R v Moncrieff

• Jurisdiction: Cayman Islands
• Judge: (Sanderson, J.)
• Judgment Date: 20 December 2002
• Court: Grand Court (Cayman Islands)
• Date: 20 December 2002

Grand Court

(Sanderson, J.)

R.

and

MONCRIEFF

A. Roberts, Senior Crown Counsel, for the Crown;

St. J. Stevens, Q.C. and L. Aiolfi for the accused.

Cases cited:

(1) D.P.P. v. Camplin, [1978] A.C. 705; [1978] 2 All E.R. 168, applied.

(2) Luc Thiet Thuan v. R., [1997] A.C. 131; [1996] 2 All E.R. 1033, applied.

(3) R. v. Acott, [1997] 1 W.L.R. 306; [1997] 1 All E.R. 706, applied.

(4) R. v. Byrne, [1960] 2 Q.B. 396; [1960] 3 All E.R. 1, applied.

(5) R. v. Duffy, [1949] 1 All E.R. 932n, applied.

(6) R. v. McPhersonUNK(1957), 41 Cr. App. R. 213, applied.

(7) R. v. Richens, [1993] 4 All E.R. 877; (1992), 98 Cr. App. R. 43; [1993] Crim. L.R. 384, applied.

(8) R. v. Smith (Morgan), [2001] A.C. 146; [2000] 4 All E.R. 289, not followed.

(9) R. v. Tandy, [1989] 1 W.L.R. 350; [1989] 1 All E.R. 267; (1988), 87 Cr. App. R. 45, applied.

(10) R. v. Thornton, [1992] 1 All E.R. 306; (1991), 96 Cr. App. R. 112, applied.

Legislation construed:

Penal Code (1995 Revision) (Law 12 of 1975, revised 1995), s.183(1): The relevant terms of this sub-section are set out at para. 28.

s.183(2): The relevant terms of this sub-section are set out at para. 28.

(3): The relevant terms of this sub-section are set out at para. 28.

s.184: The relevant terms of this section are set out at para. 11.

Criminal Law-provocation-definition-established if victim”s specific acts or words in fact provoked accused to kill and would have so provoked reasonable person of accused”s age and sex with accused”s other characteristics relevant to provocation-mental disorder impairing self-control not a relevant characteristic-Crown to disprove provocation once evidential burden discharged

Criminal Law-diminished responsibility-definition-for purposes of Penal Code (1995 Revision), s.183, ‘abnormality of mind’ includes condition affecting perception of physical acts, moral instincts or exercise of will-power-aetiology of abnormality primarily matter of medical evidence-whether responsibility for acts ‘substantially impaired’ is matter of broad common-sense-impairment must be more than minimal but need not be complete

Criminal Law-diminished responsibility-effect of intoxication-voluntary intoxication normally to be disregarded for purposes of Penal Code (1995 Revision), s.183, since abnormality of mind induced by alcohol or drugs not due to ‘inherent causes’-chronic alcoholism or drug dependency causing brain damage, or impairment due to involuntary drinking or drug-taking may be ‘disease’ inducing abnormality

The accused was charged with murder.

The accused admitted killing his girlfriend by stabbing her four times in the neck and chest during an argument. The couple had a volatile relationship and the accused suffered from drink and drug dependency and a depressive disorder. In his statement to the police under caution, he described their quarrels and the aftermath of the killing, but could offer no detailed account of the act and no justification for it. He gave evidence that they had been arguing earlier in the day and the argument had continued on the victim”s return home from work. She had taunted him for his drinking and joblessness, and asked him to leave the apartment they shared. She had refused to give him his passport and his airline ticket home, and he had refused to leave. The victim tried to call the police and he stopped her. She picked up a kitchen knife which he grabbed, cutting his hand. He hit her with a broom handle, and believed that he had tried to choke her, and afterwards stabbed her.

He confessed the killing to a friend the next day in a written note, which the friend handed to the police. It contained details of the preceding argument with the victim, and her habit of criticizing and belittling him. The accused attempted suicide but was apprehended by the police and treated in hospital. Whilst there, he confessed to killing the victim in the course of an argument but claimed that the attack had begun in self-defence.

At his trial for murder, the accused formally admitted killing the victim but pleaded provocation and diminished responsibility. The Crown tendered evidence from a psychiatrist, who had examined the accused the day before the trial, that he suffered from a disease of the mind but that he displayed no psychotic symptoms which would affect his self-control. The defence called evidence that the accused had in the past displayed signs of agitation and aggression, psychotic episodes and suicidal thoughts, which experts for the Crown and the defence agreed could be symptoms of the accused”s addiction to substances and possibly of a severe depressive disorder. The psychologist who saw the accused on his admission to hospital after his attempted suicide testified that he did not observe symptoms of psychosis.

The accused submitted that (a) the words and actions of the victim had provoked him suddenly and temporarily to lose his self-control; (b) those words and actions were such that the reasonable man of his age, and sharing the other characteristics which affected the gravity of the provocation as he perceived it (namely his depressive disorder), would have acted similarly; (c) the prosecution evidence of neighbours and friends confirmed that the victim habitually abused him verbally, and did not confirm any prior assaults by him; (d) his depressive disorder, arising from or exacerbated by chronic addictions to drugs and alcohol, had significantly impaired his ability to control his behaviour at the time of the offence, even though it may not have affected his cognitive functions; (e) witnesses had testified that he had displayed agitated and aggressive behaviour and psychotic symptoms in the past, which had now been alleviated by medication; and (f) consequently, if he were guilty of any offence it was manslaughter by reason of provocation or diminished responsibility.

The Crown submitted in reply that (a) the accused had not shown that he had in fact lost all self-control when he attacked the victim; (b) a mental disorder affecting the accused”s ability to control his impulses was not a characteristic which should be attributed to the ‘reasonable man’ in assessing whether the defence of provocation was made out; (c) nothing in the victim”s words or behaviour, as reported by the accused, would have caused a reasonable person to act as the accused did; (d) the accused”s condition was not an abnormality of the mind that substantially impaired his mental responsibility, since his disorder was not sufficiently severe to affect his will-power, and tests carried out after the offence had showed that his cognitive functions were unimpaired; and (e) the murder had happened whilst the accused was voluntarily intoxicated, and the

effect on his mental state of his addiction to drink and drugs should be disregarded in assessing whether he was suffering from a mental abnormality.

Held, finding the accused guilty of manslaughter:

(1) The court was satisfied that the accused had killed the victim with the specific intent to do so or to cause her grievous bodily harm, and that he had not acted in self-defence. Consequently, unless he could establish one of the special defences under ss. 183 or 184 of the Penal Code on which he relied, he would be convicted of murder (para. 10).

(2) The Crown bore the burden of showing that the accused had not been provoked by specific acts or words into a sudden and temporary loss of self-control, once evidence of provocation had been raised. This defence combined subjective and objective elements, namely whether the accused was in fact provoked and whether that provocation was enough to make a reasonable man act as the accused did. Under s.184 of the Penal Code, everything said and done should be taken into account in applying the objective element of the common law test. Evidence of the victim”s past conduct could be adduced to explain the context. The loss of control did not have to be so complete that the accused did not know what he was doing. The self-control to be attributed to a ‘reasonable man’ was that of an ordinary person of the accused”s age and sex, having the characteristics of the accused which might affect the gravity of the provocation. However, a mental disorder affecting the accused”s responsibility for his actions could not be brought into consideration, since this would stretch the definition of the reasonable man too far, and incorporate the defence of diminished responsibility into that of provocation. On the evidence, the court was satisfied that the words and actions of the victim had not been sufficient to provoke a reasonable man to act as the accused had done (paras. 11–22; para. 27).

(3) Under s.183, the defence of diminished responsibility was for the accused to prove. He had to show that he had been suffering from an abnormality of the mind, either arising from a condition of arrested or retarded development or from inherent causes, or induced by disease or injury, which had substantially impaired his mental responsibility for his acts. An ‘abnormality’ could include a condition affecting the perception of physical acts, the ability to distinguish right from wrong or the ability to exercise will-power. The court could consider medical evidence and also the accused”s acts, words and demeanour, which might conflict with and outweigh the medical evidence on issues other than the aetiology of the abnormality, which was primarily a matter of expert evidence. The question whether the impairment of responsibility was substantial was to be approached in a broad, common-sense way. The degree of impairment need not be so complete that the accused could not resist his impulses but had to be more than minimal (paras. 28–31).

(4) An abnormality of mind induced by immediate consumption of

alcohol or drugs was not due to ‘inherent causes,’ and therefore the court should disregard the effect of voluntary intoxication on...