Nobody could say Jay Chandler didn’t give it a his best shot.  It still wasn’t a winning strategy to change stories at the last minute.

On 8 October 2004 Jay Chandler was an inmate at Golden Grove Remand Prison in Trinidad and Tobago.  He was involved in a fight with another inmate who was shortly afterwards found to have sustained a fatal stab wound.  He was charged with murder.

Chandler’s first trial in the High Court of Trinidad and Tobago ended in a hung jury*.  He was retried, convicted and sentenced to death**.  His appeal to that country’s Court of Appeal was dismissed***.  On each of the three proceedings he denied having stabbed the victim.  He appealed to the Privy Council where he sought for the first time to admit medical evidence supporting a defence of diminished responsibility.

By a 3-2 majority the Board dismissed the appeal.  The Supreme Court of Judicature Act 1962 (Trin. & Tob.) §47 provides that

For the purposes of an appeal in any criminal cause or matter, the Court of Appeal may, if it thinks it necessary or expedient in the interest of justice … receive the evidence, if tendered, of any witness …

Previous cases had established that any fresh evidence should be capable of belief and that a reasonable explanation be given for the failure to present it at trial, but that an appellate court had an overriding power to admit new evidence if it were in the interest of justice.  In this case the majority (Lords Carnwath, Sumption and Reed) found it significant that the new evidence directly contradicated the case proffered at trial.  There was no explanation of the change in position.

Crucially, in the Board’s view, there is no evidence that the failure to advance a case of diminished responsibility at the trial was anything other than deliberate, and indeed a fair reflection of the appellant’s own position. … [T]here is no evidence even now that the appellant has himself changed his position, or would do so if there were to be a retrial.

The minority (Lords Kerr and Lloyd-Jones) considered that unless there was a sound basis for concluding that the Chandler knowingly neglected to advance this defence, it should not be presumed that he deliberately chose not to raise it.

Strikingly, no member of the Board considered that the death sentence on its own made a possible new defence significant enough to warrant a retrial in the interests of justice.  This may reflect the rarity with which Trinidad and Tobago actually carries out the death sentence.

Chandler v The State (2018), Privy Council, 12 March 2018.

==============================

* The State v Chandler (2009) Trinidad Express, 2 April 2009.
** The State v Chandler (2011) Trinidad Guardian, 19 August 2018; Trinidad Express, 17 August 2011.
*** Chandler v The State (2013) Trinidad Express, 16 December 2013.