R v McCluskey
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WATKINS,MR JUSTICE HENRY |
| Judgment Date | 27 May 1993 |
| Judgment citation (vLex) | [1993] EWCA Crim J0527-1 |
| Docket Number | No. 92/1932/X2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 27 May 1993 |
[1993] EWCA Crim J0527-1
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: Lord Justice Watkins Mr Justice Henry and Mr Justice Pill
No. 92/1932/X2
MR J GOULD appeared on behalf of the APPELLANT
MR D PAGET appeared on behalf of THE CROWN
)
Thursday 27th May, 1993
Mr Justice Henry will give the judgment to the court.
On 13th February 1992 in the Central Criminal Court before the Recorder of London, the appellant was found not guilty of murder but guilty of manslaughter, Count 1, by a majority of 11 to 1 and was sentenced to five years' imprisonment. He was acquitted of Count 2, affray. His co-accused, Edward Burns, was acquitted of both offences: Count 1 by direction of the learned judge. He now appeals against conviction by leave of the single judge.
The prosecution case was that on the evening of 27th March 1991 a fight occurred in a London street between the deceased, Dunne, and a Martin Askew (who did not attend the trial to give evidence) on the one hand; and the appellant and his co-accused on the other hand. All participants had consumed alcohol but there was no suggestion that any of them were seriously affected.
A young man called Joseph Thomas (who was with Dunne and Askew) was due to take the part of an old man in some dramatic performance and he was practising the appropriate walk using a walking stick. As the co-accused Burns passed, he called Thomas a "nutter". Thomas replied: "Bollocks". Both groups turned and confronted each other and the appellant took out a knife. He opened it and held it in front of him. He was to claim that this was done in the hope that it would have a frightening effect on the other group and so avert trouble. There was a time when that knife was no longer visible, and the appellant offered to shake hands with Askew. Thomas says that at that time the defendant had one hand behind his back. The defendant's account is that he had closed his knife and had returned it to his jacket pocket. At any event there was, or had been, some shouting which had attracted the attention of two ladies who looked out of separate upstairs windows. They did not see a knife but heard it referred to. Their impression was that the two Scotsmen, the appellant and his co-defendant, were taunting the other two and trying to incite them to fight.
Eventually there was a fight between the four in which each man seemed to have some sort of weapon. Askew had picked up a heater and later a piece of wood, Burns a piece of wood, McCluskey a knife and a stick, and Dunne had Thomas' walking stick and, when that was broken, he got a milk bottle from the crates and smashed it. The appellant and Dunne struck each other simultaneously, shortly after which Dunne collapsed. Dunne died of a stab wound to his heart. It would have taken a forceful thrust to cause the wound. The angle of entry made it unlikely that he had run into the knife. There were numerous other injuries to his body indicative of a fight.
The defendant gave evidence that he showed the knife to frighten the others and to avert trouble. On his account he put it away. But then Dunne gave Askew a piece of wood and then came at him and wounded him with a bottle. So he said he panicked, and when Dunne ran towards him again with a broken bottle he took out the knife and warned him to stay away. He stabbed Dunne and ran off. There was evidence that he received severe cuts to his face. He said he had the knife because he was wearing his working jacket and it was his working knife (he was in the building industry). He must have forgotten to put it away after he had last worked in the previous November. He had not worn the jacket for some time and was unaware at first that the knife was in his pocket. That was his evidence.
The first ground of appeal relates to the question of inconsistent verdicts. The verdict of not guilty of murder but guilty of manslaughter being inconsistent with the acquittal on Count 2, affray. The trial judge gave the jury clear directions. He directed them that murder was where one man unlawfully killed another with intent to kill or cause really serious bodily injury. He directed them:
"The principal charge, now only against McCluskey is the charge of murder. Murder is committed where one man unlawfully kills another with intent to kill or cause really serious bodily injury. If unlawful killing is proved, but the intent is not proved, the offence is manslaughter which is a verdict open to you on this charge.
The word 'unlawfully' is important in this case. The defendant McCluskey has raised the issue that he acted in self-defence. A man who acts reasonably in defending himself commits no unlawful act. It is for you to determine what is reasonable and there can be circumstances in which even the use of a knife is reasonable. The fact that the fatal injury is caused in the course of self-defence does not make the action unreasonable."
He then went on to complete the rest of the flawless direction on self-defence. Then he continued:
"You may have no doubt that the cause of Paul Dunne's death at around midnight on 27th/28th of March of last year was a wound inflicted by a knife then held in this defendant's hand. It may be that the simplest approach to the facts is to determine how the violence started, for he who began it cannot usually be said to be defending himself.
The facts may show that all of those who fought were acting unlawfully. You do not have to find that because one acted unlawfully, his opponent must have acted lawfully. Whether self-defence arises at all is a matter for your determination in the light of what you find the facts to be. If the prosecution fails to satisfy you that in wounding Dunne the defendant acted unlawfully, then you must acquit him on Count 1. If the prosecution does satisfy you on the whole of the evidence that the defendant acted unlawfully, he must be convicted either of murder or manslaughter —of murder if he intended to kill or cause really serious injury, of manslaughter if that intent is not established."
He returned to this theme when he gave the direction of law in relation to affray:
"I can deal very shortly with the case against McCluskey because almost all the relevant facts have already been mentioned. The offence covers the use or threat of unlawful violence the same considerations apply to unlawfulness. If his use of a knife has proved to be unlawful he has no defence to this charge. The prosecution does not invite you to convict merely on the basis that a knife was produced at the outset and could be said to constitute a threat. Your concern on this count is with the violence that erupted thereafter."
It is clear from those passages that the jury were being directed in clear terms that if they convicted of murder or manslaughter, then there was no defence on affray.
The jury retired at 10.51 a.m. and returned at 11.42 a.m. with a question —"If we find him not guilty of murder will we then be asked to consider manslaughter?" The judge answered them shortly:
"The answer is yes, on Count 1 there are three verdicts open to you: 1) Guilty of murder 2) Guilty of manslaughter 3) Not Guilty. Do you require further directions?"
The jury indicated that they did not. However, Mr Coni QC for the defence wished them to have a rather fuller answer in case the answer given led them to think that if they found self-defence, that was not the end of Count 1. The Recorder indicated that he had said that twice to them in his summing-up (as he had) but was prepared to say it again. When they returned, he said:
"If you find the defendant not guilty of murder on the basis that self-defence has not been negatived by the prosecution, then he is not guilty altogether on Count 1. If you find him not guilty of murder on some other basis then you must consider the question of manslaughter. I hope that is clear to you.
You will remember what I said to you in the summing-up originally: if the prosecution has not satisfied you that the act was unlawful, then acquittal on Count 1 is the only verdict. If the prosecution has satisfied you that the act was unlawful, then you have the two alternatives to consider, either murder or manslaughter, the difference being intent."
Counsel indicated their satisfaction with that clarification and the jury retired again. At 2.46 p.m. the judge gave them a majority direction and they returned with their majority verdict (11 to 1) at 3.26 p.m. They acquitted on Count 2, affray.
The general rule in this court is that where the jury convict on one count but acquit on another, this court will quash the conviction on grounds of inconsistency if, and only if, the conclusion reached by the jury is one at which no reasonable jury who had applied their minds properly to the facts of the case could arrive. (See the unreported decision of Mr Justice Devlin in Stone, 13th December 1954, formally adopted by this court in Durante, [1972] 1WLR 1612 at 1617E). But in the case of Trundell (unreported, 28 June 1991) it was emphasised that the fact that two verdicts were shown to be logically inconsistent might not by itself be a reason for quashing a verdict unless the only explanation for the inconsistency must or might be that the jury was confused and/or adopted the wrong approach, thus making the verdict complained of unsafe.
In this case these verdicts were clearly inconsistent. Might the reason for that have been that the jury were confused and/or adopted the wrong approach? The appellant submits that that might have been the case. The...
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