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R. v Ehi-Palmer

Consideration of trial in absence for a defendant who suffered a drug induced psychosis mid-trial.

http://www.bailii.org/ew/cases/EWCA/Crim/2016/1844.html

The Appellant appealed his conviction for attempted rape.

The Appellant had never previously exhibited any signs of mental disturbance, but towards the end of the victim's evidence he became hysterical, broke down in tears, became highly anxious and showed apparent signs of a panic attack. His counsel expressed concerns to the judge about the Appellant's mental wellbeing, in the absence of the jury.

After this event, the Appellant was able to give evidence; giving a clear account and no concerns were noted as to his ability to give his evidence in chief. However, cross examination proved problematic, with intermittently odd and paranoid responses, alongside passages when he was lucid. During the brief re-examination that followed, he appeared to understand and answer questions coherently.

Unfortunately, a full psychiatric report could not be prepared quickly, to the court's inconvenience, and the Judge ruled that the trial should continue in the Appellant's absence rejecting submissions from defence Counsel that the jury should be discharged. In court the Judge explained to the jury that the Appellant was unwell and that they were not to hold his absence against him (although also referring to an ‘alleged panic attack').

During the jury deliberations, however, the Appellant was assessed and found not currently fit to stand trial, not fit to plead and requiring urgent hospital transfer under s.47 MHA. The judge again rejected a defence application that the jury should be discharged, or, exceptionally, receive the evidence in retirement. The jury convicted the defendant in his absence. The following day the defendant was urgently transferred to Epsom hospital having suffered renal failure.

Following conviction the Appellant appealed on the grounds that the Judge should have obtained a full psychiatric report in order to assess whether the Appellant was under a disability; that he was wrongly deprived of the opportunity to adduce medical evidence to explain his symptoms to the jury; and that once it had become apparent that he could not make a proper defence the Judge should have withdrawn the case from the jury and proceeded under the provisions of the Criminal Procedure (Insanity) Act 1964.

Held:

There was no unfairness suffered by the Appellant in the course of the trial and the conviction was safe. Although he had exhibited signs of mental disturbance, the Appellant had been able to give a clear account during his examination in chief and re-examination. His evidence had been mostly coherent, even though there had been digressions during cross examination. Furthermore, the issue only arose at a late stage of the trial after which he had given his evidence.

Ultimately, his absence was caused by a condition arising out of his voluntary decision to consume drugs. The consequence of this decision was the Appellant did not show himself to best advantage before the jury but this did not give him good cause to complain.

 

10 February 2017

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