Goodwin, R v, Court of Appeal - Criminal Division, October 05, 2018, [2018] EWCA Crim 2287

Resolution Date:October 05, 2018
Issuing Organization:Criminal Division
Actores:Goodwin, R v

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No: 201705197/C3

Neutral Citation Number: [2018] EWCA Crim 2287



Royal Courts of Justice


London, WC2A 2LL

Friday, 5 October 2018

B e f o r e:




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Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: (Official Shorthand Writers to the Court)

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Mr J Higgs QC appeared on behalf of the Appellant

Mr P Bennetts QC appeared on behalf of the Crown

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This is an appeal, brought by leave of the single judge, which seeks to challenge a conviction for murder. The sole ground of appeal advanced is not an unfamiliar one in this context. It is that the trial judge failed to leave to the jury a defence which it is said ought properly to have been left to the jury. In the present case the postulated defence is that of loss of control, by reference to section 54 of the Coroners and Justice Act 2009. It had been unsuccessfully sought at trial for that defence to be left as an alternative to the principal case of self-defence: which, in fact, had been the only defence expressly advanced in the defence case statement.

Statutory Provisions

  1. In order to give the legal context it is convenient to set out the provisions of the relevant sections of the Coroners and Justice Act 2009 at the outset:

    "54 Partial defence to murder: loss of control

    (1) Where a person ('D') kills or is a party to the killing of another ('V'), D is not to be convicted of murder if--

    (a) D's acts and omissions in doing or being a party to the killing resulted from D's loss of self-control

    (b)the loss of self-control had a qualifying trigger, and

    (c) a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.

    (2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden.

    (3) In subsection (1)(c) the reference to 'the circumstances of D' is a reference to all of D's circumstances other than those whose only relevance to D's conduct is that they bear on D's general capacity for tolerance or self-restraint.

    (4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge.

    (5) On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence under subsection (1), the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.

    (6) For the purposes of subsection (5), sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply.

    (7) A person who, but for this section, would be liable to be convicted of murder is liable instead to be convicted of manslaughter.

    (8) The fact that one party to a killing is by virtue of this section not liable to be convicted of murder does not affect the question whether the killing amounted to murder in the case of any other party to it.

    55 Meaning of 'qualifying trigger'

    (1) This section applies for the purposes of section 54.

    (2) A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies.

    (3) This subsection applies if D's loss of self-control was attributable to D's fear of serious violence from V against D or another identified person.

    (4) This subsection applies if D's loss of self-control was attributable to a thing or things done or said (or both) which--

    (a) constituted circumstances of an extremely grave character, and

    (b) caused D to have a justifiable sense of being seriously wronged.

    (5) This subsection applies if D's loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4).

    (6) In determining whether a loss of self-control had a qualifying trigger--

    (a) D's fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence;

    (b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence;

    (c) the fact that a thing done or said constituted sexual infidelity is to be disregarded.

    (7) In this section references to 'D' and 'V' are to be construed in accordance with section 54."

    Background Facts

  2. The background position is this. The appellant is now aged 63. On 7 November 2007, after a trial in the Crown Court at Maidstone before His Honour Judge Carey (the then Recorder of Maidstone) and a jury, the appellant was convicted by unanimous verdict of the jury of murder. He was subsequently sentenced, as required by law, to life imprisonment. The minimum term specified was 12 years and 191 days. No verdict was taken on count 2, which was an alternative count of manslaughter.

  3. The facts are that on 19 May 2017 the appellant killed the deceased, Harry Messenger. The deceased had been his 75-year-old neighbour and friend. They had been friendly for about 5 years and spent much of their time together in their local pub. It seems that drink formed a significant part of the life-style of each of them. Furthermore, they had carried out a small and seemingly unlawful business of selling alcohol and cigarettes which they had purchased in France.

  4. In the early hours of the morning neighbours heard banging and shouting from the deceased's address. There was evidence that the deceased had in the previous period been drinking alcohol. At 04.11 am the appellant sent a text to his brother in Ireland in which he said that he had "murdered someone". At 16.50 that day he made a 999 call in which he said that he had had a dispute with someone and had been trying to contact him by telephone without success. He was to say that the deceased had attacked him with a hammer (a hammer which the deceased had in the house; we have seen a photograph of it, it was a large claw hammer) and it was further said by the appellant that he had punched the deceased before using the hammer in retaliation to an attack on him. He was to say that the deceased had been in a bad way when the appellant had left and had not been responding. He had checked his pulse, had been unable to find it and had left. He was to say that the dispute that had arisen had been about something silly. Police officers found the deceased's body at 17.17 on the 19 May 2017. He had sustained significant head injuries. There was a hammer lying beside his head.

  5. Put shortly, the prosecution case was that the appellant had murdered the deceased, doing so by striking him repeatedly with the hammer. Amongst other things, reliance was placed upon the evidence of a neighbour, a Ms Gibson, who claimed that she had overheard the appellant making threats against the victim a few weeks before the killing, as well as hearing arguing and banging on the night in question. There was considerable challenge to the reliability and accuracy of her evidence.

  6. There was also evidence from another neighbour, who said that she had heard loud voices on the night of the killing.

  7. A very prominent part of the evidence adduced at trial on the part of the prosecution was scientific evidence. In particular, (not rebutted by any expert evidence adduced by the defence) there was scientific evidence as to blood distribution which showed that the deceased had been attacked whilst lying on the ground. There was also evidence extrapolated from the evidence of blood that the attack may have extended over a period of at least 5 minutes, if not more, and that the assaults on the deceased, whilst he was lying on the ground, had occurred when he was lying in two different positions.

    9 Post mortem evidence indicated that the cause of death was blunt force head injury. Alcohol and drug intoxication were also noted. It was estimated that the deceased had sustained at least 18 blows to his face, head and neck and these were consistent with his having been struck with a...

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