R v Graham (Paul)
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 18 December 1981 |
| Judgment citation (vLex) | [1981] EWCA Crim J1218-1 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 144/A/81 |
| Date | 18 December 1981 |
[1981] EWCA Crim J1218-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Taylor
and
Mr. Justice McCullough
No. 144/A/81
MR. M. KENNEDY Q.C. and MR. A. TAYLOR appeared on behalf of the Appellant.
MR. M. SHERRARD Q.C. and MR. J. CURTIS appeared on behalf of the Crown.
On 11th September 1980, at Maidstone Crown Court, the appellant was convicted of murder, before Purchas J. and a jury, and was sentenced to life imprisonment.
He now seeks to appeal against that conviction.
The facts of the case were as follows. The appellant was the victim's husband. He is a practising homosexual. His wife was aware of this and indeed at the material time they were living in a bizarre menage a trois with another homosexual called King. There were living in the flat above two other homosexuals, named Gillis and Minter, with whom the appellant occasionally had sexual relations. The appellant and King were jointly charged with the murder. King pleaded guilty. The appellant admitted playing an active part in the events leading to the killing and admitted seeking to conceal the killing after it had happened.
His defence was twofold. First, that he lacked the necessary intent, and he drew attention particularly to the drink and drugs he had taken; and, secondly, that whatever his intentional actions may have been, they were performed under duress because of his fear of King.
We are satisfied that the directions given to the jury by the learned judge, on the issues of murder and manslaughter, on joint enterprise and on the relevance of drink and drugs to those issues, were impeccable. Other minor complaints made in the notice of appeal are also without foundation. The only live issue is, as Mr. Kennedy concedes, whether the direction to the jury on the question of duress was correct.
The evidence relevant to this issue was this. The appellant had suffered for some time from an anxiety state. He was taking Valium tablets on prescription. There was medical evidence to the effect that Valium, if taken in excess, would make him more susceptible to bullying, but that by mid-1980 he would have developed some tolerance to the drug. King was said to be a man of violence. There was evidence of altercations. In 1978 King had tipped the appellant and his wife off a settee because they were embracing and he was jealous. The appellant, it seems, knew of another incident in 1978 when some other woman had been assaulted by King and had had ribs broken. In June 1980, said the appellant, King had "swiped him over the head".
On Friday, 27th June, 1980, the day before the killing, King attacked the wife with a knife. The appellant intervened and, for his trouble, cut his finger when he tried to grab the knife. As a result of this incident, the wife on the following day left and went to the appellant's mother's home. The appellant and King stayed behind and, together with the man Gillis, occupied their time in the flat drinking, talking and indulging in homosexual activities. The appellant said that he had a lot to drink during this time and had taken Valium tablets in excess of the quantity which had been prescribed for him. He also said that during the time that the three were together, he thought that King was going to attack him with a knife, but the incident came to nothing. Gillis left soon after midnight.
King then suggested getting rid of the wife once and for all. The two of them hatched a plan. The appellant telephoned his wife in the small hours, told her falsely that he had cut his wrists and asked her to come home at once. Meanwhile, King bandaged both of the appellant's wrists and he, the appellant, lay face down on the floor pretending to be seriously hurt. When the wife arrived, she knelt down beside the appellant to see how he was. King had the flex from a coffee percolator in his hands. He attempted unsuccessfully to put it round the wife's neck while she was kneeling. The appellant and his wife then both got up and King said: "What's it feel like to know that you are going to die, Betty?" That remark was repeated. King then put the flex round the wife's neck and pulled it tight, hauling her off her feet onto his back as if she were a sack of coals. She put her hands up to the flex at her neck, whereupon King told the appellant to cut her fingers away. The appellant said in evidence that he picked up a knife but could not bring himself to use it. King thereupon put the wife on the floor, still holding the flex. He told the appellant to take hold of one end of it. The appellant said in evidence that he did so. He added that it was only in fear of King that he complied with the order. He said that, in any event, the plug at the end of the flex which he was holding came off as he exerted pressure on it. If that were the case, it would remain in doubt whether the appellant's act made any contribution to the death. It should, however, be noted that in the voluntary statement, which he made to the police, he had admitted pulling on the flex for about a minute. Whatever the precise sequence of events, it was beyond doubt that the ligature a-round the wife's neck was responsible for her death.
Thereafter, the appellant helped King to dispose of her body by wrapping it up, carrying her out of the flat and dumping it over an embankment. Each of the two men then took one of her earrings; the appellant rifled her handbag for anything he could find of use, and spread the rest of the contents near her body to make it look as though she had been robbed. He then made telephone calls suggesting that she had gone missing.
The prosecution at the trial conceded that, on those facts, it was open to the defence to raise the issue of duress. In other words, they were not prepared to take the point that the defence of duress is not available to a principal in the first degree to murder. Consequently, the interesting question raised by the decisions in DPP for Northern Ireland v. Lynch (1975) A.C. 653; 61 Cr.App.R. 6, and Abbott v. R. (1976) 3 All.E.R. 140; 63 Cr.App.R. 241, was not argued before us. We do not have to decide it. We pause only to observe that the jury would no doubt have been puzzled to learn that whether the appellant was to be convicted of murder or acquitted altogether might depend on whether the plug came off the end of the percolator flex when he began to pull it.
There are other possible aspects of the defence of duress which do not arise for decision in this case, namely: (1) Whether in murder, duress, if available, excuses a defendant from criminal liability altogether or only reduces his offence to manslaughter. (2) Whether in murder a fear of physical injury (rather than one of death) can ever amount to duress. (3) To what extent fear of death or injury to persons other than the defendant may be relied upon. (4) Whether a fear of false imprisonment may be relied upon.
The direction which the learned judge gave to the jury required them to ask themselves two questions. First, a subjective question which the learned judge formulated thus: "Was this man at the time of the killing taking part…..because he feared for his own life (or) personal safety as a result of the words or the conduct…..on the part of King, either personally experienced by him, or genuinely believed in by him…..". Neither side in the present appeal has taken issue with the learned judge on this question. We feel, however, that, for purposes of completeness, we...
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