R v Dietschmann (Anthony)
| Jurisdiction | UK Non-devolved |
| Judge | LORD NICHOLLS OF BIRKENHEAD,LORD LLOYD OF BERWICK,LORD HUTTON,LORD HOBHOUSE OF WOODBOROUGH,LORD RODGER OF EARLSFERRY |
| Judgment Date | 27 February 2003 |
| Neutral Citation | [2003] UKHL 10 |
| Date | 27 February 2003 |
| Court | House of Lords |
[2003] UKHL 10
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Lloyd of Berwick
Lord Hutton
Lord Hobhouse of Woodborough
Lord Rodger of Earlsferry
HOUSE OF LORDS
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hutton. For the reasons he gives, with which I agree, I would allow this appeal and make the order he proposes.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hutton. I agree with it and for the reasons which Lord Hutton gives I would allow this appeal.
My Lords,
In the early hours of the morning on 18 July 1999 the appellant, Anthony Dietschmann, killed Nicholas Davies by punching him and kicking him on the head in a savage attack. At the time of the killing the appellant was heavily intoxicated and he was also suffering from a mental abnormality which the medical witnesses for the Crown and the defence described as an adjustment disorder, which was a depressed grief reaction to the death of his aunt, Sarah, with whom he had had a close emotional and physical relationship.
The appellant was tried on a count of murder before Maurice Kay J and a jury at Liverpool Crown Court. At the trial the appellant admitted the killing and the only defence raised on his behalf was the defence of diminished responsibility under which, if established by him, he would not have been found guilty of murder but of manslaughter. The defence of diminished responsibility arises under section 2 of the Homicide Act 1957 which provides:
"(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.
(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.
(3) A person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter."
The jury rejected this defence and on 7 April 2000 convicted the appellant of murder and he was sentenced to life imprisonment. The appellant's appeal against conviction was dismissed by the Court of Appeal on 5 October 2001 and he now appeals to this House against the decision of the Court of Appeal. The issue which arises on the appeal is the nature of the direction which the trial judge should give to the jury when a defendant, raising the defence of diminished responsibility, had taken alcohol prior to the killing and was also suffering from a mental abnormality at the time of the killing. The question (which I have divided into two parts) certified by the Court of Appeal as a point of law of general importance is as follows:
"(1) Does a defendant seeking to prove a defence of diminished responsibility under section 2(1) of the Homicide Act 1957 in a case where he had taken drink prior to killing the victim, have to show that if he had not taken drink
(a) he would have killed as he in fact did; and
(b) he would have been under diminished responsibility when he did so?
(2) If not, what direction ought to be given to a jury as to the approach to be taken to self-induced intoxication which was present at the material time in conjunction with an abnormality of mind which falls within section 2(1) of the 1957 Act?"
No issue arises on this appeal in relation to the principle stated as follows by Rose LJ in para 13 of the judgment of the Court of Appeal in the present case:
"The general rule that drink does not give rise to an abnormality of mind due to inherent causes was authoritatively established in Fenton (1975) 61 Cr App R 261 and confirmed in Gittens [1984] QB 698. In line with those authorities, Tandy [1989] 1 All ER 267 established that drink is only capable of giving rise to a defence under section 2 if it either causes damage to the brain or produces an irresistible craving so that consumption is involuntary."
The facts
The facts relevant to the issue which arises can be briefly summarised as follows. In July 1998 the appellant began a relationship with his aunt Sarah, who was almost twice his age and who had a drugs problem. As a result they were ostracized by the rest of the family. They lived together until he was remanded in custody in November 1998. She visited him in prison and wrote to him almost every day. In May 1999 she bought him a watch which she gave to him. In June, whilst living alone because of the appellant's remand in custody, she was burgled and started to take drugs again. She died on 6 June 1999.
The appellant believed that she had committed suicide because she could not cope without him and because he had given her an ultimatum that he would leave her if she did not solve her drugs problem, and he cut his wrists but without fatal consequences. This belief was, in fact, erroneous, as a post mortem which took place after the killing of Nicholas Davies revealed that she had died of natural causes. On 15 June, whilst still in custody, he attended his aunt's funeral.
On 2 July the appellant was released from custody. He began to drink heavily and on 13 July he saw his general practitioner and was prescribed Prozac and sleeping tablets. On the night of 16 July the appellant went to drink at a club with two young women and another man. He spent the next day at the house of one of the young women and on the night of 17 July his companions of the previous night were with him in the house and they were joined by a third man. A bottle of whisky was drunk and the appellant had a couple of pints of cider. The young women left to go to a club and the appellant and the two men were joined in the house by a third man, Nicholas Davies, and further alcohol was obtained and drunk.
The appellant and Nicholas Davies began dancing in the living room and the dancing became increasingly frenetic. The appellant's watch became detached from his wrist and he believed it to have been broken. He accused Davies of breaking it, stating that it was the final gift from Sarah before she died. He demanded that Davies pay for it and Davies refused. The appellant punched him in the face, but Davies continued to refuse to pay for the watch. The appellant continued to hit him, accusing him of urinating on Sarah's grave. Davies fell to the floor and the appellant stamped on his head three or four times and kicked him hard in the face. He then picked him up, pinned him upright against the chimney breast, pulled him away and slammed him against the wall on the other side of the fireplace. Davies head moved from side to side and he groaned. The appellant then threw Davies to the floor where he did not move and made no noise. The appellant stamped on him and kicked his head, side and chest over 30 times repeating that he had urinated on Sarah's grave and deserved to die. Then he and another of the men rolled Davies' body in a rug and moved it into another room.
Later in the early hours of 18 July the young woman who owned the house returned and the body was found. The police were called and in due course arrived and Nicholas Davies was found to be dead. Meanwhile the appellant had left the house. He did not go far, and was found by a police officer sitting on a bench with his head in his hands. He appeared dishevelled and smelt of alcohol. He was arrested and taken to the police station.
The arresting officer remained with the appellant at the police station. The appellant told him that his wife had died whilst he was in prison and that on Saturday afternoon he had visited her grave with a friend. They were both drunk and he was annoyed at his friend who had urinated over his wife's grave. He had given his mate a "dig" at the time and later when they had both been drinking he had started arguing with his friend about urinating on the grave. He had given his friend a few "digs", and his friend had retaliated. It had all got out of hand. He knew it was bad but he did not think he had killed him.
The proceedings at the trial
At the trial the central facts relating to the consumption of alcohol, the dancing, the appellant's belief that his watch had been broken, the allegation that Davies had been urinating on Sarah's grave and the subsequent violence leading to Davies' death were all admitted. In his evidence the appellant claimed that he was not badly affected by alcohol at the time when he attacked Davies.
Evidence as to the mental condition of the appellant was given by two psychiatrists. Dr El Azra gave evidence on behalf of the appellant. He had interviewed the appellant once in March 2000. Dr Palmer gave evidence on behalf of the Crown. She had examined the appellant within three days of the offence in July 1999. Both psychiatrists agreed that at the time of the killing the appellant was suffering from an abnormality of mind, arising from an inherent cause or induced by disease, and that this abnormality was an adjustment disorder which was a depressed grief reaction to the death of his aunt and which was more severe than was usually suffered after a bereavement. However the psychiatrists differed on the point whether the appellant was suffering from any additional abnormality of mind. Dr Palmer believed that he was suffering from alcohol dependency syndrome at the...
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