objective evidence (i.e. CCTV footage) in his High Court trial. Although the Trial Judge, Lee Sieu Kin J, did find that there were inconsistencies between his statements, he attributed it to the Defendant being "defensive, and perhaps excessively so" and ultimately held that the Defendant was able to rebut the presumption of knowledge under s 18(2) of the Misuse of Drugs Act. The learned Trial Judge concluded that the Defendant's actions prior to his arrest were inconsistent with a person who had knowledge of the drugs as he remained composed despite being delayed at immigration and having his luggage checked. On 8 January 2015, Justice Lee Sieu Kin acquitted Ilechukwu and convicted Hamidah, his co-accused.
The Prosecution later appealed to the Court of Appeal to overturn Ilechukwu's acquittal. The Court of Appeal heard the case on 9 April 2015 and overturned the Defendant's acquittal.
Paragraphs 87 to 88 of the Court of Appeal's Judgement,
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.
The Court of Appeal overturned the Defendant's acquittal as it found that there was "no innocent explanation" for the inconsistencies found in his statement. As the DPP did not grant him a certificate of substantive assistance, Ilechukwu now faces the mandatory death penalty.
The IMH Report
Prior to the Court of Appeal's decision to overturn the Trial Judge's ruling in June 2015, both the Defence and the Prosecution agreed that the Defendant's mental condition was not an issue. The Defendant's defence was consistent in that he maintained that he had a complete lack of knowledge that he was in possession of drugs. After the Trial Judge's acquittal, no question of sentencing arose. Consequently, the issue of whether the Defendant could avail himself to the partial defence of diminished responsibility was immaterial. During the Pre-Trial Conference for the sentencing hearing, the Prosecution was informed that the Defence intended to adduce a psychiatric report for the purposes of sentencing. At that stage, the prosecution had no objections and did not suggest that such a report should have been made at an earlier stage (an argument which was later raised in their submissions). They also did not indicate that they had intended to adduce their own psychiatric report in response.
However, after the Defence adduced a Psychiatric report by one Dr Ung Eng Khean, the Prosecution adduced a psychiatric report from Dr Sankar from IMH. On 4 May 2017, the Court of Appeal heard a new appeal filed by Mr Eugene Thuraisingam on behalf of Ilechukwu. The appeal was premised on a psychiatric report adduced by Dr Sankar from IMH. Surprisingly, it was not the Prosecution but the Defence that sought to rely on Dr Sankar's report.
Dr Sankar diagnosed that the Defendant was suffering from Post Traumatic Stress Disorder (PTSD) during the time he provided his statements to the CNB. This was, the report states, because he was fearful for his life after hearing that the offence carried the death penalty.
The Defendant was also found to have been diagnosed with mental illness during his time in remand and was prescribed with numerous medications at different junctures. However, after a few visits to the Complex Medical Center, he would express that he was feeling better and did not want further prescriptions and medical attention. A few months later, he would relapse into his psychiatric illness and require medical attention again. This cycled repeated itself for a handful of times.
Strikingly similar reasons were produced for his resistance to psychiatric care by the reports produced by the Prisons, Dr Ung and Dr Sankar. In his report, Dr Sankar also ruled out, in no uncertain terms, the possibility that the Defendant was fabricating PTSD in the hopes of a favorable diagnosis.
"He... has never received any psychiatric treatment before." - Complex Medical Center Report
"He has no formal past psychiatric history.. it was uncommon in his familial or cultural setting to see a 'psychiatrist' or a 'counsellor.' - Dr Ung's Report
"The characteristics symptoms of PTSD were offered spontaneously and voluntarily and in response to open ended questions. He did not try and bring my attention to PTSD or dissociative symptoms at all and responded in detail only when asked. As such the validity of this diagnosis is not in question.
That he was not malingering the PTSD symptoms is also borne out by the fact that he did not wish for a mental illness tag and had repeatedly stopped prescribed medications in prison, based on his culturally based negative attitude towards mental disorders and a tendency to over-estimate his own ability. Such conduct is inconsistent with someone malingering in order to provide a justification or an excuse for their actions." - Paragraphs 91 and 92 of Dr Sankar's Report
He then goes on to suggest that the inconsistencies and lies in the Defendant's statements could be attributed to his PTSD.
"The defendant was suffering from acute symptons of PTSD with dissociation around the time that he made the inconsistent and unreliable statements (between 14 and 21 Nov 2011) This could be a relevant factor in providing an unreliable account."
".. an overestimation of threat to his life which could have prompted him to utter unsophisticated and blatant falsehoods in order to save his life."
Dr Sankar's report, which included highly detailed and cogent reasons for his diagnosis and rigorous scientific testing, was not without it's caveats as far as the Defendant was concerned.
He highlighted Ilechukwu's attempt to "under-perform" on cognitive tests. The following excerpt from his report was cited by the Prosecution in their submissions.
"His performance in TOMM and DCT (tests to determine the effort put in) suggested that he may not have put in his best effort. He scored particularly poorly in tests of information and processing... As such, the findings must be handled with caution."
However, the Prosecution's submissions omitted the paragraph that followed.
"Finally a comment on the issue of exaggerating cognitive impairments on certain neuropsychological tests. It is possible that the demonstrated inconsistency could be due to a range of factors, including poor motivation, depressed mood secondary to PTSD, attentional (sic) problems and fatigue, rather than solely due to malingering."
Questions on the objectivity and credibility of Dr Sankar's report, which were not raised by the Prosecution, will, in all likelihood be quashed by his credentials and the fact that it was the Prosecution, not the Defence, that sought his opinion. The Prosecution, in its submissions, argued that Dr Sankar's report cannot be considered as it failed the two-tiered test set out in Kho Jabing (2016) at , in that it must be sufficient, in the sense of being "new" and "compelling" and that it must show that the decision under challenge (i.e. the finding that there was "no innocent reason" for the Defendant's lies) was "demonstrably wrong."
In response, the Defence argued that it the material was indeed sufficient. They submitted that it was "new" because prior to the Court of Appeal's conviction, there was no need for a psychiatric report and the fact that he already had access to psychiatric care in the prisons. As to whether Dr Sankar's report was "compelling" and whether it showed that the Court's decision was "demonstrably wrong", his objectivity and rigorous scientific testing that led to his diagnosis were underscored.
Prima facie, Dr Sankar's report corroborates the Trial Judge's assessment that the Defendant was being defensive and suggests that, contrary to the Apex Court's finding, there may have been, after all, "an innocent explanation" for the inconsistencies and omissions in the Defendant's statements that led to his conviction. This would then give rise to a real possibility that the Court of Appeal's decision to overturn the defendant's acquittal amounted to a miscarriage of justice.
The Court of Appeal will deliver its judgement on 2 August 2017 at 0940hrs.