Holley v AG
| Jurisdiction | UK Non-devolved |
| Judge | Lord Nicholls of Birkenhead,Lord Bingham of Cornhill,Lord Hoffmann,Lord Carswell |
| Judgment Date | 15 June 2005 |
| Neutral Citation | [2005] UKPC 23 |
| Court | Privy Council |
| Docket Number | Appeal No. 3 of 2004 |
| Date | 15 June 2005 |
R.C. Southwell, Esq., Q.C., President; Sir de Vic Carey, Bailiff of Guernsey; and P.S. Hodge, Esq., Q.C.
COURT OF APPEAL
Appeal by Dennis Peter HOLLEY against conviction at a criminal assize on 12 th July, 2002, on:
1 count of: Murder.
The application for leave to appeal placed directly before the plenary Court without first being considered and determined by a Single Judge.
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.
Advocate J.C. Gollop for the Appellant;
D.E. Le Cornu, Esq., Crown Advocate.
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.
Holley's first trial was in June 2001. Holley pleaded not guilty to the one count of murder. He admitted that he had killed Cherylinn Mullane. The only issue before the Royal Court was whether he was provoked by her in such a manner that the verdict should be one of manslaughter, not murder. On 21 June 2001 the jury unanimously brought in a verdict of guilty of murder. Holley was sentenced to life imprisonment.
Holley appealed to this Court with leave of the Bailiff who had presided at the first trial. On 25 October 2001 this Court upheld the appeal and quashed the conviction of murder. This Court ordered a retrial.
Holley again pleaded not guilty to the one count of murder. He was due to be tried a second time in the week of 8 April 2002. That trial was aborted following the discovery that two of the jurors had connections with Cherylinn Mullane.
The second trial ultimately began on 8 July 2002. Again the only issue before the Royal Court was that of provocation – whether by reason of provocation the verdict should be one of manslaughter and not of murder. The jury unanimously brought in a verdict of guilty of murder. Holley was again sentenced to life imprisonment.
Holley applied for leave to appeal against conviction on 22 July 2002. On 16 September 2002 it was directed by this Court that his application be placed directly before the plenary Court. Accordingly, this Court has heard the application as if it were an appeal with leave.
In the first judgment of this Court of 25 October 2001, the factual background to this case, and the legal framework within which the appeal is to be considered, were set out at some length. We do not propose to lengthen this judgment further by repeating the relevant matters of fact and law set out in the earlier judgment of this Court. Accordingly we state only that paragraphs 2 – 13 inclusive and 16 of the earlier judgment are to be treated as incorporated in this judgment.
There has, to the benefit of Mr Holley, been a helpful continuity of his representation. Advocates Gollop and Juste appeared for Holley at the first trial, Advocate Juste alone on the first appeal, and Advocates Gollop and Juste at the second trial and on the present application for leave. This Court wishes to pay a deserved tribute to both Counsel for their conduct of the two trials and the present application, and to Miss Juste for her conduct of the first appeal.
For the prosecution Crown Advocate Whelan appeared at the first trial and on the first appeal, and Crown Advocate Le Cornu at the second trial and on the present application.
We next consider in turn the seven grounds relied on on Holley's behalf on the present application.
This ground was that the Deputy Bailiff, who presided at the second trial, failed to give a complete or sufficient direction to the jury on the defence of provocation.
As this Court stated in its judgment on the first appeal, the relevant legal provision concerning provocation is in Article 4 of the Homicide (Jersey) Law 1986 (see paragraph 3 of the earlier judgment). For the purposes of this application, Article 4 involves these issues for the jury to determine:
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(i) The factual, or “subjective”, issue whether Holley was in fact provoked to lose his self-control and to kill by things said or done by Cherylinn Mullane.
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(ii) The “objective” second issue which involves the jury forming a judgment whether the provocation was enough to make a reasonable person do what Holley did, taking into account everything done and said by Cherylinn Mullane. This second issue contains two elements:
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(a) what was the gravity of the provocation;
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(b) how would a reasonable person have reacted.
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For the purposes of Ground 1(a) we are principally concerned with issue (ii) (b) – how would a reasonable person have reacted. This involved the jury forming its judgment as to the effect of the provocation on a reasonable member of the community, a judgment which the jury would reach by setting a standard of self-control of the reasonable person in the circumstances of the case.
In setting this standard and applying it to the circumstances of a particular case a jury has to take some account of the particular characteristics of the defendant, distinguishing, for example, between provoked men and provoked women, and between adults and children (for example, the 15 year old boy in Reg v Camplin [1978] AC 705 HL (E)).
The difficulty in cases involving questions of provocation leading to killing is how far the judge should go in directing the jury to take account of particular characteristics of the defendant. In Reg v Smith (Morgan) [2000] 3 WLR 654; [2001] 1 AC 146; HL(E) the House of Lords by a majority went further than before in holding that a characteristic of the defendant, such as the mental condition consisting of severe clinical depression from which Morgan Smith suffered, was a type of characteristic which the jury was entitled to take into account. A passage from the speech of Lord Hoffman has been agreed by Counsel for the prosecution and the defence to contain the relevant guidance for the Royal Court in giving directions to the jury in cases of the present kind. The full passage was quoted in paragraph 13 of the earlier judgment of this Court, and we do not quote it in full again. It suffices for the purposes of this judgment to say that Lord Hoffman
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(i) stressed the general principle that the same standards of behaviour are expected of everyone, regardless of their individual psychological make-up;
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(ii) went on to emphasise that the jury should be directed on the lines that, if it thinks that there is some characteristic of the defendant which affected the degree of self-control which the community could reasonably have expected of him, and which it would be unjust not to take into account, then the jury is at liberty to give effect to this characteristic;
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(iii) the judges should no longer invoke, in their directions to juries, the formula of the reasonable man equipped with an array of unreasonable but eligible characteristics.
It was clear from the evidence of Mr Holley himself, viewed in the light of the helpful evidence of the experts to which we will shortly turn, that he had a number of characteristics or personality traits which were potential candidates for special consideration by the jury. (1) The first of these was chronic alcoholism, which had begun in Holley's early teens, and with limited periods of remission when he was in prison or persuaded to try to stay off drinking alcohol, had continued ever since. (2) He had an avoidant personality and always tried to avoid confronting any problematic situation. (3) He had a depressive personality, though the experts seem to have agreed that he did not have the illness of clinical depression. (4) He was dependent on the women to whom he was from time to time attached, and above all on alcohol. (5) He had an anxious personality, being anxious about his own effect on other people, and about his own ability to cope with difficult situations, and was unduly prone to think of himself as responsible for any problems which arose in his relationships with others.
The three experts who gave evidence were Dr Wilkins (called by the prosecution, and who is a consultant psychiatrist with the Berkshire Health Care Trust, and works in general psychiatry with day to day contact with those who are dependent on alcohol), and two called by the defence, Dr Beck (a chartered clinical psychologist), and Professor Eastman (who is both a psychiatrist and a barrister, Professor of Psychiatry and Law in London University, head of forensic psychiatry at St George's Hospital Medical School, and a Honorary Consultant Forensic Psychiatrist in the National Health Service, and has had long experience with alcohol dependents). They agreed that Holley had all five of the characteristics or personality traits we have described. There was, however, a difference of emphasis between them. Dr Wilkins considered that traits (2) to (5) above were commonly to be found among chronic alcoholics. In his view the killing by Holley was solely due to Holley's alcohol intake, and would not have occurred in the absence of such alcohol intake. Professor Eastman and Dr Beck, on the other hand, expressed the view that, in the absence of the actual alcohol intake on the day of the killing, the killing could have occurred anyway due to the four other personality traits...
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