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Cite as: [2001] JCA 210

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2001/210

COURT OF APPEAL

 

                                                               25th October 2001

 

Before:

R.C. Southwell, Esq., Q.C., President;
P.D. Smith, Esq., Q.C., and
M.G. Tugendhat, Esq., Q.C.

 

Dennis Peter HOLLEY

-v-

The Attorney General

 

Appeal by Dennis Peter HOLLEY against conviction at a criminal assize on 21st June, 2001, on:

1 count of:

Murder.

Leave to appeal was granted by the Deputy Bailiff on 10th September, 2001.

 

Advocate R. Juste for the Appellant;

C.E. Whelan, Esq., Crown Advocate.

 

 

JUDGMENT

 

 

 

THE PRESIDENT:

 

1.        This is the judgment of the Court.  On 13 April 2000 Dennis Peter Holley killed Cherylinn Ann Mullane, with whom he had had a long-standing relationship, at her flat on the Elysée Estate in St. Helier.  He killed her with seven strong blows to the head and neck with an axe.  On 21 June 2001 Holley was convicted by a jury of the murder of Cherylinn Mullane.  Holley admitted that he killed her.  The only issue before the Royal Court was whether he was provoked by her to such an extent that the verdict of the jury should be one of manslaughter, not murder.  The jury unanimously brought in a verdict of guilty of murder.  Holley appeals with leave of the Bailiff who presided at the trial.

2.        At the time of her death both Cherylinn Mullane and Holley were alcoholics, regularly drinking to excess.  Holley was living with her in her flat, as he had done, on and off, for a long time.  Cherylinn Mullane slept with other men from time to time, including men younger than Holley.  There was a long history of violence to each other, which culminated in the attack by Holley causing Mullane's death.

3.        Holley had pleaded not guilty to the charge of murder.  That meant that the onus was on the prosecution throughout to establish beyond reasonable doubt the charge of murder.  The defence was that Holley was provoked to lose his self-control and kill her by things said and done by Cherylinn Mullane over a long period and by the final provocation just before her death.   Article 4 of the Homicide (Jersey) Law 1986 is relevant and provides in relation to a defence of provocation as follows:

"Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man."

The same wording is to be found in section 3 of the English Homicide Act 1957.  Though provocation was raised as a defence, the onus remained on the prosecution to prove beyond reasonable doubt that there was not such provocation as in law would entitle Holley to a verdict of manslaughter, rather than one of murder.  The jury by its unanimous verdict rejected the defence of provocation.

4.        The defence of provocation arose in Jersey common law, as also in English common law.  Before the statutory provisions already referred to, it was unclear whether "things said" could amount to provocation, to what extent the relevant test involved an objective assessment of the degree of self-control concerned, and whether it was for the judge or for the jury to make the assessment in relation to the degree of self-control.  These matters were clarified in Jersey as in England by those statutory provisions to some extent, though in recent years there have been cases in England and Wales (and an important case in the Privy Council on appeal from Hong Kong) in which there has been a sharp divergence of view as to how the "reasonable man" element in the defence is to be put to the jury and determined by them.

5.        The starting point is with the wording of Article 4 of the 1986 Law.  That wording involves the following questions:

(i)        the factual or "subjective" question whether the accused was in fact provoked to lose his self-control and to kill by things said or done by the victim or by someone else;

(ii)       the "objective" question involving the jury in forming a judgment whether the provocation was enough to make a reasonable man do what the accused did, taking into account everything both done and said according to the effect which, in the judgment of the jury, it would have on a reasonable man.  This second question contains two elements.

(a)       what was the gravity of the provocation;

(b)       how would a "reasonable man" have reacted.

Both these questions are to be answered by the jury by their verdict, having been directed by the judge as to the legal framework in which these questions are to be considered.

6.        Question (i) is a question of fact for the jury and needs little explanation by the judge.  As to Question (ii) element (a), Article 4 requires the jury, when assessing the gravity of the provocation, to take into account "everything both said and done".  Element (b) involves assessing what effect provocation of the gravity assessed by the jury would have "on a reasonable man".  It is primarily element (b) which has given rise to the controversy in England and Wales already mentioned.

7.        It is well established that element (b) involves applying a standard of self-control of a reasonable man.  If it were a standard of the accused himself, and if the accused were a man with little or no self-control (due to alcoholism, drugs or other cause), then Article 4 would result in the absurd situation that the worse the chosen life style of the accused the greater the likelihood that he would not be found guilty of murder.  Accordingly the States in Article 4 of the 1986 Law (as Parliament in Section 3 of the 1957 Act) has laid down that the standard of self-control to be applied by the jury is to be that of "a reasonable man" or woman having regard to what is to be expected of a member of the community which the jury in a sense represents.  Inevitably in assessing this standard the jury has to take some account of the peculiarities of the individual accused.  One - the sex of the accused - has already been mentioned.  The jury must take into account the differences of gender, for example, between a battered wife and a hen-pecked husband.  Men are inherently stronger and more capable of inflicting serious injury than women.  Another peculiarity is age.  A 15 year old boy is not to be taken as being capable of the same degree of self-control as a man of 40:  see Reg v Camplin [1978] AC 705 HL(E).  So far there has been general agreement.

8.        In Camplin the House of Lords held that the "reasonable man" is to be taken as having the self-control of an ordinary person of the same sex and age as the accused, but in other respects having such of the accused's characteristics as the jury consider would affect the gravity of the provocation, the question being not only whether such a person would in similar circumstances be provoked to lose his or her self-control, but also whether such a person would react to the provocation in the same way as did the accused (we quote from the headnote in Camplin).

9.        The use of the word "characteristics" has been in part a cause of the controversy which, in essence, revolves round the issue as to how far the "reasonable person" is to be endowed with the precise characteristics of the accused.  Suppose an accused who suffers from brain damage which makes it difficult for him to control his impulses, as did the accused in Luc Thiet Thuan v Reg [1996] 2 All ER 1033 [1997] AC 131 Privy Council on appeal from Hong Kong.  There the accused's former girlfriend had taunted him about her new boyfriend and the accused's sexual inadequacy, and in retaliation he killed her.  The majority in the Privy Council held that such a mental condition of the accused is not to be considered by the jury, when applying the equivalent in Hong Kong of section 3 and Article 4, as regards the level of self-control of the reasonable person, but only in assessing the gravity of the provocation.  The majority approved a statement by Professor AJ Ashworth in an article "The Doctrine of Provocation" [1976] CLJ 292 at p.300:

"The proper distinction ... is that individual peculiarities which bear on the gravity of the provocation should be taken into account, whereas individual peculiarities bearing on the accused's level of self-control should not."

Lord Steyn dissented.  He agreed that minor abnormalities of character such as irascibility or pugnacity are to be ignored when considering the level of self-control of the reasonable person, but held that major abnormalities (in that case the accused's brain damage) must be taken into account.  So the "reasonable person" for the purposes of determining the relevant level of self-control would be a person with the accused's brain damage.  This view was, as indicated, not accepted by the majority, because in their view the purpose of the statutory provision was to enable the jury to establish an acceptable level of self-control in the community at large, and not a level of self-control at what might otherwise be a much lower level.

10.      In Reg v Smith (Morgan)  [2000] 3 WLR 654 HL(E) the accused suffered from a mental condition consisting of severe clinical depression.  The Court of Appeal had held that the accused's mental impairment was a characteristic to be attributed to the "reasonable person", not only in assessing the gravity of the provocation to the reasonable man, but also in assessing the reasonable man's reaction to the provocation, the level at which he loses self-control, taking the same view as Lord Steyn in Luc Thiet Thuan.

11.      In Smith (Morgan) in the House of Lords, three Law Lords adopted Lord Steyn's view (Lords Slynn, Hoffmann and Clyde) and two dissented, taking the same view as the majority in Luc Thiet Thuan.  The two main speeches were those of Lord Hoffmann for the majority view and Lord Hobhouse for the minority view.  In these speeches the interpretation of the statutory provision and the large number of previous cases in the English and Scottish courts and in the Commonwealth are discussed at considerable length.  We do not propose to lengthen this judgment unduly by citation of the many relevant passages, for two reasons.

12.      The first reason is that in our judgment the Courts of Jersey should adopt the view which has now prevailed in England and Wales, the majority view in Smith (Morgan).  We consider, like that majority, like the Court of Appeal in the same case, and like Lord Steyn in Luc Thiet Thuan, that statutory interpretation, logic and the dictates of justice combine to make that view the appropriate one for Jersey.  Accordingly for the purposes of our judgment we adopt, without lengthy citation, the judgment of Lord Steyn, the Court of Appeal judgment in Smith (Morgan) and the speeches of the majority in the House of Lords in that case, as representing the appropriate reasoning in support of the view taken in those judgments and speeches.

13.      The second reason is that in the Royal Court both prosecution and defence were agreed that this view of the law was the correct one, and agreed in advance of the trial that, subject to the Bailiff's view, a passage from Lord Hoffmann's speech was to be taken as the correct basis for directing the jury.  The Bailiff agreed.  This passage (at [2000] 3 WLR pages 678-679 reads as follows:

"In my opinion, therefore, judges should not be required to describe the objective element in the provocation defence by reference to a reasonable man, with or without attribution of personal characteristics.  They may instead find it more helpful to explain in simple language the principles of the doctrine of provocation.  First, it requires that the accused should have killed while he had lost self-control and that something should have caused him to lose self-control.  For better or for worse, section 3 left this part of the law untouched.  Secondly, the fact that something caused him to lose self-control is not enough.  The law expects people to exercise control over their emotions.  A tendency to violent rages or childish tantrums is a defect in character rather than an excuse.  The jury must think that the circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter.  This is entirely a question for the jury.  In deciding what should count as a sufficient excuse, they have to apply what they consider to be appropriate standards of behaviour; on the one hand making allowance for human nature and the power of the emotions but, on the other hand, not allowing someone to rely upon his own violent disposition.  In applying these standards of behaviour, the jury represent the community and decide, as Lord Diplock said in Camplin [1978] AC 705, 717, what degree of self-control "everyone is entitled to expect that his fellow citizens will exercise in society as it is today".  The maintenance of such standards is important.  As Viscount Simon LC said more than 50 years ago in Holmes v Director of Public Prosecutions [1946] AC 588, 601, "as society advances, it ought to call for a higher measure of self-control".

The general principle is that the same standards of behaviour are expected of everyone, regardless of their individual psychological make-up.  In most cases, nothing more will need to be said.  But the jury should in an appropriate case be told, in whatever language will best convey the distinction, that this is a principle and not a rigid rule.  It may sometimes have to yield to a more important principle, which is to do justice in the particular case.  So the jury may think that there was some characteristic of the accused, whether temporary or permanent, which affected the degree of control which society could reasonably have expected of him and which it would be unjust not to take into account.  If the jury take this view, they are at liberty to give effect to it.

My Lords, I do not wish to lay down any prescriptive formula for the way in which the matter is explained to the jury.  I am sure that if judges are freed from the necessity of invoking the formula of the reasonable man equipped with an array of unreasonable "eligible characteristics", they will be able to explain the principles in simple terms.  Provided that the judge makes it clear that the question is in the end one for the jury and that he is not seeking to "impose a fetter on the right and duty of the jury which the Act accords to them", the guidance which he gives must be a matter for his judgment on the facts of the case."

14.      We will return to the question of provocation in the context of the grounds of appeal.

15.      Advocate Rebecca Juste who appeared for Mr. Holley put forward eight grounds of appeal which we take for convenience and with some adjustments from the Notice of Appeal, and which will be considered in turn.

Ground 1     At the preliminary hearing held on 4 June 2001 the Bailiff misdirected himself by refusing Mr. Holley's application to exclude certain pieces of evidence which the Crown sought to rely upon at trial.

Ground 2     During the course of the Bailiff's summing up to the jury on 21 June 2001 the Bailiff failed properly to direct the jury on the defence of provocation and its application to the facts of Mr. Holley's case.  In particular the Bailiff failed to direct the jury that they were entitled to rely upon the characteristics of Mr. Holley in determining whether or not there was provocation.

Ground 3     Having previously indicated that the Bailiff would direct the jury on the defence of provocation in accordance with the judgment of Lord Hoffmann in the case of R v Smith (Morgan) [2000] 3 WLR 654 the Bailiff failed to give such a direction.

Ground 4     The Bailiff failed to direct the jury that provocation could occur upon an accumulation of physical and/or mental abuse with the final trigger occurring some years later, and that the final instance which triggers the defendant's response, could, albeit minor in itself, reopen previous provocation.

Ground 5     During the course of the Bailiff's summing up he referred to matters which were irrelevant to the issue to be considered by the jury which was whether or not there had been provocation.  By way of examples, the Learned Bailiff referred to the respective heights and weights of the victim and Mr. Holley, and secondly, the location of the victim sitting on the sofa and the fact that there were no defensive injuries.

Ground 6     The Bailiff in commenting upon the evidence given by expert witnesses called on behalf of the Defence, failed to give a fair and unbiased assessment of the evidence and its relevance to the defence of provocation.

Ground 7     The Bailiff's summing up to the jury used emotive and inappropriate language, which may have influenced the jury.

Ground 8     In all the circumstances of the case there was a substantial miscarriage of justice for the purposes of Article 25(1) of the Court of Appeal (Jersey) Law 1961.

16.      Before turning to these grounds of appeal, it is convenient briefly to summarise the way in which the defence of provocation was said to arise:

(i)        Throughout the period from October 1996 both Holley and Mullane were regularly and heavily drunk.  When drunk they had rows and hit each other.  In the course of their rows Mullane would make derogatory statements affecting Holley's self-esteem.  Mullane frequently told Holley to leave her flat, and frequently called the police if Holley refused to go: there were several such occasions from late 1996 on.

(ii)       In March 1997 Mullane and Holley attacked each other when drunk.  Mullane was charged with grave and criminal assault.  Holley refused to assist and the prosecution was discontinued.

(iii)      In April 1997 Mullane was injured by Holley.  Holley was charged with grave and criminal assault, but the prosecution was discontinued.

(iv)      In May 1997 Mullane was injured by Holley, but Mullane refused to make a statement of complaint.

(v)       In early June 1999 Mullane injured Holley, was charged with grave and criminal assault, but in the end a submission of no case to answer was upheld.

(vi)      There were two more episodes involving mutual violence in June 1999 and one in July 1999.

(vii)     In late July 1999 the police were called by Mullane to remove Holley from her flat.  He left, but returned drunk and tried to kick the door down to get in.  He was charged with breach of the peace, pleaded guilty and was sentenced to 5 weeks' imprisonment.

(viii)    On 6 and 7 August 1999 there were two episodes involving a third party, a younger man named Lee Tucker, whom Holley found in bed with Mullane.  In the first episode Holley struck both Tucker and Mullane.  In the second, Tucker assaulted Holley and subsequently served 4 months' imprisonment for a grave and criminal assault.

(ix)      On 12 August 1999 there was another episode similar to the one in late July 1999.  Holley was sentenced to 3 weeks' imprisonment for breach of the peace.

(x)       On 14 August 1999 Holley punched Mullane in the face, and for this assault he was sentenced to 2 weeks' imprisonment.

(xi)      On 8 September 1999 Mullane complained of an assault and produced an axe said to be associated with it, though she had not been struck with the axe.  Holley was sentenced to 10 weeks' imprisonment for grave and criminal assault.

(xii)     There were further episodes involving mutual violence and rows on 12, 20 and 25 February 2000, 2,3 and 26 March 2000 and 1 April 2000.

(xiii)    Just after midnight on the morning of 13 April 2000 Mullane, after calling the police because, she said, Holley was trying to break into her flat, went to stay with an ex-partner, Melvin Murphy, the father of her son Daniel who lived with his father.

(xiv)    Mullane and Holley were together in a pub between 11 am and noon, drinking heavily and arguing because Mullane wanted him to keep out of her flat.  She told him not to follow her.

(xv)     Holley followed Mullane to the Housing Department.  As she left she walked past Holley, and they had a heated argument in public.

(xvi)    Holley bought more alcohol and returned to Mullane's flat.  He chopped wood with an axe between 3 and 4 pm.  He then bought more alcohol.

(xvii)   Mullane spent the afternoon in a pub drinking.  When she died she was highly intoxicated.

(xviii)  Mullane returned home at about 5.15 pm.  Holley's evidence was that Mullane came in with two plastic bags which she dumped on the floor.  She slumped on the sofa.  She said that there was no food for him and she had just had sex with another man.  He picked up the axe which was in the flat.  She said: "You haven't got the guts".  He then killed her with at least 7 blows of the axe.  The injuries she sustained included a deep wound at the base of the neck which killed her, six ribs and her left shoulder blade broken, and her lung punctured.

(xix)   Expert evidence was given by a psychiatrist and a psychologist as to Holley's mental characteristics to which reference will be made later.

(xx)    As already indicated, it was Holley's evidence that the long record of derogatory remarks and violence of Mullane towards him culminated in the final insult which caused him completely to lose self-control.

17.      We now turn to the grounds of appeal in turn.

Ground 1

18.      Before the trial the prosecution indicated that it intended to call evidence of a number of previous incidents involving Holley and Mullane together or with other men.  The incidents involved violence as between Holley and Mullane or between Holley and other men.  The purposes in calling this evidence were

(i)        to show the relevant background to the killing of Mullane by Holley; and

(ii)       to show that Holley had not been caused to kill Mullane by the provocation alleged by Holley.

19.      The prosecution and the defence had agreed a "Schedule of Incidents involving Mullane and Holley" going back to April 1994.  This Schedule contained brief but helpful descriptions of 47 incidents (including the incidents already summarised), except that in relation to the incidents on 12 April 2000 (the day before Mullane's death) the entry read simply:  "[Dealt with in Philpott evidence]".  Though this Schedule had been agreed it was the Prosecution's intention to call the relevant witnesses to speak to each of these incidents, and indeed the Defence wished at least some of these witnesses to be called.

20.      At the pre-trial hearing on 4 June 2001, the defence challenged the extent to which such witnesses could be called.  Advocates Gollop and Juste (who both appeared below for the defence) submitted that

(i)        oral evidence of such incidents should not be called, since the Schedule took the place of such evidence, and to call such evidence would be unduly prejudicial to Holley;

(ii)       evidence of incidents involving violence against a third party would be irrelevant and inadmissible;

(iii)      in any event certain parts of the witnesses' statements should not be given in evidence because unduly prejudicial to Holley.

21.      As regards evidence of the background to the alleged offence, it is well established that prosecution evidence is not to be limited to the precise circumstances of the offence, where the background is relevant and ought to be placed before the jury so that the jury can see the full circumstances in the round.  In cases of violence as between husband and wife or those in a close relationship as here, some of the history of the marriage or relationship is almost always relevant.  Where provocation is put forward as a defence in such cases, it is the more clear that some of the history has inevitably to be placed before the jury so that they can assess the provocation on which the defence relies.

22.      The relevant passages of Archbold and Blackstone and the cases cited there show that it is commonplace to put in evidence of the history as background to an alleged offence.  As Purchas LJ said in the English Court of Appeal in R v Pettman (2 May 1985, unreported):

"Where it is necessary to place before the jury evidence of part of a continual background of history relevant to the offence charged in the indictment and without the totality of which the account placed before the jury would be incomplete or incomprehensible, then the fact that the whole account involves including evidence establishing the commission of an offence with which the accused is not charged is not of itself a ground for excluding the evidence."

23.      In allowing evidence of the background to the offence to be called, the Court has to be careful:

(i)        not to admit so much background evidence as to distract the jury's attention away from the central events relating to the alleged offence;

(ii)       not to admit, as background evidence, evidence which has limited probative effect, and the effect of which will primarily be prejudicial, to show the accused in a bad light:  the prejudicial effect must not be allowed to outweigh the probative value.

In R v Butler (Diana) [1999] Crim. L.R. 835 the English Court of Appeal indicated the utility of counsel trying to agree an account of the background so as not to distract the jury's attention from the central events by the calling of extensive oral evidence of the background.  That was said on the footing that the agreed account would be in substitution for, and not in addition to, all or part of the evidence that would otherwise be called.

24.      Here the Schedule contained only brief references to the previous incidents, and in the view of the Court it was appropriate for some evidence of each of the incidents to be called, so as to put the provocation issue in its true context.  It was an essential part of the defence of provocation that Holley's feelings had been adversely affected by what had occurred between him and Mullane over a long period, so that when the final incident leading to her death occurred Holley's self-control finally snapped.  It was in the interests of both prosecution and defence that the previous incidents should be understood by the jury in this context.  However, it was still necessary that evidence of past incidents should not be allowed to divert the jury's attention from what happened on the day of Mullane's death.

25.      On the appeal, Miss Juste concentrated on certain statements by the witnesses which in her submission were too prejudicial to Holley.  Before the Royal Court her submissions related to the written statements of the witnesses.  Before this Court she was able to relate her submissions to the transcript of what the witnesses actually said (except for those whose statements were read to the jury).

26.      The particular statements to which objection is now taken can conveniently be considered under the general headings used in Miss Juste's "Schedule of Defence Submissions on the Admissibility of Evidence".  The first general heading was "Alleged use of violence by Mr. Holley against Miss Mullane and/or another".  Particular statements by witnesses Mr. Lee Tucker, Mr. William Galloway, Mr. Jean-Yves Quinou and Ms. Jeannine Worthington were referred to.  Of the two statements by Tucker, he did not before the jury refer to Holley having "an evil look in his eye", but the rest he did say in similar terms.  This Court considers that it was a necessary part of the history that Holley, discovering another, much younger man in bed with Mullane whom he regarded as his woman, was angry and hit both Tucker and Mullane:  indeed this part of the history was essential to Holley's case on provocation.

27.      Three statements by Galloway were objected to.  Galloway had gone to repair Mullane's wardrobe, following damage done in the incidents involving Tucker.  Holley, having seen Galloway in Mullane's flat, had assumed that he had been having sex with Mullane.  The statements related to an alleged threat by Holley to hit Galloway with a hammer, a threat to Galloway's wife and children if he did not stay away from Mullane, and a threat coupled with a close shave with a handsaw when Galloway went to see Holley about the threat to his wife and children.  Each of these statements related to concerns of Holley about his relationship with Mullane, concerns which were directly relevant to Holley's case on provocation.  Though nearer the borderline than Tucker's statements, we consider Galloway's to be relevant and admissible and correctly admitted.

28.      The statements by Quinou and Worthington did not relate to specific incidents, but rather were general statements about Holley either pestering Mullane or being regularly violent.  In the view of this Court these statements were inadmissible, and anyway ought not to have been admitted, because their prejudicial effect outweighed their probative value. 

29.      The second general heading was "State of Mind of Miss Mullane".  The first witness' statements under this heading were those by Ms. Carla Deveau.  She was a civil servant in Social Security dealing with benefits, and had known Holley and Mullane for some years as recipients of benefits.  At lunchtime on the day Holley killed Mullane, she saw them in the doorway of a shop, Mullane with her back to the door, Holley facing Mullane, about a foot apart, and Mullane had her arms up in front of her.  Deveau stated as part of her description of the incident that Mullane might have been protecting herself.  This was clearly relevant and admissible as part of the description of the incident.  A second statement by Deveau related to having seen Holley and Mullane before "arguing and swinging blows" at each other.  Though this again came near to the borderline of relevance and admissibility, in our view it fell the right side of the line.

30.      Under this second heading also were statements of four witnesses, Mr. Stuart Anderson, Mr. Finlay Costello, Mr. Christopher Rowarth and Mrs. Lesley Swanston.  Each of the statements objected to was to the effect that Mullane was frightened of Holley and fearful of returning to her flat for her personal safety.  In the case of Anderson, Costello and Rowarth, the statements by Mullane were said to have been made in a public house shortly before her death on the day she died.  Because they were so closely connected with the circumstances of her death, this Court considers that they were both relevant and admissible, though in the case of Costello the statements were not made at the trial.  Mrs. Swanston was a neighbour and friend of Mullane.  Her statements were more general and indicated that Mullane had been fearful of Holley over some time before her death.  We consider that her statements were, like those of Quinou and Worthington, too general to be either relevant or admissible.

31.      The third general heading includes only a statement by Mrs. Maureen Brown, who saw Holley as she drove past on the morning of the day of the killing, that he had an angry face.  In the view of this Court such a statement, based on a fleeting sight as she drove past, was not relevant or admissible.

32.      The fourth general heading concerned alleged statements by Holley to witnesses (Mrs. Julie Buckle, Mr. Billy Minchington and Mr. John Makin).  The statements by Holley to Minchington and Makin were remarks derogatory to Mullane, which may have been intended to be humorous, and which were made on the day of the killing.  They were neither relevant nor admissible.  The statement to Buckle was made when she found Holley chopping wood with an axe two days before the killing.  She asked him whether he was going to get more wood.  The statement continued:

"... he replied, "Yes some more wood but I could have better things to chop".  He held his axe up and said "Ha ha!"  I am sure he was joking.  He was in a happy mood."

Though nearer the borderline than those of Minchington and Makin, in our judgment this evidence of Buckle should have been excluded.

33.      Though this Court has concluded that some of the evidence should not have been admitted, this ground by itself would not lead to the conviction being set aside. 

Grounds 2 and 3

34.      These grounds of appeal are the most significant ones, and we take them together.  Miss Juste attacked the Bailiff's direction to the jury on provocation, because the direction failed to follow the pattern suggested by Lord Hoffmann in Smith (Morgan), though the Bailiff had agreed to do so before the trial, and particularly because he failed to direct the jury that they were entitled to take into account Mr. Holley's characteristics in determining both the gravity of any provocation and the level of self-control of a reasonable person.  We have already dealt with the legal principles concerning provocation, and have quoted the full passage from Lord Hoffmann's speech in Smith (Morgan) in paragraph 13 above.

35.      The Bailiff in his summing up, after quoting Article 4, went on:

"In more simple terms, members of the jury, you have to ask yourselves two things.  First, when Holley killed Cherylinn Mullane by chopping downwards into her neck with the axe, had something suddenly caused him to lose his self-control so that in the passion of the moment he was no longer the master of his mind?  Secondly, if your answer to that first question is yes, something did cause him to lose his self-control, were the circumstances in which he lost his self-control sufficiently excusable to justify reducing the gravity of the offence from murder to manslaughter?  The underlying principle here is that the law expects people to exercise control over their emotions.  A tendency to violent rages, particularly if induced by alcohol, is a defect of character and not an excuse to kill another person.  In answering this second question, therefore, you have to apply what you consider to be the appropriate standards of behaviour, making due allowance, on the one hand, for the power of emotions but, on the other hand, not allowing someone to escape the consequences of his actions by relying upon his own violent and aggressive tendencies."

36.      In this passage the Bailiff covered what is set out in the first paragraph of our quotation from Lord Hoffmann.  He then summarised the history leading up to 13 April 2000, and the events of that day.  After that he returned to the two questions on provocation.  He dealt first with the question whether or not Holley had in fact lost his self-control.  He continued:

"If you decide that he did, in fact, suddenly and temporarily lose control of himself, the second issue is whether the circumstances in which he lost his self-control are sufficiently excusable to justify reducing the gravity of the offence from murder to manslaughter.  Yesterday you heard a good deal of evidence both in examination in chief and in cross-examination from a consultant psychologist, Dr. Beck, and a consultant psychiatrist, Professor Eastman, called by the defence.  The thrust of their evidence was that Holley had certain characteristics which marked him out from the ordinary man and made him more susceptible to provocation.  If I may summarise, it was said that Holley was a depressive and had strong feelings of worthlessness.  He avoided problems and was a very dependent person, both emotionally on women and on alcohol.  He suffered from anxiety and had a severe alcohol dependency.  Defence counsel asked you to place reliance on this evidence.  The crown advocate, on the other hand, was highly critical of it for reasons which I am sure are still fresh in your mind.  Now, you will give this evidence such weight as you think fit.  But the crown advocate was right to suggest to you that the conclusions of these experts are not binding on you.  It is for you to decide the two questions which I have explained to you.  The important general principle is that the law expects people, whatever their psychological make-up may be, to exercise control over their emotions.  You must, of course, make allowance for human nature but you should not allow someone to rely upon his own violent disposition as an excuse for killing another person.  At the end of the day, you have to decide whether, in your judgment, having regard to all the evidence which you have heard and in particular to the taunt, "You have not got the fucking guts", that it was excusable for Holley to lose his self-control and to hammer the life out of Cherylinn Mullane with an axe as she sat slumped on the sofa."

37.      The question is whether in these passages of his summing up to the jury the Bailiff dealt adequately with the requirement to direct the jury to take into account, in assessing whether Holley's reaction was that of a reasonable person, the particular mental characteristics of Holley.  It had been agreed by counsel and by the Bailiff that the approach recommended by Lord Hoffman (the majority approach in the Smith (Morgan) case) should be adopted, as we have already indicated.  Immediately before the Bailiff's summing up, Advocate Gollop for the defence in his address to the jury had set out the approach of Lord Hoffman in words which, with little adjustment, could have been repeated by the Bailiff.  Mr. Gollop said to the jury in relation to the self-control to be expected of the reasonable man: 

"Secondly, the fact that something caused him to lose control is not enough.  Society and thus the law expects people to exercise control over emotions.  Having reviewed all of the evidence, you must think that the circumstances were such as to make the loss of control sufficiently excusable to reduce the [offence] from murder to manslaughter.  In deciding what should count as a sufficient excuse, you are entitled to have regard to the characteristics of Mr. Holley, the particular peculiar characteristics of him, whether they be temporary or permanent.  And if, in your view, those characteristics affected the degree of control that society should usually have expected of Mr. Holley, then you are entitled to take these into account as it would be unjust for you not to do so.  Thus, for example, if you think it is relevant so that you can do justice to this case, then you are entitled to take into account the fact that he was a chronic alcoholic.  And then it is entirely a matter for you whether you may wish to have regard for the expert evidence of Dr. Beck and Professor Eastman on the specific mental characteristics that they suggested mark Mr. Holley out from an ordinary man."

38.      In our judgment that was, in essence, the way in which the second issue on provocation needed to be presented to the jury consistently with the views of the majority in Smith (Morgan) and in particular with the approach of Lord Hoffman.

39.      The Bailiff did point out to the jury in the passage quoted in paragraph 36 above the particular mental characteristics of Holley: his depressive condition, his strong feelings of worthlessness, his avoidance of problems, his dependence both emotionally on women, and severely on alcohol, and his anxiety.  But the Bailiff did not tell the jury (as Mr. Gollop had) that they were entitled, if they thought it right, to take these characteristics into account as affecting the degree of control that society could expect of Holley.  In this important respect the directions to the jury were defective.  It is not for this Court to speculate what would have been the verdict of the jury if correctly directed: the verdict might or might not have been different.  In our judgment the absence from the summing up of this essential guidance on the law was sufficiently serious to amount to a miscarriage of justice, and a substantial one, for the purposes of Article 25(1) of the Court of Appeal (Jersey) Law 1961.  On these grounds alone Mr. Holley is entitled to have the conviction for murder set aside.  But since this matter may come before the Royal Court again we go on to consider the other grounds of appeal on which Miss Juste relied.

Ground 4

40.      The complaint is that the Bailiff failed correctly to direct the jury as regards the accumulation over some years of physical and mental abuse by Mullane of Holley and the effect which this might have when the final words "You haven't got the fucking guts" were spoken, allegedly triggering Holley to kill Mullane.  The Bailiff did in fact refer to this, as Miss Juste accepted.  But the Bailiff prefaced the reference with the words "The defence admits ..."  These words, Miss Juste submitted, were inappropriate since far from "admitting" the point the defence made it a central point in their submissions.  It might be possible that the transcriber had erred and that what the Bailiff said was "The defence submits ..." which would have been correct.  Miss Juste stated her recollection, however, that the Bailiff said "admits".  If he did, then that was an error.  But in our judgment that would have been a minor error, and not one justifying the setting aside of the jury's verdict.

Ground 5

41.      The matters said by Miss Juste to be irrelevant to the issues before the jury were, in our judgment, relevant. The respective heights and weights of Holley and Mullane were clearly relevant when considering the brutal nature of Holley's reaction to Mullane's last remark.  The position of Mullane, drunkenly slumped on the sofa, had the same relevance, and was also relevant to the question whether Holley was to be believed, that Mullane did make the remark.  The same applies to Mullane's lack of defensive injuries.  If she had made the remark it might have been expected that, after long experience with Holley, she would have been taking steps to defend herself against anticipated violence.  There is nothing in this ground.

Ground 6

42.      There was nothing in the Bailiff's summing up to support this ground.  In her oral submissions Miss Juste changed her attack to the Crown Advocate's final address to the jury, in which undoubtedly he made remarks to the jury disparaging the evidence of the defence's expert witnesses.  In our judgment the Crown Advocate's observations on the expert evidence were inappropriate in three respects:

(i)        He suggested that the prosecution had conflicting expert evidence which it could have called.  That he should not have said.  The prosecution should either have called such evidence and relied on it, or should have said nothing about it.

(ii)       He expressed repeatedly his personal views of the expert evidence.  Counsel are not entitled, ever, to express such personal views, whether to judge or jury.  The function of counsel is to make impersonal submissions, not statements of personal views.

(iii)      His remarks were in language which was inappropriately derogatory of the experts.

The judge should either have stopped the Crown Advocate at the time, or should have directed the jury to ignore all observations of the Crown Advocate falling within these three categories.  That was not done.  Though these were errors, nevertheless in our judgment they were not such errors, as would, by themselves, have led to the conviction for murder being set aside.

43.      Despite our conclusion under this ground, we wish to emphasise that the Crown Advocate was fully entitled to criticise, in language appropriate for an advocate occupying the role of a "minister of justice", the expert evidence in a number of respects, including

(i)        the fact that the experts had been shown almost none of the witness statements, so that their views were based almost entirely on what Holley had told them, resulting in the obvious danger that their views were slanted one way and not properly balanced;

(ii)       the fact that in the witness box they proved to be unprepared to answer proper and sensible questions with which the Crown Advocate correctly sought to test the propositions and opinions of the two experts.

It is apparent that the jury was not impressed with their evidence.

Ground 7

44.      There is in our judgment only one instance where the Bailiff used unduly emotive language.  He said this:

"At the end of the day, you have to decide whether, in your judgment, having regard to all the evidence which you have heard and in particular the taunt, "You haven't got the fucking guts", it was excusable for Holley to lose his self-control and to hammer the life out of Cherylinn Mullane with an axe as she sat slumped on the sofa."

It was true that Holley did "hammer the life out of " Mullane with the axe.  But a more balanced wording would have been appropriate at that vital point in the summing-up.  However in our judgment this was not a ground which could justify setting aside the conviction.

CONCLUSION

45.      Because we have upheld Grounds 2 and 3, and for the reasons already stated in that regard, this Court allows Holley's appeal and sets aside the conviction of murder.  We will now hear argument as to the consequences following from this conclusion.


 

Authorities

Homicide (Jersey) Law, 1986: Article 4.

Homicide Act 1957: s.3.

R.-v-Camplin [1978] AC 705 HL(E).

Luc Thiet Thuan-v-R. (1996) 2 All ER 1033; [1997] AC 131 P.C.

Ashworth: 'The Doctrine of Provocation' [1976] CLJ 292 at 300.

R.-v-Smith (Morgan) [2000] 3 WLR 654 HL (E).

Court of Appeal (Jersey) Law, 1961: Article 25(1).

R.-v-Petman (2nd May 1985) English Court of Appeal (Unreported).

R.-v-Butler (Diana) [1999] Cr.L.R. 835.

Jones-v-AG (12th April, 2000) Jersey Unreported.

Smith (Cleon)-v-The Queen (2000) UK PC 27.

Sawoniuk [2000] Cr.L.R. 506.


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