This judgment from 2021 was subject to reporting restrictions until the end of the retrial.
A 15-year old’s conviction for murder was quashed after post-conviction diagnoses of Autistic Spectrum Disorder (ASD) and Attention Deficit Hyperactivity Disorder (ADHD) were admitted as fresh evidence.
Details
PS was convicted as a secondary party to murder. It was alleged that when he was 14, he had been the lookout for three other children who had chased and stabbed a man to death.
He gave evidence at his trial that although he had travelled to the scene with the others, he had had no idea what they were going to do and he was wandering around looking for them at the time of the stabbing.
The Court of Appeal (Burnett LCJ presiding) held that the jury’s unawareness of PS’s mental disorders may have affected their assessment of the case in that:
- they may have wrongly rejected his explanations for what he was doing and what he perceived was happening
- they were unable properly to assess him and his credibility when he gave evidence
- he was disadvantaged by the fact a co-defendant (who was acquitted) had called expert evidence about the effects of his diagnosed ADHD and had the benefit of an intermediary.
A retrial was directed. PS called expert evidence of the effect of his mental disorders and had an intermediary throughout the trial. After five years in custody, the jury acquitted in under half an hour.
Commentary
This case is a reminder to those representing children and young people that it is important to satisfy yourself that your client is not suffering from any mental disorder that could be diagnosed by an expert before trial. PS was not seen by any experts before the first trial.
While the Court of Appeal were at pains to point out that this case was decided on its own facts, it is clear that PS’s disorders were highly pertinent to an assessment of his behaviour at the time of the stabbing and on his presentation at trial.
The calling of an expert witness at the retrial to explain all of this and a clear direction for the judge on this subject as well as the provision of an intermediary were obviously all crucial to the final outcome.
Written by David Emanuel KC who represented PS at his appeal and retrial, Barrister at Garden Court Chambers