R v Moloney
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hailsham of St. Marylebone, L.C.,Lord Fraser of Tullybelton,Lord Edmund-Davies,Lord Keith of Kinkel,Lord Bridge of Harwich |
| Judgment Date | 21 March 1985 |
| Judgment citation (vLex) | [1985] UKHL J0321-3 |
| Date | 21 March 1985 |
| Court | House of Lords |
[1985] UKHL J0321-3
Lord Chancellor
Lord Fraser of Tullybelton
Lord Edmund-Davies
Lord Keith of Kinkel
Lord Bridge of Harwich
House of Lords
My Lords,
For the reasons which appear in the speech about to be delivered by my noble and learned friend Lord Bridge of Harwich, which I have had the privilege of reading in draft and with which I agree, the disposal of this case cannot be in doubt. The appeal must be allowed. The verdict of murder must be set aside. A verdict of manslaughter must be substituted. The case must be remitted to the Court of Appeal (Criminal Division) to determine the appropriate sentence. The case must be listed for hearing at the earliest possible date. The appellant has been in custody since November 1981, since the date of his conviction on a life sentence for murder, which, on any view, must be treated as unsafe and unsatisfactory.
I agree with my noble and learned friend that the certified question must be answered in the negative owing to the presence of sub-paragraph (b) in the question as certified, and I agree with the reasons which have lead my noble and learned friend to that conclusion.
I do, however, feel constrained to add the sense of deep distress I feel at the course which this unhappy and cautionary tale has taken in order to reach your Lordships' House. It has only come by here by leave of your Lordships. That leave could not have been given had the Court of Appeal not certified a point of law of general public importance to have been involved.
Strictly speaking that question, though now, I hope, about to be satisfactorily answered, did not arise. It did not arise because, as my noble and learned friend has demonstrated, the verdict was already unsafe and unsatisfactory for a simpler and more fundamental reason. On a true analysis of the evidence, the real defence was never properly left to the jury with an appropriate Woolmington [1935] A.C. 462 direction.
This gives rise to all the more concern because the committing justices, men and women unqualified in the law, had already come to the conclusion that, on a true analysis of the facts, only a committal for manslaughter and not murder was justified, and, on arraignment, the appellant had given the prosecution and the court yet another opportunity to analyse the matter correctly by tendering a plea of guilty to manslaughter which, it seems, was not acceptable, and in any event not accepted.
I do not wish to qualify in any way what my noble and learned friend is about to say in answer to the certified question. It had already been pointed out by Wien J. in Reg. v. Belfon [1976] 1 W.L.R. 741, 747 that it is not foresight but intention which constitutes the mental element in murder, and the undesirability of elaborating unnecessarily on the meaning of intention in all but exceptional cases had already been emphasised by Lawton LJ. in Reg. v. Beer (1976) 63 Cr.App.R. 222, 225. In the same place Lawton LJ. had also emphasised the very unusual nature of the facts in Reg. v. Hyam [1975] A.C. 55 to which I had ventured to draw the attention of the House at p. 78 of the report. At this point I feel that I should insert a word of personal explanation. The innocent victims who perished in the fire caused by Mrs. Hyam were not the target of the appellant's malice, which was solely directed, or to use Viscount Kilmuir L.C.'s phrase "aimed," at her rival in love who was asleep upstairs and, who, with a small boy was, in the event, unharmed. It was for this reason that I made reference to Viscount Kilmuir's speech in Director of Public Prosecutions v. Smith [1961] A.C. 290, 327. Further, the intention of the appellant in Reg. v. Hyam [1975] A.C. 55 was made apparent by two separate sets of facts, set out on p. 78 of the report. These were (1) that, prior to setting in train her criminal plan Mrs. Hyam first ascertained that her former lover was not in the house and therefore safe, thus making it plain that her intention was to expose those who were in the house to danger to their lives, and (2) that she took elaborate precautions to make sure that her actions did not awake the sleepers in the house, thus making it doubly clear that her intention was to expose them to whatever danger would be involved in the fire. I certainly did not intend by my observations to fall either into the trap exposed in this case by my noble and learned friend of opening up a charge of murder in "motor manslaughter" cases which are the result of criminal negligence or recklessness and not intention, or to excuse the hypothetical terrorist in my noble and learned friend's bomb disposal case whose intention may well prove to have been obvious. However, as I am content to accept my noble and learned friend's formulation in the present appeal, these observations are now, I suppose, of purely historical interest. I do not think I fell into either error. But if I did, I would clearly have been wrong.
In the end justice in this case will have been done, but, in my view, at the end of an unduly long and circuitous route. It would have been done at the trial if the court and the prosecution had followed the very sensible course taken by the committing justices, or accepted the very proper plea tendered on behalf of the defence. It would have been done on appeal had the Court analysed correctly the true nature of the defence emerging from the evidence and noticed the fact that it had not been properly put to the jury. I conclude with the pious hope that your Lordships will not again have to decide that foresight and forseeability are not the same thing as intention although either may give rise to an irresistible inference of such, and that matters which are essentially to be treated as matters of inference for a jury as to a subjective state of mind will not once again be erected into a legal presumption. They should remain, what they always should have been, part of the law of evidence and inference to be left to the jury after a proper direction as to their weight, and not part of the substantive law.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bridge of Harwich. I agree with it and for the reasons given by him I would allow the appeal and make the other orders which he suggests.
My Lords,
I have had a like advantage, and I too would allow the appeal and make the orders indicated in the speech of my noble and learned friend, Lord Bridge of Harwich, with which I am in respectful and total agreement.
My Lords,
I have had the benefit of reading in draft the speech of my noble and learned friend, Lord Bridge of Harwich. I agree with it, and for the reasons he gives I too would allow the appeal.
My Lords,
In the early hours of 22 November 1981, the appellant fired a single cartridge from a twelve-bore shotgun. The full blast of the shot struck the appellant's stepfather, Patrick Moloney, in the side of the face at a range of about six feet and killed him instantly. According to the police surgeon, who was on the scene within an hour of the shooting, the whole of the skull had in fact been destroyed, leaving just the root of the neck.
Behind this shocking event lies a tragic story. In November 1981 the appellant was aged 22. He was a serving soldier in the Gordon Highlanders and was at the material time on leave at the home of his mother and stepfather, having returned from duty in Belize in South America. He had been in the army since November 1978 and had served in Northern Ireland, in this country, and finally in South America.
There is no doubt that the appellant was one of a united, happy family. His mother had married the victim, Patrick Moloney, when the appellant was a very small boy. The appellant, at some stage, changed his name to Moloney. To all intents and purposes Patrick Moloney acted as a father to the appellant and was treated by the appellant as such. The undisputed evidence at the appellant's trial was that the stepfather and stepson enjoyed a happy and loving relationship with each other.
On 21 November 1981 there was a dinner party at the home of Mr. and Mrs. Moloney to celebrate the ruby wedding anniversary of Mrs. Moloney's father and mother, the appellant's maternal grandparents. The party was a convivial one. Drink flowed freely. Both Patrick Moloney and the appellant drank a great deal of wine and spirits. By 1.00 a.m. in the morning of 22 November all the members of the family had retired to bed except the appellant and his stepfather. They were heard downstairs laughing and talking in an apparently friendly way.
Shortly before 4.00 a.m. on 22 November the grandfather was awakened by the sound of a shot. He immediately came downstairs and found the appellant already on the telephone to the police station. The appellant said to the police officer who answered his call: "I've just murdered my father." He gave the address of the Moloney home.
Two police patrol officers arrived on the scene at 4.09 a.m. The appellant's breath smelt strongly of alcohol, his eyes were bloodshot and he was unsteady on his feet, but his manner was calm and collected.
The police officers looked into the room where the shooting had taken place and saw the body of the deceased in an armchair by the fireplace. There was a double-barrelled shotgun positioned between the dead man's knees; it was broken and pointing down towards the floor. The barrels appeared to be unloaded. It is appropriate to add at this point that later investigation revealed that the deceased had a live cartridge on his knee. A second shotgun, obviously that from which the fatal shot had...
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