R v Turner (Terence)

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeLORD JUSTICE LAWTON
Judgment Date17 Oct 1974
Neutral Citation[1974] EWCA Crim J1017-1,[1974] EWCA Crim J1017-12
Judgment citation (vLex)[1974] EWCA Crim J1017-6
Docket NumberNo. 1006/A/74

[1974] EWCA Crim J1017-1

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Before:-

Lord Justice Lawton

Mr. Justice Nield

and

Mr. Justice Cantley

No. 1006/A/74

Regina
and
Terence Stuart Turner

MR. M. DYER appeared as Counsel for the Appellant.

MR. ABBOTT appeared as Counsel for the Crown.

LORD JUSTICE LAWTON
1

On the 14th February, 1974 at Bristol Crown Court after a trial before Bridge J. this Appellant was convicted of murder and sentenced to life imprisonment. He has appealed against his conviction on the ground that the Judge refused to admit evidence which a psychiatrist was prepared to give in support of his defence of provocation. He has asked this Court to receive that evidence.

2

At about midnight on 26th/27th October, 1973 at Swindon whilst sitting in a motor car with a girl named Wendy Butterfield the Appellant killed her by battering her about the head and face with a hammer. Fifteen blows were struck. Very shortly after striking these blows he went to a nearby farmhouse and told the occupants there he had killed his girlfriend. The police were sent for. When they arrived he said: "I've killed my girlfriend ….. I bashed her head in with a hammer. I didn't mean to do it. I didn't mean to do it, honestly." Later when told he would be arrested on suspicion of murder he said: "I know, I know. I just kept hitting her."

3

His defence was provocation. In the circumstances it could not have been any other. The basis for this defence was that he was deeply in love with the girl, whom he thought was pregnant by him. Whilst he was in the motor car with her he said that she had told him with a grin that whilst he had been in prison she had been sleeping with two other men, that she could make money in this way and that the child she was carrying was not his. He claimed that he had been very upset by what she had said. His hand had come across the hammer which was down by the side of the seat and he had hit her with it. "It was never in my mind", he said, "to do her any harm. I did not realise what I had in my hand. I knew it was heavy ….. When I realised it was a hammer I stopped." If the jury rejected his evidence as to how the girl came to be killed (it was challenged by the prosecution) there was no foundation for the defence put forward. The Appellant's credit as a witness was an important issue.

4

After the Appellant had given evidence his Counsel, Mr. Mildon, told the Judge he wanted to call a psychiatrist. He explained why. "First of all", he said, "it may help the jury to accept as credible the defendant's account of what happened and, second, it may tell them why this man was provoked." The Judge queried whether the evidence of a psychiatrist was admissible on these matters. There was some discussion, at the end of which the Judge said he wanted "to see the evidence which the psychiatrist proposed to give." Mr. Mildon then handed to the Judge a lengthy psychiatric report dated the 2nd February, 1974 which had been prepared by a Dr. Smith. It was in a form with which judges have become familiar in recent years. At the beginning the doctor said that he had been asked to deal with various matters and in particular to assess the Appellant's "personality, his present mental state and to consider from the psychiatric point of view his emotional state and re-action at the time of the crime." Then followed a long account of the Appellant's personality and medical history and his family background. Some of the information had come from medical records; most of it from the Appellant himself but a little from his family and friends as is shown by the following passage:-

"From all accounts his personality has always been that of a placid, rather quiet and passive person who is quite sensitive to the feelings of other people. He was always regarded by his family and friends as an even-tempered person who is not in any way aggressive ….. In general until the night of the crime he seems to have always displayed remarkably good impulse control."

5

This passage surprised Mr. Calcutt, who appeared for the Crown, because he knew that in November 1971 the Appellant had been convicted of being in unlawful possession of an offensive weapon and in May 1972 of assault with intent to rob. The Appellant himself had not put his character in issue. If the psychiatrist had given evidence in accordance with his report, the Appellant would have been put before the jury by the psychiatrist as having a character and disposition which the prosecution considered in the light of his record he had not got. The opinion expressed at the end of this report was as follows: "At no time has this man appeared to show any evidence of mental illness as defined by the Mental Health Act of 1959. His homicidal behaviour would appear to be understandable in terms of his relationship with Wendy Butterfield which, as I have endeavoured to outline above, was such as to make him particularly vulnerable to be overwhelmed by anger if she confirmed the accusation that had been made about her. If his statements are true that he was taken completely by surprise by her confession he would have appeared to have killed her in an explosive release of blind rage. His personality structure is consistent with someone who could behave in this way. There "is no demonstrable clinical evidence to suggest that brain damage or organic disease of the brain diminished his sense of responsibility at the time he killed her, and since her death his behaviour would appear to have been consistent with someone suffering from profound grief. Although he would obviously benefit from psychotherapeutic counselling, in the absence of formal psychiatric illness there are no indications for recommending psychiatric treatment."

6

Mr. Calcutt pointed out to the Judge the difficulty presented by the references in the report to the Appellant's alleged disposition and character. Thereupon the Judge commented that the report contained "hearsay character evidence" which was inadmissible. He could have said that all the facts upon which the psychiatrist based his opinion were hearsay save for those which he observed for himself during his examination of the Appellant such as his appearance of depression and his becoming emotional when discussing the deceased girl and his own family. It is not for this Court to instruct psychiatrists how to draft their reports, but those who call psychiatrists as witnesses should remember that the facts upon which they base their opinions must be proved by admissible evidence. This elementary principle is frequently overlooked.

7

Mr. Mildon appreciated that problems would arise about character if the psychiatrist gave evidence along the lines of his report. He submitted that he would be entitled to ask the following questions: Have you examined this man? Over what period of time did you examine him? Are you able to help the jury as to the intensity of his feelings for Wendy? Assuming what the Defendant has said here in Court as to the nature of the provocation is true, how would you have expected him to react? The Judge did not rule specifically upon these suggested questions: he directed his attention to the report and ruled that it was irrelevant and inadmissible.

8

Before dealing with the submission made on behalf of the Appellant in this Court we would like briefly to refer to the questions which Mr. Mildon suggested he could properly put to the psychiatrist. What he was proposing to do was to use a common forensic device to overcome objections of inadmissibility based on hearsay. The use of this device was criticised by and opinion. As we have already pointed out, the psychiatrist's report contained a lot of hearsay which was inadmissible. A ruling on this ground, however, would merely have trimmed the psychiatrist's evidence: it would not have excluded it altogether. Was it inadmissible because of the rules relating to opinion evidence?

9

The foundation of these rules was laid by Lord Mansfield in Folkes v. Chadd (1782) 5 Douglas K.B. 157 and was well laid. "The opinion of scientific men upon proven facts", he said, "may be given by men of science within their own science." An expert's opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a Judge or jury. If on the proven facts a Judge or jury can form their own conclusions without help then the opinion of an expert is unnecessary. In such a case if it is given dressed up in scientific jargon it may make judgment more difficult. The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves; but there is a danger that they may think it does.

10

What, in plain English, was the psychiatrist in this case intending to say? First, that the Appellant was not showing and never had shown, any evidence of mental illness as defined by the Mental Health Act,1959 and did not require any psychiatric treatment; secondly that he had had a deep emotional relationship with the girl which was likely to have caused an explosive release of blind rage when she confessed her wantonness to him: thirdly, that after he had killed her he behaved like someone suffering from profound grief. The first part of his opinion was within his expert province and outside the experience of the jury but was of no relevance in the circumstances of this case. The second and third points dealt with matters which are well within ordinary human experience. We all know that both men and women who are deeply in love can, and sometimes do, have outbursts of blind rage...

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28 books & journal articles
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    • International Journal of Evidence & Proof, The Nbr. 7-4, December 2003
    • 1 December 2003
    ...v Togher [2001] 3 All ER 463.............................................. 32, 33, 60R v Turnbull [1977] QB 224 ..... 241, 245R v Turner [1975] QB 834, CA .......... 173R v Turner [1995] 1 WLR 264 .. 124, 127R v Veneroso [2002] Crim LR 306 ......48R v Voisin [1918] 1 KB 531................ ......
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    • International Journal of Evidence & Proof, The Nbr. 9-4, December 2005
    • 1 December 2005
    ...7R v Tran [1991] OJ No. 2052 (Ont. Gen Div).................................................................... 103R v Turner [1975] QB 834 .......................263–4R v Valentine [1996] 2 Cr App R 213........248R v Vo ( 1992) 15 WCB (2d) 241 (Man. CA) .... 103R v Wang [2005] UKHL 9 ...........
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    • International Journal of Evidence & Proof, The Nbr. 12-4, November 2008
    • 1 November 2008
    ...132, 278R vTofilau [2007] HCA39. . . . . . . . . . . . . . . . . . 287R vTolson (1864) 4F & F103, 176 ER488 . . . . . 290R vTurner [1975] QB834 . . . . . . . . . . . . . . . . . . 280R vUlcay [2007] EWCACrim 2389 . . . . . . . . . . 261R vV [2006] EWCACri m1901 . . 122,125, 129, 133R vV......
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