R v Duncan
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 07 May 1981 |
| Judgment citation (vLex) | [1981] EWCA Crim J0507-2 |
| Docket Number | No. 3256/B/80 |
| Court | Court of Appeal (Criminal Division) |
| Date | 07 May 1981 |
[1981] EWCA Crim J0507-2
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Boreham
and
Mr. Justice Drake
No. 3256/B/80
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. I. JUDGE, Q.C. and MR. T. CLARK appeared on behalf of the Appellant.
MR. P. CRAWFORD, Q.C. and MR. R. POLLARD appeared on behalf of the Crown.
On 9th July 1980 at the Crown Court at Oxford before Mr. Justice Stephen Brown and a jury, this appellant was convicted of murder and sentenced to life imprisonment, coupled with a recommendation that he should be detained for at least twenty years. He had pleaded not guilty to murder but guilty to manslaughter by reason of provocation. That plea was not accepted. A day earlier at the same Court, he had pleaded guilty to a second indictment containing charges of three offences of burglary and was sentenced in respect of those to three years' imprisonment on each count concurrent with each other and concurrent with the term of life imprisonment. Eleven other offences were taken into consideration.
He now appeals against the conviction of murder on a point of law. The point arises in this way. At the conclusion of the evidence and when the appellant had, through his counsel, elected not to give any evidence and not to call any witnesses, the Judge, in the absence of the jury, raised the question of provocation and Invited submissions from counsel as to whether he should leave the question of provocation to the jury or not. In the upshot, having heard submissions on both sides, the learned Judge ruled that he would not leave that issue to the jury. The main ground of appeal before this Court is that the Judge was in error in that decision.
In order to appreciate the basis of the appeal, it is necessary to go into a little detail with regard to the facts. The victim of the murder was a young woman called Denise Preston, aged 20. She was apparently not very bright. She had been living with the appellant for a few weeks during the autumn of 1979 at his house near Peterborough. There was little doubt that the appellant was very fond of Denise and that she had succeeded in making him happy.
However, on Sunday the 14th October 1979, a Mrs. Trengrove, a neighbour of the appellant, called upon him at about 6 o'clock in the evening and found him crying and shaking. He told her that he had killed Denise the night before and had dumped her body in the woods. The police were informed. Shortly afterwards four policemen arrived at the appellant's home to find him still distressed and shaking. He told them that he had killed his girl friend. He took them to some woods nearby. On the way he said "I think I hit her with a bottle. I wheeled her over in the trolley. I put her in the bushes and set fire to her about 2 o'clock this morning…. I went home and fetched a shovel and covered her up." He showed the police where the body could be found but refused to go anywhere near it. The officers searched and found the body charred and partly buried. There was a plastic bag over the head which was secured around the neck with flex. A dressing gown cord was lying at the back of the neck. The appellant was then arrested.
Upon autopsy, the cause of death was found to be asphyxia due to strangulation, both manual and by ligature. There was an injury to the left temporal region caused by a blow, probably from a lemonade bottle which had been found by the police in the meter box outside the front door of the appellant's house. The blow would have been sufficient to daze the victim and thus facilitate strangulation.
The following day the appellant was interviewed at the police station and, having been cautioned, he was asked a number of questions which, together with his answers, were recorded. The appellant explained how he had been drinking with Denise on the night in question. He said that Denise had gone upstairs, taken her clothes off and put his, the appellant's, night cloak on. When she came down she started drinking more and jumping up and down and dancing. He was sitting there taking it all in. He went over to kiss her and she gave him a couple of thumps in the elbow. She said something but he could not remember what it was. She carried on dancing. He went and got some more drink, was sitting on the floor and she ended up on top of him. They started wrestling They started kissing. She pulled her face away. She was underneath him. She said that he was choking her. He had his hands round her neck trying to kiss her. He let go and took his hands away and she started singing. She sat up. She started singing. They had another drink. They curled up together again. His arm was round her.
Then he went on: "This time I must have started squeezing again and that was it. I got up, put the light on, she was sort of gurgling." Then after a little time the Chief Inspector said "Where did you go from there?" The appellant answered: "Something else must have happened. I put the light on and I am sure she must have put it off. We were lying there for an hour after that. We started kissing. She must have been all right because her arm went round me. The same thing happened again. I put my hands around her and started choking her. Then I got the strap from the dressing gown and put it round her neck and just tightened it. I must have hit her with something – a bottle or something." The officer asked why. The appellant said he did not know. "What were you thinking of?" said the officer. Answer: "I don't know. I have no idea. I didn't want to kill her." "Why strangle her and hit her over the head?" Answer: "It must have been rage." "Why did you become enraged? You were kissing and cuddling." "I don't know what I was thinking. I don't remember." And then he explained how he saw that her head was bleeding, so he put a plastic bag over her head and tied it down and secured it, as he put it, with a piece of flex from the back cupboard. He explained how he tied it round her neck and five minutes later, he said, there was no sound or nothing. "Why did you do this?" asked the officer. Answer: "I don't know. I just must have got mad with her teasing me and that." "How did she tease?" "I told you, by dancing in front of me." "Then what happened?" "I don't know. I can't remember exactly what happened." He was asked if he wanted to make a statement. He was provided with the services of a solicitor and in due course he elected to make a statement which was taken down at his dictation.
The material parts of the statement read as follows: "We were sitting down together and started kissing again and cuddling. She took it for the first five minutes, she got up dancing again. I was on the floor at this time just drinking my beer. She come down as well and started tickling and sort of wrestling and we rolled on top of each other. That's when I started touching her bottom parts. She took it for a while and then she just kicked off. She started kissing me again and then we were on top of each other again and that's when I had my hands round her neck. She said I was choking her so I let go. I kissed her a couple of times and then she started singing. That's when it really started happening. I was mad' but I don't know why, I was just thinking of everything she was doing over the period she was with me and I found my hands on her neck again and I just squeezed. I did think there was something up and I got up and put the light on. I saw her lying on the floor and she was trying to swallow something, it sounded like, her eyes were open and she was looking at me and I noticed red marks on her neck. I think it was my hands. I said to her what's the matter and I can remember saying 'what have I done?' and I started cuddling her and crying. She said something but I don't know what, and she got up and adjusted her dressing gown and put the light off again. She just sat down with me again on the floor and both of us had another drop of beer and she started singing again and I think that just got on to me and I just got the cord from the dressing gown and put it round her neck and tied it round her neck and started squeezing. She started choking and gurgling. I saw by the light from the street that her face was going black and blue. I just picked up the bottle, I think it was the lemonade one and I hit her over the head with it."
The way in which the learned Judge gave his ruling on the question of provocation was as follows: "Mr. Judge relies principally upon matters arising from the answers which the accused gave to the police, and the terms of his written statement, Exhibit 10, as providing evidence of provocation, and further evidence that that caused him to lose his self-control.
"The status of such answers and the statement of an accused person have been considered in a number of decisions of the Court of Appeal, the latest being R. v. Pearce (1979) 69 Cr. App. R. 365….
"The difficulty which arises is as to the nature of any answers given by the accused, either orally or in his statement, as to whether they give evidence of fact. In so far as they are self-serving, the law seems to me to be quite clear that they cannot be evidence of the facts which they purport to indicate; they can only be evidence of what he said and evidence of the accused's reaction at the time that he made his statement.
"I have come to the conclusion, after considering this matter with care, that there is no evidence which would justify me in leaving provocation to the jury at this stage, and that is the ruling which I feel bound to give in this case."
It will be observed that the learned Judge does not say expressly whether the words used...
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