Alexander von Starck v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Lord Clyde |
| Judgment Date | 28 February 2000 |
| Judgment citation (vLex) | [2000] UKPC J0228-2 |
| Court | Privy Council |
| Docket Number | Appeal No. 22 of 1999 |
| Date | 28 February 2000 |
[2000] UKPC J0228-2
Present at the hearing:-
Lord Slynn of Hadley
Lord Mackay of Clashfern
Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Clyde
Privy Council
[Delivered by Lord Clyde]
On Wednesday 2nd August 1995 the dead body of a woman named Michelle Kernoll was found in room 28 in the Sea Shell Hotel, Montego Bay, Jamaica. The appellant, who was German, was visiting Jamaica in July 1995. At some time in that month he had checked into that room and on Sunday 30th July he had been seen in company with Michelle Kernoll. Her death had been caused by a single stab wound to the left chest. Very strong force had been used, causing fractures of six ribs. On the evening of 3rd August Detective Corporal Smallhorne found the appellant at the Falmouth Resort Hotel. He was arrested and later charged with the murder of Michelle Kernoll. On 4th October 1996 the appellant was convicted of her murder.
The principal point in the appeal to their Lordships is whether the trial judge ought to have left the possibility of a verdict of manslaughter to the jury. In order to understand how this point arises it is necessary to refer to three matters, all of which were before the jury. The first concerns what occurred when Detective Corporal Smallhorne found the appellant. Detective Corporal Smallhorne stated in evidence that when he identified himself to the appellant the latter said, "I have been waiting on you guys for the past few days" and then "I killed the lady at the Hotel". The detective then cautioned him. The appellant then stated, "I have a knife which I used to kill her" and handed to the detective a pouch which contained a knife and a little jar. The jar contained a white powdery substance which resembled cocaine. No tests were evidently carried out to confirm that it was in fact cocaine, or to analyse the quality of the drug. But both sides have proceeded upon the basis that it was cocaine and the point is not one of dispute. On handing over the pouch with the knife and the jar within it the appellant said, "Is the cocaine that caused me to do it". He explained that he had kept the knife because he wanted to kill himself. He also said "Please don't take me back to Sea Shell Hotel, it brings back terrible memories". The knife was later found to have blood upon it of the same blood group as that of the blood of the deceased.
The second matter concerns a statement made by the appellant at a police office later in the evening of 3rd August 1995. A challenge was made at the trial against the admission of this statement, but after a voir dire the judge ruled that the statement was voluntary and admissible in evidence. The statement clearly contained elements which were contrary to the appellant's interest and it was presumably on that account that the prosecution led the evidence of it. In this statement the appellant was recorded as having referred to events on the Sunday afternoon, but he was at the trial later to explain that that was a mistake and what he had said was "Monday" not "Sunday". He explained that Michelle had come to visit him and this was the third time that they had met. He said "we started to have a party and took drugs; we take it a long time". He said that she then slept and that later they "started to party again. The whole time I didn't stop taking drugs". The statement then recorded him as saying:-
"After a few hours we both were high and then I don't know why, I suddenly have this knife in my hand and then I don't know what happened exactly, but I remember seeing her on the ground full of blood and I think she was dead. And then the only thing I want was to go away. I took the knife the police found in my bag with me because I wanted to kill myself."
Some support for his statement that Michelle had also been taking drugs was available in the discovery during the course of post mortem analysis of a toxic level of cocaine in her blood.
The third matter concerns the trial itself. The appellant did not give evidence but made an unsworn statement. In this he enlarged upon his activities after his arrival in Jamaica and his meetings with Michelle. As regards the Monday evening he said that he and Michelle had gone out with a man called Mark Simon to a discotheque. After a time Michelle left to return to the hotel. The appellant gave her his room key and asked her to leave it outside the door. Later Mark Simon left and some time after that the appellant returned to the hotel. He saw nobody lying in his bed and, being tired, went to sleep on it. An hour later he woke up needing to use the toilet. He then said:-
"I stand up and saw what happened. The right bedside was full of blood at the side and Mitchell (sic) was lying at the floor. Everything was full of blood … on her side and on her body. She had a big wound in her chest. She looked real terrible. I was shocked, upset and confused because I didn't know what happened. I was afraid also because I thought everybody would think I did it …"
He then referred to his leaving the room taking a knife and a pouch with him. He went to stay at a guest house in Montego Bay and later booked in to the Falmouth Resort Hotel. He then pointed out that there were two mistakes in the caution statement; one was the reference to Sunday instead of Monday, the other was the reference to "after this we were both high". His unsworn statement then moved on to other matters and concluded with a passage in which he stated that on being arrested by Detective Smallhorne he had been accused of killing Michelle and cutting off her left breast. The statement continued: "I said I didn't kill Michelle Kernoll and I said I didn't cut off her left breast. I have no reason at all to kill Michelle, we had plans and I love her a lot".
The first and the second of these three matters very plainly provided a basis for a possible conclusion that the appellant had killed Michelle but had done so under the influence of cocaine. As a matter of law it is not disputed that the voluntary consumption of drugs, as well as the voluntary consumption of alcohol, may operate so as to reduce the crime of murder to one of manslaughter on the ground that the intoxication was such that the accused would not have been able to form the specific intent to kill or commit grievous bodily harm. In the present case the statements made by the appellant on arrest and in his caution statement point strongly to a conclusion that while he had killed Michelle he was so far under the influence of the cocaine that he lacked the mens rea required for murder and accordingly should be convicted only of manslaughter. There thus was evidence before the jury, properly admitted in the trial and substantial in its weight, which the jury could accept and which called for a verdict of manslaughter. But the trial judge took the view that by his unsworn statement at the trial the appellant was saying that he had not killed Michelle, that that statement was inconsistent with the position disclosed in his earlier statements and that he had thereby "killed the cocaine issue". Towards the end of the summing-up he said of the defence of the use of cocaine "The defence is not before you and you should not consider it because he has killed it …". And at the close of the summing-up he said "He is denying killing her, so he can't say that he might have killed her because of cocaine. He has killed it". The Court of Appeal held that the trial judge was correct in holding that the appellant had presented a defence which was inconsistent with the caution statement and was not obliged to leave the exculpatory part of his caution statement as an issue to be determined by the jury.
The Court of Appeal recognised the principle affirmed in Reg. v. Duncan (1981) 73 Cr.App.R. 359 that where a defendant has not given evidence the whole of...
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