PENALTY

on the arm of the respondent matched the teeth of the deceased.
For over three years the respondent tried to obtain an independent
assessment of the evidence by an expert of his own choosing, but
without success since this required highly specialised and expensive
expertise. The State was willing to underwrite only some of the cost
of the expert’s fees, and the Court of Appeal of Barbados agreed it
was under no obligation to do more than that. 39 Although the Court
of Appeal conceded that “bite mark analysis is a highly complex and
controversial subject and it is sufficient to say for the purpose of this
judgment that the respondent may be at a disadvantage if he is unable
to obtain expert help in dealing with the evidence of the prosecution,”
40 it nonetheless held that the respondent was not entitled to
an expert funded by the State. No such right was established in the
Constitution, and in any case, an order to that effect would offend the
principle of separation of powers.
This decision was overturned on appeal, on the ground that the
respondent would be at such a disadvantage without expert evidence
of his own as to affect the fairness of the trial. 41 But the decision of
the lower court is instructive, as it reflects the disadvantage suffered by
criminal defendants without the resources to mount a proper defence.
Judges are not always sympathetic to the plight of low-income defendants
or willing to order the state to incur expenses on their behalf.
Even when a defendant ultimately succeeds, as in this case, a serious
cost of airing these issues is the time that it requires, since delays
are unpredictable and have the potential to prejudice the trial. The
result is to place poor people in a vulnerable and unequal position, a
disparity that takes on heightened significance in death penalty cases.
The poster case for such inequality is Indravani Ramjattan v. the State, 42
where disabilities of poverty, class and gender combined to produce
an appalling instance of state-perpetrated injustice. Ms. Ramjattan was
convicted along with two codefendants of the murder of her husband
and sentenced to death, and it was not until her final appeal had been
dismissed that she was allowed to present evidence of her mental state
at the time of the crime. This evidence revealed a life of epic suffering.
Regularly beaten as a child, she was taken out of school at age 13 and
married by her mother at age 17 to a man 18 years her senior. 43 Over
the course of 10 years she bore several children, all the while being
subjected to extreme physical and emotional abuse by her husband. He
repeatedly accused her of having other sexual relationships, while at the
same time boasting of his sexual encounters with other women. Violence
was a norm of the relationship, including attempted strangulation,
wounding, bruising and rape—summed up by the Court of Appeal of
Trinidad and Tobago as a “reign of terror.” 44
Ms. Ramjattan eventually summoned up the courage to leave her husband,
escaping to live with her childhood sweetheart, but her husband
hunted her down and forcibly recaptured her. By the time they got
home, she was covered in blood; he then locked her in a bedroom
and told her that he was going to sink her head inside her neck with a
piece of wood. He struck her on the head, hands, arms, back and feet
until she fell unconscious. During the final week of her husband’s life,
he tortured her and threatened to kill her and the children. All this was
corroborated by her 10-year-old daughter, who testified that her father
regularly beat her mother with his fists, belt and pieces of wood and
threatened to shoot her. She managed to write a letter to her boyfriend,
who came with the third accused to rescue her. The two men beat the
deceased and killed him. Although she was not present at the scene and
denied asking the men to kill her husband, she was convicted along
with the other two of his murder, and all three were sentenced to death.
It was only after Ms. Ramjattan lost her appeal that she was able
to secure a retrial. It was then revealed that she had been unable
to present evidence on her mental state earlier because she did not
have the money or a reasonable opportunity to engage a psychiatrist
to examine her and make a report capable of being used in legal
proceedings. The Privy Council was informed that it was not routine
in Trinidad for the mental health of defendants in murder cases to
be assessed at or before arraignment. 45 Her petition was allowed and
39 AG of Barbados v. Gibson Civil Appeal No 8 of 2007 (decision dated 15 December 2009).
40 Ibid., paragraph 41.
41 Gibson v. AG of Barbados [2010] CCJ 3.
42 Indravani Ramjattan v. the State (1999) 54 WIR 383 (PC, T&T).
43 These facts are taken from the decision of the Court of Appeal at the re-hearing: Indravani
Ramjattan v. the State (No 2) (1999) 57 WIR 501.
44 Ibid., p. 504.
45 (1999) 54 WIR 383 at 385.
140 141